Vll 


Page  of  Page  of 
Abstract  Transcript 


Brockway,  Amos': 

Direct  exam.  . 13G0  4GG9 

Cross  exam L3G4  4G80 

Edward  D.,  Deposition  : 

Direct  exam 4r)S  HI 3 

Cross  exam 459  1120 

(Read)  7G4  2192 

Motion  4 957  3007 

Ruling  on  motion 1227  425G 

Ruling  on  obj * 459  2192 

Buffalo,  Town  plat  of,  Complainant’s  Ex.  A-2,  Abstracted 1920  G529 

Referred  to  1278  4422 

Burke  vs.  The  Board,  Case  of 245  4i^G 

Burt,  William  S.,  Deposition : 

Direct  exam 5G9  1554 

Cross  exam 574  1572 

(Read)  1212  4202 

Burton,  Theo.  E.,  Deposition : 

Direct  exam 182  303 

Cross  exam 187  .3J4 

(Read)  G48  1827 

C. 

“C”Ex.  to  Bill 3G  54 

Cabinet  Rapids,  Witness  Gray 1517  5093 

Do 1520  5100 

Do 154G  5170 

Canal  Com’rs,  Leases  Apl.  14,  ’94,  Nov.  27,  ’94,  June  25,  ’92,  by 

Board  of  (Snyder  Ex.  20,  21,  22) 1388  4747 

Proceedings,  Extract  from 250  500a4 

Do 252  SOOall 

Do ^ 254  500al5 

Do 254  SOOalG 

Do 254  500al7 

Do 255  500al8 

Do 25G  500a21 

Do 257  500a23 

Do 258  500a24 

Do ? 258  500a25 

Do 2G2  500a37 

Do 2G3  500a39 

Do 2G3  500a41 

Report  of,  Jan.  31,/ 1825  (read) 10G7  3G00 

Dec.  13,  1838  (read) 1097  3GG7 

Do.  1872  1344  4598 

December,  1894,  p.  5 (read) 1577  5254 

Do.  1895  1579  525G 


Vlll 


Canal  Commissioners’  Rep.  (continued)  : 

December,  1896,  re  90  ft.  strip  (read) 

December,  1898,  re  90  ft.  strip  (read) 

1900  (read)  

1900  (re  90  ft.  strip)  pp.  17  and  48  (read) 

1900  (re  unsold  Canal  Lands)  p.  41  etc.  (read) 

Sanitary  District  Decree 

Canal,  I.  & M.,  re,  Senate  Journal,  1836-7  (read) 

Canal  Improvements  on  111.  and  Wabash  Rivers,  Chap.  19,  Sec. 

7 (read)  

Canal  Lands,  Advertisement  of  Sale,  Authorized 

To  sell  

Do 

Auction  of.  Authorized  June  16,  1904 

Lease  of,  approved  by  Com’rs,  Proceedings  of  Board  (Dep. 

J.  M.  Snyder) 

Approval  of  Governor 

Letter  asking  approval  of  Gov 

Notice  of  Sale 

Do 

Offer  of  Sale  of,  June  15,  1904 

Re  unsold  (Canal  Com’rs  Report  of  1900,  p.  41  etc.)  (read) 
Sale  Recalled,  Proceedings  of  Canal  Com’rs  (Dep.  Jno.'  M. 

Snyder)  

Snyder  Deposition  

Witness  Snyder  

Unsold  list  of 

Canal  Survey,  Mathewson,  Tracing  of,  Orr  Ex.  7,  Abstracted... 

Referred  to  

Canal  Trustee’s,  Report  of  1850  (read) 

Do.  1871  

Sub-plat,  Deft’s  Ex.,  Abstracted 

Referred  to  

2 Deft’s  Ex.,  Abstracted 

Referred  to  

3 Deft’s  Ex.,  Abstracted 

Referred  to  

Celilo  Falls,  Witness  Gray 

Certificate  of  Chas.  S.  Deneen,  Deft’s  Ex.  1,  June  11 

Evidence  

Note  Explanatory  

To  Chas.  Boyer,  dated  Chicago,  1856  (Snyder  Ex.  4)  (read) 

Chamberlain,  Oliver  S.,  Deposition;  • 

Direct  exam 

(Read)  

Chambers  Ency.,  art.  “Joliet  & La  Salle”  (read) 

Do 


Page  of  Page  of 


Abstract  Transcript 

1581 

5259 

1580 

5258 

1090 

3651 

1165 

3978 

1166 

3983 

1680 

6499 

1168 

3988 

1346 

4608 

256 

500a21 

254 

500al6 

258 

500a25 

254 

500al6 

256 

500a21 

258 

500a24 

257 

500a23 

42 

66 

45 

72 

254 

500al6 

1166 

3983 

255 

500al7 

259 

500a27 

1292 

4471 

1334 

4565 

1920 

6323 

749 

2128 

1294 

4481 

1314 

4521 

1937 

6707 

1606 

5303 

1937 

6718 

1611 

5318 

1937 

6712 

1607 

5304 

1523 

5106 

1415 

4825 

631 

1779 

631 

1780 

1328 

4552 

606 

1684 

1222 

4240 

1649 

5425 

981 

3157 

IX 


Page  of  Page  of 
Abstract  Transcript 

Channahon  Township,  Will  County,  Outline  Map  of.  Abstracted  1916  6490 

Referred  to  928  2887 

Chanoine  Wicket  Dams,  Description  of.  Witness  Cooley 842  2510 

Witness  Cooley  849  2530 

Charlevoix,  Le-tters  of.  Witness  Alvord 751  2135 

(Read) 972  3122 

Map,  Andreas  Chicago,  Ex.  1,  Abstracted 1916  6494 

Referred  to  702  1988 

Chattahooche  River  (Dep.  Sweeney) 322  597 

Chicago  American,  of  May  14,  1836  (read) 1365  4684 

September  14,  1839  (read) 1366  4686 

Chicago,  Andreas,  Ex.  1,  Charlevoix’  Map,  Abstracted 1916  6494 

Referred  to  702  1988 

“Chicago  Antiquities,”  Hurlbut,  (read  from) 1655  5435 

Chicago,  Bd.  of  Pub.  Wks.  (see  Bd.  of  Pub.  Wks.). 

“Chicago,”  Name  applied  to  other  Rivers,  Witness  Alvord 752  2140 

Chicago,  Rand-McNally  Map  of.  Abstracted * 1926  6574 

Referred  to  929  2887 

River  route,  Ex.  Doc.  264 653  1842 

Sanitary  Dist.  of  Report,  p.  12  (read) 1121  3777 

Circuit  Court,  Stipulations  in 629  1773 

Clay,  Charles,  Deposition : 

Direct  exam 472  1196 

Cross  exam 473  1198 

Re-direct  exam 474  1202 

(Read)  680  1944 

Clement,  Arthur  C.,  Deposition  : 

Direct  exam 391  821 

Cross  exam 394  836 

Re-direct  exam 399  850 

Re-cross  dxam 400  852 

(Read)  850  2532 

Rulings  on  obj 397  2597 

Do 400  2599 

Cobble  Stone  Bar,  Witnes's  Gray '. 1527  5119 

Coen  Patent,  Drawing  for 1727 

Offered  in  Evidence 870  2599 

Coen’s  System  of  Propulsion  (Witness  Fox) 331  621 

Collins,  Franklin,  Deposition: 

Direct  exam 613  1708 

Cross  exam 615  1714 

(Read)  1222  4240 

Jeremiah,  Direct  exam 1051  3529 

Cross  exam 1053  3540 

Columbia  River,  Burton  Dep 184  310 

Navigation  of.  Witness  (^ray 1509  5069 


X 


Page  of  Page  of 
Abstract  Transcript 


Commissioner,  Canal,  see  Canal  Commissioners. 

Complaint,  Bill  of 1 3 

Complainant,  Appearance  of 79  91 

Complainant’s  Close  957  3007 

Complainant’s  Exhibits : 

‘‘Al,”  plat,  Beardstown  or  Kankakee,  Abstracted 1920  6527 

Referred  to  1278  4422 

“A2,”  plat,  Buffalo,  Abstracted 1920  6529  - 

Referred  to  1278  4472 

“A3,”  School  Sec.  Addition  Joliet,  Abstracted 1920  6531 

Referred  to  1279  4422 

“A4,”  plat,  Joliet,  Abstracted 1920  6533 

Referred  to  .• 1279  4422 

“A5,”  plat.  West  Joliet,  Abstracted 1921  6535 

Referred  to  1279  4422 

“A6,”  plat,  Vienna,  Abstracted 1921  6537 

Referred  to  1279  4422 

“A7,”  plat,  Lockport,  1837,  Abstracted 1921  6539 

Referred  to  3279  4422 

“A8,”  plat,  Lockport,  1836,  Abstracted 1921  6541 

Referred  to  1279  4422 

“A9,”  plat.  Summit,  Abstracted 1921  6543 

Referred  to  1279  4422. 

“AlO,”  plat.  Archer  xA.ddition  to  Desplaines,  Abstracted 1921  6545 

Referred  to  1279  4422 

“All,”  plat,  Keepotaw,  Abstracted 1922  6547 

Referred  to  1279  4422 

“A12,”  plat,  Emmetsburg,  Abstracted 1922  6549 

Referred  to  1279  • 4422 

(And  See  Exhibit,  Complainant’s.) 

Comstock,  Adam,  Deposition  : ^ 

Direct  exam 586  1622 

Cross  exam 591  1639 

Re-direct  exam 591  1639 

Re-cross  exam 592  1640 

Re-re-direct  exam 593  1645 

(Read)  1221  4240 

Testimony : 

Direct  exam 1277  4414 

Cross  exam 1280  4448 

Board,  Report  of  652  1841 

Do.,  referred  to...... 811  2390 

Report  of  1700  5526 

Conant,  L.  F.,  Deposition : 

Direct  exam 495  1265 

Cross  exam 497  1268 

(Read)  679  1942 

(Read)  1291  4407 


xi  * 

Page  of  Page  of 
Abstract  Transcript 

Congress,  Acts  of  (see  Acts  of  Congress). 

Rep.  of  Com.  re  Canal  (1825) 730  2072 

Consent  Decree,  excluded ]679  5499 

Consolidated  Profile,  Cooley  Ex.  3,  Abstracted 1923  6559 

Referred  to  812  2394 

Referred  to  813  2396 

Continental  Waterway  Profile,  Cooley  Ex.  37,  Abstracted 1934  6626 

Referred  to  1188  4123 

Continuation  of  McCullough  Ex.  1,  McCullough  Ex.  2,  Abstracted  1915  6484 

Referred  to  777  2266 

Referred  to  841  2506 

Cooley  Ex.  1,  Rep.  Internal  Imp.  Com,  111.,  Abstracted 1725  5795 

Referred  to  804  2367 

Referred  to  921  2862 

Ex.  2,  Map  and  profile  of  Desplaines  River,  Abstracted 1923  6557 

Referred  to  811  2392 

Referred  to  813  2396 

Ex.  3,  Consolidated  Profile,  Abstracted 1923  6559 

Referred  to  812  2393 

Referred  to  813  2396 

Ex.  4,  Average  Weekly  Flow  1900,  Abstracted 1729  5863 

Referred  to  810  2386 

Referred  to  876  2641 

Ex.  5,  Average  Weekly  Flow  1901,  Abstracted 1729  5881 

Referred  .to  _ 810  2387 

Referred  to  876  2641 

Ex.  6,  Average  Weekly  Flow  1902,  Abstracted 1729  5899 

Referred  to  810  2386 

Referred  to  876  2642 

Ex.  7,  Average  Weekly  Flow  1903,  Abstracted 1729  5918 

Referred  to  810  2386 

Referred  to  876  2642 

Ex.  8,  Average  Weekly  Flow  1904,  Abstracted 1729  5937 

Referred  to  810  2386 

Referred  to  876  2642 

Ex.  9,  Average  Weekly  Flow  1905,  Abstracted 1729  5954 

Referred  to  810  2386 

Referred  to  876  2642 

Ex.  10,  Average  Weekly  Flow  1906,  Abstracted 1730  ^969 

Referred  to  810  2386 

Referred  to  876  2642 

Ex.  11,  Average  Weekly  Flow  1907,  Abstracted 1730  5984 

Referred  to  810  2386 

Referred  to  876  2642 

Ex.  12,  Gauge  Readings,  111.  & Desplaines'  Rivers,  Abstracted  1725  5836 

Referred  to  809  2386 

Referred  to  876  2642 


xii 

Page  of  Page  of 

Cooley  Exhibit  (continued)  : Abstract  Transcript 

Ex.  13,  Sanitary  Dist,  Rec.,  Nov.  27,  1907,  Abstracted 1730  5999 

Referred  to  876  2642 

Ex.  15,  Seddon  Profile,  Abstracted 1927  6576 

Referred  to  876  2642 

Ex.  16,  Map  of  Watersheds,  Abstracted 1927  6578 

Referred  to  920  2855 

Ex.  21,  Profile  1904,  Abstracted 1930  6596 

Referred  to  1183  4100 

Ex.  22,  Sheet  55,  Survey  1904,  Abstracted 1930  6598 

Referred  to  1183  4100 

Ex.  22a,  Sheet  11,  Survey  1904,  Abstracted 1931  6604 

Referred  to  1183  4100 

Ex.  23,  Sheet  56,  Survey  1904,  Abstracted 1930  6600 

Referred  to  1183  4100 

Ex.  23a,  Sheet  12,  Survey  1904,  Abstracted 1931  6606 

Referred  to  1183  4100 

Ex.  24,  Sheet  57,  Survey  1904,  Abstracted 1931  6602 

Referred  to  1183  4100 

Ex.  25,  Sheet  13  of  ^Marshall  Rep.,  Abstracted 1931  6608 

Referred  to  1183  4100 

Ex.  26,  Marshall  Profile,  Abstracted 1932  6610 

Referred  to  1183  4100 

Ex.  27,  Sheet  16  of  Marshall  Profile,  Abstracted 1932  6612 

Referred  to  1183  4100 

Ex.  29,  Profile  111.  River,  Abstracted 1932  6614 

Referred  to  1184  4100 

Ex.  30,  Sanitary  Dist.  Profile,  Abstracted 1932  6616 

Referred  to  1184  4100 

Ex.  32,  Riverside  Gauge  Readings,  1905,  Abstracted 1730  6014 

Referred  to  .* 1184  4100 

Ex.  34,  Riverside  Gauge  Readings,  1907,  Abstracted 1730  6028 

Referred  to  1184  4100 

Ex.  35,  Wilson  Profile,  Referred  to 1185  4101 

Referred  to  1933  6618 

Ex.  36,  Macomb  Profile,  Referred  to 1185  4101 

Referred  to  1933  6620 

Ex.  37,  Continental  Waterway  Profile,  Abstracted 1934  6626 

Referred  to  1188  4173 

Lyman  E. : 

Direct  exam 794  2342 

Direct  exam 841  2506 

Direct  exam 876  2646 

Cross  exam 880  2662 

Re-direct  exam 916  2840 

Re-cross  exam 925  2873 

Re-re-direct  exam 927  2881 

Re-re-cross  exam 928  2883 


Xlll 


Page  of  Page  of 

Cooley,  Lyman  E.  (continued)  ; Abstract  Transcript 

Recalled ' 1183  4100 

Recalled 1204  4161 

Recalled 1669  5462 

Profile,  Description  of 812  2394 

Copelantz,  Cyrus' : 

Direct  exam ' 1101  3678 

Cross  exam 1104  3693 

Cordelling  (Witness  McKenzie) 171  273 

Cornelius,  James': 

Direct  exam ' 1041  3485 

Cross  exam 1042  3495 

Re-direct  exam 1043  3499 

Countryman,  Joseph,  Deposition: 

Direct  exam 476  1212 

Cross  exam 479  3219 

Re-direct  exam 481  1225 

(Read)  850  2532 

Crawfish,  Action  of,  (Sackett  Dep.) 249  500 

(Witness  Mead)  1141  3844 

(Witness  Wheeler)  1254  4342 

Cumberland  River,  Navigation  on,  (Witness  Bewley) 1010  3352 

(Witness  McCullough)  1177  4044 

D. 

Dablon,  Narrative  of,  extract  from 713  2027 

Do 944  2960 

Daly,  Eugene,  Deposition : 

Direct  exam 471  1186 

Cross  exam 471  ‘llOl' 

(Read)  681  1945 

Dam,  Blue  Print  proposed  embankment,  part  of.  Abstracted 1929  6594 

Referred  to  1140  3841 

Defendant’s,  Description  of  (Witness  Mead) 1132  3814 

No.  1,  Lease  of  1676  5489 

Sheet  1 of  Plan  of.  Abstracted 1928  6582 

Referred  to  955  2997 

Sheet  2 of  Plan  of,  Abstracted 1928  6584 

Referred  to  955  2997 

Site  of.  Plat  of  Survey,  Rudolph  Ex.  1,  Abstracted... _ 1922  6551 

Referred  to  771  2244 

House  Doc.  263,  pp.  45,  6,  (Read) 842  2510 

Dams  in  Des  Plaines  River  (Alexander  Dep.) ' 511  1324 

(Clay  Dep.)  473  1197 

(Heydecker  Dep.)  214  392 

(King  Dep.)  583  1611 

(L.  Stevens'  Dep.) 550  1471 


XIV 


Page  of  Page  of 

Dams  in  Des  Plaines’  River  (continued)  : Abstract  Transcript 

(Witness  Cooley)  927  2881 

(Witness  Cornelius)  1041  3485 

(Witness  Mills)  1030  3409 

(Witness  Mills)  1036  3445 

(Witness  Woermann)  1453  4909 

Dana,  Bounty  Lands 715  2034 

Decree,  Consent,  Excluded 1679  5499 

Deed,  Board  of  Trustees,  I.  & M.  Canal,  to  Gideon  Westbrook...  1610  5315 

To  Jas.  Dines’ 1607  5306 

Thos.  Stimson  1608  5309 

Win.  Greene  1609  5312 

Can.  Com.  to  111.  Steel  Co.,  Deft’s  Ex.  2,  June  12  (read)...  1417  4830 

From  Gov.  Ford  to  Trustees  of  I.  & M.  Canal,  Snyder  Ex. 

1,  Introduced  1301  4496 

Release,  of  Aug.  19,  1871  (read) 1326  4547 

To  Chas.  Boyer  (read) 1330  4555 

Trust,  Economy  L.  & P.  Co.  to  Royal  Trust  Co.,  Abstracted  1854  630^ 

Referred  to  1613  5323 

Deep  Waterway  Com.,  Internat’l,  Rep.  of.  Sheet  7,  House  Doc. 

192,  Abstracted  1933  6624 

Referred  to  1185  4101 

-Sheet  8 of  House  Doc.  192,  Abstracted 1933  6622 

Referred  to  1185  4101 

Defendant,  Appearance  of 79  90 

Admission  as  to  title  to  Dam  Site 1698  5520 

Map,  Land  owned  by,  Woermann  Ex.  1,  June  15,  Abstracted  1936  6644 

Referred  to  1498  5039 

Defendant’s  Blue  Print  Ex.,  Abstracted 1928  6580 

Referred  to  928  2886 

Canal  Trustee’s  Sub-plat,  Abstracted 1937  6707 

Referred  to  1606  5303 

Sub-plat  2,  Abstracted  1937  6718 

Referred  to  1611  5318 

Sub-plat  3,  Abstracted  1937  6712 

Referred  to  1607  5304 

Ex.  Tax  Records,  Abstracted 1935  6652 

Referred  to  1565  5228 

Zarley  Ex.  1,  Sheet  13  of  ^Marshall  Survey,  Abstracted 1924  ' 6567 

Referred  to  874  2625 

Delineation,  township  line  Town  34,  Survey  Ex.  4,  Abstracted...  1775  5791 

Referred  to  766  2206 

Deneen,  Chas.  S.,  Certificate  of.  Deft’s  Ex.,  June  11 1415  4825 

Deposition ; 

Abbott,  Geo.  (see  Abbott). 

Adler,  Jacob  (see  Adler). 

Alexander,  George  (see  Alexander). 

Anderson,  Mikarl  (see  Anderson). 


XV 


Page  of  Page  of 

Deposition  (continued)  : Abstract  Transcript 

Belz,  Francis  (see  Belz). 

Blaes's,  Jacob  (see  Blaess). 

Bowers,  Urias  (see  Bowers). 

Boyne,  James  (see  Boyne). 

Brockway,  Edw.  D.  (see 'Brockway ). 

Burt,  William  S.  (see  Burt). 

Burton,  Theodore  E.  (see  Burton). 

Chamberlain,  Oliver  S.  (see  Chamberlain). 

Clay,  Charles  (see  Clay). 

Clement,  Arthur  C.  (see  Clement). 

Collins,  Franklin  (see  Collins). 

Comstock,  Adam  (see  Comstock). 

Conan t,  L.  F.  (see  Conant). 

Countryman,  Joseph  (see  Countryman). 

Daly,  Eugene  (see  Daly). 

Dimmick,  Charles  (see  Dimmick). 

Erhard,  G.  C.  (see  Erhard). 

Ferris,  James  H.  (see  Ferris'). 

Field,  Enos  (see  Field). 

Flanders,  Jas.  R.  (see  Flanders). 

Found,  Wm.  (see  Found). 

Fox,  Geo.  B.  (see  Fox). 

Gatons,  Samuel  (see  Gatons). 

Gurney,  George  F.  (see  Gurney). 

Flammond,  Seneca  (see  Hammond). 

Heydecker,  C.  F.  (see  Heydecker). 

Heyworth,  Janies  O.  (see  Heyworth). 

Hicks,  Obadiah  (see  Hicks). 

Hillebrand,  J.  H.  (see  Hillebrand). 

Hoy,  Charles  (see  Hoy). 

Johnson,  Isaac  M.  (see  Johnson). 

Jones  Eliza  (see  JoneS,  Eliza). 

Jones,  S.  W.  (see  Jones,  S.  W.). 

Keen,  James  C.  (see  Keen). 

Kercheval,  Charles  (see  Kercheval). 

Killmer,  R.  W.  (see  Killmer). 

King,  Daniel  W.  (see  King). 

Kramer,  Wm.  (see  Kramer). 

Layton,  David  (see  Layton). 

Lorimer,  Wm.  (see  Lorimer). 

McCowan,  John  (see  McCowan). 

McDonald,  Leon  (see  McDonald). 

McKenzie,  Alex,  (see  McKenzie). 

Munch,  Xavier  (see  Munch). 

Myer^,  William  S.  (see  Myers). 

O’Brien,  Peter  (see  O’Brien). 

Orr,  Robt.  E.  (see  Orr).  . 


XVI 


-r.  . . . . Page  of  Page  of 

Deposition  (continued)  ; Abstract  Transcript 

Paddock,  Frank  (see  Paddock). 

Palmer,  Clarence  H.  (see  Palmer). 

Parrent,  Geo.  W.  (see  Parrent). 

Pohl,  Henry  R.  (see  Pohl). 

Raymond,  Geo.  W.  (see  Raymond). 

Reed,  G.  W.  (see  Reed). 

Sackett,  Wm.  L.  (see  Sackett). 

Snyder,  Jno.  'SI.  (see  Snyder). 

Spoor,  Harlow  H.  (see  Spoor). 

Stevens,  Lewis  K.  (see  Stevens,  L.  K.). 

Stevens,  William  W.  (see  Stevens,  Wm.  W.). 

Sweene}-,  Jno.  M.  (see  Sweeney). 

Tanner,  Riley  (see  Tanner). 

7'aylor,  John  W.  (see  Taylor). 

Wiggam,  Wm.  (see  Wiggam). 

Wightman,  George  S.  (see  Wightman). 

Williams,  Benezette  (see  Williams,  B.). 

Williams,  Stephen  J.  (see  Williams,  Stephen  J.). 


Stipulation  that  witnesses  need  not  sign HOI  819 

(Washington)  Stipulation  for 1G5  259 

Des  Plaines,  Bridges  across,  Woerniann  Ex.  1,  June  13 1449  4903 

Plat  of  Archer  Addition  to.  Complainant’s  Ex.  AlO,  Ab- 
stracted   1921  6545 

Referred  to  1279  4422 

River,  Boats  on  (Clement  Dep.) 392  822 

(Erhard  Dep.)  163  243 

(Gaton’s  Dep.)  484  1233 

(King  Dep.)  465  1155 

(Parrent  Dep.)  448  1068 

(Pohl  Dep,)  444  1046 

(Reed  Dep.)  157  222 

( S.  Williams  Dep.).- 527  1374 

Condition  in  ’51  (Reed  Dep.) 156  220 

Dams  in,  (Alexander  Dep.) 511  1324 

(Clay  Dep.)  473  1179 

(Heydecker  Dep.)  214  392 

(King  Dep.)  583  1611 

(Stevens  Dep.)  416  902 

(L.  Stevens  Dep.) 550  1471 

Eences  in  (Erhard  Dep.) 163  243 

Eords  in  (Countryman  Dep.) 478  1217 

(Reed  Dep.)  156  220 

Gates  in  fences  (Erhard  Dep.) 163  243 

Map  of  Woermann,  Ex.  4,  Abstracted 1934  6634 

Referred  to  11^2 

Navigability  of  (Witness  Cooley) 805  2340 


XVll 


Des  Plaines  River  (continued)  : 

With  Profile,  Map  of,  Cooley  Ex.  2,  Abstracted 

Referred  to  

Referred  to  

Dimmick,  Charles,  Deposition : 

Direct  exam 

Cross  exam 

(Read)  

Dines,  Jas.,  Deed,  Trustees,  I.  & M.  Canal  to 

Directory  of  Joliet  (excluded) 

Preface,  Drown’s  (read) 

(Read)  

Document  1,  pt.  2 (read) 

Vol  II  (read) 

House,  263,  Dams  (read) 

Report  on  Survey 

264  (read)  

(Read)  

Executive,  No.  16,  Rep.  of  U.  S.  Eng  (read) 

Drown’s  Directory  Preface  (read) 

(Read)  

Peoria 

Drucker,  Henry : 

Direct  exam 

Resumed 

Druley  v.  Adam  (see  Adam  ats.  Druley). 

Dry  Kiln  Rapids  (Witness  Gray) 

Duane,  J.  E.,  Report  of.  Approving  river  route 

Duncan,  J.,  Gov.  of  111.,  Message 

Durham  Boats,  Description  of.  The  Montello 

Drown’s  “Peoria”  (Shepherdson’s  testimony) 

Reference  to,  in  Drown’s  Peoria 

E. 

“E”  Exhibit  to  Bill 

Early  Towns,  Plats  of.  Complainant’s  Ex’s  A1-A12 

“Early  Voyages  up  and  down  Mississippi,”  Shea  (read) 

Extracts  from  

Do.  p.  254 

(Read)  

“Early  Western  Travels,”  Thwaites,  Vol.  9 (read) 

Vol.  2,  p.  625  (read) 

Economy  L.  & P.  Co.,  Trust  Deed,  to  Royal  Trust  Co.,  Abstracted 
Received  . 

Elwood,  Jas.  G. : 

Direct  exam 

Cross  exam 

Re-direct  exam 


Page  of  Page  of 
Abstract  Transcript 


1923 

6557 

Hit 

2392 

813 

2396 

500 

1278 

503  • 

1284 

875 

2635 

1607 

5306 

955 

3004 

675 

1928 

678 

1931 

1115 

3765 

1118 

3770 

842 

2510 

660 

1 862 

949 

2980 

1121 

3779 

648 

1828 

675 

1928 

678 

1931 

959 

3018 

1058 

3555 

1060 

3567 

1521 

5101 

653 

1842 

1065 

3595 

934 

2917 

959 

3018 

679 

1932 

41 

64 

1278 

4422 

763 

2183 

973 

3124 

993 

3219 

1656 

5442 

942 

2949 

972 

3118 

1854 

6302 

1613 

5323 

1110 

3743 

1112 

3752 

1114 

3760 

xviii 


Emmetsburg,  Town  plat  of,  Complainant’s  Ex.  A-12,  Abstracted 

Referred  to  

Emory’s  Bar  (Witness  Gray) 

Engineers,  Board  of,  U.  S.,  Report  re  Waterway,  1887 

1900  

Chief  of,  U.  S.,  extract  from  Rep.  1867 

1867  

1872  

1872,  Part  II 

1875  (Identified)  

1875,  extracts  from,  p.  95 

1875  

1876  

Part  II  

1878,  p.  696 

1880  

1882  

Do 

1883,  Part  II,  pp.  1340-45 

1884  (Identified)  

1884,  Part  III. . 

1884,  Part  III 

3 884  

1886  

Do 

1887,  Extracts  from,  p.  2122 

Do.  p.  2127 

1890  (Identified)  

Do.,  extract  from,  p.  40 

1891  

1891 

1895,  pp.  2410-12 

1895,  Map  

1900  

1901  

1901,  Part  V 

1905,  p.  2455, 

Corps  of  U.  S.,  Rep.  in  House  Doc.  263 

Testimony  of: 

Bremer,  H.  H 

Cooley,  L.  E 

Johnston,  T.  T 

Moore,  Robert  

Mead,  D.  W 

Mead,  D.  W 

Rudolph,  Emil  

Wheeler,  L.  L 

Williams,  Edgar  

Woermann,  J.  W 


Page  of  Page  of 
Abstract  Transcript 


1922 

6549 

1279 

4422 

1515 

5086 

653 

1842 

648 

1828 

1115 

3265 

1698 

5522 

1626 

5355 

1199 

4152 

169 

270 

651 

1837 

1199 

4152 

1631 

5370 

1624 

5349 

1192 

4135 

1617 

5334 

1619 

5338 

1710 

5559 

1189 

4125 

168 

267 

1550 

5180 

1118 

3773 

1699 

5525 

1615 

5329 

1703 

5444 

652 

1839 

653 

1842 

169 

268 

1275 

4410 

1197 

4145 

1212 

4190 

1630 

5365 

1951 

6729 

1124 

3786 

1126 

3790 

1583 

5260 

1203 

4159 

660 

1862 

779 

2277 

794 

2342 

1367 

4689 

994 

3222 

1129 

3797 

1281 

4432 

765 

2194 

1239 

4286 

834 

2484 

1428 

4856 

xix 


Page  of  Page  of 
Abstract  Transcript 


Erhard,  G.  C,  Deposition : 

Direct  exam 1G3  240 

Cross  exam 164  244 

(Read)  647  1825 

Ernst.  Bd.,  Rep.  of,  House  Doc.  26.1  Referred  to 811  2391 

Do.,  extract  from 1127  3702 

Do 1700  5527 

Errors,  Assignment  of 1953  6731 

Evidence,  Certificate  of 631  1779 

Note  Explanatory  631  1780 

Stipulation,  original,  incorporated  in  Trans 630  1775 

Ewing,  W.  L.  D.,  Message 1065  3594 

Executive  Document  16,  40th  Cong.  (Wilson  Rep.)  (Identified)..  169  268 

Extracts  from,  pp.  4,  5 648  1827 

• Do.,  pp.  7,  8 ' 649  1831 

Do.,  pp,  6,  8 ■ 1698  5522 

Do.,  pp.  11,  23,  28 650  1834 

Do.,  pp.  28,  29 1698  5523 

Do.  p.  438 1115  3765* 

Do.,  p.  440 1116  3767 

Do.  pp.  442,  444 1117  3769 

264,  Borings  (p.  69) 6.54  1844 

Giving  Chicago  River  Route  (pp.  12,  21) 653  1842 

List  of  boats  drawing  3 feet  and  less 656  1850 

Extract  from  1121  3779 

Do 949  2980 

Do 1267  4383 

Exhibit  “A”  to  Bill 28  43 

McKenzie  Dep 181  300 

Allegheny  River,  Map  of 1949  6729 

Alvord  (see  Alvord  Exhibit). 

Andreas,  Chicago,  Charlevoix’  Map,  Abstracted 1916  6494 

Referred  to  702  1988 

Referred  to  641  1808 

“B”  to  Bill 34  51 

McKenzie  Dep 181  300 

Blue  Print,  Proposed  Embankment,  part  of  dam 1929  6594 

Boundary  Commission  Rep 1723  5706 

X”  to  Bill 36  54 

Canal  Com’rs  Rep.  1900 1855  6337 

Channahon  Tp,  Map 1916  6490  • 

Chicago,  Map  1926  6574 

Coen  Patent  1725  5860 

Coen  Patent,  Drawing 1727 

Complainant’s  A-1,  Town  Plat,  Beardstown  or  Kankakee, 

Abstracted 1920  6527 

Referred  to  1279  4422 


XX 


Page  of  Page  of 

Exhibit,  Complainant’s  (continued)  : Abstract  Transcript 

“A-2,”  Town  Plat,  Buffalo,  Abstracted 1920  6529 

Referred  to  1279  4422 

“A-3,”  Map,  School  Sec.  Add.  to  Juliet,  Abstracted....  1920  6531 

Referred  to  1279  4422 

“A-4,”  Town  Plat,  Juliet,  Abstracted 1920  6533 

Referred  to  1279  4422 

“A-5,”  Town  Plat,  West  Juliet,  Abstracted 1921  6535 

Referred  to  . 1279  4422 

“A-6,”  Town  Plat,  Vienna,  Abstracted 1921  6537 

Referred  to  1279  4422 

“A-7,”  Town  Plat,  Lockport  1837,  Abstracted 1921  6539 

Referred  to  1279  4422 

“A-8,”  Town  Plat,  Lockport  1836,  Abstracted 1921  6541 

Referred  to  1279  4422 

“A-9,”  Town  Plat,  Summit,  Abstracted 1921  6543 

Referred  to  1279  4422 

“AlO,”  Plat,  Archer  Addition  to  Desplaines,  Abstracted  1921  6545 

Referred  to  1279  4422 

“A-11,”  Town  Plat,  Keepotaw,  Abstracted 1922  6547 

Referred  to  1279  4422 

“A-12,”  Town  Plat,  Emmetsburg,  Abstracted 1922  6549 

Referred  to  1279  4422 

1,  Kankakee  Feeder  Lease,  Munroe ’ 930  2888 

2,  Pole  Line  Contract  Dam  No.  1,  offered  (excluded)...  931  2891 

3,  Gaylord  Contract,  Oct.  3,  1905,  offered  (excluded)...  931c  2895 

4,  Gaylord  Contract,  offered  (excluded) 931d  2899 

5,  Letter  appointing  Inspector,  introduced 931h  2907 

Cooley  1,  Rep.,  111.  Internal  Imp.  Com.,  Abstracted 1725  5795 

Referred  to  804  2367 

2,  Map  and  profile,  Desplaines  R.,  Abstracted 1923  6557 

Referred  to  811  2392 

Referred  to  813  2396 

3,  Consolidated  Profile,  Abstracted 1923  6559 

Referred  to  812  2394 

Referred  to  813  2396 

4,  Average  Weekly  Flow,  1900,  Abstracted 1729  5863  . 

Referred  to  810  2387 

Referred  to  876  2641 

5,  Average  Weekly  Flow,  1901,  Abstracted 1729  5881 

Referred  to  810  2387 

Referred  to  876  2641 

6,  Average  Weekly  Flow,  1902,  Abstracted 1729  5899 

Referred  to  810  2387 

Referred  to  876  2642 

7,  Average  Weekly  Flow,  1903,  Abstracted 1729  5918 

Referred  to  810  2387 

Referred  to  876  2642 


Page  of  Page  of 

Exhibit,  Cooley  (continued)  : Abstract  Transcript 

8,  Average  Weekly  Flow,  1004,  Abstracted 1729  5037 

Referred  to  810  2387 

Referred  to  87G  2042 

9,  Average  Weekly  Flow,  1005,  Abstracted 1720  5054 

Referred  to  810  2387 

Referred  to  870  2042 

10,  Average  Weekly  Flow,  1000,  Abstracted 1730  5000 

Referred  to  810  2387 

Referred  to  870  2042 

11,  Average  Weekly  Flow,  1907,  Abstracted 1730  5984 

Referred  to  810  2387 

Referred  to  870  2042 

12,  Gauge  Readings  of  111.  & Desplaines  Rivers,  Ab- 
stracted   1725  5830 

Referred  to  809  2380 

Referred  to  870  2041 

13,  Sanitary  Dist.  Rec.  Nov.  27,  1007,  Abstracted 1730  5000 

Referred  to  870  2042 

15,  Seddon  Profile,  Abstracted 1927  0570 

Referred  to  870  2042 

10,  Map,  Watersheds,  Abstracted 1027  0578 

Referred  to  020  2855 

21,  Profile,  1004,  Abstracted 1930  0.590 

Referred  to  1183  4100 

22,  Sheet  55,  Survey  of  1904,  Abstracted 1930  0598 

Referred  to  1183  4100 

22a,  Sheet  11,  Survey  of  1904,  Abstracted 1931  0004 

Referred  to  1183  4100 

23,  Sheet  50,  Survey  of  1904,  Abstracted 1930  0000 

Referred  to  1183  4100 

23a,  Sheet  12,  Survey  of  1904,  Abstracted 1931  0000 

Referred  to  1183  4100 

24,  Sheet  57,  Survey  of  1904,  Abstracted 1931  0002 

Referred  to  1183  4100 

25,  Sheet  13,  Marshall  Rep.,  Abstracted 1931  0008 

Referred  to  1183  4100 

20,  Marshall  Profile,  Abstracted 1932  0010 

Referred  to  1183  4100 

27,  Sheet  10,  Marshall  Profile,  Abstracted 1932  0012 

Referred  to  1183  4100 

28,  Sheet  2,  Plan  of  Dam,  Abstracted 1928  0584 

Referred  to  1183  4100 

29,  Profile,  111.  River,  Abstracted 1932  0014 

Referred  to  1184  4100 

30,  Sanitary  Dist.  Profile,  Abstracted 1932  0010 

Referred  to  1184  4100 


xxii 

Page  of  Page  of 

Exhibit,  Cooley  (continued)  : Abstract  Transcript 

31  (Same  as  Cooley  Ex.  15). 

32,  Riverside  Gauge  Readings,  1905,  Abstracted 1730  6014 

Referred  to  1184  4100 

33  (Same  as:  Cooley  Ex.  13). 

34,  Riverside  Gauge  Readings,  1907,  Abstracted 1730  6028 

Referred  to  1184  4100 

35,  Wilson  Profile,  Referred  to 1185  4101 

Referred  to  1933  6618 

36,  IMacomb  Profile,  Referred  to 1185  4101 

Referred  to  1933  6620 

37,  Continental  Waterway  Profile,  Abstracted 1934  6626 

Referred  to  1188  il23 

“D”  to  Bill 40  62 

Defendant’s  2,  Judgment,  McKee  v.  Canal  Com’rs. 

3,  iVIcKee  Deed  to  Canal  Com’rs. 

Blue  Print,  Abstracted 1928  6580 

Referred  to  928  2886 

Canal  Trustees  Sub-plat 1937  6707 

Plat  2 1937  6718 

Plat  3 1937  6712 

1,  June  12,  1908,  Certificate,  Chas.  S.  Deneen  (read)....  1416  4826 

2,  June  12,  1908,  Deed  of  Canal  Com.  to  111.  Steel  Co. 

(Read)  1417  4830 

1,  June  20,  Trust  Deed,  E.  L.  & P.  Co 1854  6300 

Gov.  Ford,  First  Letter  from  (read) 1566  5230 

Second  Letter  from  (read) 1576  5251 

Tax  Records  1936  6652 

Druley  v.  Adams,  Abstracts  & Briefs 1733  6057 

“E”  to  Bill , 41  64 

“F”  to  Bill 42  65 

Field  Notes,  1,  Abstracted 1724  5717 

Referred  to  766  2204 

Referred  to  875  2632 

2,  Abstracted  1724  5771 

Referred  to  766  2205 

Referred  to  875  2632 

3,  Abstracted  1725  5982 

Referred  to  766  2205 

Referred  to  875  2632 

Fogarty  “1,”  Picture,  Bridge  across  Lake  Joliet,  Abstracted..  1730  6055 

Referred  to  1352  4647 

Fox  “1,”  Photo.,  Interior  of  Tunnel  Boat,  Abstracted 1924  6563 

Referred  to  929  2887 

2,  Photo.,  Exterior  of  Tunnel  Boat,  Abstracted 1924  6565 

Referred  to  929  2887 

Fox  River,  Map  of 1945  6727 

Fullerton,  Patent  to,  introduced 1605  5299 


Page  of  Page  of 

Exhibit  (continued)  : Abstract  Transcript 

“G”  to  Bill 43  G8 

‘‘H”  to  Bill 44  70 

Heyworth,  1,  Copy  of  Subpoena  (Heyworth  Dep.) 372  74G 

llillebrand  1,  Profile,  Abstracted 192;‘>  G5G9 

Referred  to  875  2G3G 

2,  Map,  Joliet  & vicinity.  Abstracted ]92G  G971 

Referred  to  875  2G3G 

3,  Blue  print,  Abstracted 3922  G555 

Referred  to  875  2G3G 

Referred  to  928  2887 

House  Doc.  2G3,  pp.  189-192,  Abstracted 1730  GOll 

Referred  to  1184  4100 

Do.,  478-520,  Abstracted  1730  GOll 

Referred  to  1184  4100 

“I”  to  Bill 44  71 

“J’’  4G  74 

June  IG,  1,  Oregon  Map 193G  GG48 

Referred  to  1550  5180 

2,  Washington  Map 193G  oG50 

Referred  to  1550  5ise 

“K”  to  Bill 47  7G 

“L”  to  Bill 50  80 

Long’s  Report  & Map 1917  G49G 

Referred  to  712  2024 

“M”  to  Bill 51  82 

MeCullough  “1,”  Map  U.  S.  Gov’t  Survey,  Tp’s  on  Desplaines, 

Abstracted  1914  G480 

Referred  to  G33  1785 

Referred  to  841  250G 

‘TA,”  Referred  to 7G9  2224 

Referred  to  833  2470 

Referred  to  841  2505 

Additions  to  McCullough  Ex.  1,  Abstracted 1914  G482 

“2,”  Continuation,  McCullough  Ex.  1,  Abstracted 1915  6484 

Referred  to  777  2269 

Referred  to  841  2506 

“2A,”  Additions  to  McCullough  Ex.  2,  Abstacted 1915  6486 

Referred  to  777  2271 

Referred  to  841  2505 

Marquette’s  Map  1941  6725 

Margry,  June  16 1640  5392 

* Orr  “1,”  Map  of  111.  & Mich.  Canal  Lands,  Abstracted 1917  6511 

Referred  to  929  2887 

“2,”  Index  page  of  plat  Book  No.  2,  Abstracted 1918  6513 

Referred  to  929  2887 

“3,”  Blue  print  of  Mathewson  Survey,  Abstracted 1918  6515 

Referred  to  929  2887 


xxiv 

Page  of  Page  of 

Exhibit,  Orr  (continued)  : Abstract  Transcript 

‘*4,”  Extension  of  Orr  Ex.  3,  Abstracted 1919  6517 

Referred  to  929  2887 

“5,”  Page  of  Plat  Book  No.  1,  Abstracted 1919  6517 

Referred  to  929  2887 

“6,”  Survey  of  Secs.  3,  4 & 5,  Town  38,  Abstracted 1919  6521 

Referred  to  929  2887 

“7,”  Tracing  of  ]\Iathewson  Canal  Survey,  Abstracted...  1920  6523 

Referred  to  749  2127 

Patent  Tunnel  Boat,  Abstracted 1725  5860 

Referred  to  870  2599 

Profile  Sheet  7,  House  Doc.  192 1933  6622 

Sheet  8 1933  6624 

Rock  Island  Rapid.s,  Map  of  1837 1937  6721 

Do.  1880  1938  6723 

Rudolph  1,  plat,  survey,  .site  of  dam.  Abstracted 1922  6551 

Referred  to  771  2244 

Schoolcraft  iMap  ' 1929  6592 

Sheet  1,  Plan  of  Dam,  Abstracted 1928  6582 

Referred  to  955  2998 

Sheet  2,  Plan  of  Dam,  Abstracted 1928  6584 

Referred  to  955  2998 

Snyder  1,  Deed  from  Gov.  Ford  to  Trustees  of  I.  & M.  Canal 
introduced 1301  4496 

2,  Report  Canal  Trustees  1871 1314  4522 

3,  Release  Deed,  Canal  Trustees 1326  4547 

4,  Boyer’s  Certificate  of  Purchase 1328  4552 

5,  Boyer  Deed  1330  4555 

6,  Proceedings  Canal  Trustees,  May  14,  1861 1331  4560 

7,  Proceedings  Canal  Trustees,  May  14,  1861 1332  4560 

8,  List  unsold  Canal  Lands 1334  4565 

9,  Kimberly  Patent  1338  4578 

10,  Kimberly  patent  1339  4584 

11,  Voucher,  Piepenbrink  1340  4588 

]2,  Voucher,  Parks  1342  4591 

13,  Resolution,  Canal  Trustees,  re  Adam  judgment 1343  4594 

14,  p.  17  Rep.  Canal  Com’rs  1872 1344  4597 

15,  Beard  Deed,  Kankakee  Feeder 1347  4619 

16,  Kelley  Deed,  Kankakee  Feeder 1348  4627 

17,  Beard  Deed,  Kankakee  Feeder 1348  4627 

18,  Hays  Deed,  Kankakee  Feeder 1349  4631 

19,  Hays  Deed,  Kankakee  Feeder 1349  4635 

20,  111.  Steel  Co.  lease 1388  4747 

21,  Lease  by  Canal  Com.  to  Norton 1391  4752 

22,  Lease  by  Canal  Com.  to  Kavanaugh 1393  4758 

A,  Gov’t  Survey,  Abstracted 1934  6632 

Referred  to  1292  4471 

Stevens,  4,  Woodruff’s  Lectures 404  808 


XXV 


Page  of  Page  of 

Exhibit  (continued)  : Abstract  Transcript 

Survey,  4,  delineation,  township  line.  Town  34,  Abstracted.  . 1725  5791 

Referred  to  7GG  220G 

Tax  Records,  Defendant’s,  Abstracted 1936  6G52 

Referred  to  1565  5228 

Thevinot’s  Map,  Alvord  1 1917  6509 

Township  39,  Plat  of 1922  6553 

Wheeler  1,  Cross-sec.,  Hennepin  Canal,  Abstracted 1934  6628 

Referred  to  1241  4294 

Will  County  Map  1916  6488 

Woermann  1 (Cross-sec.  above  Adam’s  Dam)  Abstracted...  1928  6586 

Referred  to  997  3241 

2,  Wilson  Profile,  Abstracted 1929  6588 

Referred  to  998  3246 

3,  Sheet  6,  111.  & Desplaines  R.  Surve}^  Abstracted 1929  6590 

Referred  to  1007  3287 

4,  Map  of  Desplaines  R.,  Abstracted 1934  6634 

Referred  to  1452  4906 

June  8,  Cross-sec.  above  Adam’s  Dam,  Abstracted 1934  6630 

Referred  t5  1247  4319 

1,  June  13,  List  of  Bridges 1449  4903 

A,  June  13,  Alap  of  Kankakee  River  Valley,  Abstracted.  . 1935  6536 

Refererd  to  1458  4930 

B,  June  13,  1908,  Map  of  Til.  River  and  of  I.  & M.  Canal  1471  4967 

C,  June  13,  1908,  Wilson  Survey  Map,  Abstracted 1935  6638 

Referred  to  1471  4967 

D,  June  13,  Woermann  Profile,  Abstracted 1935  6642 

Referred  to  1472  4971 

Portion  of  Wilson  Profile,  Abstracted 1935  6640 

Referred  to  1471  4968 

1,  June  15,  IMap,  Land  owned  by  Deft.,  Abstracted 1936  6644 

Referred  to  1498  5039 

2,  June  15,  Continuation  of  Woermann  Ex.  1,  June  15, 

Abstracted  1936  6646 

Referred  to  1498  5039 

Zarley  Defendant’s,  1,  Sheet  13,  Marshall  Survey,  Abstracted  1924  6567 

Referred  to  874  2625 

Explanatory  Note  of  Certificate  of  Evidence 631  1780 

Extension  of  Orr  Ex.  3,  Orr  Ex.  4,  Abstracted 1919  6517 

Referred  to  929  2887 

F. 

“F”  Exhibit  to  Bill 42  65 

Feeder  (see  Kankakee  Feeder). 

Fences  in  Desplaines  R.  (Erhard  Dep.) 163  243 

Ferris,  James  H.,  Deposition: 

Direct  exam 499  1274 

Cross  exam 499  1276 

Re-direct  exam 500  1277 


xxvi 

Page  of  Page  of 
Abstract  Transcript 

Field,  Enos,  Deposition : 

Direct  exam 598  1660 

Cross  exam 601  1668 

(Read)  1221  4240 

Field  Notes,  “Ex.  1,”  Abstracted 1724  5717 

Referred  to  765  2194 

“Ex.  2,”  Abstracted 1724  5771 

Referred  to  766  2205 

“Ex.  3,”  Abstracted 1725  5982 

Referred  to  766  2205 

Ex.  1,  2 &:  3 received  in  evidence 875  2632 

Fish-hook  Rapids,  Witness  Gray 1526  5116 

Do 1545  5168 

Five-mile  Rapids,  Witness  Gray 1526  5115 

Flanders,  James  R.,  Deposition: 

Direct  exam 429  -973 

Cross  exam 430  981 

Re-direct  exam 432  990 

(Read)  850-  2532 

Flint’s  Letters,  extract  from -729  2069 

Do 942  2949 

Fogarty,  Patrick : 

Direct  exam 1350  4639 

Cross  exam 1356  4658 

Re-direct  exam 1359  4666 

Re-cross  exam 1369  4667 

Fogarty  Ex.  t.  Picture  Bridge  across  Lake  Joliet 1730  6055 

Referred  to  1352  4647 

Ford,  Gov.,  Deed  from,  to  Canal  Trustees,  Snyder  Ex.  1 1301  4496 

First  letter  (read) 1566  5230 

Second  letter  (read) 1566  5251 

Fords  in  Desplaines  R.  (Countryman  Dep.) 478  1217 

(Reed  Dep.)  156  220 

Found,  William,  Deposition  of : 

Direct  exam 461  1129 

(Read)  1238  4286 

Fox,  Geo.  B.,  Deposition : 

Direct  exam ' 329  618 

Cross  exam 334  631 

(Read)  870  2599 

Ex.  1,  Photo.,  interior  of  tunnel  boat.  Abstracted 1924  6563 

Referred  to  929  2887 

Ex.  2,  Photo.,  exterior  of  tunnel  boat.  Abstracted 1924  6565 

Referred  to  929  2887 

River,  Dams  in  (Witness  ]\Iead) 1135  3824 

Long’s  Rep 1624  5350 

Map  and  Profile 1947 


XXVll 


r o-  . . Page  of  Page  of 

Fox  River  (continued)  : Abstract  Transcript 

Abstracted I945  6727 

Referred  to  1626  5353 

“The  Montello”  933  2915 

Fraser  River  (Witness  Gray) 1514  5933 

Fullerton,  Alex  N.,  Exhibit,  Patent,  introduced 1605  5299 

G. 

“G”Ex.  to  Bill 43  68 

Gasconade  River,  Navigation  of  (Witness  Cooley) 798  2355 

Gates  in  Fences,  Desplaines  R.  (Erhard  Dep.) 163  243 

Gatons,  Samuel,  Deposition : 

Direct  exam 433  1230 

Cross  exam 435  ]236 

Re-direct  exam 437  1242 

Re-cross  exam 437  1242 

Re-re-direct  exam 437  1242 

(Read)  680  1944 

Gauge  Readings  (Witness  Cooley) 806  2374 

(Witness  Johnston)  1374  4709 

* (Witness  Woermann)  1432  4366 

Cooley  Ex,  12,  Abstracted 1725  5335 

Referred  to  809  2386 

Referred  to  876  2642 

Ex.  32,  Abstracted 1730  6014 

Referred  to  1184  4100 

Ex.  34,  Abstracted 1730  6028 

Referred  to  1184  4100 

Gaylord  Contract,  Complainant’s  Ex.  3 931c  2896 

Ex.  4 931d  2900 

General  Replication  I53  157 

Government  Repts.  (see  Engineers,  Executive  Doc.,  House  Doc., 
etc.). 

Government  Survey,  Snyder  Ex.  A,  Abstracted I934  6632 

Referred  to  1292  4472 

Graham,  R.,  and  Philips,  J.,  Rep.  of 700  2018 

Grand  Rapids,  Stikine  River,  Witness  Gray 1534  5134 

Gray,  Wm.  P. : 

Direct  exam 1506  5063 

Cross  exam 1514  5083 

Re-direct  exam 1544  5164 

Re-cross  exam 1548  5175 

Re-direct  exam 1549  5179 

Gray’s  Defeat,  Witness  Gray 1526  5115 

Green  River,  Navigation  on 1017  3338 

Green,  Wm.,  Deed,  Canal  Trustees  to  (read) 1609  5312 

Greenville,  Treaty  of 760  2175 


xxvin 


Page  of  Page  of 
Abstract  Transcript 


Griswold,  Harold  T. : 

Direct  exam 850  2533 

Cross  exam 853  2541 

Re-direct  exam 853  2542 

Lease,  approved  263  500a41 

Gurney,  George  F.,  Deposition  of : 

Direct  exam 532  1391 

Cross  exam 535  1402 

Re-direct  exam 537  1415 

Re-cross  exam 538  1419 

Re-re-direct  exam 538  1420 

(Read)  1176  4032 

H. 

“H”  Exhibit  to  Bill 44  70 

Hammond,  Seneca,  Deposition  of : 

Direct  exam 607  1688 

Cross  exam 609  1695 

(Read)  1222  4240 

Handbury,  Major,  Rep.  of,  on  waterway.  Miss.  Riv.  & Lakes  (read)  652  1839 

Harmon,  Jacob  A.,  Rep.  of  (read) 1061  3578 

Hart,  A.  B.,  x\m.  Nation,  extract  from 747  2122 

Hennepin,  Louis,  “New  Discovery,”  extract  from 972  3118 

Hennepin  Canal,  Cross-sec.  of,  Wheeler  Ex.  1,  Abstracted 1934  6628 

Referred  to  1241  4294 

Navigation  on.  Witness  Wheeler . 1240  4290 

Do 1271  4397 

Heward,  Hugh,  Journal,  extracts  from 745  2115 

Rulings  on  motion  to  strike  out 1238  4281 

Heydecker,  C.  T.,  Deposition ; 

Direct  exam 204  364 

Cross  exam 214  392 

Re-direct  exam 216  398 

Re-cross  exam 217  399 

(Read)  764  2187 

Motion  . . . .- 957  3007 

Ruling  on  motion 1232  4266 

Heyworth,  James  O.,  Deposition; 

Direct  exam 371  745 

Cross  exam 376  764 

Re-direct  exam 379  771 

Re-cross  exam 380  774 

Re-re-direct  exam 380  775 

(Read)  781  2284 

Alleged  errors  in 1603  5295 

Testimony,  Direct  exam 1603  5295 


xxix 

Page  of  Page  of 
Abstract  Transcript 

Hicks,  Obadiah,  Deposition  of: 

Direct  exam 435  1004 

Cross  exam.  436  1006 

Re-direct  exam 439  1013 

(Read)  680  1942 

Motion 957  3006 

Ruling  on  motion 1226  4250 

Ruling  on  obj 436  1942 

Hild,  Frederick  H. : 

Direct  exam 640  1806 

Cross  exam 642  18 JO 

Re-direct  exam 646  1823 

Re-cross  exam 646  1823 

Hillebrand,  J.  H.,  Deposition : 

Direct  exam 292  520 

Cross  exam 302  545 

Direct  exam,  cont’d 304  550 

Cross  exam,  cont’d . 311  506 

(Read)  875  2635 

Exhibit  1,  Profile,  Abstracted 1925  6569 

Referred  to  875  2636 

2,  Map,  Joliet  & vicinity.  Abstracted 1920  6971 

2,  Blue  print.  Abstracted 1922  0555 

Referred  to  875  2630 

Referred  to  928  2887 

Hill’s  Bar,  Witness  Gray 1515  5087 

Historical  Evidence,  Witness  Alvord 681  1947 

Witness  Shepardson  957  3009 

History,  Woodruff’s,  Will  County 955  3004 

House  Doc.  192,  Profile  Sheet  7,  Abstracted 1933  6022 

Referred  to  1185  4101 

Profile  Sheet  8,  Abstracted 1933  0624 

Referred  to  1185  4101 

263  (Identified)  169  269 

263,  extracts  from,  pp.  8,  9 1700  5527 

Do.  p.  16 660  1862 

Do 1702  5582 

Do.,  pp.  7,  8 1127  3791 

Do.,  p.  212 1128  3792 

263,  “Dams,”  pp.  45,  46 842  2510 

Referred  to  1730  6011 

264  (Read)  949  2980 

Do.,  p.  7 950  2982 

Do 1121  3779 


XXX 

Page  of  Page  of 
Abstract  Transcript 

Hoy,  Charles,  Deposition: 

Direct  exam 467  1166 

Cross  exam 467  1169 

Re-direct  exam 469  1176 

Re-cross  exam 469  1176 

(Read)  679  1943 

Hurlbnt’s  “Chicago  Antiquities”  (Read) 1655  5436 

Hutchins,  T.,  Letter 727  2064 

“Hydrostatic  Head,”  Definition  of.  Witness  Wheeler 1245  4312 

Hypothetical  Question,  Witness  Bewley 1016  3335 

Witness  Pryor  1024  3375 

I 

“I”  Exhibit  to  Bill 44  71 

Illinois  & Desplaines  R.,  Gauge  Readings  of,  Cooley  Ex.  12 

Abstracted 1725  5386 

Referred  to  809  2385 

Referred  to  876  2642 

Survey  Sheet  6,  Woermann  Ex.  3,  Abstracted 1929  6590 

Referred  to  1007  3287 

& Michigan  Canal,  Deed,  Trustees  to,  Jas  Dinet  (read)....  1607  5306 

Wm.  Greene  (read) 1609  5312 

Thomas  Stinson  (read) 1608  5309 

Gideon  Westbrook  (read)  1610  5315 

Deed  from  Gov.  Ford  to  Trustees  of,  Snyder  Ex.  1...  1301  4496 

Lands,  Map  of,  Orr  Ex.  1,  Abstracted 1917  6511 

Referred  to  929  2887 

re.  Senate  Journal  1836-7  (read) 1168  3988 

Report  of  Trustees,  1871  (read) 1314  4522 

Report,  1900,  Abstracted 1855  6337 

Referred  to  1292  4472 

& Wabash  Rivers,  Canal  Improvements  of.  Chap.  19,  Sec.  7 

(read)  1346  4608 

Historical  & Statistical,  Moses,  pp.  76-7  (read) 1057  3553 

“Illinois  in  1837” 960  3030 

Extract  from  208  379 

Do 722  2051 

Do.,  Ruling  on  motion  to  strike  out 960  3030 

Illinois  Legis.,  Acts  of  (see  Acts  of  111.  Legis.). 

Illinois  River  & Canal,  Map,  Woermann  “Ex.  B,”  June  13,  1908 

Abstracted  1935  6638 

Referred  to  l 1471  4967 

Profile,  Cooley  Ex.  29,  Abstracted 1932  6614 

Referred  to  1184  4100 

Steel  Co.,  Deed  of  Canal  Commissioners'  to,  Defdt.  “Ex.  2,” 

June  12,  1908  (read) 1417  4830 

(The  Upper)  (read) 921  2862 


XXXI 


Imlay’s  America,  p.  485  (read) 

Do.,  pp.  71,  503 

Index  page,  plat  book  No.  2,  Orr  Ex.  2,  Abstracted 

Referred  to  

Information  or  Bill  of  Complaint 

Abstract  of  

Prayer  of  

Verification  of  

Injunction,  Notice  of  Application  for 

Preliminary,  order  for 

Return,  Writ  of 

Writ  of  

Internal  Improvement  Com.  of  111.,  Rep.  of,  Cooley  Ex.  1 

Abstracted 

Referred  to  

Extract  from  

International  Deep  Waterway  Com.,  Profile  Sheet  7,  House  Doc. 

192,  Abstracted  

Referred  to  

Profile  Sheet  8,  House  Doc.  192,  Abstracted 

Referred  to  


J. 

“J”  Exhibit  to  Bill 

Jesuit  Relations,  Vol.  58 

Do.,  Vol  59 

Johnson,  Isaac  M.,  Deposition: 

Direct  exam 

Cross  exam 

Johnston,  Thos.  T. : / 

Direct  exam 

Recalled  

Cross  exam 

Re-direct  exam 

Joint  Resolution,  111.  Legis'.,  1907 

Do.  (see  Acts  of  111.  Legis.). 

Joliet  & Vicinity,  Map  of,  Hillebrand  Ex.  2,  Abstracted 

Referred  to  : 

“Joliet,”  Article  on.  Chambers  Ency.  (read) 

Joliet,  Directory  of,  extract  from 

Ruling  on  obj 

Lake,  Bridge  across,  Picture,  Fogarty  Ex.  1,  Abstracted.... 

Referred  to  

“Joliet  Signal,”  extract  from 

Do 


Page  of  Page  of 
Abstract  Transcript 


937 

2935 

727 

2064 

1918 

6513 

929 

2887 

1 

2 

52 

26 

40 

28 

42 

78 

83 

70 

42 

78 

89 

78 

87 

1725 

5795 

804 

2367 

921 

2862 

1933 

6624 

1185 

4101 

1933 

6622 

H85 

4101 

46 

74 

712 

2026 

713 

2031 

422 

935 

423 

940 

1367 

4689 

1396 

4765 

1404 

4790 

1412 

4818 

932 

1908 

1926 

6971 

875 

2636 

1649 

5425 

405 

871 

955 

3004 

1730 

6055 

1352 

4645 

403 

864 

444 

1045 

XXXll 


Page  of  Page  of 
Abstract  Transcript 


Joliet’s  Map,  1674,  Alvord  Ex.  1,  Abstracted 1916  6492 

Referred  to  688  1963 

Jones,  Eliza  P.,  Deposition : 

Direct  exam 461  1132 

Cross  exam 462  1136 

• (Read)  662  1867 

Motion 956  3006 

Ruling  on  motion  1229  4259 

Samuel  W.,  Deposition : 

Direct  exam 463  1141 

Cross  exam 464  1144 

(Read)  662  1867 

Motion 956  3006 

Ruling  on  motion  1230  4261 

Journal  (Senate),  1836,  p.  17,  etc.  (read) 1065  3594 

1836-7  (re  I.  & M.  Canal)  (read) 1168  3988 

1838-9,  p.  12  (read) 1066  3597 

Joutel,  Quotation  from,  Parkman’s  “La  Salle” 1043  3502 

Juliet,  Map,  School  Sec.  Add.,  Complainant’s  Ex.  A-3,  Abstracted  1920  6531 

Referred  to  1279  4422 

Town  Plat,  Complainant’s  Ex.  A-5,  Abstracted 1278  4422 

Referred  to  1278  4422 

K. 

“K”  Exhibit  to  Bill 47  76 

Kanawha  River,  Navigation  on.  Witness  Bing 664  1873 

Kankakee,  Early  Town  plat  of,  Abstracted 1920  6527 

Referred  to  1280  4424 

Feeder  (Anderson  Dep.) 424  947 

(Dimmick  Dep.)  500  1278 

(Johnson  Dep.)  422  936 

(McDonald  Dep.)  287  502 

(Sackett  Dep.)  235  454 

(B.  Williams,  Dep.) 340  646 

Witness  Mead  1144  3854 

Witness  Wheeler  1248  4321 

Proposed  lease  in  connection  with  (Snyder  Dep.) 263  500a39 

R.  Valley,  Map,  Woermann  Ex.  A,  June  13,  Abstracted....  1935  6636 

Referred  to  1459  4930 

Kaskaskia,  Name  transferred 735  2085 

Witness  Alvord  687  1960 

Kavanagh,  M.  and  Russell  S.,  Lease,  Canal  Commissioners  to 

Snyder  Ex.  22  (read) 1393  4758 

Keel,  Boats,  Drown’s  Peoria 679  1932 

Do 959  3018 


XXXlll 

Page  of  Page  of 
Abstract  Transcript 

Keen,  James  C.,  Deposition  of: 

Direct  exam.  593  1G4G 

Cross  exam.  596  1G55 

Re-direct  exam 597  1658 

(Read) 1221  4240 

Keepotavv,  Town  plat  of,  Complainant’s  Ex.  A 11,  Abstratced.  . . . 1922  6547 

Referred  to  1279  4472 

Kentucky  River,  Navigation  on,  Witness  Pryor 1025  3381 

Keoiigh,  Wm.,  Appointment  as  Inspector,  Complainant’s  Ex.  5..  931h  2907 

Kercheval,  Charles,  Deposition : 

Direct  exam 475  1205 

Cross  exam 476  1208 

Kilmer,  R.  W.,  Deposition : 

Direct  exam 625  1752 

Cross  exam 627  1755 

Re-direct  exam 628  1759 

(Read)  1222  4240 

Kimberly,  F.  S.,  Patent'to,  dated  1839,  Snyder  Ex.  10  (read)...  1339  458^ 

King,  Daniel,  Deposition : 

Direct  exam 464  1149 

Cross  exam 466  1157 

(Read)  681  1945 

Motion 957  3007 

Ruling  on  motion 

John  P.,  Deposition: 

Direct  exam 581  1602 

Cross  exam 584  1616 

Re-direct  exam 585  1619 

Re-cross  exam 585  1620 

Kramer,  Wm.,  Deposition : 

Direct  exam 354  688 

Cross  exam 359  704 

Re-direct  exam 368  733 

(Read)  876  2636 

L. 

‘‘L”  Exhibit  to  Bill 50  8ft 

Lakes  to  Gulf  Waterway,  Report  of  Sanitary  Disk,  pp.  3,  4,  8,  9 

(read)  1186  4116 

Extract  from  899  2747 

Do 915  2836 

Lands,  Canal  (see  Canal  Lands). 

Owned  by  Defendant,  Map  of,  Woermann  Ex.  1,  June  15 

Abstracted 1936  6644 

Referred  to  1498  5039 


xxxiv 


Page  of  Page  of 

Lands,  Canal  (continued)  : Abstract  Transcript 

Sale,  Advertisement  of 258  500a25 

Postponed  Proceedings  of  Canal  Com’rs,  Aug.  4,  1904, 

Snyder  Dep 252  500all 

La  Salle,  Chambers  Ency.,  received  in  evidence 1647  5421 

Letters  of,  1680,  received  in  evidence 1640  5392 

Parkman’s,  extracts  from,  pp.  51-66 733  2080 

Do.,  p.  449 738  2094 

Parkman’s,  offered  1647  5421 

Layton,  David,  Deposition : 

Direct  exam 575  1577 

Cross  exam 580  1595 

(Read)  1217  4202 

Lease,  Canal  Com.  to  111.  Steel  Co.,  Snyder  Ex.  20  (read) 1388  4747 

M.  Kavanaugh  & S.  Russell,  Nov.  27,  1894,  Snyder  Ex.  22  1393  4758 

Herbert  S.  Norton,  April  14,  1894,  Snyder  Ex.  21 1391  4752 

of  Canal  Land  (Synder  Dep.) 255  500al8 

Approved  (Snyder  Dep.) 256  500a21 

of  Dam  No.  1 (read) 1676  5489 

Proposed  additional  lease  in  connection  with  Kankakee  Feeder 

(Snyder  Dep.)  263  500a39 

Proposition  .submitted  for  additional  lease  of  water  power 

(Snyder  Dep.)  262  500a37 

to  Griswold,  approved 263  500a41 

Lee,  Robt.  E.,  Map  of,  rec’d  in  evidence 1617  5333 

Rep.  of,  rec’d  in  evidence 1615  5329 

Letter  from  Col.  Bixby,  of  Mar.  16,  1906  (read) 1210  4181 

of  Asst.  Sec’y  of  War,  in  Answer 108  131 

Father  Dablon,  Aug.  1,  1674  (read) 944  2960 

Linden,  Jno.  A. : 

Direct  exam 1606  5301 

(Cont’d.)  1712  5563 

Little  Pine  Tree  Rapids,  Snake  River,  Witness  Gray 1513  5080 

Lockport,  111.,  Proceedings  of  Canal  Com’rs  at,  Aug.  4,  1904 

(Snyder  Dep.)  252  SOOall 

Town  plat  of,  1836,  Complainant’s  Ex.  A8,  Abstracted 1921  6541 

Referred  to  1279  4472 

1837,  Complainant’s  Ex.  A7,  Abstracted 1921  6539, 

Referred  to  1279  4422 

Long  Crossing  Rapids,  Witness  Gray 1527  5118 

Do 1545  5168 

Maj.,  Rep.  of,  1817-1819  (read) 1624  5350 

Long’s  Rep.  and  Map,  Exhibit  of.  Abstracted 1917  6496 

Extract  from  705  2001 

Do 739  2097 

Referred  to  712  2024 


XXXV 

Page  of  Page  of 
Abstract  Transcript 

Lorimer,  Wm.,  Deposition ; 

Direct  exam 195  334 

Cross  exam 106  338 

(Read)  648  1827 

M. 

“M”  Exhibit  to  Bill 51  82 

Mack,  Judge,  Order  appointing 153  159 

Mackinac,  Witness  Alvord 729  2068 

Mackinaw  Boats  (Belz  Dep.) 440  1016 

Macomb,  J.  N.,  Report  of,  on  Transportation  Route  (read) 651  1837 

Profile,  Cooley  Ex.  36,  Referred  to 1185  4101 

Referred  to  1933  6620 

Do 811  2390 

McCaflfrey,  John ; 

Direct  exam.  . 1157  3932 

Cross  exam 1159  3942 

McCowan,  John,  Deposition : 

Direct  exam 617  1723 

Cross  exam 620  1736 

Re-direct  exam 623  1744 

Re-cross  exam 624  1747 

(Read)  1222  4240 

(Recalled)  Direct  exam 491  1253 

Cross  exam 494  1260 

(Read)  1238  4286 

McCullough,  Jos.  E. : 

Direct  exam 1176  4034 

Cross  exam 1177  4044 

Re-direct  exam 1179  4061 

Re-cross  exam 1179  4069 

Recalled 1182  4095 

Cross  exam 1182  4098 

Re-direct  exam 1183  4099 

“Ex.  1,”  Map  of  Township  in  Ranges  8,  9 & 10,  Abstracted. . . 1914  6480 

Referred  to  633  1785 

Referred  to  841  2505 

“Ex.  1-A,”  Additions  to  McCullough  Ex.  1,  Abstracted 1914  6482 

Referred  to  769  2224 

Referred  to  841  2505 

“Ex.  2,”  Continuation  of  McCullough  Ex.  1,  Abstracted 1915  6484 

Referred  to  777  2269 

Referred  to  841  2505 

“Ex.  2-A,”  Additions  to  McCullough  Ex.  2,  Abstracted 1915  6486 

Referred  to  777  2271 

Referred  to  841  2505 


xxxvi 

Page  of  Page  of 
Abstract  Transcript 

McDonald,  Leon,  Deposition : 

Direct  exam 265  500a45 

Cross  exam 279  500a85 

Re-direct  exam 289  509 

Re-cross  exam 291  515 

(Read)  875  2635 

McKenzie,  Alex.,  Deposition : 

Direct  exam 166  261 

Cross  exam 170  270 

Re-direct  exam 175  288 

Re-cross  exam 177  293 

Re-re-direct  exam 180  297 

Re-re-cross  exam 180  299 

Ex.  “A”  to 181  302 

Ex.  “B”  to 181  300-1 

(Read)  648  1827 

McLaughlin’s  Falls'  (Witness  Gray) 1518  5094 

Magazine  of  American  History,  Vol.  2,  p.  552  (read) 968  3109 

Vol.  2 (read) 1646  5420 

Alap  & Profile  of  Allegheny  River 1951 

Abstracted 1949  6729 

Referred  to  1630  5365 

Chief  of  Eng.  Rep.,  1880,  Rec’d  in  evidence 1619  5337 

of  Channahon  Township,  Will  County,  Outline,  Abstracted  1916  6490 

Referred  to  928  2887 

Chicago,  Rand-McNally,  Abstracted 1926  6574 

Referred  to  929  2887 

Desplaines  River  with  Profile,  Cooley  Ex.  2,  Abstracted....  1923  6557 

Referred  to  811  2392 

Referred  to  813  2396 

Fox  River  1947 

Abstracted 1945  6727 

Referred  to  1626  5353 

111.  & Mich.  Canal  Lands,  Orr.  Ex.  1,  Abstracted 1917  6511 

Referred  to  929  2887 

1674,  Joliet’s,  Alvord  Ex.  1,  Abstracted 1916  6492 

Referred  to  688  1963 

Land  owned  by  Deft.,  Woermann  Ex.  1,  June  15,  Abstracted  1936  6644 

Referred  to  1498  5039 

Lee,  Robt.  E.,  Rec’d  in  evidence 1617  5332 

Oregon,  Ex.  1,  June  16,  Abstracted 1936  6648 

Referred  to  1550  5180 

Rock  Island  Rapids 1939  6723 

Abstracted . 1937  6721 

Referred  to  1615  5328 

No.  2,  Abstracted 1938  6723 

Referred  to  1619  5337 


xxxvii 

Page  of  Page  of 

Map  (continued)  : Abstract  Transcript 

School  Sec.  Addition  to  Juliet,  Complainant’s  Ex,  A3 

Abstracted 1920  6531 

Referred  to  1279  4422 

Township  in  Ranges  8,  9 & 10,  IMcCullough  Ex.  1,  Abstracted  1914  6480 

Referred  to  633  1785 

Referred  to  841  2505 

Wash.. Ex.  2,  June  16,  Abstracted 1936  6650 

Referred  to  1550  5180 

Watersheds,  Cooley  Ex.  16,  Abstracted 1927  6578 

Referred  to  920  2856 

Will  County,  Outline,  Abstracted 1916  6488 

Referred  to  92S  2887 

Maps,  Early,  Andreas’  Map,  offered 701  1986 

Margry  Ex.,  June  16,  La  Salle’s  Letter  of  1680  (read) 1640  _ 5392 

Do.,  extract  from,  p.  81  963  3070 

Do.,  p.  32 1060  3567 

Vol.  2,  pp.  81,  82  (read) 971  3116 

Marquette’s  Map  1943 

Abstracted 1941  6725 

Referred  to  1624  5349 

Marquette,  First  Voyage  (Witness  Alvord) 683  1953 

Marseilles  Rapids  1125  3787 

Marshall,  W.  L.,  Rep.  of 811  2391 

Do.  (see  Executive  Doc.  264). 

Marshall,  Profile,  Cooley  Ex.  26,  Abstracted 1932  661/) 

Referred  to  1183  4100 

Sheet  16,  Cooley  Ex,  27,  Abstracted 1932  6612 

Referred  to  1183  4100 

Rep.,  Sheet  13,  Cooley  Ex.  25,  x\bstracted 1931  6608 

Referred  to  1183  4100 

Extract  from,  pp.  12,  21 653  1843 

Survey,  Sheet  13  of,  Zarley  Ex.  1,  Abstracted 1924  6567 

Referred  to  874  2625 

Mason,  Isaac  N. : 

Direct  exam 1217  4203 

Cross  exam 1218  4208 

Re-direct  exam 1220  4233 

Re-cross  exam 1221  4240 

Mathewson  Canal  Survey,  Tracing  of,  Orr  Ex.  7,  Abstracted 1920  6523 

Referred  to  749  2128 

Survey,  Blue  Print  of,  Orr  Ex.  3,  Abstracted 1918  6515 

Referred  to  929  2887 

Mead,  Daniel  W. : 

Direct  exam 1129  3797 

Cross  exam 1146  3864 

Re-direct  exam 1152  3903 

Further  cross  exam 1153  3905 


xxxviii 


-Page  of  Page  of 

Mead,  Daniel  W.  (continued)  : Abstract  Transcript 

Re-direct  exam,  cont 1153  3909 

Recalled,  Direct  exam 1281  4432 

Cross  exam 1284  4443 

Re-direct  exam 1290  4464 

Re-cross  exam 1290  4465 

Recalled  1293  4477 

Meander  Line,  Testimony  of  Bremer 779  2279 

Cooley 845  2516 

Rudolph 767  2218 

Rudolph  772  2248 

Rudolph  773  2253 

Mills,  Thos.  Austin: 

Direct  exam 1030  3406 

Cross  exam 1035  3437 

Re-direct  exam 1041  3483 

Mississippi  River,  Early  Names  (Witness  Alvord) 713  2030 

Navigation  of  (Witness  Cooley) 798  2355 

(Witness  Tibbals)  634  1790 

(Witness  Van  Sant)  854  2546 

and  Lakes,  Rep.  of  Maj.  Handbury,  on  water  communication 

between  (read)  652  1839 

Missouri  River,  Navigation  of  (Witness  Cooley) 794  2345 

on,  U.  S.  Eng’rs  Rep 1189  4125 

Rep.  of  Chief  of  Eng.,  1878 1192  4135 

Moline  Rapids  (Witness  Whisler) 1155  3920 

Monroe,  Geo. ; 

Direct  exam 1461  4939 

Cross  exam 1465  4949 

Montello,  20  Wall.,  439,  Opinion  of  Court 933  2915 

Monumental  Rapids  (Gray) 1529  5122 

Do 1546  5169 

Moore,  Robert : 

Direct  exam 994  3222 

Cross  exam 999  3250 

Re-direct  exam 1007  3286 

Re-cross  exam 1008  3293 

Re-re-direct  exam 1013  3321 

Re-re-cross  exam 1014  3327 

Moses  “Illinois  Historical  & Statistical,”  pp.  76-7  (read) 1057  3553 

Do.,  extract  from 1058  3555 

Referred  to  965  3087 

“Mosquito”  Boats  (Sweeney  Dep.) 324  603 

Motion  to  strike  out  Tradition  Evidence 957  3003 

Ruling  on  1223  4242 

Motor  Boats  (Palmer  Dep.) 316  583 

(Sweeney  Dep.)  . 320  592 

(Witness  Cooley)  925  2872 

Mud  Lake  (Witness  Cooley) 830  2459 


xxxix 

Page  of  Page  of 
Abstract  Transcript 

Munch,  Xavier,  Deposition : 

Direct  exam..  530  1422 

Cross  exam 542  1435 

Re-direct  exam 544  1445 

Re-cross  exam 545  1449 

(Read)  1170  4033 

Munroe,  Chas.  A. : 

Direct  exam 1011  5319 

Cross  exam 1013  5324 

Re-direct  exam 1014  5325 

Murray,  Hugh,  Encyc.  of  Geography,  extracts  from 212  388 

Muskrats,  Action  of  (Witness  Cooley) 917  2840 

(Witness  Mead)  1141  3844 

(Witness  Wheeler)  1254  4342 

Myers,  William  S.,  Deposition : 

Direct  exam 530  1385 

Cross  exam 531  1389 

(Read)  1175  4032 

N. 

Narrative  and  Critical  History  of  America,  “Winsor,”  (read)....  1047  5421 

Part  T (read) 1053  5432 

p.  179  (read) 1001  5444 

pp.  222-6  (read)  1001  5440 

Navigable  Stream,  definition  of.  Burton  Dep 183  307 

War  Dept.,  McKenzie 108  200 

Witness  Cooley 900  2782 

Hypothetical  question.  Burton  Dep 185  312 

Witness  Van  Sant 802  2567 

Navigation,  Early,  Evidence,  Old  Settlers: 

Depositions : 

Abbott 454  1097 

Adler 561  1513 

Alexander 506  1312 

Belz 439  1014 

Blaess 481  1226 

Bowers 421  930 

Do 601  1671 

Boyne 545  1450 

Brockway  458  1113 

Burt 569  1554 

Chamberlin 606  1684 

Clay 472  1196 

Clement 391  821 

Collins 613  1708 

Comstock 586  1622 


xl 

Page  of  Page  of 

Navigation,  Early  Evidence,  Old  Settlers  (continued)  : Abstract  Transcript 

Conant 495  1265 

Countryman 476  1212 

Daly 471  1186 

Erhard 162  241 

Field 598  1660 

Flanders  ' 429  973 

Found 461  1129 

Gatons 483  1230 

Gurney 532  1391 

Hammond 607  1689 

Hey  decker  204  363 

Hicks 435  1004 

Hoy  467  1166 

E.  Jones  461  1132 

S.  Jones  463  1141 

Keen 593  1646 

King,  D.  W 464  1149 

King,  J.  P 581  1602 

Killmer 625  1752 

Layton 575  1577 

McGowan 491  1253 

Do 617  1723 

Munch 539  1422 

Myers 530  1385 

O’Brien 610  1697 

Paddock 469  1178 

Parrent  448  1068 

Pohl 444  1046 

Raymond  433  996 

Reed 155  213 

Spoor 418  916 

Stevens  (W)  401  855 

Tanner 460  1124 

Taylor 487  1243 

Wiggam 311  568 

Wightman 425  952 

Williams  (S)  522  1362 

Witnesses : 

Brockway  1360  4669 

Copelantz 1101  3678 

Elwood 1110  374^1 

Fogarty 1350  4639 

Mills 1030  3406 

Monroe,  G.  H 1461  4939 

on  Kanawha  River,  Witness  Bing 664  1873 

IMississippi  River,  Witness  Tibbals 634  1790 

on  Ohio  River,  Witness  Bing 663  1869 


xli 


Navigation  (continued)  : 

Period  of,  on  Canal,  Witness  Cooley 

Navigator,  The  

Do.,  Ruling  on  motion  to  strike  out 

Ninety-foot  Strip,  Fences  on  (McDonald  Dep.) 

List  of  leases  of,  Witness  Snyder 

Norton  & Co.,  Water-power  rentals 

Herbert  S.,  Lease,  Canal  Commissioners’  to,  Apl.  14,  1894, 

Snyder  Ex.  21  (read) 

Notice  of  Application  for  Injunction 

of  Sale  of  Canal  Lands,  Copy  of 

Do 

Published,  of  proposed  sale 

Nowlin  River,  Navigation  on.  Witness  Bewley 

O. 


O’Brien,  Peter,  Deposition  of : 

Direct  exam 

Cross  exam 

(Read)  

Ogden  Ditch  (Williams  Dep.) 

Witness  Cooley  

Ogden’s'  Letters,  extract  from.....' 

Ohio  River,  Navigation  on.  Imlay 

Falls  of.  Rep.  U.  S.  Eng.,  1882 

Witness  Bewley  

Bewley 

Bing 

Cooley 

McCullough  

Pryor 

Okanogan  River,  Witness  Gray 

Old  Settlers,  Evidence  of  Early  Navigation  (see  Navigation,  Early.) 
Oliver,  Robt.  Shaw,  Asst.  Sec’y  of  War,  Letters  from,  of  June  7, 

1906  

Do.,  in  answer  

Order  adjourning  Mar.  term 

appointing  Judge  Mack 

for  Preliminary  Injunction 

Ordinance  of  1787,  etc 

Oregon,  Map  of.  Ex.  1,  June  16,  Abstracted 

Referred  to  

Orr,  Robt.  E.,  Deposition : 

Direct  exam 

Cross  exam 

Direct  exam 

Cross  exam 

(Read)  

Testimony,  Direct  exam 


Page  of  Page  of 


Abstract  Transcript 

1674 

5482 

718 

2042 

960 

3035 

269 

500a56 

1386 

4739 

277 

500a80 

1391 

4752 

78 

83 

42 

66 

45 

72 

77 

71 

1018 

3346 

610 

1697 

612 

1704 

1222 

4240 

347 

664 

825 

2448 

730 

2071 

938 

2936 

1619 

5339 

1015 

3329 

1020 

3355 

663 

1869 

799 

2356 

1177 

4044 

1025 

3383 

1517 

5092 

1300 

4492 

1300 

4492 

155 

206 

153 

159 

70 

42 

632 

1783 

1936 

6648 

1550 

5180 

326 

610 

329 

618 

381 

778 

383 

783 

747 

2124 

749 

2127 

xlii 

Page  of  Page  of 

Orr,  Robt.  E,  (continued)  : Abstract  Transcript 

“Ex.  1,”  Map  of  111.  and  Mich.  Canal  lands,  Abstracted 1917  6511 

Referred  to  929  2887 

“Ex.  2,”  Index  page  of  Plat  Book  No.  2,  Abstracted 1918  6513 

Referred  to  929  2887 

“Ex.  3,”  Blue  print  of  Matliewson  survey,  Abstracted 1918  6515 

Referred  to  929  2887 

“Ex.  4,”  Extension  of  Orr  “Ex.  3,”  Abstracted 1918  6517 

Referred  to  929  2887 

“Ex.  5,”  Page  7 of  Plat  Book  No.  1,  Abstracted ; 1918  6517 

Referred  to  929  2887 

“Ex.  6,”  Survey  of  Secs.  3,  4 and  5,  Town  38,  Abstracted.  . 1918  6521 

Referred  to  929  2887 

“Ex.  7,”  Tracing  of  Mathewson  Canal  survey.  Abstracted...  1920  6523 

Referred  to  749  2128 

Outline  i\Iap  of  Channahon  Township,  Will  County,  Abstracted.  . 1916  6490 

Referred  to  928  2887 

Will  County,  Abstracted 1916  6488 

Referred  to  928  2887 

P. 

Paddock,  Erank,  Deposition : 

Direct  exam 469  1178 

Cross  exam 470  1181 

(Read)  662  1867 

Motion 956  3006 

Palmer,  Clarence,  Deposition : 

Direct  exam i 316  582 

(Read)  853  2543 

Palouse  Rapids  (Witness  Gray) 1528  5122 

Do 1546  5169 

Parkman,  “La  Salle  and  Discovery  of  Great  West,”  extract  from 

p.  276  1045  3505 

Do 975  3137 

Do.,  p.  106 977  3145 

Do.,  p.  21 988  3195 

Do.,  p.  21 1045  3508 

Do.,  p.  339 990  3205 

Do.,  p.  406 1043  3502 

Do.,  pp.  2,  3 18  106 

Do.,  pp.  51-66 733  2080 

Parks,  G.  D.  A.,  Voucher  to  (read) 1342  4591 

Parrent,  George  Al.,  Affidavit  of 452  1090 

Deposition,  Direct  exam 448  1068 

Cross  exam 449  1075 

(Read)  764  2186 

Motion 957  3007 

Ruling  on  motion  1227  4352 


xliii 


Page  of  Page  of 
Abstract  Transcript 


Patent,  Coen,  offered  in  evidence 870  2599 

Alex  N.  Fullerton,  Introduced 1605  5299 

F.  S.  Kimberly,  Dated  1839,  Snyder  Ex.  10  (read) 1339  4584 

Tunnel  Boat  Exhibit,  Abstracted 1725  5860 

Referred  to 870  2599 

Peace  of  1816,  Treaty  of 762  2180 

Peoria,  Drowns  (read) 959  3018 

Perrault,  Jean  Battiste,  Account  of 703  1988 

Perrin’s  Defeat  (Witness  Gray) 1525  5112 

Piepenbrink,  H.  S.,  Voucher  To,  Snyder  Ex.  11 1340  4588 

Pine  Tree  Rapids  (Witness  Gray) 1528  5120 

Plan  of  Dam,  Sheet  1,  Abstracted 1928  6582 

Referred  to  * 955  2998 

Sheet  2,  Abstracted 1928  6584 

Referred  to  955  2998 

Plats,  Town,  see  Exhibit,  Complainant’s  Al  to  Al2. 

Pohl,  Henry  R.,  Deposition  : 

Direct  exam 444  1046 

Cross  exam 445  1049 

Re-direct  exam 447  1063 

Re-crOss  exam 447  1066 

Re-re-direct  exam 445  1066 

(Read)  849  2532 

Pole  Line  Contract,  Dam  No.  1,  Complainant’s  Ex.  2 931a  2891 

Post  & Paul  Rep 1073  3613 

Postponement  of  Land  Sale,  Proceedings  Aug.  4,  1904,  Canal 

Com’rs  (Snyder  Dep.) 252  500all 

Potomac  River  (Palmer  Dep.) 200  348 

Prayer  of  Bill 26  40 

Precipitation  at  Chicago,  U.  S.  Weather  Bureau 1209  4178 

Illinois  River  Basin 1062  3580 

Preface,  Brown’s  Direct 675  1928 

Do 678  1831 

Preliminary  Injunction,  order  for 70  42 

Preston,  John  D.,  Report  of 810  2389 

Priest  Rapids  (Witnes's  Gray) 1517  5093 

Do 1521  5102 


Proceedings  of  Canal  Com’rs  (see  Canal  Com’rs). 

Profile  Consolidated,  Cooley  Ex.  3 (see  Consolidated). 

Continental  Waterway,  Cooley  Ex.  37  (see  Continental  Water- 
way). 

Macomb,  Cooley  Ex.  36  (see  Macomb). 

Marshall,  Cooley  Ex.  26  (see  Marshall). 

of  1904,  Cooley  Ex.  21,  Abstracted 1930  6596 

Referred  to  1183  4100 

111.  River,  Cooley  Ex.  29  (see  Illinois  River). 

Sanitary  Disk,  Cooley  Ex.  30  (s'ee  Sanitary  Disk). 


xliv 


Page  of  Page  of 

Profile  (continued)  : Abstract  Transcript 

Sheet  7,  Rep.  of  Internat’l  Deep  Waterway  Com.,  House  Doc. 

192  (see  Internat’l  Deep  Waterway). 

Sheet  8,  Rep.  of  Internat’l  Deep  Waterway  Com.,  House  Doc. 

192  (see  Internat’l  Deep  Waterway). 

Seddon,  Cooley  Ex.  15  (see  Seddon). 

Wilson,  Cooley  Ex.  35  (see  Wilson). 

Woerniann,  Woermann  Ex.  D,  June  13  (see  Woermann). 

Pryor,  Nathan  P. : 


Direct  exam 1022  3369 

Cross  exam 1025  3379 

Re-direct  exam 1029  3405 

R. 

Railroad  Rates,  Effect  of  Water  Competition 334  631 

Rambo,  J.  W. : 

Direct  exam 1160  3955 

Cross  exam 1162  3965 

Re-direct  exam 1164  3972 

Raymond,  George  W.,  Deposition ; 

Direct  exam 433  995 

Cross  exam 435  1000 

(Read)  849  2532 

Motion 957  3007 

Ruling  on  motion 1225  4246 

Reed,  Geo.  W.,  Deposition ; 

Direct  exam 155  213 

Cross  exam 158  227 

Re-direct  exam 160  232 

Re-cross  exam 161  232 

(Read)  639  1804 

Cross  exam ' 647  1825 

Motion 956  3005 

Ruling  on  motion 1231  4263 

Ruling  on  obj 158  1805 

Do 161  1826 

Release  Deed  of  Aug.  19,  1871  (Snyder  Ex.  3) 1326  ' 4547 

Replication,  General  153  157 

Report  of  Board  of  Engrs.  approving  watei^way 653  1842 

Canal  Com’rs  (see  Canal  Com’rs,  Rep.  of). 

Chf.  of  Eng.  U.  S.  A.  (see  Engineers,  Chf.  of.  Rep.). 

Comstock  Board  652  1841 

J.  E.  Duane,  approving  river  route 653  1842 

Major  Handbury,  iMiss.  and  Northern  Lakes  (read) 652  1839 

Jacob  A.  Harmon,  1901 1061  3578 

Internal  Improvement  Com.  of  III,  Cooley  Ex.  1,  Abstracted  1725  5795 

Referred  to  804  2367 

J.  N.  Macomb  on  Tran.sportation  Route  (read) 651  1837 


xlv 

Page  of  Page  of 

Report  (continued)  : Abstract  Transcript 

Sanitary  Dist.  Lakes  to  Gulf  Waterway,  pp,  3,  4,  8,  9 (read)  1186  4116 

E.  W.  Willard,  p.  269  (read) 1174  4006 

Judge  Benj.  Wright,  of  Oct.  23,  1837  (read) 1094  3661 

Rescue  Island  Rapids 1527  5119 

Witness  Gray  1545  5169 

Return  on  Injunction  Writ 78  89 

Richards,  Isaac  W. : 

Direct  exam 1106  3714 

Cross  exam 1108  3725 

Re-direct  exam 1109  3742 

Riprap,  cost  of.  Witness  Mead 1153  3905 

Moore 1007  3290 

Rudolph 773  2252 

Wheeler  1243  4304 

Riverside  Gauge  readings  (see  Gauge  readings). 

Rock  Island  Rapids,  Map  of 1939  6723 

Abstracted  1937  6721 

Referred  to  1615  5328 

No.  2,  Abstracted 1938  6723 

Referred  to  1619  5337 

Witness  McCullough  1177  4039 

McKenzie 174  283 

Rambo 1161  3959 

Whisler  1155  3917 

Columbia  River,  Witness  Gray 1517  5093 

Do 1519  5097 

Do 1546  5171 

Rough  River,  Navigation  on.  Witness  Bewley 1019  3348 

Royal  Trust  Co.,  Trust  Deed  of.  Economy  Light  & Power  Co.  to  1854  6300 

Rudolph  Ex.  1,  Plat  of  survey  of  site  of  Dam,  Abstracted 1922  6551 

Referred  to  771  2244 

Emil,  Direct  exam 765  2194 

Cross  exam 773  2252 

Re-direct  exam 775  2259 

Re-cross'  exam 778  2273 

Rulings  of  Court : 

On  right  of  Atty.  Gen.  to  sue 787  2329 

On  motions  to  strike  out  Histories 955  3004 

Do • 960  3030 

On  motion  to  strike  out  Tradition  Evid 1223  . 38 

On  Bixby  Letter 1296  4485 

During  argument  1717  5571 


xlvi 

Page  of  Page  of 
Abstract  Transcript 

S. 

Sackett,  Wm.  L.,  Deposition  of: 

Direct  exam 218  409 

Cross  exam 247  492 

Re-direct  exam 250  500a2 

Re-cross  exam 250  500a3 

(Read)  870  2599 

St.  Clair  Papers,  p.  174 728  2067 

St.  Cosme,  extract  from 700  1984 

Sale  of  Canal  Lands  (see  Canal  Lands). 

Salt,  shipment  of  on  river  (Belz  Dep.) 440  1017 

(E.  Jones  Dep.) 462  1134 

(S.  Jones  Dep.) 463  1143 

(Paddock  Dep.)  469  1180 

Samilkameen  River,  Witness  Gray 1517  5092 

Sanitary  District  Channel,  Witness  Cooley 818  2422 

Profile,  Cooley  Ex.  30,  Abstracted 1932  6616 

Referred  to  1183  4100 

Gauge  readings,  Cooley  Ex.  13,  Abstracted 1730  5999 

Referred  to  876  2642 

of  Chicago,  Report  p.  12  (read) 1121  3777 

Report,  Lakes  to  Gulf  Waterway,  pp.  3,  4,  8,  9 (read) 1186  4116 

San  Pedro  Harbor,  Witness  Moore 1003  3268 

Santee  River  (]\IcKenzie  Dep.) 177  292 

Savannah  River,  Navigation  of  (^McKenzie  Dep.) 177  291 

Schaffe,  Anna  Ida,  Direct  exam 1639  5389 

Schlink,  Valentine  L. : 

Direct  exam 673  1920 

Cross  exam 674  1923 

Re-direct  exam 675  1927 

Re-cross  exam 675  1927 

Schoolcraft  Map,  Abstracted 1929  . 6592 

Referred  to  1055  3546 

Travels,  extract  from 1053  3541 

Do 1048  3521 

Do 740  2099 

School  Sec.  Add.  to  Juliet,  Plat,  Complainant’s  Ex.  A3,  Abstracted  1920  6531 

Referred  to  1279  4422 

Seddon  Profile,  Cooley  Ex.  15,  Abstracted 1927  6576 

Referred  to  876  2643 

Senate  Journal,  111.,  1835,  extract  from 1065  3594 

1836-7,  Do 1168  3988 

Shabbona  (Abbott  Dep.) 455  1101 

(Raymond  Dep.)  434  997 

Shea,  Jno.  G.,  “Early  Voyages  Up  and  Down  the  Mississippi,” 

extract  from  1656  5442 

Do 763  2183 


xlvii 


Page  of  Page  of 

Shea,  Jno.  G.,  “Early  Voyages”  (continued)  : Abstract  Transcript 

Letter  of  St.  Cosme 973  3124 

Sheet  of  Plan  of  Dam  (see  Plan  of  Dam). 

Shepardson,  Francis  W. : 

Direct  exam 057  3009 

Resumed 961  3036 

Cross  exam 974  3133 

Re-direct  exam 991  3213  . 

Siphon,  Cost  of.  Witness  Woermann 1476  4981 

Description  of.  Witness  Moore 998  3245 

Do 1011  3309 

Feeder,  Witness  Wheeler 1268  4388 

Site  of  Dam,  title  to.  Defendant  acquired,  May  30,  ’06 1697  5520 

Do.,  Munroe  first  acquired,  Apr.  ’04 1698  5520 

Smith,  W.  R.,  Wis.,  Hist,  of 740  2101 

Snake  River,  Navigation  on,  U.  S.  Eng’rs  Rep 1197  4145 

Do 1212  4192 

Do 1583  5260 

Witness  Gray  1509  5069 

Snyder  Ex.  (see  Exhibit,  Snyder). 

Jno.  M.,  deposition: 

Direct  exam 250  500a4 

Cross  exam 264  500a42 

(Read) 875  2635 

Testimony,  Direct  exam 1291  4470 

Recalled  1293  4478 

Do 1344  4603 

Do 1386  4739 

^Cross  exam.  1386  4740 

Spoor,  Harlow  H.,  Deposition  of : 

Direct  exam 418  916 

Cross  exam 419  921 

(Read)  679  ,1941 

Motion 957  3006 

Ruling  on  motion  1223  4242 

Stevens,  Lewis  K.,  Deposition  of : 

Direct  exam 547  1461 

Cross  exam 553  1481 

Re-direct  exam 559  1505 

Re-cross  exam 560  1511 

(Read)  1211  4189 

William  W.,  Deposition  of: 

Direct  exam 401  854 

Cross  exam 413  894 

(Read)  679  1934 

Motion 956  3006 

Ruling  on  motion 1234  4271 

Rulings  on  obj 407  1935 

Do 412  1941 


xlviii 


Page  of  Page  of 
Abstract  Transcript 


Stikine  River,  Witness  Gray 1534  5133 

Stinson,  Thos.,  Deed,  Canal  Trustees  to 1608  5309 

Stipulation  of  Feb.  3,  1908 1714  5567 

Feb.  25,  1908 1715  5568 

Mar.  23,  1908 1713  5566 

Mar.  28,  1908 1715  5569 

for  Washington  depositions 165  259 

Signatures  of  witnesses  waived,  exhibits  retained  and  pro- 
duced at  trial 387  800 

Obj’ns  to  time  and  place  of  hearing  waived 629  1773 

original  certificate,  evidence  inc.  in  Trans,  of  Rec 630  1775 

to  continue  taking  of  depositions 204  362 

witnesses’  need  not  sign  depositions,  etc 505  1309 

Stone,  transportation  of,  on  River  (Parrent  Dep.) 453  1091 

(Lorinier  Dep.)  199  348 

Sub.  plat.  Canal  trustees  (see  Canal  trustees’  Sub.  Plat). 

Summit,  Town  plat  of,  Complainant’s  Ex.  A9,  Abstracted 1921  6543 

Referred  to  1279  4422 

Summons :: ,78  85 

Survey,  “Ex.  4,”  delineation,  township  line.  Town  34,  Abstracted  1725  5791 

Referred  to  766  2205 

Sec.  3,  4 & 5,  Town  38,  Orr  Ex.  A,  Abstracted 1919  6521 

Referred  to  929  2887 

Rep.  on.  Doc.  263  H.  of  R 660  1862 

Surveyors,  Testimony  of: 

Bremer 779  2277 

Cooley 794  2342 

Rudolph 765  2194 

Williams  834  2484 

Zarley 870  2660 

Sweeney,  Jno.  M.,  Deposition: 

Direct  exam 320  592 

Cross  exam 325  606 

Re-direct  exam 326  609 

(Read)  853  2543 

T. 

Tanner,  Riley,  Deposition: 

Direct  exam 460  1124 

Cross  exam 461  1127 

Tar  River  (Burton  Dep.) 185  310 

Taylor,  John  W.,  Deposition : 

Direct  exam 487  1243 

Cross  exam 489  1249 

(Read)  680  1944 

Motion  957  3007 

Ruling  on  motion  1231  4262 


xHx 

Page  of  Page  of 
Abstract  Transcript 

Tax  Records,  Defendant’s'  Ex.,  Abstracted 1936  6652 

Referred  to  1565  5228 

Tennessee  River  (McKenzie  Dep.) 177  292 

Navigation  (Witness  McCaffrey 1160  3950 

Texas  Rapids  (Witness  Gray) 1529  5123 

Do 1546  5169 

Thevinot’s  Map,  ]681,  Abstracted ]917  6509 

Referred  to  713  2030 

Thvvaites’  “Early  Western  Travels,”  Vol.  2,  p.  625  (read) 972  3118 

Vol.  9 942  2949 

Tibbals,  Wm.  R. : 

Direct  exam 634  1786 

Cross  exam 639  1802 

Town  Plat  (see  Exhibits,  Complainant’s,  Al  to  Al2). 

Tow-path  Bank,  Condition  of  (Witness'  Bremer) 783  2314 

(Witness  Cooley)  908  2798 

(Witness  Johnston)  1403  4785 

(Witness  Mead)  1138  3832 

(Witness  Moore)  996  3232 

(Witness  Rudolph)  772  2249 

(Witness  Wheeler)  1244  4306 

Do 1258  4356 

(Witness  Woermann)  1467  4956 

Effect  of  Defendant’s'  Works  (B.  Williams  Dep.) 340  645 

(Kramer  Dep.)  356  693 

Tradition  Evidence,  motion  to  strike  out 957  3003 

Ruling  on  1223  4242 

Translators  (Witness  Drucker) 1058  3555 

(Witness  Scaffe)  1639  5389 

Treaty  of  Greenville 760  2175 

Peace  of  1816 762  2180 

Trust  Deed,  Economy  L.  & P.  Co.  to  Royal  Trust  Co.,  Abstracted  1854a  6302 

Offered 1613  5323 

Trustees,  Canal  (see  Canal  Trustees). 

Tunnel  Boat,  Photo,  of  Interior  of,  Fox.  Ex.  1,  Abstracted 1924  6563 

Referred  to  929  2887 

Fox  Ex.  2,  Abstracted 1924  6565 

Referred  to  929  2887 

U. 

Umatilla  Rapids,  Witness’  Gray  1541  5154 

Do 1545  5166 

Union  Bar  Rapids,  Witness  Gray 1515  5086 

United  States  Engineers  Reports  (see  Engineers,  U.  S.,  Rep.  of). 


1 

Page  of  Page  of 
Abstract  Transcript 

V. 

Van  Sant,  S.  R. : 

Direct  exam 854  2544 

Cross  exam 860  2562 

Direct  exam.,  cont’d 861  2564 

Cross  exam 864  2573 

Velocity,  Formula  for.  Witness  Cooley 833  2469 

Verification  of  Bill  or  Information 28  42 

Vermin,  Action  of.  Witness  Mead 1141  3844 

Witness  Wheeler  1253  4340 

“Vested  rights,”  House  Doc.  263 1177  3791 

Vienna,  Town  plat  of.  Complainant’s  Ex.  A6 1921  6537 

Referred  to  1279  4472 

Voucher,  (Snyder  Dep.)  254  500al6 

to  G.  D.  A.  Parks  (read) 1342  4591 

H.  S.  Piepenbrink  (read) 1340  4568 

W. 

War  Dept.,  Report  of,  1900,  Part  V,  p.  3857,  etc.  (read) 1125  3787 

1901,  Part  4 (read)  1126  3790 

1905,  Vol  7,  pp.  2455-6  (read) 1203  4159 

Warping  (Flanders  Dep.) 433  992 

Warrell,  Jas.,  Rep.  of 1485  5006 

Warren,  Lieut.,  Rep.  of  Survey  of  (read) 1703  5544 

Washington,  Map  of.  Ex.  2,  June  16,  Abstracted 1936  6650 

Referred  to  1550  5180 

“Wash”  of  Waves  (Witness  Moore) 1014  3325 

Water  Power,  Proposition  submitted  for  Additional  Lease 262  500a37 

Rentals,  Norton  & Co 277  500a80 

Watersheds,  Map  of,  Cooley  Ex.  16,  Abstracted 1927  6578 

Referred  to  920  2856 

Waterway  Rep.,  J.  W.  Woermann 1433  4870 

of  Bd.  of  Engrs.,  approving . 653  1842 

Weekly  Flow,  Average  (see  Average  Weekly  Flow). 

Werling  v.  Ingersoll,  181  U.  S.,  131 269  500a57 

Westbrook,  Gideon,  Deed,  Canal  Trustees  to  (read) 1610  5315 

West  Juliet,  Town  Plat,  Complainant’s  Ex.  A5,  Abstracted 1921  6535 

Referred  to  1279  4422 

Wheeler  Ex.  1,  Cross  Sec.  of  Hennepin  Canal,  Abstracted 1934  6628 

Referred  to  1241  4294 

L.  L.,  Direct  exam 1239  4286 

Cross  exam 1253  4335 

Do.,  Rep.  of  1890 1275  4410 

Whisler,  W.  W. : 

Direct  exam 1154  3911 

Cross  exam  1155  3919 

Re-direct  exam 1156  3928 


H 

Page  of  Page  of 
Abstract  Transcript 

Whitehorse  Rapids  (Witness  Gray) T536  5140 

Do T>45  5107 

Wiggam,  Wm.,  Deposition : 

Direct  exam ‘ill  008 

Cross  exam 014  575 

(Read)  1222  4240 

Wightman,  George  S.,  Deposition : 

Direct  exam 425  952 

Cross  exam 420  955 

Re-direct  exam 428  903 

Re-cross  exam 428  909 

(Read)  680  1944 

Motion 957  3000 

Ruling  on  motion 1224  4245 

Willard,  E.  W,  Report  of,  p.  209  (read) , 1174  4000 

Will  County,  History  of 955  3004 

Outline,  Map  of.  Abstracted 1916  6488 

Referred  to  928  2887 

Williams,  Benezette,  Deposition : 

Direct  exam 330  034 

Cross  exam 351  075 

Re-direct  exam 353  084 

(Read)  870  2030 

Edgar,  Direct  exam 834  2484 

Cross  exam 838  2490 

Stephen,  J.,  Deposition : 

Direct  exam 522  1302 

Cross  exam 520  1370 

Re-direct  exam 529  1382 

(Read)  1175  4031 

Ruling  on  obj 522  4031 

Wilson,  G,  A.,  & Gooding,  W.,  Rep.  of 810  2389 

Wilson,  Gen.  Jas.  H.,  Rep.  of,  p.  0 et  seq.  (read) 1098  5522 

Do.,  extract  from 1115  3705 

Do 1484  5005 

Do.  (see  Executive  Document  10). 

Profile,  a portion  of,  Woermann  Ex.  C,  June  13,  Abstracted.  , 1935  6040 

Referred  to  1471  4968 

Cooley  Ex.  35,  Referred  to 1185  4101 

Do 1933  6018 

Woermann  Ex.  2,  Abstracted 1929  6588 

Referred  to  998  3246 

Survey  Map,  Woermann  Ex.  B,  June  13,  Abstracted 1935  6638 

Jno.  M.,  Memoir  of  Butterfield  (Shepardson’s  testimony)...  964  3079 

Referred  to  1470  4966 

Winsor,  Justin,  Mississippi  Basin 741  2102 

Winsor  “Narrative  & Critical  History  of  America”  (read) 1647  5421 


lii 


Winsor  “Narrative  & Critical  History  of  America,”  Extracts  Page  of  Page  of 

from  (continued)  : Abstract  Transcript 

Do.,  p.  173 980  3153 

Do.,  p.  177 974  3133 

Do.,  p.  178 978  3147 

Do.,  p.  222 982  31G2 

Do.,  p.  236 984  3180 

Do.,  p.  230 986  3188 

Do.,  p.  179... 1661  5444 

Do.,  p.  234 1665  5454 

Do.,  p.  206 1653  5432 

Do.,  p.  222 1661  5444 

Wisconsin,  Smith’s  741  2101 

River 1624  5350 

Wisner,  Geo.  Y.,  Rep.  of 1119  3774 

Woermann  Ex.  (see  Exhibit.,  Woermann). 

J.  W.,  Direct  exam 1428  4856 

Cross  exam 1447  4900 

Resumed  1452  4905 

Cross  exam 1456  4923 

Direct  exam,  cont’d 1459  4930 

Cross  exam,  con’td 1459  4932 

Recalled 1466  4952 

Cross  exam 1480  4991 

Re-direct  exam 1494  5029 

Re-cross  exam 1499  5041 

Re-re-direct  exam 1505  5061 

Recalled  1604  5296 

Do 1668  5460 

Waterway  Rep 1433  4870 

Woodruff’s  History,  Will  County,  extract  from 401  857 

Do.,  Ruling  on 955  3004 

Wright,  Benj.,  Report,  Oct.  23,  1837  (read) .’ 1094  3661 

Writ  of  Injunction  78  87 

Return  on  78  89 

Y. 

Yadkin  River  (Witness  McKenzie) 174  284 

Yamhill  River  (Witness  Gray) 1353  5131 

Yukon  River  (Witness  Gray) 1536  5139 

Z. 

Zarley  Ex.  1 Rec’d  in  Evidence 874  2625 

Sheet  13  of  Marshall  Survey,  Abstracted 1924  6567 

Referred  to  874  2625 

Wm.  H.,  Direct  exam 870  2600 

Cross  exam 871  2607 

Re-direct  exam 871  2608 

Re-cross  exam 872  2609 


IN  THE 


0f  §Uitt0W. 

ORIGINAL  RECORD  RETURNED  TO 
October  Term,  A.  D.  1908, 

AND  CAUSE  CONTINUED  TO 
February  Term,  A.  D.  1909. 


PEOPLE  OF  THE  STATE  OF  ILLINOIS, 
ex  rel.  CHARLES  S.  DENEEN,  Gover- 
nor, and  WILLIAM  H.  STEAD, 
Attorney  General, 

Appellant^ 

vs, 

ECONOMY  LIGHT  & POWER 
COMPANY, 

Appellee, 


CHANCERY. 

Appeal  from 

Circuit  Court, 

Grundy  County. 


Honorable  Julian  W.  Mack, 
(temporarily  sitting  as  Judge  of 
said  Court  at  the  request  of 
Honorable  Samuel  C.  Stough, 
Judge  of  said  Court),  Judge, 
Presiding. 


ABSTRACT  OF  RECORD. 

(We  set  out  lierein  the  Information  in  full,  then  an  abridgment 
or  abstract  of  the  same,  then  the  answer  in  full,  and  then  an  ab- 
stract of  the  same,  for  the  convenience  of  the  Court.) 

Page  of 
Transcript. 

1 Placita. 

2 Information  or  Bill  of  Complaint,  tiled  Dec.  30,  1907 : 

State  of  Illinois,  ) ^ 

Grundy  County,  ) 

In  the  Circuit  Court  Thereof, 

To  the  March  Term,  1908. 

To  the  Honorable  the  Judges  of  the  Circuit  Court  of  Grundy 
County,  in  Chancery  Sitting: 

3 William  H.  Stead,  the  Attorney  General  of  the  State  of  Illi- 
nois, who  sues  for  the  People  of  the  said  State  of  Illinois  in 


2 


this  behalf,  and  at  the  relation  of  Charles  S.  Deneen,  Governor  of 
the  State  of  Illinois,  conies  now  here,  and  in  the  name  and  by  the 
authority  thereof,  gives  this  Honorable  Conrt  to  understand  and 
be  informed,  as  follows,  to  wit: 

I.  That  the  said  People  of  the  State  of  Illinois,  by  their  said 
Attorney  General,  bring  this  their  suit  against  The  Economy  Light 
and  Power  Company,  a corporation,  duly  organized  under  the  laws 
of  the  State  of  Illinois,  and  having  its  principal  office  and  place  of 
business  at  the  City  of  Chicago,  in  the  County  of  Cook  and  State 
of  Illinois. 

II.  That  in  the  early  history  of  our  country  a certain  territory, 
embracing  what  is  now  the  States  of  Ohio,  Indiana,  Illinois,  Michi- 
gan and  Wisconsin,  was  claimed  to  be  owned  by  Virginia,  and  that 
afterwards,  by  certain  Acts  of  the  Legislature  of  Virginia,  and  by 
its  deed  of  cession,  bearing  date  the  first  day  of  March,  A.  D.  1784, 
said  territory  was  conveyed  to  the  United  States,  and  that  after- 
wards and,  to  wit,  on  the  13th  day  of  July,  A.  H.  1787,  the  Congress 
of  the  United  States,  then  existing  under  the  Articles  of  Confedera- 
tion, enacted  a certain  ordinance  entitled,  ‘‘An  Ordinance  for  the 
Government  of  the  Territory  of  the  United  States  Northwest  of  the 
Kiver  Ohio,”  aud  which  said  Act  was  and  is  commonly  known  as 
the  ordinance  of  1787.  That  among  other  provisions  of  said  ordi- 
nance of  1787,  Section  14  thereof  contains  the  following: 

4 “It  is  hereby  ordained  and  declared,  by  the  authority  afore- 
said, that  the  following  articles  shall  be  considered  as  articles 
of  compact,  between  the  original  States  and  the  people  and 
States  in  the  said  territory,  and  forever  remain  unalterable, 
unless  by  common  consent,  to  wit,  * * * Article  4.  * * 

The  navigable  waters  leading  into  the  Mississippi  and  St. 
Lawrence,  and  the  carrying  places  between  the  same,  shall  be 
common  high  ways,  and  forever  free,  as  well  to  the  inhabitants 
of  the  said  territory  as  to  the  citizens  of  the  United  States 
and  those  of  any  other  States  that  may  be  admitted  into  the 
Confederacy,  without  any  tax,  impost  or  duty  therefor.” 

That  afterwards,  and  on,  to-wit,  the  18th  day  of  May,  1796,  said 
Congress  of  the  United  States  passed  a certain  statute  entitled, 
“An  Act  providing  for  the  sale  of  the  lands  of  the  United  States 
in  the  territory  northwest  of  the  Eiver  Ohio  and  above  the  mouth 
of  the  Kentucky  Eiver,”  and  by  Section  9 thereof  provided  as 
follows : 


3 


‘‘Sec.  9.  And  be  it  further  enacted  that  all  navigable  rivers 
within  the  territory  to  be  disposed  of  by  virtue  of  this  Act, 
shall  be  deemed  to  be  and  remain  public  highways.’’ 

That  thereafter,  and  to  wit,  hy  a statute  duly  passed  by  the  Con- 
gress of  the  United  States  on  the  7th  day  of  May,  1800,  entitled, 
“An  Act  to  divide  the  territory  of  the  United  States  northwest  of 
the  Ohio  into  two  separate  Governments,”  there  was  divided  and 
set  apart  from  said  Northwestern  territory  a certain  portion 
thereof  which 'embraces  all  of  what  is  now  the  State  of  Indiana 
and  the  State  of  Illinois,  and  provided  the  same  should  constitute 
a separate  territory,  to  be  called  the  Indiana  Territory. 

5 That  thereafter  the  Congress  of  the  United  States,  acting 
under  the  constitution  of  T789,  for  the  further  government  of 
certain  portions  of  the  said  Northwestern  Territory,  and  on,  to 
wit,  the  26th  day  of  March,  1801,  duly  passed  a certain  statute  en- 
titled, “An  Act  making  provision  for  the  disposal  of  the  public 
lands  in  the  Indiana  Territory,  and  for  other  purposes”;  and  by 
Section  6 thereof,  it  was  provided  that  “All  the  navigable  rivers, 
creeks  and  waters  within  the  Indiana  Territory  shall  be  deemed 
to  be  and  remain  public  highways.” 

That  afterwards  the  Congress  of  the  United  States,  by  its  Act 
of  February  3,  1809,  entitled  “An  Act  for  Dividing  the  Indiana 
Territory  into  two  separate  Governments,”  provided,  among  other 
things,  that  that  portion  of  the  said  Indiana  Territory  which  now 
comprises  the  State  of  Illinois,  for  the  purposes  of  temporary 
government,  should  constitute  a separate  territory  to  be  called 
Illinois;  and  that  among  other  and  further  provisions  in  said  Act 
it  is  provided : 

“That  there  shall  be  established  within  the  said  territory  a 
government  in  all  respects  similar  to  that  provided  by  the 
ordinance  of  Congress  passed  on  the  13th  day  of  July,  1787, 
for  the  government  of  the  territory  of  the  United  States, 
northwest  of  the  River  Ohio;  and  by  an  Act  passed  on  the  7th 
day  of  August,  1789,  entitled,  ‘An  Act  to  provide  for  the  Gov- 
ernment of  the  Territory  Northwest  of  the  River  Ohio;’  and 
the  inhabitants  thereof,  shall  be  entitled  to  and  enjoy  all  and 
singular  the  rights,  privileges  and  advantages,  granted  and 
secured  to  the  people  of  the  Territory  of  the  United  States 
northwest  of  the  River  Ohio  by  said  ordinance.” 

That  afterwards,  and,  to  wit,  on  the  18th  of  April,  1818, 


4 


6 the  Congress  of  the  United  States  enacted  another  statute,  en- 
titled, ‘^An  Act  to  enable  the  people  of  Illinois  to  form  a con- 
stitution and  State  government,  and  for  the  admission  of  such 
State  into  the  Union,  on  an  equal  footing  with  the  original  States,” 
which  statute  contains  the  following  provision : 

^^Sec.  4.  And  be  it  further  enacted  Provided, 

That  the  same,  whenever  formed,  shall  be  republican,  and  not 
repugnant  to  the  ordinance  of  the  13th  of  July,  1787,  between 
the  original  States  and  the  people  and  States  of  the  territory 
northwest  of  the  Eiver  Ohio,  excepting  so  much  of  said  articles 

as  relates  to  the  boundaries  of  the  States  therein  to  be  formed : 

* * * ? ? 

That  afterwards  the  people  of  the  Illinois  territory  duly  adojDted 
the  constitution  known  as  the  Constitution  of  1818,  the  preamble 
of  which  contains  the  following,  to  wit : 

^^The  people  of  the  Illinois  Territory,  having  the  right  of 
admission  into  the  general  government  as  a member  of  the 
Union,  consistent  with  the  Constitution  of  the  United  States, 
the  Ordinance  of  Congress  of  1787,  and  the  law  of  Congress, 
ai3proved  April  18,  1818,  entitled  U\n  Act  to  enable  the  people 
of  the  Illinois  Territory  to  form  a Constitution  and  State  gov- 
ernment, and  for  the  admission  of  such  State  into  the  Union 
on  an  equal  footing  with  the  original  States,  and  for  other 
purposes’;  in  order  to  establish  justice,  promote  the  welfare, 
and  secure  the  blessing  of  liberty  to  themselves  and  their  pos- 
terity, do,  by  their  Eepresentatives  in  convention,  ordain  and 
establish  the  following  Constitution  or  form  of  government, 
and  do  mutually  agree  with  each  other  to  form  themselves 
into  a free  and  independent  State,  by  the  name  of  the  State  of 
Illinois.” 

That  afterwards,  and,  to  wit,  on  December  3rd,  1818,  the  Con- 
gress of  the  United  States  adopted  a certain  resolution  entitled, 
‘^Eesolution  declaring  the  admission  of  the  State  of  Illinois  into 
the  Union,”  which  declared,  among  other  things,  that  the 

7 ‘‘Constitution  and  State  government,  so  formed,  is  republican, 
and  in  conformity  to  the  principles  of  the  articles  of  compact 

between  the  original  States  and  the  people  and  States  in  the  terri- 
tory northwest  of  the  Eiver  Ohio,  passed  on  the  13th  day  of  July, 
1787:  ^ ^ 

III.  That  the  Eiver  Desplaines  is  situated  in  said  territory,  and 
rises  in  what  is  now  the  State  of  AYisconsin,  and  flows  in  a south- 
erly direction  into  the  State  of  Illinois,  and  through  the  Counties 


5 


of  Lake  and  Cook  and  between  Du  Page  and  Cook  Counties  therein, 
and  through  the  County  of  Will  and  into  Grundy  County,  in  all  a 
distance  of  about  96  miles. 

That  the  Eiver  Kankakee  rises  in  Indiana  and  flow^s  westerly 
therefrom  into  Illinois  through  Kankakee  and  Will  Counties  and 
into  Grundy  County  therein,  where  it  unites  with  the  Desplaines 
River,  and  with  the  said  Desplaines  River  forms  the  Illinois  River, 
which  last  named  river  flow^s  thence  westerly  and  southwesterly 
through  several  counties  of  Illinois  into  the  Mississippi  River. 
Wherefore  and  by  reason  whereof  your  orators  charge  the  fact  to 
be  that  the  Desplaines  River  is  wholly  within  the  territory  orig- 
inally comprising  what  was  known  as  the  Northwestern  Territory, 
and  that  the  same  empties  its  waters  into  the  Mississippi  River, 
and,  by  reason  of  the  facts  hereinafter  set  forth,  is  subject  to  the 
provisions  of  the  said  Acts  of  Congress, 

8 IV.  Your  orators  further  show  unto  your  Honors  that  it  is 
shown  by  the  history  of  the  explorations  and  discoveries  of 
the  territory  in  what  is  now  the  northern  part  of  Illinois,  that  at 
the  time  of  the  explorations  and  discoveries,  the  Desplaines  River 
was  navigable  from  a point  near  where  is  now  situated  the  City 
of  Chicago,  in  the  State  of  Illinois,  to  the  mouth  of  said  Desplaines 
River,  in  what  is  now  Grundy  County,  Illinois;  that  l)y  the  same 
history  it  is  shown  that  the  portion  of  the  Desplaines  River  last 
above  mentioned  was  used  in  the  early  period  of  the  State  of  Illi- 
nois as  a highway  for  commercial  purposes;  that  commerce  was 
carried  on  over  said  river  and  over  the  Chicago  River,  located  in 
Cook  County,  Illinois,  and  connection  therewith  made  by  a short 
portage  between  the  two  rivers  near  the  site  of  what  is  now  the 
City  of  Chicago,  Cook  County,  Illinois,  and  was  in  use  as  the  high- 
way of  commerce,  leading  from  Lake  Michigan  and  the  wmters 
emptying  into  the  St.  Lawrence  River  on  the  one  hand,  to  the  Illi- 
nois River  and  the  waters  of  the  Mississippi  River  on  the  other 
hand,  thenceforward  from  the  time  of  said  first  use  up  to  and  at 
the  lime  when  the  said  ordinance  of  1787  and  the  several  acts  of 
Congress  were  respectively  enacted. 

That  afterwards  the  State  of  Illinois,  by  and  through  the  Legis- 
lature thereof,  and  in  obedience  to  the  several  Acts  of  Congress 


6 


hereinbefore  set  forth,  assumed  and  took  charge  of  the  said 

9 Desplaines  Eiver,  and  in  the  exercise  of  its  control  over  the 
said  Desplaines  Kiver,  did  by  its  certain  act,  entitled,  ‘‘An 

Act  to  authorize  the  building  of  a bridge  across  the  Desplaines 
Eiver,’’  approved  and  in  force  February  19,  1839,  give  pennission 
for  tlie  building  of  a toll  bridge  across  the  Desplaines  Eiver,  on  the 
northeast  quarter  of  Section  number  eleven  (11),  in  Township 
number  thirty-nine  (39)  north,  in  Eange  number  twelve  (12), 
east  of  the  Third  Principal  Meridian;  and  also,  by  the  same  act, 
permission  was  given  to  build  another  bridge  across  the  same 
river,  on  the  southeast  quarter  of  Section  number  two  (2)  in  the 
same  Town  and  Eange  last  above  mentioned;  and  that  afterwards 
the  Legislature  of  the  State  of  Illinois  passed  a certain  law,  en- 
titled, “An  Act  to  amend  the  several  laws  in  relation  to  the  Illinois 
and  Michigan  Canal,”  in  force  February  26,  1839,  which  contains, 
among  other  provisions,  the  following,  to  wit: 

“Sec.  2.  Sub-section  9:  That  no  stream  of  water  passing 

through  the  canal  lands  shall  pass  by  the  sale  so  as  to  deprive 
the  State  from  the  use  of  such  water  if  necessary  to  supply 
the  canal  without  charge  for  the  same.” 

And  that  Sub-Section  11  of  said  Section  2 of  said  Act  is  in  the 
words  as  follows,  to-wit: 

“Sub-Sec.  11.  Lands  situated  upon  streams  which  have 
been  meandered  by  the  surveys  of  public  lands  by  the  United 
States  shall  be  considered  as  bounded  by  the  lines  of  those 
surveys,  and  not  by  the  streams.” 

10  That  afterwards  the  Legislature  of  the  State  of  Illinois, 
by  its  certain  law  then  passed,  entitled,  “An  Act  declaring 

the  Desplaines  Eiver  a navigable  stream,”  approved  and  in  force 
February  28,  1839,  provided  as  follows: 

“Sec.  1.  Be  it  enacted  by  the  people  of  the  State  of  Illi- 
nois, represented  by  the  General  Assembly,  That  the  Des- 
plaines Eiver  from  the  point  where  it  most  nearly  connects 
itself  with  the  Illinois  and  Michigan  Canal  to  its  source  with- 
in the  boundaries  of  this  state,  is  hereby  declared  a navi- 
gable stream,  and  shall  be  deemed  and  held  a public  highway, 
and  shall  be  and  remain  free,  open  and  unobstructed  from 
said  point  of  connection  with  said  canal  to  its  utmost  limit 
within  this  state  for  the  passage  of  all  boats  and  water  crafts 
of  every  description;” 

And  that  afterwards  the  Legislature  of  the  State  of  Illinois, 


7 


by  its  statute  passed  and  in  force  March  3,  1845,  entitled  ‘‘An 
Act  to  authorize  Stephen  Forbes,  to  construct  a dam  across 
the  Desplaines  Fiver  in  Cook  County,’^  provided  as  follows,  to- 
wit : 

“Sec.  1.  Be  it  enacted  by  the  people  of  the  State  of 
Illinois,  represented  by  the  General  Assembly,  that  Stephen 
Forbes,  or  his  heirs,  and  assigns,  be,  and  they  are  hereby  au- 
tliorized  to  construct,  build  and  continue  a mill  dam  across  the 
Desplaines  Eiver,  on  the  southwest  quarter  of  Section  thirty- 
six  (36),  in  township  No.  thirty-nine  (39)  north  of  range 
twelve  (12),  east,  and  on  the  northeast  quarter  of  Section  two 
(2),  township  No.  thirty-eight  (38)  north  of  range  twelve 
(12),  east,  in  the  County  of  Cook  in  this  state;  ])rovided  that 
this  Act  shall  not  operate  to  prevent  the  state  from  im])rov- 
ing  said  river  by  dams,  or  from  using  the  water  in  said  river 
for  the  Illinois  and  Michigan  Canal  at  any  time  hereafter,  or 
for  any  other  purpose;  provided,  that  he  shall  be  liable  for 
any  damage  to  any  individual  in  consequence  of  the  erection 
of  such  dam.’’ 

And  that  afterwards  the  Legislature  of  the  State  of  Illinois, 
by  its  certain  law,  entitled,  “An  Act  authorizing  the  building  of 
a bridge  and  road  in  township  36  north,  range  10  east,  in  Will 
11  County,”  approved  and  in  force  February  12,  1849,  author- 
ized the  construction  of  a bridge  over  the  Desplaines  Eiver  at 
I^ockport  in  Will  County,  Illinois. 

That  afterwards  the  Legislature  of  the  State  of  Illinois,  by  its 
certain  act,  entitled  “An  Act  to  create  sanitary  districts  and  to 
remove  obstructions  in  the  Des  Plaines  and  Illinois  rivers,”  ap- 
proved May  29,  1889,  in  force  July  1,  1889,  among  other  things 
provided  as  follows: 

“Sec.  23.  If  any  channel  is  constructed  under  the  provis- 
ions hereof  by  means  of  which  any  of  the  waters  of  Lake 
Michigan  shall  be  caused  to  pass  into  the  Des  Plaines  or 
Illinois  Eivers,  such  channel  shall  be  constructed  of  sufficient 
size  and  capacity  to  produce  and  maintain  at  all  times  a con- 
tinuous flow  of  not  less  than  three  hundred  thousand  cubic 
feet  of  water  per  minute,  and  to  be  of  a depth  of  not  less  than 
fourteen  feet,  and  a current  not  exceeding  three  miles  per 
hour,  and  if  any  portion  of  any  such  channel  shall  be  cut 
through  a territory  with  a rocky  stratum  where  such  rocky 
stratum  is  above  a grade  sufficient  to  produce  a depth  of 
water  from  Lake  Michigan  of  not  less  than  eighteen  feet,  such 
portion  of  said  channel  shall  have  double  the  flowing  capacity 
above  provided  for,  and  a width  of  not  less  than  one  hundred 


and  sixty  feet  at  the  bottom  capable  of  producing  a depth  of 
not  less  than  eighteen  feet  of  water.  If  the  population  of  the 
district  drained  into  such  channel  shall  at  any  time  exceed 
one  million  five  hundred  thousand,  such  channel  shall  be 
made  and  kept  of  such  size  and  in  such  condition  that  it  will 
produce  and  maintain  at  all  times  a continuous  flow  of  not 
less  than  twenty  thousand  cubic  feet  of  water  per  minute 
for  each  one  hundred  thousand  of  the  population  of  such 
district,  at  a current  of  not  more  than  three  miles  per  hour, 
and  if  at  any  time  the  general  government  shall  improve  the 
Des  Plaines  or  Illinois  Bivers,  so  that  the  same  shall  be  capa- 
ble of  receiving  a flow  of  six  hundred  thousand  cubic  feet  of 
water  per  minute,  or  more,  from  said  channel,  and  shall  pro- 
vide for  the  payment  of  all  damages  which  any  extra  flow 
above  three  hundred  thousand  cubic  feet  of  water  per  minute 
from  such  channel  may  cause  to  private  property  so  as  to 
save  harmless  the  said  district  from  all  liability  therefrom, 
then  such  sanitary  district  shall  within  one  year  thereafter, 
enlarge  the  entire  channel  leading  into  said  Desplaines  and 
Illinois  Bivers  from  said  district  to  a sufficient  size  and  ca- 
pacity to  produce  and  maintain  a continuous  flow  throughout 
the  same  of  not  less  than  six  hundred  thousand  cubic  feet  of 
water  per  minute  with  a current  of  not  more  than  three  miles 
per  hour,  and  such  channel  shall  he  constructed  upon  such 
grade  as  to  he  capable  of  producing  a depth  of  water  not  less 
than  eighteen  feet  throughout  said  channel,  and  shall  have  a 
width  of  not  less  than  one  hundred  and  sixty  feet  at  the 
bottom.  In  case  a channel  is  constructed  in  the  Desplaines 
Biver  as  contemplated  in  this  section  it  shall  he  carried  down 
the  slope  between  Lockport  and  Joliet  to  the  pool  commonly 
known  as  the  upper  basin,  of  sufficient  width  and  depth  to 
carry  off  the  water  the  channel  shall  bring  down  from  above. 
The  district  constructing  a channel  to  carry  water  from  Lake 
Michigan  of  any  amount  authorized  by  this  act  may  correct, 
modify  and  remove  obstructions  in  the  Desplaines  and  Illinois 
Bivers  wherever  it  shall  he  necessary  so  to  do  to  pi’event  over- 
flow or  damage  along  said  river,  and  shall  remove  the  dams  at 
Henry  and  Copperas  Creek  in  the  Illinois  Biver,  before  any 
water  shall  he  turned  into  the  said  channel. 

And  the  Canal  Commissioners,  if  they  shall  find  at  any 
time  that  an  additional  supply  of  water  has  been  added  to 
either  of  said  rivers,  by  any  drainage  district  or  districts,  to 
maintain  a depth  of  not  less  than  six  feet  from  any  dam 
owned  by  the  State  to  and  into  the  first  lock  of  the  Illinois 
and  Michigan  Canal  at  La  Salle,  without  the  aid  of  any  such 
dam,  at  low  water,  then  it  shall  he  the  duty  of  said  Canal 
Commissioners  to  cause  such  dam  or  dams  to  be  removed. 
This  act  shall  not  he  construed  to  authorize  the  injury  or 
destruction  of  existing  water  power  rights.” 


9 


And  also  in  the  same  Act  it  is  provided: 

‘‘Sec.  24.  When  such  channel  shall  be  completed  and  the 
water  turned  therein,  to  the  amount  of  300,000  cubic  feet  of 
water  per  minute,  the  same  is  hereby  declared  a navigable 
stream,  and  whenever  the  general  government  shall  improve 
the  Desplaines  and  Illinois  Rivers  for  navigation;  to  connect 
with  this  channel,  said  general  government  shall  have  full 
control  over  the  same  for  navigation  purposes,  but  not  to  in- 
terfere with  its  control  for  sanitary  drainage  purposes.” 

13  That  afterwards  the  Legislature  of  the  State  of  Illinois 
on  the  14th  of  May,  1903,  enacted  a certain  statute  which  be- 
came in  force  on  the  1st  of  July,  1903,  entitled,  “An  Act  in  rela- 
tion to  the  sanitary  district  of  Chicago,  to  enlarge  the  corporate 
limits  of  said  district,  and  to  provide  for  the  navigation  of  the 
channels  created  by  such  district  and  to  construct  dams,  water 
wheels  and  other  works  necessary  to  develop  and  render  avail- 
able the  power  arising  from  the  water  passing  through  its  chan- 
nels, and  to  levy  taxes  therefor,”  which  said  Act  contained,  among 
other  things,  the  following  provisions,  to-wit : 

“Sec.  3.  Said  Sanitary  District  shall  ])ermit  all  water 
craft  navigating  or  purposing  to  navigate  said  Illinois  and 
Michigan  Canal,  to  navigate  the  water  of  all  said  channels 
of  said  Sanitary  District  jH'omptly,  without  delay  and  with- 
out the  pajunent  of  any  tolls  or  lockage  charges  for  so  navi- 
gating in  said  channels.  The  rules  of  the  United  States  Gov- 
ernment now  in  force,  regulating  navigation  on  the  (Uiicago 
River,  shall  govern  navigation  on  the  channels  of  said  Sani- 
tary District  of  Chicago;  Provided,  however,  that  the  speed 
of  all  vessels  while  passing  through  the  earth  sections  shall 
not  exceed  eight  miles  per  hour.” 

“Sec.  8.  The  said  Sanitary  District  shall,  at  the  exjjense  of 
said  district,  in  all  respects  comply  with  the  provisions  of 
the  Act  of  Congress  of  March  22,  1822,  and  March  2,  1827,  as 
construed  by  the  courts  of  last  resort  of  the  State  of  Illinois, 
and  of  the  United  States  in  relation  to  the  Illinois  and  Mich- 
igan Canal,  so  far  as  it  affects  that  portion  of  the  Illinois 
and  Michigan  Canal  vacated  or  abandoned  in  the  terms  of  this 
Act.” 

And  your  orators  show  that  after  the  passage  of  the  said 
statute  of  May  29,  1889,  a Sanitary  District  was  formed  in  pur- 
suance thereof,  known  as  the  Sanitary  District  of  Chicago,  and 
said  Sanitary  District  of  Chicago  has  constructed  a channel 

14  substantially  in  compliance  with  the  provisions  of  said  stat- 
ute. That  said  channel  begins  at  a point  of  junction  with  the 


10 


Chicago  River  in  the  City  of  Chicago  and  extends  southwesterly 
through  the  County  of  Cook  into  the  County  of  Will,  where  it 
connects  with  and  empties  its  water  into  the  Desplaines  River, 
and  is  now  and  for  several  years  fast  past  has  been  discharging 
into  said  Desplaines  River  at  a point  north  of  Joliet  in  Will 
County,  a body  of  water  drawn  from  Lake  Michigan  through  the 
Chicago  River  and  through  said  drainage  channel,  amounting  to 
about  300,000  cubic  feet  of  water  per  minute,  and  your  orators 
show  that  said  body  of  water  mingles  with  the  waters  of  the  Des- 
plaines River,  and  flows  thenceforward  through  the  course  of  the 
Desplaines  River  to  the  mouth  of  said  river,  on  Section  number 
twenty-five  (25),  Township  number  thirty-four  (34)  North,  Range 
number  eight  (8)  East  of  the  Third  (3rd)  Principal  Meridian 
in  Grundy  County. 

That  afterwards  the  Legislature  of  the  State  of  Illinois  en- 
acted its  certain  statute,  and  the  same  became  in  force  by  approval 
from  and  after  the  6th  day  of  December,  1907,  as  follows,  to- 
wit : 

Bill  for  an  Act  recognizing  the  Desplaines  and  Illinois 
Rivers  as  navigable  streams  and  to  prevent  obstructions  being 
placed  therein,  and  remove  obstructions  therein  now  existing. 

Section  1.  Be  it  enacted  by  the  People  of  the  State  of 
Illinois,  represented  in  the  General  Assembly : That  the  Des- 
plaines and  Illinois  Rivers  throughout  their  courses  from  and 
below  the  water  power  plant  of  the  main  channel  of  the  San- 
15  itary  District  of  Chicago  in  the  Township  of  Lockport,  at  or 
near  Lockport,  in  the  County  of  Will,  are  hereby  recognized 
as  and  are  hereby  declared  to  be  navigable  streams ; and  it  is 
made  the  special  duty  of  the  Governor  and  of  the  Attorney 
General  to  prevent  the  erection  of  any  structure  in  or  across 
said  streams  without  explicit  authority  from  the  General 
Assembly ; and  the  Governor  and  Attorney  General  are  hereby 
authorized  and  directed  to  take  the  necessary  legal  action  or 
actions  to  remove  all  and  every  obstruction  now  existing  in 
said  rivers  that  in  any  wise  interferes  with  the  intent  and 
purpose  of  this  Act. 

Sec.  2.  Whereas,  an  emergency  exists ; this  Act  shall  be  in 
force  and  effect  from  and  after  its  passage.’’ 

Tliat  the  Relator,  Charles  S.  Deneen,  is  the  Governor  referred 
lo  in  said  statute,  and  that  he  by  virtue  and  reason  of  said  stat- 
ute, and  the  direction  therein  contained,  as  well  as  by  virtue  of 
his  office  as  Governor,  and  his  constitutional  duty  to  take  care 


n 


tliat  the  laws  be  faithfully  executed,  has  a special  interest  and 
responsibility  in  the  matters  herein  set  forth. 

Your  orators  further  show  that  the  Desplaines  Kiver  has,  from 
the  time  when  said  ordinance  of  1787  was  passed  by  the  Congress 
of  the  United  States  unto  the  present  time,  formed  in  its  ordi- 
nary condition,  and  by  itself,  to  the  extent  of  its  course,  from  tire 
point  of  said  portage  and  connection  with  the  Chicago  Eiver  in 
Cook  County,  Illinois,  to  its  mouth  in  Grundy  County,  Illinois,  and 
then  forward  by  uniting  with  the  said  Illinois  Eiver,  a continued 
highway  with  water  in  sufficient  volume  and  of  sufficient  depth 
to  afford  a channel  for  navigable  and  commercial  purposes. 

Wherefore  and  by  reason  whereof  your  orators  charge  the  fact 
to  be  that  the  Desplaines  Eiver  from  near  the  City  of  Chicago, 
in  Cook  County,  Illinois,  to  the  mouth  of  said  river  in  Grundy 
County,  Illinois,  has  been  from  the  earliest  knowledge  of* said 
river  until  the  present  time  in  law  and  in  fact  a navigable  river, 
and  that  the  several  Acts  of  the  Legislature  hereinbefore 
16  recited  show  the  fact  to  be  that  it  has  been  and  is  the  policy 
of  the  State  of  Illinois  to  hold  and  maintain  said  ])esplaines 
Eiver  to  be  a navigable  river,  and  so  l)eing  a navigalde  river  both 
in  law  and  in  fact,  said  river  is  subjected  to  the  provisions  of  the 
several  Acts  of  Congress  hereinbefore  set  forth,  and  by  reason 
whereof  the  said  Desplaines  Eiver  has  been  and  still  continues  to 
be  a highway  of  commerce,  and  as  such  is  preserved  for  the  use 
of  the  people  of  the  State  of  Illinois,  and  the  people  of  all  the 
States  of  the  United  States  as  a public  highway,  and  has  not 
been  alienated  from  the  rights  of  the  people  as  a public  highway, 
and  that  the  people  of  the  State  of  Illinois  and  of  the  United 
States  have  an  easement  over  said  river  as  a public  highway  for 
commerce,  and  that  said  river  and  the  bed  and  waters  thereof 
are  permanently  impressed  and  burdened  with  said  easement  and 
with  a public  right  and  public  use  of  navigation. 

The  Eiver  Was  Meandered. 

V.  Your  orators  further  represent  unto  your  Honors  that  by  an 
Act  of  Congress  of  the  United  States,  approved  March  2,  1827,  the 
Congress  of  the  United  States  granted  to  the  State  of  Illinois  every 


12 


alternate  section  in  a strip  of  land  ten  miles  wide  along  the  line  of 
the  Illinois  and  Michigan  Canal  for  the  purpose  of  aiding  the  open- 
ing of  a canal  to  connect  the  waters  of  the  Illinois  river  with  those 
of  Lake  Michigan,  and  that  among  the  lands  thus  conveyed  by  the 
Congress  of  the  LMited  States  to  the  State  of  Illinois,  is  Section 
number  twenty-five  (25),  in  Township  number  thirty-four  (34) 
North,  in  Eange  eight  (8),  East  of  the  Third  (3rd)  Principal  Meri- 
dian, in  Grrnndy  County,  Illinois.  That  the  legislature  of  the 

17  state  of  Illinois,  in  the  exercise  of  its  power  and  control  over 
said  lands,  last  above  described,  and  other  lands  received  from 

the  Congress  of  the  United  States,  as  above  stated,  by  its  certain 
act  entitled,  ‘L\n  Act  to  amend  the  several  laws  in  relation  to  the 
Illinois  and  Michigan  Canal,’’  in  force  February  26,  1839,  enacted 
the  following  provision,  to  wit: 

‘‘Section  2,  Snb-Sec.  11.  Lands  situated  upon  streams  which 
have  been  meandered  by  the  surveys  of  public  lands  by  the 
United  States  shall  be  considered  as  bounded  by  the  lines  of 
those  surveys  and  not  by  the  streams.” 

That  the  Desplaines  river  and  the  Kankakee  river  unite  and 
form  the  Illinois  river  in  the  southeast  quarter  of  said  Section 
number  twenty- five  (25)  in  Township  number  thirty-four  (34) 
North,  in  Eange  number  eight  (8),  East  of  the  Third  (3rd)  Prin- 
cipal Meridian,  in  Grundy  County  aforesaid,  and  that,  by  the  sur- 
vey of  public  lands  by  the  United  States  said  Desplaines  river  was 
ineandered. 

Your  orators  are  informed  and  believe,  and  upon  such  informa- 
tion and  belief  charge  the  fact  to  be,  that  the  purchasers  from  the 
State  of  Illinois  of  lands  in  said  Section  twenty-five  (25),  above  de- 
scribed, and  other  similarly  situated  lands  with  reference  to  the 
Desplaines  river,  did  not  take,  and  did  not  claim  to  take  under  their 
several  purchases  that  portion  of  said  lands  lying  between  the 
meander  line  of  the  Desplaines  Eiver  and  the  waters  of  said  river; 
and  that  said  lands  between  said  meander  line  and  the  water  of  said 
Desihaines  Eiver  have  never  been  used  by  any  individual,  under  any 
claim  of  authority  or  right  vested  in  said  purchasers  of  said  lands 
from  the  State  of  Illinois,  save  and  except  as  claimed  by  the 

18  defendant.  AVherefore,  and  by  reason  whereof,  your  orators 

charge  the  fact  to  be  that  the  lands  lying  between  the  mean- 


i:] 


der  line  of  the  Desplaines  Eiver  and  the  waters  of  said  river,  in 
the  southeast  quarter  of  said  Section  number  twenty-five  (25),  in 
Township  number  thirty-four  (34)  North,  in  Eange  number  eight 
(8),  East  of  the  Third  (3rd)  Principal  Meridian,  in  Grundy 
County,  Illinois,  together  with  the  bed  of  the  stream  of  the  said 
Desplaines  Eiver,  in  said  quarter  section  of  land  last  described 
above,  and  other  lands  similarly  situated  with  reference  to  the  Des- 
plaines Eiver,  have  not  passed  by  any  purchase  of  adjoining  lands 
fi*om  the  State  of  Illinois,  and  that  the  same,  and  each  and  every 
part  thereof,  is  owned  by  the  State  of  Illinois,  and  held  by  said 
State  for  the  use  and  benefit  of  the  People  of  the  State  of  Illinois, 
and  of  the  People  of  the  United  States,  as  a ])uhlic  highway  for 
commerce. 

VI.  Your  orators  further  state  unto  your  Honors  that  the  Trus- 
tees of  the  Illinois  and  Michigan  Canal  executed  and  delivered  to 
one  Charles  E.  Boyer,  a deed  hearing  date  as  of  the  22nd  day  of 
October,  1860,  for  certain  tracts  of  land  described  therein  as  fol- 
lows, to  wit: 

‘^The  south  fraction  of  the  northwest  quarter,  and  the  north 
fraction  of  the  southeast  quarter,  and  the  north  fraction  of  the 
northwest  quarter,  and  the  south  fraction  of  the  southeast 
quarter  of  said  Section  25,  in  Township  34  North,  of  Eange  8, 
East  of  the  Third  Principal  Meridian,  excepting  and  reserving 
so  much  of  said  tract  as  is  occupied  by  the  canal  and  its  waters, 
19  and  a strip  90  feet  wide  on  either  side  of  said  canal,  containing 
196.62  acres,  more  or  less,  said  tract  being  a portion  of  the 
land  granted  by  the  United  States  by  the  Act  of  March  21, 
1827,  and  the  28th  day  of  August,  1854,  to  the  State  of  Illinois, 
to  aid  said  State  in  opening  a canal  to  connect  the  waters  of 
the  Illinois  Eiver  with  those  of  Lake  Michigan,  and  by  said 
State  granted  to  the  said  Board  of  Trustees  of  the  Illinois  and 
Michigan  Canal  for  the  purposes  set  forth  in  said  Act  of  said 
State  of  February  21,  1843.’’ 

And  your  orators  further  state  unto  your  Honors  that  the  Legis- 
lature of  the  State  of  Illinois,  by  its  certain  act  approved  and  in 
force  February  26,  1839,  enacted  as  follows,  to  wit: 

‘‘Sec.  2,  Sub-Sec.  9.  That  no  stream  of  water  passing 
through  canal  lands  shall  pass  by  the  sale  so  as  to  deprive  the 
State  from  the  use  of  such  water  if  necessary  to  supply  the 
canal  without  charge  for  the  same.” 

“Sec.  2,  Sub-Sec.  11.  Lands  situated  upon  streams  which 
have  been  meandered  by  the  surveys  of  public  lands  by  the 


14 


United  States  shall  be  considered  as  bounded  by  the  lines  of 
those  surveys  and  not  by  the  streams.” 

Wherefore  your  orators  charge  that  no  part  of  the  land  in  the 
northwest  quarter  and  in  the  southeast  quarter  of  said  Section 
number  twenty-five  (25)  in  Town  thirty-four  (34)  North,  in 
Eange  eight  (8),  East  of  the  Third  (3rd)  Principal  Meridian,  lying 
and  being  situated  outside  of  the  meander  line  of  the  Desplaines 
Piver,  were  conveyed  by  said  deed  to  the  said  Charles  E.  Boyer, 
and  that  the  same  remain  the  property  of  the  State  of  Illinois. 

And  your  orators  further  state  that  the  claim  of  the  defendant, 
the  Economy  Light  and  Power  Company,  to  said  i^ortion  of 
20  said  premises  so  situated  outside  of  the  meander  line  of  the 
Desplaines  Eiver,  and  in  said  Section  number  twenty-five  (25), 
is  based  upon  mesne  conveyances  from  the  said  Charles  E.  Boyer, 
and  the  several  contracts  and  leases  hereinafter  set  forth. 


Nixety-Foot  Strip. 

VII.  That  on  March  2,  1827,  the  Congress  of  the  United  States 
passed  a certain  act  entitled 

‘L\n  Act  to  grant  a quantity  of  land  to  the  State  of  Illinois 
for  the  purpose  of  aiding  in  opening  a canal  to  connect  Ihe 
waters  of  the  Illinois  Eiver  with  those  of  Lake  Michigan,” 

in  which,  among  other  things,  it  was  provided  as  follows : 

“That  there  be,  and  hereby  is,  granted  to  the  State  of  Illi- 
nois, for  the  purpose  of  aiding  the  said  state  in  opening  a 
canal  to  unite  the  waters  of  the  Illinois  Eiver  with  those  of 
Lake  Michigan,  a quantity  of  land  equal  to  one-half  of  five  sec- 
tions in  width,  on  each  side  of  said  canal,  and  reserving  each 
alternate  section  to  the  United  States,  to  be  selected  by  the 
Commissioner  of  the  Land  Office,  under  the  direction  of  the 
President  of  the  United  States,  from  one  end  of  said  canal  to 
the  other ; and  the  said  lands  shall  be  subject  to  the  disposal  of 
the  Legislature  of  the  said  state,  for  the  purpose  aforesaid,  and 
no  other.” 

That  in  and  by  said  Act  of  March  2,  1827,  said  Congress  granted, 
by  implication,  the  right  of  way  for  the  construction  of  said  canal 
through  the  sections  of  public  lands  which  were  not  donated  to  the 
State  in  aid  of  said  canal ; and  that  the  said  grant  of  right  of  way 
by  implication  extended  to  the  land  necessary  to  be  used  for  the 
canal  of  the  width  contemplated. 


15 


That  afterwards  such  proceedings  were  had,  pursuant  to  law  and 
to  said  statute,  that  the  route  and  location  of  said  canal  were 

21  duly  surveyed  and  laid  out,  and  the  odd  numbered  sections  of 
lands  upon  the  survey  of  the  same  as  Public  Lands  by  the  Sur- 
veyor General  of  the  United  States  bordering  said  canal  and  with- 
in five  miles  on  each  side  of  said  canal,  commencing  with  Township 
number  thirty-two  (32)  North,  of  Eange  number  one  (1),  East  of 
the  Third  (3rd)  Principal  Meridian,  were  duly  selected,  by  said 
Commissioner  of  the  Land  Office,  under  the  direction  of  the  Presi- 
dent of  the  United  States  (except  21  exterior  sections,  not  now  in- 
volved), and  said  selections  as  confirmed  included  said  Section  25, 
Township  34  North,  Eange  8,  East  of  the  Third  Principal  Meridian, 
and  Sections  31,  29,  21,  15,  11,  all  in  Township  34  North,  Eange  9, 
East  of  the  Third  Principal  Meridian,  and  Sections  31,  29,  21,  all  in 
Township  35  North  Eange  10,  East  of  the  Third  Principal  ]\Ieri- 
dian,  and  said  Board  of  Commissioners  of  the  Illinois  and  Michi- 
gan Canal  laid  out  said  canal,  through  said  last  named  sections,  and 
began  the  construction  thereof,  and  provided  for  the  reservation 
of  a 90-foot  strip  of  land  on  each  side  thereof  for  use  as  a tow  path 
and  as  part  of  the  canal  throughout  the  length  thereof. 

That  afterwards,  in  the  years  1847  and  1848,  Artemas  J.  Mat- 
tliewson,  a surveyor  and  engineer,  under  the  authority  and  direc- 
tion of  the  Canal  Trustees  herein  elsewhere  referred  to,  surveyed 
and  marked  the  lines  of  a 90-foot  strip  on  each  side  of  the  canal  as 
finally  located  and  constructed  from  one  end  thereof  to  the 

22  other,  and  prepared  and  filed  in  the  office  of  said  Board  of 
Trustees  maps  and  profiles  of  said  survey,  and  the  said  90-foot 

strip  so  laid  otf  and  surveyed  by  said  Matthewson  on  each  side  of 
the  canal  as  aforesaid,  was  reserved  from  sale  by  the  Canal  Com- 
missioners and  Canal  Trustees  in  sales  of  canal  lands  in  said  odd 
numbered  sections,  and  title  thereto  remains  in  the  State  of  Illi- 
nois ; and  said  strip,  together  with  the  lands  necessary  for  right  of 
way  through  the  alternate  even  numbered  sections  of  land  through 
which  said  canal  was  constructed,  constitute  integral  parts  of  the 
said  canal,  and  are  necessary  for  its  preservation  and  use,  and  are, 
by  law,  preserved  and  protected  against  alienation ; and  said  90-foot 
strip  was  so  expressly  reserved  from  sale  in  said  deed  by  said 


16 


Trustees  of  the  Illinois  and  Michigan  Canal  to  said  Charles  E. 
Boyer. 

23  VIII.  Your  orators  further  represent  unto  your  Honors 
that  the  Canal  Commissioners  of  the  State  of  Illinois  entered 

into  a certain  contract,  bearing  date  as  of  the  2nd  day  of  Septem- 
ber, 1904,  with  one  Harold  F.  Griswold,  and  which  said  contract, 
as  your  orators  are  informed  and  believe,  and  upon  such  informa- 
tion and  belief  charge  the  fact  to  be,  was,  by  the  said  Harold  F. 
Griswold,  assigned,  so  that'  by  mesne  assignments  the  same  was 
purported  to  pass  to  The  Economy  Light  & Power  Company,  the 
defendant  in  this  cause,  a copy  of  which  said  contract  is  hereto 
attached  and  marked  Exhibit  A,  and  hereby  made  a part  of  this 
bill. 

And  your  orators  further  state  unto  your  Honors  that  they  are 
informed  and  believe,  and  upon  such  information  and  belief  charge 
the  fact  to  be  that  the  said  Canal  Commissioners  entered  into  a con- 
tract of  lease  with  one  Harold  F.  Griswold  as  of  the  date  of  the  2nd 
day  of  September,  1904,  a copy  of  which  said  lease  is  hereto  at- 
tached and  marked  Exhibit  B,  and  hereby  made  a part  of  this  hill ; 
and  which  said  lease  was,  as  your  orators  are  informed  and  believe, 
assigned  by  the  said  Harold  F.  Griswold,  so  that  by  mesne  assign- 
ments the  same  was  purported  to  pass,  to  The  Economy  Light  & 
Power  Company. 

And  your  orators  further  inform  the  court  that  they  are  in- 
formed and  believe,  and  upon  such  information  and  belief  charge 
the  fact  to  be,  that  the  Canal  Commissioners  entered  into  another 
certain  contract  with  the  said  Harold  F.  Griswold  as  of  the  date  of 
the  8th  day  of  August,  1905,  a copy  of  which  said  contract  is 

24  hereto  attached  and  marked  Exhibit  C,  and  hereby  made  a part 
of  this  bill,  and  which  said  contract  was,  as  your  orators  are 

informed  and  believe,  assigned  by  the  said  Harold  F.  Griswold,  so 
that  by  mesne  assignments  the  same  was  purported  to  pass  to  The 
Economy  Light  & Power  Company. 

' Your  orators  further  state  unto  your  Honors  that  the  Canal 
Commissioners  of  the  State  of  Illinois  made  an  application  to  the 
Governor  of  the  State  of  Illinois  for  his  consent  to  the  sale  of  cer- 
tain lands,  and  which  said  application  bears  date  as  of  the  11th  day 


17 


of  June,  1904,  a copy  of  wliicli  said  application  is  hereto  attached, 
marked  Exhibit  D,  and  hereby  made  a part  hereof;  and  that  a copy 
of  the  approval  of  said  application  for  said  sale  by  the  Governor 
of  the  State  of  Illinois,  as  of  the  date  of  the  14th  day  of  June,  1904, 
is  hereto  attached  and  marked  Exhibit  E,  and  hereby  made  a part 
of  this  bill. 

And  your  orators  further  state  unto  your  Honors  that  in  pur- 
suance of  said  application  for  sale,  and  the  approval  of  said  appli- 
cation by  the  Governor,  as  aforesaid,  there  was  inserted  in  the 
Lockport  Phoenix- Advertiser,  a newspaper  of  general  circulation, 
printed  and  published  in  the  Village  of  Lockport,  in  the  County  of 
Will,  and  State  of  Illinois,  a certain  notice  of  said  proposed  sale,  a 
copy  of  which  said  notice,  together  with  the  certificate  of  publica- 
tion thereof,  is  hereto  attached  and  marked  Exhibit  F,  and  hereby 
made  a part  of  this  bill. 

And  your  orators  further  state  unto  your  Honors  that 
25  in  and  by  said  notice  last  above  mentioned,  the  premises  there- 
in described  were  advertised  to  be  sold  on  the  2nd  day  of  Au- 
gust, 1904,  at  10  o’clock  in  the  morning  for  cash,  at  the  canal  office 
in  Lockport,  Will  County,  in  the  State  of  Illinois;  and  your  orators 
further  state  that  no  sale  of  said  premises  occurred  on  the  2nd  day 
of  August,  1904,  in  pursuance  of  said  notice,  but  that  the  sale  so 
advertised  to  be  made  was  adjourned,  and  never  thereafter  re- 
sumed. 

Your  orators  further  rej^resent  unto  your  Honors  that  after  the 
2nd  day  of  August,  A.  H.  1904,  and  under  date  of  September  2, 
1904,  the  Canal  Commissioners  of  Illinois  entered  into  the  agree- 
ment and  lease  hereinbefore  mentioned,  and  marked  respectively 
Exhibits  A and  B,  and  that  afterwards,  and,  to  wit,  under  date  of 
November  1,  1904,  the  Canal  Commissioners  of  the  State  of  Illinois 
made  an  application  to  the  Governor  of  the  State  of  Illinois  for 
liis  consent  to  the  sale  of  certain  lands  in  said  application  described, 
a copy  of  which  application  is  hereto  attached  and  marked  Ex- 
hibit G,  and  hereby  made  a part  of  this  bill;  and  that  the  ap- 
proval of  said  application  for  sale  by  the  Governor  of  the  State  of 
Illinois  was  made  in  writing,  a copy  of  which  said  approval,  bear- 
ing date  as  of  the  2nd  day  of  Nevember,  1904,  is  hereto  attached 
and  marked  Exhibit  H,  and  hereby  made  a part  of  this  bill.  That 


18 


in  pursuance  of  said  application  and  approval  a notice  of  sale  was 
inserted  in  the  Lockport  Phoenix- Advertiser,  a weekly 

26  newspaper  of  general  circulation,  a copy  of  which  said  motion, 
together  with  the  certificate  of  publication  thereof,  is  hereto 

attached  and  marked  Exhibit  I,  and  hereby  made  a part  of  this 
bill. 

And  your  orators  further  state  that  in  pursuance  of  said  appli- 
cation last  above  mentioned  for  the  sale  of  certain  lands,  and  the 
approval  of  the  Governor  thereof,  and  of  the  advertisement  in  the 
Lockport  Phoenix-Advertiser  last  above  mentioned,  the  said  Canal 
Commissioners,  as  your  orators  are  informed  and  believe,  and 
upon  such  information  and  belief  charge  the  fact  to  be,  sold,  and 
executed  a certain  deed  to  Harold  E.  Grisv/old  as  of  the  date  of  the 
6th  day  of  January,  1905,  a copy  of  which  said  deed  is  hereto  at- 
tached and  marked  Exhibit  J,  and  hereby  made  a part  of  this  bill ; 
and,  as  your  orators  are  informed  and  believe,  the  said  Harold 
E.  Griswold  conveyed  said  premises,  so  that  by  mesne  conveyances 
the  same  were  purported  to  pass  to  The  Economy  Light  & Power 
Company,  the  defendant  in  this  cause. 

Your  orators  further  state  unto  your  Honors  that  they  are  in- 
formed and  believe,  and  upon  such  information  charge  the  fact  to 
be  that  the  said  Canal  Commissioners  entered  into  a contract  of 
lease  with  Harold  F.  Griswold  as  of  the  date  of  September  2,  1904, 
a copy  of  which  said  lease  is  hereto  attached  and  marked  Exhibit 
K,  and  hereby  made  a part  of  this  bill,  and  which  said  lease,  as 
your  orators  are  informed  and  believe,  was  assigned  by  the  said 
Griswold,  so  that  by  mesne  assignments  the  same  were  purported  to 
pass  to  The  Economy  Light  & Power  Company,  the  defendant  here- 
in. 

And  so  it  is,  as  your  orators  are  informed  and  believe, 

27  and  upon  such  information  and  belief  charge  the  fact  to  be, 
that  the  said  Economy  Light  & Power  Company,  claiming  to 

act  by  pretended  right,  authority  and  virtue  of  the  several  deeds, 
leases  and  contracts  hereinbefore  mentioned,  claims  the  right  to 
construct  a dam  across  the  Desplaines  Eiver  and  across  certain 
lands  adjacent  thereto,  and  across  the  90-foot  strip  of  land  so 
used  for  canal  purposes,  and  immediately  adjoining  the  waterway 
of  the  said  Illinois  and  Michigan  Canal,  and  upon  the  bank  or  tow 


19 


path  of  the  said  Illinois  and  Michigan  Canal,  and  so  to  construct 
said  dam  as  to  flood  the  lands  along  the  Desplaines  Eiver  for  a dis- 
tance of  several  miles,  to  wit,  the  distance  of  ten  miles,  or  there- 
abouts, above  the  location  of  said  proposed  dam,  and  which  said 
location  of  said  proposed  dam  is  on  the  southeast  quarter  of  Sec- 
tion No.  25  in  Towmship  No.  84  North,  in  Range  No.  8 East  of  the 
Third  Principal  Meridian,  in  Grundy  County,  Illinois,  and  that  in 
pursuance  of  said  claim  of  right  on  its  part  said  Economy  Light 
and  Power  Company  has  commenced  the  construction  of  a dam 
across  said  Desplaines  River  and  across  the  lands  as  hereinbefore 
set  forth,  but  your  orators  aver  that  the  said  several  leases,  deeds 
and  contracts  are  ineffectual  to  confer  any  right  to  build  or  main- 
tain said  dam. 

Your  orators  further  state  unto  your  Honors  that  the  General 
Assembly  of  the  State  of  Illinois  has,  by  its  proper  resolution,  duly 
passed  by  the  Senate  and  concurred  in  by  the  House  of  Repre- 
sentatives of  said  General  Assembly  on,  to  wit,  the  16th  day  of  Oc- 
tober, 1907,  a copy  of  which  is  hereto  attached,  marked  Exhibit  L, 
and  made  a part  hereof,  proposed  the  building  of  a deep  water- 
way, commencing  at  the  southern  end  of  the  Chicago  Drainage 
Canal  and  extending  southwesterly  along  the  line  of  the  Des- 
28  plaines  and  Illinois  Rivers,  in  accordance  with  plans  and  speci- 
fications formulated  by  the  corps  of  engineers  of  the  United 
States  Army,  under  and  by  direction  of  a certain  Act  of  the  Con- 
gress of  the  United  States ; and  that  the  proi)osition  so  proposed  by 
the  Legislature  of  the  State  of  Illinois  has  been  authorized  by  the 
said -Legislature  of  Illinois  to  be  submitted  to  a vote  of  the  people 
of  the  State  of  Illinois,  authorizing  the  construction  of  said  dee^) 
waterway,  and  if  the  same  is  built,  as  an  incident  thereto,  locks 
and  dams,  with  special  provisions  for  navigation,  and  securing  and 
safe  guarding  the  passage  of  boats,  will  necessarily  be  constructed 
across  said  deep  waterway  in  the  channel  of  the  Desplaines  River 
at  or  near  the  said  southeast  quarter  of  Section  number  25,  in 
Township  number  34  North,  in  Range  number  8 East  of  the  Third 
Principal  Meridian  in  Grundy  County,  Illinois,  which  said  dams 
will  incidentally  afford  water  power  of  great  value,  to  wit,  of  the 
value  of  several  millions  of  dollars  to  the  State  of  Illinois,  and 
which  said  water  power,  so  necessarily  incidentally  created,  will  be 


20 


lost  to  the  State  of  Illinois  if  the  said  Economy  Light  and  Power 
Company,  the  defendant  herein,  shall  he  permitted  to  construct  the 
dam  herein  mentioned. 

And  your  orators  deny  the  right  and  authority  of  the  Trustees 
of  the  Illinois  and  Michigan  Canal,  or  of  the  Canal  Commissioners 
of  the  State  of  Illinois,  to  convey  the  lands  composing  the  bed 

29  of  the  stream  of  the  Desplaines  Eiver,  or  any  part  or  portion 
of  the  lands  of  said  Section  number  25  last  above  described, 

outside  of  the  meander  line  of  the  Desplaines  Eiver. 

And  your  orators  further  charge  that  the  ninety  foot  strip  of 
land  along  the  line  of  the  Illinois  and  Michigan  Canal  is  necessary 
for  the  proper  maintenance  and  use  of  the  Illinois  and  Michigan 
Canal  and  constitutes  a necessary  integral  part  of  said  canal,  and 
being  so  necessary  for  the  use  of  the  said  Illinois  and  Michigan 
Canal  and  its  maintenance,  and  being  so  an  integral  part  of  the  said 
canal, -the  Trustees  of  the  Illinois  and  Michigan  Canal  did  not  have, 
and  the  Canal  Commissioners  of  the  State  of  Illinois  had  not  and 
does  not  now  have,  the  right  and  authority  under  the  law,  to  con- 
vey the  same  by  deed,  lease  or  otherwise.  Wherefore,  and  by  rea- 
son whereof  your  orators  charge  the  fact  to  be  that  the  Economy 
Light  and  Power  Company,  the  defendant  herein,  has  not  acquired 
any  right,  title  or  interest  in  and  to  the  bed  of  the  stream  of  the 
Desplaines  Eiver,  or  that  portion  of  said  Section  25  last  above 
described  lying  and  being  outside  of  the  meander  line  of  the  said 
^ Desplaines  Eiver,  or  in  and  to  the  90  foot  strip  of  land  lying  be- 
tween the  waters  of  the  Illinois  and  Michigan  Canal  and  the  said 
Desplaines  Eiver,  and  said  deeds,  leases,  contracts  and  other  agree- 
]nents,  in  so  far  as  they  pertain  to  the  bed  of  the  stream  of  the 
Desplaines  Eiver,  and  to  the  lands  lying  outside  of  the  meander 

30  line,  and  to  the  90  foot  strip  of  land  so  reserved  for  the  use 
of  the  Illinois  and  Michigan  Canal,  and  so  located  in  the  south- 
east quarter  of  Section  number  25  last  above  described,  are  void 
and  of  no  effect. 

And  your  orators  charge  the  fact  to  be  that  by  virtue  of  the  sev- 
eral enactments  of  the  Congress  of  the  United  States  as  hereinbe- 
fore set  forth,  and  of  the  several  acts  of  the  Legislature  of  the  State 
of  Illinois  as  hereinbefore  set  forth,  the  bed  of  the  Desplaines  Eiver 
is  owned  by  the  State  of  Illinois,  and  that  the  same  has  not  been 


21 


conveyed  by  any  deed  to  anybody  wliomsoever,  and  that  the  lands 
on  said  Section  number  25  last  above  described,  and  other  sections 
of  land  along  the  line  of  the  ])esplaines  Eiver,  so  granted  to  the 
State  of  Illinois  by  the  Act  of  Congress  hereinbefore  referred  to- 
outside  of  the  meander  line  of  said  stream,  to  wit,  the  Des- 
])laines  Eiver,  have  not  been  conveyed  by  the  State  of  Illinois  nor 
by  any  other  person  or  persons  or  corporation  whomsoever  having 
authority  so  to  convey  the  same,  and  that  the  same  remain  and  are 
owned  by  the  State  of  Illinois. 

IX.  Your  orators  further  state  unto  your  Honors  that  notwith- 
standing the  rights  and  interests  of  the  people  of  the  State  of  Illi- 
nois, as  hereinbefore  set  forth,  the  Economy  Light  & Power  Com- 
pany, a corporation,  claims  or  pretends  to  claim  to  be  the  owner  of 
the  bed  of  the  stream  of  the  Desplaines  Eiver  and  other  lands  in 
said  southeast  quarter  of  said  Section  number  25  above  men- 
81  tioned,  and  other  lands  for  a distance  of  several  miles  up  the 
Desplaines  Eiver,  which  are  outside  of  the  meander  line  of  the 
said  Desplaines  Eiver,  and  so  pretending  and  claiming  to  be 
the  owner  of  said  premises  has  threatened  to  erect,  and  has  act- 
ually begun  the  erection  of  a dam  across  the  Desplaines  Eiver,  and 
across  the  90  foot  strip  of  land  so  reserved  for  the  use  of  the  Illi- 
nois and  Michigan  Canal,  and  across  other  lands  outside  of  the 
meander  line  of  the  Desplaines  Eiver,  and  to  connect  said  dam  with 
the  bank  or  tow  path  of  the  Illinois  and  Michigan  Canal,  and  to  so 
construct  said  dam  as  to  cause  the  water  to  be  backed  up  and  to 
overflow  the  lands  belonging  to  the  State  of  Illinois,  and  other 
lands  for  a long  distance  above  said  proposed  dam,  to  wit,  for  the 
distance  of  ten  miles,  or  thereabouts. 

That  your  Attorney  General  heretofore,  on  the  12th  day  of  De- 
cember, A.  D.  1907,  caused  to  be  served  on  said  defendant,  the 
Economy  Light  & Power  Company,  a certain  notice  and  command 
in  writing,  notifying  and  commanding  the  said  defendant,  its  of- 
ficers, agents,  servants  and  representatives,  to  cease  and  desist 
from  in  any  manner  infringing  upon,  trespassing  upon  or  inter- 
fering with  the  said  lands  owned  by  the  State  of  Illinois,  or  in 
which  the  State  of  Illinois  or  the  people  of  the  State  of  Illinois  have 
an  easement  for  the  benefit  of  the  public,  located  in  said  Section  25 
in  Grundy  County,  Illinois,  by  the  erection  of  a dam  thereon,  or 


22 


otherwise,  and  to  cease  and  desist  from  in  any  way  obstructing 

32  the  Desplaines  Eiver  or  the  Illinois  Kiver  in  said  section  or 
elsewhere,  and  further  notifying  and  commanding  said  defend- 
ant to  remove  any  and  all  obstructions  that  it  may  have  placed 
upon  said  premises,  whether  the  same  be  in  the  bed  of  the  Des- 
plaines Eiver  or  otherwise  located;  which  notice  and  command  in 
writing  was  served  upon  said  defendant  company  by  personal  de- 
livery of  the  same  to  John  F.  Gilchrist,  Secretary  of  said  defendant 
company,  who,  on  behalf  of  said  defendant  company  then  and  there 
acknowledged  service  and  receipt  of  the  same;  a copy  of  which  no- 
tice and  command,  with  said  written  receipt  of  service,  as  signed 
b}^  said  secretary,  appended,  is  hereto  attached  and  marked  Ex- 
hibit M.  But  now  so  it  is,  may  it  please  your  Honors,  that  said 
defendant  has  ignored  said  notice  and  command  and  disregarded 
the  same,  and  since  the  service  and  receipt  thereof  has  continued 
and  i^ersisted  in  the  work  of  constructing  said  dam  at  said  place 
in  the  bed  of  said  river,  and  has  employed  about  one  hundred  men, 
with  horses,  wagons  and  machinery  in  so  doing,  and  unless  pre- 
vented by  the  injunction  of  this  Honorable  Court,  will  soon  com- 
plete the  same  to  the  great  impairment  of  said  easement  of  navi- 
gation and  to  the  great  and  irreparable  injury  of  the  people  of  the 
State  of  Illinois. 

That  if  the  said  dam  is  permitted  to  be  erected  by  the  defend- 
ant, it  will  destroy  and  interfere  with  the  Desplaines  Eiver  as  a 
navigable  waterway  for  the  use  of  the  people  of  the  State  of 

33  Illinois,  and  for  all  the  people  of  the  United  States;  that  it 
will  overflow  and  destroy  the  value  of  lands  and  the  use  of 

lands  belonging  to  the  State  of  Illinois  adjacent  to  said  Desplaines 
Eiver,  and  outside  of  the  meander  line  of  said  river;  that  it  will  de- 
stroy the  use  of  the  90  foot  strip  of  land  so  to  be  retained  for  the 
use  and  benefit  of  the  Illinois  and  Michigan  Canal,  and  render  the 
same  inoperative  and  of  purpresture  impaired  benefit  to  said  canal ; 
that  it  will  destroy  a feeder  of  the  Illinois  and  Michigan  Canal  and 
will  constitute  a purpresture  and  that  the  same  will  produce  and 
work  irreparable  loss  and  damage  to  the  Illinois  and  Michigan 
Canal,  and  to  the  State  of  Illinois,  and  to  the  rights  of  the  people 
of  the  State  of  Illinois. 

34  X.  Your  orators  further  show  that  said  agreement  Exhil)it 


A,  purports  to  give  authority  and  consent  by  the  Canal  Com- 
missioners unto  the  said  Griswold  and  his  assigns,  to  dam  the  Des- 
plaines  Eiver,  to  back  up  water  upon  a ninety  foot  strip  and  cause 
the  same  to  be  flooded,  to  excavate  in  and  remove  portions  of  said 
Kankakee  feeder  therein  mentioned  and  of  the  structures  therefor, 
to  attach  the  said  proposed  dam  to  the  tow  path  of  the  canal,  to  di- 
vert water  from  the  Desplaines  Kiver,  to  attach  and  close  up  a 
levee  to  and  along  the  tow  path  bank  of  said  canal,  to  use  the  gravel 
and  material  the  property  of  the  state,  to  enter  upon  the  canal 
lands  and  the  canal  itself  in  and  about  said  works,  and  to  raise, 
change  and  alter  buildings  owned  by  the  state  and  used  in  connec- 
tion with  said  canal;  as  to  each  and  every  of  which  provisions  the 
same  were  beyond  the  power  of  said  Commissioners  to  grant. 

The  said  consent  and  permission,  jmrported  to  be  conferred  by 
said  instrument,  was  without  limit  of  time,  and  of  right  should  be 
held,  in  law  and  in  equity,  to  be  without  any  authority,  and  to  con- 
fer no  authority,  and  be  against  the  public  policy  of  the  state  and 
in  derogation  of  the  rights  and  interests  of  the  people,  and  to  be 
revocable  by  the  state. 

That  said  lease.  Exhibit  B,  purported  to  convey  and  demise  in- 
terests in  the  said  ninety  foot  strip  within  the  area  described  in 
said  lease,  to  which  reference  is  here  made,  in  that  part  of  the 
35  canal  called  the  Kankakee  feeder,  and  purported  to  give  a first 
right  of  renewal  to  the  party  of  the  second  part  therein  named, 
and  purported  to  be  made  subject  to  said  contract  Exhibit  A.  That 
each  of  said  instruments  purported  to  contract,  on  the  part  of  said 
Canal  Commissioners,  with  said  Griswold,  his  successors  and  as- 
signs, and  by  their  terms  might  be  assigned,  one  to  one  assignee 
and  the  other  to  another  and  different  assignee. 

That  said  contracts  were  entered  into  by  the  parties  thereto  with 
the  mutual  knowledge  and  understanding  that  the  party  of  the  sec- 
ond part  and  his  assignee  thereof  intended  to  make  use  of  the  same 
in  erecting  said  dam  and  developing  water  power  thereon,  and  that 
the  same  amount  to  a lease  of  water  power  rights  and  lands  and 
lots-  connected  therewith.  That  the  said  lease  and  contract  were  not 
nor  were  either  of  them  entered  into  upon  notice  by  publication, 
nor  limited  to  a period  of  ten  years,  contrary  to  the  provision  of  a 


24 


certain  Act  entitled,  '^An  Act  to  revise  the  law  in  relation  to  the 
Illinois  and  Michigan  Canal,  and  for  the  improvement  of  the  Illi- 
nois and  Little  Wabash  Eivers,’^  approved  March  27th,  1874,  and 
acts  amendatory  thereof,  and,  in  particular,  to  the  provisions  of 
Clause  6 of  Section  8 of  said  statute  as  amended  by  the  certain  Act 
amendatory  thereof,  approved  June  19th,  1891,  in  force  July  1st, 
1891 ; and  your  orators  charge  that  the  same  are  beyond  the  power 
of  said  Commissioners  to  enter  into,  and  are  null  and  void. 

36  Your  orators  further  show  that  treating  said  instruments 
as  leases  of  water  power  they  are  subject  to  the  power  of  the 

state,  by  its  lawfully  authorized  agents,  to  resume,  without  com- 
pensation to  the  party  of  the  second  part  therein  named,  his  suc- 
cessors or  assigns,  the  use  of  such  water  power,  and  are  further 
subject  to  the  power  of  the  state  to  abandon  or  destroy  the  work 
by  the  construction  of  which  the  water  privilege  therein  purported 
to  be  conferred  shall  have  been  created,  whenever,  in  the  opinion  of 
the  Legislature,  such  work  shall  cease  to  be  advantageous  to  the 
state, — all  in  accordance  with  the  provisions  of  said  Clause  6 of 
said  Section  8 of  said  Act  approved  March  27th,  1874,  as  amended 
by  said  Act  approved  June  19th,  1891. 

Your  orators  further  show  that  the  opinion  of  the  Legislature 
that  such  work  has  ceased  to  be  advantageous  to  the  state  was  duly 
expressed  by  the  said  statute  heretofore  cited,  approved  and  in 
force  December  6th,  1907,  entitled  ‘‘An  Act  recognizing  the  Des- 
plaines  and  Illinois  Eivers  as  navigable  streams,  and  to  prevent  ob- 
structions being  placed  therein,  and  remove  obstructions  therein 
now  existing.’’ 

That  said  contract.  Exhibit  C,  purports  to  leave  to  the  said 
Griswold,  and  his  successors  and  assigns,  such  right  as  is  now,  at 
the  date  thereof,  under  the  control  of  the  Canal  Commissioners,  to 
divert  the  waters  of  the  Kankakee  Eiver  into  the  Kankakee  feeder, 
and  discharge  the  same  into  the  Desplaines  Eiver,  and  to  de- 

37  stroy  and  reconstruct  the  dam  across  the  Kankakee  Eiver,  and 
to  construct  at  each  end  of  said  Kankakee  feeder  suitable  gates 

for  controlling  the  discharge  of  the  Kankakee  Eiver  through  said 
feeder,  and  to  enter  upon  the  Kankakee  feeder  for  the  purposes 
therein  named. 


But  your  orators  sliow  that  the  said  contract  was  a further  lease 
for  the  purpose  of  enabling  the  assignee  therein  to  develop  and  cre- 
ate water  power,  and  was  not  made  in  conformity  to  the  provisions 
of  the  statutes  last  cited  in  reference  to  the  Illinois  and  Michigan 
Canal ; and  further  show  that  said  Kankakee  feeder  was  an  in- 
tegral part  of  said  canal,  and  that  said  agreement  was  beyond  the 
power  of  said  Commissioners  to  make. 

But  your  orators  further  show  that  said  lease,  Kxhibit  C,  con- 
tained the  following  provision,  to  wit : 

‘Mt  is  herein  further  stipulated  and  agreed,  and  the  Canal 
Commissioners  hereby  expressly  reserve  the  right  to  cancel 
this  lease  and  recover  jiossession  of  the  land,  property  and 
rights  above  demised  and  referred  to,  whenever,  in  tlie  judg- 
ment of  the  Canal  Commissioners,  or  other  proper  officers  of 
the  state,  at  such  time  having  charge  of  canal  property,  they 
shall  deem  the  interests  of  the  state  re(]uire  it  to  repossess  and 
use  said  property  for  state  purposes.” 

And  your  orators  show  that  said  power  of  revocation  and  can- 
cellation may  be  exercised  by  the  Legislature  of  the  state,  and  that 
the  same  was  exercised  by  the  Legislature  of  the  state  by  the  enact- 
ment of  the  statute  hereinbefore  mentioned,  which  was  approved 
and  in  force  December  6th,  1907,  entitled  ^‘An  Act  recognizing 
38  the  Desplaines  and  Illinois  Kivers  as  navigable  streams,  and  to 
prevent  obstructions  being  placed  therein,  and  remove  obstruc- 
tions therein  now  existing.”  And  your  orators  show  that  the  exer- 
cise of  the  powers  and  privileges  and  rights  purported  to  be  con- 
ferred by  said  lease.  Exhibit  C,  will  constitute  and  create  obstruc- 
tions of  the  Desplaines  Eiver. 

That  said  deed  Exhibit  J purports  to  convey  the  lands  therein 
described,  and  in  terms  to  include  lands  lying  and  being  situated 
outside  of  the  meander  line  of  the  Desplaines  Eiver,  and  purports 
to  be  subject  to  the  terms  of  said  flowage  contract  Exhibit  A,  and 
said  lease  Exhibit  B,  and  to  renew  the  covenants  thereof  by  the 
certain  provision  in  said  deed  referring  thereto,  which  recites  that 
the  said  deed  is  subject,  however,  to  the  terms,  conditions  and  pro- 
visions of  the  flowage  contract  and  lease  made  with  said  Harold  F. 
Griswold,  and  bearing  date  September  2,  A.  D.  1904,  which  terms, 
conditions  and  provisions  still  remain  in  full  force,  and  shall  be 
fully  kept  and  performed.” 


2G 


And  your  orators  show  that  the  said  lands  and  lots  described 
in  said  deed  are  lands  and  lots  connected  with  the  water  power 
privilesres  sought  and  purported  to  be  conferred  and  created  by 
said  contract  Exhibit  A,  and  said  lease  Exhibit  B,  and  that  said 
advertisement  thereof  did  not  so  designate  and  describe  said 
properties,  and  did  not  limit  the  same  to  the  term  of  ten  years 
prescribed  by  law,  and  the  same  are  beyond  the  power  of  the 
said  commissioners  and  are  null  and  void,  and  are  subject  to 

39  the  power  in  the  state  to  resume  the  same  and  to  abandon 
and  destroy  the  work  by  the  construction  of  which  water 

privileges  shall  have  been  created,  whenever  in  the  opinion  of 
tile  Legislature  such  work  shall  cease  to  be  advantageous  to  the 
state; — and  your  orators  show  that  the  opinion  of  the  Legisla- 
ture that  the  same  ceased  to  he  advantageous  to  the  state  was 
duly  expressed  by  the  said  statute  approved  and  in  force  Decem- 
ber 6,  1907,  entitled,  ^‘An  Act  recognizing  the  Desplaines  and  Illi- 
nois Divers  as  navigable  streams,  and  to  prevent  obstructions  be- 
ing placed  therein,  and  remove  obstructions  therein  now  ex- 
isting.” 

Your  orators  further  show  that  said  Pole  lease.  Exhibit  K, 
purported  to  convey  to  said  Griswold,  his  successors  and  assigns, 
the  right  to  maintain  a line  of  poles  along  said  canal  from  the  west 
line  of  said  Section  25,  upon  which  said  dam  has  been  located, 
to  Pobey  street  in  the  City  of  Joliet,  and  from  the  same  point  in 
said  Section  25  to  the  west  limits  of  the  City  of  Morris  in  Grundy 
County. 

And  your  orators  show  that  the  said  lease  was  made  upon  the 
same  day  as  said  contract  and  lease,  Exliibit  A and  Exhibit  B,  and 
was  also  for  the  purpose  of  developing  the  said  water  power  and 
transferring  and  conveying  the  same  as  electrical  energy  by  said 
])roposed  line  of  poles,  and  was  subject  to  all  the  infirmities  here- 
tofore specifically  alleged  as  to  said  contract  and  lease.  Exhibit 
A and  Exhibit  B. 

And  your  orators  further  show  that  said  contracts,  deeds  and 
leases  were  and  each  of  them  was  entered  into  on  inadecjuate  con- 
sideration. 

40  Forasmuch,  therefore,  as  your  orators  is  without  remedy 
in  the  premises,  excei>t  in  a court  of  ecpiity,  and  to  the  end 


27 


that  the  said  Economy  Light  & Power  Company,  the  defendant 
in  this  bill,  may  be  required  to  make  full  and  direct  answer  to 
the  same,  but  not  under  oath,  the  answer  under  oatli  ])eing  hereby 
waived,  and  that  the  said  deeds,  leases  and  contracts  herein])efore 
mentioned  and  each  of  them  may  be  set  aside  and  be  declared  to 
be  beyond  the  power  of  the  said  Canal  Commissioners  and  null 
and  void  as  to  each  and  every  part  and  in  particular  as  to  the 
bed  of  the  Desplaines  Piver,  and  as  to  the  90-foot  strip  of  land 
• hereinbefore  described,  and  as  to  the  lands  lying  and  being  sit- 
uate outside  of  the  meander  line  of  the  Desplaines  Piver,  and  as 
to  the  said  part  of  the  canal  designated  as  the  Kankakee  feeder, 
and  that  the  said  Economy  Light  & Power  Company,  its  officers, 
agents  and  servants,  and  each  and  all  and  every  of  them,  shall 
be  restrained  by  the  order  and  injunction  of  this  Honorable  Court 
from  erecting  a dam  across  said  Desplaines  Piver  and  across  the 
premises  hereinbefore  mentioned,  and  from  causing  tlie  waters  of 
the  Desplaines  Piver  to  back  up  and  overflow  the  lands  of  the 
State  of  Illinois,  and  to  refrain  from  permitting  the  obstruction 
already  placed  in  said  Desplaines  Piver  to  be  and  remain  therein, 
and  that  your  orator  may  have  such  other  and  further  relief  in 
the  premises  as  equity  may  require  and  to  your  Honors  shall  seem 
meet. 

May  it  please  your  Honors  to  grant  unto  your  orator  the 
people’s  writ  of  injunction  to  be  directed  to  the  Economy 
41  Light  & Power  Company,  restraining  it  and  its  officers,  agents 
and  servants,  from  erecting  a dam  across  the  Desplaines 
Piver  and  across  the  90-foot  strip  of  land  and  adjoining  the  water 
course  of  the  Illinois  and  Michigan  Canal  on  the  site  thereof  next 
to  the  Desplaines  Piver,  and  across  the  lands  outside  of  the 
meander  line  of  the  Desplaines  Piver,  and  from  causing  the  water 
of  the  Desplaines  Piver  to  be  backed  up  and  to  overflow  the  lands 
belonging  to  the  State  of  Illinois,  and  from  permitting  the  ob- 
structions already  placed  in  said  Desplaines  Piver  and  on  said 
90-foot  strip  of  land  and  on  said  lands  outside  of  the  meander 
line  of  the  Desplaines  Piver  by  the  Economy  Light  & Power 
Company,  all  located  in  and  on  the  southeast  quarter  of  Section 
No.  25  in  Township  No.  34  north,  in  Pange  No.  8 east  of  the  Third 


28 


Principal  Meridian,  in  Grundy  County,  Illinois,  to  remain  therein 
and  thereon,  until  the  further  order  of  this  court. 

I\ray  it  please  your  Honor  to  grant  the  writ  of  summons  in 
chancery  directed  to  the  Sheriff  of  the  County  of  Cook,  command- 
ing him  that  he  summon  the  Economy  Light  & Power  Company 
to  appear  before  the  said  court  on  the  first  day  of  the  next  March 
Term  thereof  to  be  held  at  the  Court  House  in  the  City  of  Morris, 
in  the  County  of  Grundy  aforesaid,  and  then  and  there  to  answer 
this  bill. 

W.  H.  Stead, 
Attorney  General. 

I\^ALTER  Reeves, 

IMerritt  Starr, 

Special  Counsel. 

42  State  of  Illinois,  ) 

County  OF  Cook.  ) 

Lyman  E.  Cooley,  being  first  duly  sworn,  on  his  oath  deposes 
and  says  that  he  is  duly  authorized  by  the  Attorney  of  the  State 
of  Illinois  to  make  affidavit  in  this  behalf ; that  he  has  heard  read 
the  foregoing  bill  and  knows  the  contents  thereof,  and  that  the 
matters  and  things  therein  stated  are  true  of  his  own  knowledge 
except  in  so  far  as  they  are  stated  to  be  upon  information  and 
belief,  and  as  to  those  matters  he  believes  it  to  be  true. 

Lyman  E.  Cooley. 

Subscribed  and  sworn  to  before  me  this  28th  day  of  Decem- 
ber, A.  D.  1907. 

Arthur  A.  Bliss, 

Notary  Public. 


43  Exhibit  A. 

This  Agreement,  made  and  entered  into  this  2nd  day  of  Sep- 
tember, A.  D.  1904,  by  and  between  The  Canal  Commissioners  of 
the  State  of  Illinois,  party  of  the  first  part,  and  Harold  F.  Gris- 
wold, of  the  City  of  Evanston,  County  of  Cook  and  State  of  Illi- 
nois, his  successors  and  assigns,  party  of  the  second  part,  wit- 
nesseth : 


29 


Whereas,  said  party  of  the  second  part  claims  to  l)e  a riparian 
owner  along  certain  streams  of  water  called  the  Desplaines  Elver 
and  Illinois  Eiver,  in  the  Counties  of  Grundy  and  Will,  in  the 
State  of  Illinois,  and  as  such  riparian  owner  is  about  to  improve 
said  Desplaines  Eiver  by  the  construction  of  a dam  and  other 
works  across  the  mouth  of  said  river  in  the  County  of  Grundy 
and  State  of  Illinois,  with  a crest  of  such  height  that  the  pool 
formed  thereby  will  be  on  a level  with  the  waters  of  Lake  Joliet 
(a  portion  of  said  Desplaines  Eiver  in  Will  County,  Illinois)  and 
is  about  to  improve  said  Illinois  Elver  by  deepening  the  channel 
of  said  river  in  Section  twenty-five  (25),  Township  thirty-four 
(34)  North,  Eange  VIII  East  of  the  Third  P.  M.,  and 

Whereas,  the  State  of  Illinois  is  a riparian  owner  at  different 
points  on  the  Desplaines  and  Illinois  Eivers  within  the  territory 
covered  by  this  contract,  as  well  as  the  owner  of  the  hereinafter 
described  parcels  of  land,  under  the  control  of  the  Canal  Commis- 
sioners, and  which  are  not  connected  with  water  power  upon  the 
Illinois  and  Michigan  Canal,  which  said  riparian  rights  and 
44  said  land  have  never  produced  a revenue,  and  said  lands  are 
now  unproductive  of  revenue,  swampy,  unfit  for  cultivation, 
and  partially  covered  with  water,  and  said  lands  are  so  situated 
that  the  riparian  rights  appurtenant  thereto  cannot  be  made  avail- 
able by  the  State  to  create  water  power,  and 

Whereas,  said  party  of  the  second  part  is  desirous  of  obtain- 
ing the  right  to  use,  overflow  and  damage  (in  such  manner  as 
will  not  interfere  with  navigation  on  the  Illinois  and  Michigan 
Canal),  so  much  of  the  said  property  as  may  be  necessary  in  the 
construction  of  said  dam  and  other  works  in  the  improvement  of 
said  Desplaines  Eiver  and  in  the  deepening  of  the  channel  of  said 
Illinois  Eiver, 

Therefore,  in  consideration  of  the  premises  and  the  sum  of 
Two  Thousand  Two  Hundred  Dollars  in  hand  paid  by  the  said 
party  of  the  second  part,  the  receipt  whereof  is  hereby  acknowl- 
edged, it  is  agreed  as  follows: 

1st.  That  said  party  of  the  first  part  consents  that  said  party 
of  the  second  part  shall  have  the  right  and  authority  in  so  im- 
proving the  Desplaines  Eiver,  to  construct  a dam  and  other  works 
across  the  Desplaines  or  Illinois  Eiver  at  a point  near  the  con- 


30 


fluence  of  the  Desplaines  and  Kankakee  Eivers,  in  the  County  of 
Grundy  and  State  of  Illinois,  with  a crest  at  an  elevation  of  not 
to  exceed  minus  seventy- three  and  two-tenths  (73.2)  Chicago 

45  city  datum,  but  in  no  event  shall  the  back  water  caused  by 
said  dam  extend  beyond  the  northerly  limits  of  ^‘Lake 

Joliet”  (said  ‘^Lake  Joliet”  being  a wide  portion  of  the  Des- 
plaines Eiver  about  six  miles  in  length  and  Ijdng  south  of  the 
City  of  Joliet  in  the  County  of  Will  and  State  of  Illinois)  and 
further  consents  that  said  party  of  the  second  part  may  excavate 
in  and  deepen  the  channel  of  the  Illinois  Eiver  in  Section  25, 
Township  34  North,  Eange  VIII  East  of  the  3rd  P.  M. 

2nd.  That  said  party  of  the  second  part  shall  have  the  right 
and  authority  to  flow  the  ninety-foot  reserve  strip  of  the  Illinois 
and  Michigan  Canal  in  Section  25  and  36,  Township  34,  North, 
Eange  VIII,  Grundy  County,  Illinois,  and  in  Section  31,  30,  29 
and  20,  Township  34  North,  Eange  IX,  Will  County,  Illinois,  up 
to  the  canal  bank;  also  so  much  of  the  north  fraction  of  Section 
31,  Township  34  North,  Eange  IX  East  of  the  3rd  P.  M.  as  lies 
south  of  the  ninety-foot  reserve  strip  along  the  towpath  side  of 
the  Illinois  and  Michigan  Canal,  where  the  same  may  be  over- 
flowed by  reason  of  the  construction  of  said  dam  and  other  works 
with  the  crest  hereinbefore  specified,  together  with  the  right  to 
flow  the  water  up  against  the  towpath  bank  of  the  Illinois  and 
]\[ichigan  Canal  in  said  sections  Provided  the  towpath  shall  be 
protected  and  preserved  as  hereinafter  provided. 

3rd.  That  said  party  of  the  second  part  shall  have  the  right 

46  to  excavate  in,  and  remove  so  much  of  the  Kankakee  Feeder 
(an  abandoned  feed  of  the  Illinois  and  Michigan  Canal)  ly- 
ing north  of  the  Desplaines  Eiver,  and  south  of  the  ninety-foot 
strip  in  Section  21,  Township  34  North,  Eange  IX,  Will  County, 
Illinois,  as  may  be  necessary  to  discharge  the  waters  of  the  Des- 
plaines Eiver  through  said  Section  31  in  a proper  manner,  and 
shall  also  have  the  privilege  of  removing  the  old  aqueduct  piers 
in  said  section. 

4th.  That  said  party  of  the  second  part  shall  have  the  right 
to  erect,  attach,  repair  and  maintain,  said  dam  and  other  works 
or  structure  up  against  the  towpath  bank  of  the  Illinois  and  Mich- 
igan Canal  in  Section  25,  Township  34  North,  Eange  VIII  East 


:n. 


of  the  3rd  P.  M.,  Grundy  County,  Illinois,  but  not  so  as  to  inter- 
fere in  any  manner  with  the  use  of  said  towpath  in  connection 
with  said  canal. 

5th.  That  said  party  of  the  second  part  shall  have  the  right 
to  turn  and  divert  from  the  Desplaines  liiver  into  the  Kankakee 
Piver  a certain  stream  of  water  called  the  ^G<^ankakee  Cutoff,” 
through,  over  and  across  said  Kankakee  Feeder  and  the  ninety- 
foot  strip  on  each  side  of  said  feeder  in  Section  5,  Township  33, 
North,  Eange  IX  East  of  the  3rd  P.  M.,  and  said  party  of  the  sec- 
ond part  is  granted  the  right  to  construct  on  the  hanks  of  said 
feeder  controlling  gates  for  flood  protection  from  said  Kankakee 
Piver. 

6th.  It  shall  he  the  duty  of  said  party  of  the  second  part, 
subject  to  the  direction  of  the  Canal  Commissioners,  or 
47  other  officer  or  agent  as  hereinafter  indicated,  to  raise  the 
towpath  or  bank  of  the  Illinois  and  Michigan  Canal  from  its 
present  height  not  less  than  two  feet  and  to  any  additional  height 
that  may  be  necessary  to  prevent  overflow  and  to  perpetually 
thereafter  maintain  the  same  in  good  condition.  The  raising  of 
said  towpath  shall  extend  from  the  point  in  said  Grundy  County 
where  the  dam  or  other  structure  of  said  party  of  the  second 
part  intercept  said  towpath  bank  to  lock  Number  Seven  in  Sec- 
tion 17,  Township  34  North,  Pange  IX  East  of  the  3rd  P.  M.,  and 
when  raised  the  width  of  the  top  of  the  towpath  bank  shall  con- 
form to  the  width  of  the  towpath  as  it  exists  at  the  present  time. 

7th.  Permission  and  authority  is  hereby  given  said  party 
of  the  second  part  to  attach  and  close  a levee  to  the  towpath 
bank  of  the  Illinois  ’and  Michigan  Canal  at  the  point  in  said 
towpath  bank  where  the  east  and  west  half  section  line  of  Section 
20,  Township  34  North,  Range  IX  East  of  the  3rd  P.  M.,  inter- 
cepts said  towpath  bank;  and  further  permission  is  also  given 
to  construct  levees  on  the  east  and  west  banks  of  the  DuPage 
River  from  the  dam  across  said  river  to  the  north  line  of  Section 
20,  Township  34  North,  Range  IX  East  of  the  3rd  P.  M.,  and 
attach  and  close  said  levees  to  the  west  and  east  sides  respectively 
of  said  dam  across  the  DuPage  River  in  Section  17,  Township  34 


North,  Eange  IX  East  of  the  3rd  P.  M.,  as  indicated  more 
18  clearly  by  the  blue  print  hereto  attached  and  made  a part  of 
this  contract  as  ‘‘Exhibit  A.” 

Sth.  Permission  is  hereby  given  said  party  of  the  second  part 
to  use  so  much  of  the  gravel  or  other  material  lying  along  said 
Illinois  and  Michigan  Canal,  the  property  of  the  State  of  Illinois, 
as  may  he  necessary  to  raise  said  towpath  bank  of  said  Illinois  and 
Michigan  Canal.  Such  material,  however,  to  be  taken  out  from 
places  indicated  or  approved  by  the  General  Superintendent  of 
the  Canal,  or  other  officer  or  agent  designated  by  the  Canal 
Commissioners  or  other  officers  in  charge. 

9th.  That  the  said  party  of  the  second  part  is  hereby  author- 
ized to  enter  upon  the  lands  or  premises  of  the  State  of  Illinois, 
part  and  parcel  of  the  Illinois  and  Michigan  Canal  and  to  enter 
upon  said  canal  itself  in  a manner  and  to  the  extent  that  shall 
be  necessary  to  raise  and  maintain  the  towpath  as  above  provided, 
and  to  attach  and  build  said  dam  or  other  works  onto  said  tow- 
path  bank  as  herein  ]Drovided,  and  to  repair,  maintain  or  renew 
the  same  as  shall  become  necessary  to  the  preservation  thereof. 

10th.  It  is  herein  further  stipulated  and  agreed  by  and  between 
the  said  parties  hereto  that  said  party  of  the  second  part  shall 
raise  the  buildings  owned  by  the  State  of  Illinois  in  Section  31, 
Township  34  North,  Eange  IX  East  of  the  3rd  P.  M.,  and  used  in 
connection  with  the  Illinois  and  Michigan  Canal,  to  a level 
49  with  the  towpath  of  said  canal  when  the  same  is  raised,  as 
provided  in  Paragraph  6 hereof.  Said  party  of  the  second 
part  will  also  provide  two  acres  of  land  to  be  used  by  said  party 
of  the  first  part  in  connection  with  said  buildings  as  a garden. 
The  raising  of  said  buildings  and  the  providing  of  said  land  shall 
be  to  the  satisfaction  of  the  General  Suj)erintendent  or  other 
officer  or  agent  in  charge  of  said  canal. 

11th.  It  is  herein  further  stipulated  and  agreed  by  and  be- 
tween the  parties  hereto  that  all  work  hereinbefore  provided  for, 
or  which  shall  affect  the  canal  property  or  interests,  shall  be 
done  under  the  supervision  of,  and  to  the  satisfaction  of  the 
Canal  Commissioners  or  their  duly  authorized  agent  or  agents, 
and  not  otherwise;  and  such  work  when  so  completed  shall  at  all 
limes  be  kept  and  maintained  by  said  party  of  the  second  part 


33 


under  tlie  like  supervision  and  to  the  approval  of  said  the  Canal 
Commissioners,  or  their  officers  or  agent  duly  authorized  to  rep- 
resent them. 

12th.  It  is  herein  further  stipulated  and  agreed  by  and  between 
the  parties  hereto  that  the  cost  of  inspecting  the  work  herein 
provided  for  to  be  inspected  by  said  party  of  the  first  part  shall 
be  paid  by  said  party  of  the  second  part. 

13th.  It  is  herein  further  stipulated  and  agreed  l)y  and  between 
the  parties  hereto  that  said  party  of  the  second  part  shall  be 
responsible  for  and  pay  any  and  all  damages  that  may  be  sus- 
tained by  the  State  of  Illinois,  or  the  Canal  Commissioners, 
50  or  the  canal  property,  or  the  persons  or  property  using  said 
Illinois  and  Michigan  Canal,  or  that  shall  be  occasioned  by 
the  construction  of  the  works  hereinbefore  contemplated  to  he 
done  or  made  by  said  party  of  the  second  part,  or  in  the  subse- 
quent repair  or  maintenance  thereof,  or  which  shall  be  occasioned 
by  the  use  of  the  dam,  levees,  or  other  works  above  provided 
for. 

This  Agreement  shall  be  binding  upon  and  inure  to  the  bene- 
fit of  the  respective  successors  and  assigns  of  the  parties 
hereto. 

In  witness  whereof,  the  said  party  of  the  first  part  has  caused 
these  presents  to  be  signed  by  its  president,  and  its  corporate 
seal  to  be  hereto  affixed  and  duly  attested,  and  said  party  of 
the  second  part  has  hereunto  set  his  hand  and  seal  the  day  and 
year  first  above  written. 

The  Canal  Commissioners, 

C.  E.  Snively, 
President. 

Attest : 

W.  R.  Newton, 

Secretary. 

(Seal) 


Harold  F.  Griswold. 


34 


51  Exhibit  B. 

This  indenture,  made  this  2nd  day  of  September,  A.  D.,  1904, 
between  the  Canal  Commissioners  of  the  State  of  Illinois,  party 
of  the  first  part,  and  Harold  F.  Griswold,  of  the  City  of  Evans- 
ton, County  of  Cook  and  State  of  Illinois,  his  successors  and  as- 
signs, party  of  the  second  part,  witnesseth: 

That  the  said  party  of  the  first  part,  in  consideration  of  the 
covenants  of  the  said  party  of  the  second  part,  hereinafter  set 
forth,  does  by  these  presents  lease  to  the  said  party  of  the  second 
part  the  following  described  property,  to  wit: 

The  ninety-foot  strip  along  the  towpath  side  and  outside  of  the 
towpath  of  the  Illinois  and  Michigan  Canal  in  Section  25  and  36, 
Township  34  North,  Range  VIII  East  of  the  3rd  P.  M.,  Grundy 
County,  Illinois,  and  said  ninety-foot  strip  in  Section  31,  30,  29 
and  20,  Township  34  North,  Range  IX  East  of  the  3rd  P.  M.,  Will 
County,  Illinois.  (Also  that  part  of  the  North  half  of  Section  31, 
lying  south  of  the  ninety-foot  reserve  strip  along  the  towpath 
side  of  said  Canal.)  Also  that  part  of  the  Kankakee  Feeder  and 
the  90-foot  strip  on  each  side  of  said  Feeder  in  Section  31,  Town- 
ship 34  North,  Range  IX  East  of  the  3rd  P.  M.  and  in  Section  V, 
Township  33  North,  Range  IX  East  of  the  3rd  P.  M.,  Will  County, 
Illinois. 

To  have  and  to  hold  the  same  to  the  said  party  of  the  second 
port  from  the  2nd  day  of  September,  A.  D.  1904,  to  the  second 
day  of  September,  A.  1).  1924,  subject  to  a contract  dated 

52  the  2nd  day  of  September,  A.  I).  1904,  to  said  Harold  F.  Gris- 
wold, affecting  said  premises. 

And  the  said  party  of  the  second  part,  in  consideration  of  the 
leasing  the  premises  as  above  set  forth,  covenants  and  agrees 
with  the  party  of  the  first  part  to  pay  the  said  party  of  the  first 
part  as  rent  for  the  same  the  sum  of  $500.00  in  full  for  the  term 
of  this  lease,  the  receipt  of  which  $500.00  is  hereby  acknowledged. 

And  it  is  further  covenanted  and  agreed  between  the  parties 
aforesaid  that  said  party  of  the  second  part  is  hereby  charged 
vlth  knowledge  of  all  of  the  provisions  contained  in  said  con- 


ti'aet  with  Harold  F.  Griswold,  in  so  far  as  they  affect  the  prem- 
ises hereby  leased. 

It  is  further  understood  and  agreed  by  and  between  the  par- 
ties hereto  that  in  case  said  party  of  the  first  part  shall  deter- 
mine to  re-lease  the  land  hereby  demised  at  tlie  expiration  of  this 
lease  that  then  and  in  such  event  the  said  party  of  the  second  part 
shall  have  the  first  right  to  re-lease  the  same  by  paying  therefor 
as  much  as  shall  be  offered  by  any  other  person  or  party  there- 
for, provided,  however,  that  such  rental  may  at  the  option  of 
said  party  of  the  first  part  be  ascertained,  determined  and  fixed 
by  three  appraisers,  one  to  be  chosen  by  each  of  the  parties  here- 
to and  the  third  by  the  two  thus  chosen,  but  in  no  event  shall  the 
rent  be  less  than  the  amount  fixed  in  this  lease;  and  said 
53  party  of  the  second  part  hereby  covenants  and  agrees  that 
he  will,  and  hereby  offers  to  pay  the  same  rental  as  herein 
agreed  to  be  paid  for  another  term  of  twenty  years',  to  begin  at 
the  expiration  of  the  term  hereby  granted. 

It  is  further  understood  and  agreed  that  in  case  said  party 
of  the  second  part  shall  desire  to  re-rent  said  property  for  a 
further  term  of  twenty  years  at  a rental  to  be  agreed  upon  by 
the  parties  hereto  or  fixed  b}^  a])praisers  as  aforesaid,  he  shall 
notify  said  party  of  the  first  part  in  writing  of  such  desire  at  least 
one  year  before  the  expiration  of  the  term  hereby  demised. 

The  covenants  herein  shall  extend  to  and  be  binding  upon 
ihe  heirs,  executors,  administrators,  successors  and  assigns  of 
the  parties  to  this  lease. 

In  witness  whereof,  the  party  of  the  first  part  has  caused  this 
instrument  to  be  signed  by  its  President  and  attested  by  its  Sec- 
retary, and  duly  authorized  its  corporate  seal  to  be  hereunto  at- 
tached, and  said  party  of  the  second  part  has  hereunto  set  his 
hand  and  seal  the  day  and  year  first  above  written. 

The  Caxal  Commissionees 

By  C.  E.  S NIVEL Y, 

President. 

Attest : 

W.  B.  Newton^ 

Secretary. 

(Seal) 


Harold  F.  Griswold. 


36 


54  Exhibit  C. 

This  indenture,  made  this  8th  day  of  August,  A.  D.  1905,  be- 
tween the  Canal  Commissioners  of  the  State  of  Illinois,  party  of 
the  first  part,  and  Harold  F.  Griswold,  of  the  City  of  Evanston, 
County  of  Cook  and  State  of  Illinois,  his  successors  and  assigns, 
party  of  the  second  part,  witnesseth: 

Yvhereas,  said  party  of  the  second  part,  has  made  application 
to  the  Canal  Commissioners  of  the  State  of  Illinois  to  lease  the 
right  of  the  State  to  divert  the  waters  of  the  Kankakee  River 
into  the  Kankakee  Feeder  and  discharge  the  same  into  the  Des- 
plaines  River,  in  Section  31,  Township  34,  North,  Range  9,  East  of 
the  Third  Principal  Meridian;  and  also  the  right  of  the  State 
to  reconstruct  the  dam,  the  property  of  the  State  of  Illinois, 
across  the  Kankakee  River,  in  Section  9,  Township  33,  North, 
Range  9,  East  of  the  Third  Principal  Meridian,  and  the  right 
of  the  State  to  repair  the  banks  of  said  Kankakee  Feeder  and  to 
construct  at  each  end  of  said  Feeder  suitable  gates  for  controlling 
the  discharge  of  said  waters  through  said  Feeder;  and 

Whereas,  The  Atchison,  Topeka  & Santa  Fe  Railway  Co.,  and 
the  Chicago  & Alton  Railway  Co.,  have  made  separate  fills  or  em- 
bankments across  said  Feeder  in  Section  9,  Township  33  North, 
Range  9 East  of  the  Third  Principal  Meridian,  with  permission 
of  the  Canal  Commissioners,  and  are  now  using  the  same  as  a 
part  of  their  respective  road-beds  across  said  feeder; 

Therefore,  in  consideration  of  the  premises  and  the  cov- 

55  enants  and  agreements  of  said  party  of  the  second  part,  here- 
inafter following,  the  application  of  said  party  of  the  second 

part  is  hereby  granted,  and  the  said  party  of  the  first  part,  by 
these  presents,  doth  lease  to  said  party  of  the  second  part  the 
rights  of  the  State  now  within  the  control  of  the  Canal  Commis- 
sioners, to-wit:  such  right  as  is  now  under  the  control  of  the 
Canal  Commissioners  to  divert  the  waters  of  the  Kankakee  River 
info  the  Kankakee  Feeder  and  discharge  the  same  into  the  Des- 
plaines  River,  in  Section  31,  Township  34  North,  Range  9 East  of 
the  Third  Principal  Meridian,  together  with  such  light  of  the  State 
as  is  now  under  the  control  of  the  Canal  Commissioners  to  restore 


87 


and  re-construct  the  dam  across  the  Kankakee  River,  in  Section  9, 
Township  33  North,  Range  9,  East  of  the  3rd  Principal  Meridian, 
hut  in  such  restoration  the  crest  of  such  dam  shall  not  be  higher 
than  it  has  heretofore  been;  also  such  right  of  the  State  as  is 
within  the  control  of  the  Canal  Commissioners  to  construct  at' 
each  end  of  said  Kankakee  Feeder  suitable  gates  for  controlling 
the  discharge  of  the  waters  of  said  Kankakee  River  through 
said  Feeder;  and  such  right  as  the  Canal  Commissioners  now 
have  to  enter  upon  the  Kankakee  Feeder  and  the  dam  in  connec- 
tion therewith,  for  the  purpose  of  repairing  the  banks  of  said 
Feeder  or  repairing  the  dam  across  said  Kankakee  River  or  the 
gates  at  each  end  of  said  Feeder;  to  have  and  to  hold  the  same 
for  the  full  period  of  twenty  (20)  years  from  the  date  hereof, 

56  subject  however  to  whatever  legal  rights  said  railway  com- 
panies respectively  have  to  cross  said  Feeder  upon  such  em- 
bankments and  otherwise,  also  subject  to  the  provisions  of  cer- 
tain leases  heretofore  made  to  Harold  F.  Griswold  of  the  City  of 
Evanston,  and  Charles  A.  Munroe,  of  the  City  of  Chicago,  both 
of  the  County  of  Cook  and  State  of  Illinois. 

And  the  said  party  of  the  second  part  further  agrees  to  pay  to 
the  said  party  of  the  first  part,  as  the  consideration  for  the  rights 
hereinabove  described,  the  sum  of  one  hundred  and  fifty  dollars 
($150.00)  per  year  for  each  and  every  year  of  the  term  hereby  de- 
mised, payable  on  the  10th  day  of  August,  A.  H.  1905,  and  on 
the  10th  day  of  August  in  each  and  every  year  of  said  term  here- 
by demised. 

And  it  is  further  provided  that  said  party  of  the  second  part 
shall  have  the  right  to  cancel  this  lease  at  any  time  at  his  option 
after  five  (5)  years  from  the  date  hereof. 

It  is  herein  further  stipulated  and  agreed  by  and  between 
the  said  lessor  and  lessee  as  a part  of  the  consideration  of  thi^? 
lease,  that  at  the  expiration  of  this  lease,  or  in  case  of  the  earlier 
termination  thereof  under  its  provisions,  or  in  accordance  with  the 
law,  that  said  lessee,  the  party  of  the  second  part,  shall  restore 
the  said  dam  and  feeder,  to  its  present  condition,  and  restore  the 
flowage  of  all  water  to  its  present  channel  at  his  own  and  sole 

57  expense,  unless  he  shall  be  directed  not  to  do  so  by  written 
notice  from  said  party  of  the  first  part  or  other  officers  or 


:]8 

officer  at  sucli  time  having' charge  of  said  Illinois  and  Michigan 
Canal;  and  in  case  of  failure  on  the  part  of  said  lessee  so  to  do, 
the  said  party  of  the  first  part,  or  other  officers  or  officer,  in  charge 
of  said  canal,  shall  have  the  right  to  so  restore  said  dam,  feeder 
and  water  to  its  present  condition  at  the  expense  of  said  party 
of  the  second  part;  and  said  party  of  the  second  part,  for  him- 
self, his  heirs,  executors,  administrators  and  assigns,  hereby 
covenants  and  agrees  to  and  with  said  party  of  the  first  part  and 
the  officer  or  officers  at  such  time  in  charge  of  said  canal,  and  the 
State  of  Illinois,  that  he  will  refund  and  pay  to  them  or  it  the 
full  cost  of  the  restoration  of  such  dam,  feeder  and  water  to  its 
])resent  condition  and  place,  within  thirty  (30)  days  after  he  or 
they  shall  be  presented  with  a statement  of  such  cost  and  ex- 
pense. 

It  is  herein  further  exj^ressly  stipulated  and  agreed  by  and  be- 
tween the  parties  hereto,  and  said  party  of  the  second  part  hereby, 
for  himself,  his  heirs,  executors,  administrators  and  assigns,  cove- 
nants and  agrees  to  and  with  said  party  of  the  first  part,  the 
officer  or  officers  in  charge  of  the  Illinois  and  Michigan  Canal,  and 
the  State  of  Illinois,  that  he,  and  they,  will  fully  and  completely 
protect,  save  and  keep  harmless,  the  said  party  of  the  first  part, 
such  officer  or  officers,  and  said  State  of  Illinois-,  from  any  and 
58  all  damages  and  claim  for  damages,  which  may  be  made 
against  such  officers  or  said  state  by  reason  of,  or  growing  out 
of  any  work  which  said  party  of  the  second  part,  his  heirs,  exe- 
cutors, administrators  or  assigns  shall  or  may  do,  or  shall  attempt 
to  do  under  and  by  virtue  of  this  instrument  or  any  of  the  rights 
granted  or  attempted  to  be  granted  hereby,  whether  by  the  flowage 
of  land,  back  water,  change  of  present  channel  or  flowage  of  water 
or  otherwise,  whether  of  the  kind  or  character  herein  enumerated 
or  different  or  otherwise,  including  any  and  all  costs,  expenses 
and  attorney’s  fees  which  shall  or  may  grow  out  of,  or  be  incurred 
in  connection  with  any  and  all  such  claims  made  or  asserted,  or 
suits  brought  in  reference  thereto;  and  said  party  of  the  second 
l)art,  his  heirs,  executors,  administrators  and  assigns,  likewise,  as 
further  and  additional  security  and  protection  against  loss  or 
claims,  further  covenants  and  agrees  that,  he  and  they,  will,  before 


I 


31) 

any  work  shall  be  commenced  uncTer  this  contract,  duly  execute, 
acknowledge  and  deliver  to  said  party  of  the  first  part  a bond 
of  indemnity  in  such  form  and  for  such  an  amount  as  they,  the 
said  party  of  the  first  part,  shall  determine  and  specify  and  shall 
be  adequate  to  fully  and  completely  protect  said  party,  of  the 
first  part,  said  officer  or  officers  and  said  State  of  Illinois  against 
any  and  all  damages,  loss,  cost,  expense  and  attorney’s  fees  which 
shall  be  made,  claimed,  or  be  incurred  or  grow  out  of  any 

59  and  all  things  done  or  attempted  to  be  done  by  said  party 
of  the  second  part,  his  heirs,  executors,  administrators  or 

assigns,  under  or  by  virtue  of  this  instrument;  and  in  case  said 
party  of  the  second  part,  his  heirs,  executors,  administrators  or 
assigns,  or  any  of  them,  shall  fail  or  refuse  to  duly  execute  and 
deliver  such  bond,  within  thirty  (30)  days  after  written  request 
therefor  shall  be  served  upon  him  or  any  of  them,  then,  and  in 
such  event,  all  rights  granted  under  this  instrument  shall  at  once 
cease  and  determine,  and  shall  at  once  revert  to  and  re-vest  in 
said  party  of  the  first  part  and  the  State  of  Illinois. 

It  is  herein  further  provided  that  this  lease  may  be  extended 
for  a further  period  of  twenty  years  at  a rent  to  be  fixed  by  an 
appraisal,  to  be  made  by  three  disinterested  appraisers,  to  be  ap- 
pointed by  the  Governor  and  the  rent  fixed  by  such  appraisal  shall 
be  subject  to  the  approval  of  the  Canal  Commissioners  or  other 
proper  officers  of  the  state  at  such  time  having  charge  of  the 
Canal  property. 

It  is  herein  further  stipulated  and  agreed,  and  the  Canal  Com- 
missioners hereby  expressly  reserve  the  right  to  cancel  this  lease 
and  recover  possession  of  the  land,  property  and  rights  above 
demised  and  referred  to  whenever  in  the  judgment  of  the  Canal 
Commissioners,  or  other  proper  officers  of  the  state  at  such  time 
having  charge  of  canal  property,  they  shall  deem  the  interests  of 
the  state  require  it  to  repossess  and  use  said  property  for  state 
purposes. 

60  In  witness  whekeof,  the  party  of  the  first  part  has  caused 
this  instrument  to  be  signed  by  its  president,  and  attested 

by  its  secretary  and  duly  authorized  its  corporate  seal  to  be  at- 


40 


tached,  and  said  party  of  the  second  part  has  hereunto  set  his 
hand  and  seal  the  day  and  year  first  above  written. 

The  Canal  Commissionees^, 

By  C.  E.  S NIVEL Y, 

• President. 

Attest: 

W.  E.  Newton, 

Secretary. 

(Seal)  Haeold  F.  Geiswold. 

Attest : 

Lauea  Schumachee. 


State  of  Illinois, 
County  of  Cook. 


I,  Car]  A.  Eoss,  a Notary  Public,  in  and  for  said  County  in  the 
State  aforesaid,  do  hereby  certify  that  Harold  F.  Griswold,  per- 
sonally known  to  me  to  be  the  same  person  whose  name  is  sub- 
scribed to  the  foregoing  instrument,  appeared  before  me  this  day 
in  person  and  acknowledged  that  he  signed,  sealed  and  de- 
61  livered  the  said  instrument  as  his  free  and  voluntary  act  for 
the  uses  and  purposes  therein  set  forth. 

Given  under  my  hand  and  notarial  seal,  this  10th  day  of  August, 
A.  D.  1905. 

Gael  A.  Eoss, 
Notary  Public. 


62  EXHIBIT  D. 

Office  of  The  Canal  Commissioners, 
Lockport,  Ilk,  June  11,  1904. 

To  the  Honorable  Eichard  Yates, 

Governor  of  the  State  of  Illinois, 

Springfield,  Illinois. 

Dear  Sir: — 

The  undersigned  Canal  Commissioners  recommend  that  the  in- 
terest of  the  State  of  Illinois  in  and  to  the  parcel  or  tract  of  land 
liereinafter  specifically  described,  being  part  of  the  canal  lands  or 
lots  of  the  State  of  Illinois  other  than  those  connected  with  water 


41 


power  upon  the  said  canal  and  the  ninety  foot  strip  along  the 
canal : 

A tract  or  parcel  of  land  in  Section  Thirty-one  (31),  Township 
Thirty-four  (34)  North  of  Eange  Nine  (9)  East  of  the  Third 
(3rd)  Principal  Meridian,  which  lies  north  of  the  center  of  the 
Desplaines  River  and  south  of  the  Ninety  Foot  reserve  line  of  the 
Illinois  and  Michigan  Canal,  in  the  County  of  MTll  and  State  of 
Illinois, 

Should  be  sold,  as  in  our  judgment  the  interest  of  the  State 
will  he  promoted  thereby;  and 

The  Canal  Commissioners  request  the  approval  of  your  Excel- 
lency to  the  sale  thereof  at  public  auction  to  the  highest  and  best 
bidder  for  cash  at  the  Canal  Office  in  Lockport,  Illinois,  on  the 
Second  (2nd)  day  of  August,  1904,  at  Ten  o’clock  in  the  morning, 
thirty  (30)  days  previous  notice  of  said  sale  being  first  given 
63  in  some  newspaper  published  in  the  County  of  IVill  where  such 
tract  or  parcel  of  land  is  situated. 

Signed  C.  E.  Snively, 

President. 

Signed  AY.  R.  Newtox, 

Secretary. 

Signed  AA^.  L.  Sackett, 

Treasurer. 

The  Canal  Commissioners  of  the  State  of  Illinois. 


64  EXHIBIT  E. 

I hereby  approve  of  the  sale  of  the  tract  or  parcel  of  land 
described  in  the  foregoing  report  of  The  Canal  Commissioners 
at  public  auction  to  the  highest  and  best  bidder  for  cash  at  the 
Canal  Office  at  Lockport,  County  of  AYill  and  State  of  Illinois,  on 
the  Second  (2nd)  day  of  August,  1904,  at  Ten  0 ’Clock  in  the  morn- 
ing, thirty  (30)  days  previous  notice  of  said  sale  being  first  given 
by  The  Canal  Commissioners  in  some  newspaper  published  in  the 
County  of  AYill  where  such  tract  or  parcel  of  land  is  situated. 

Done  at  Springfield  this  14th  day  of  June,  1904. 

Rich.  Yates, 

Governor  of  State  of  Illinois. 


42 


65  EXHIBIT  F. 

State  of  Illinois,  l 

Will  County.  f 

The  Will  County  Printing  Company  (incorporated)  does  here- 
by certify  that  it  is  the  publisher  of  the  Lockport  Phoenix-Ad- 
vertiser, a weekly  newspaper  of  general  circulation,  printed  and 
published  in  the  Village  of  Lockport,  in  said  County,  and  that 
the  advertisement  or  notice  hereto  annexed  relating  to  the  matter 
of  sale  of  canal  lands  has  been  published  in  said  paper,  in  every 
copy  and  impression  thereof,  once  each  week,  for  three  weeks  con- 
secutively of  the  issues  commencing  June  16th,  A.  1).  1904,  and 
ending  June  30th,  A.  D.  1904,  which  are  the  dates  of  the  first  and 
last  papers  containing  the  same. 

Given  under  the  corporate  seal  of  the  Will  County  Printing 
Company,  this  17th  day  of  December,  A.  D.  1907. 

The  Will  County  Peinting  Co.,  Inc., 

Per  T.  A.  Cheadle, 

(Seal)  Secy.  S Treas. 

Subscribed  and  sworn  to  before  me  by  T.  A.  Cheadle,  this  17th 
day  of  December,  1907. 

William  W.  Noeth, 

(Seal)  Notary  Public. 

66  Copy  of  Notice  Herein  Eef erred  to: 


SALE  OF  CANAL  LANDS. 

Office  of  the  Illinois  and  Michigan  Canal, 
Lockport,  Illinois,  June  15th,  1904. 


Pursuant  to  the  statute  of  the  State  of  Illinois,  the  interest  of 
the  State  of  Illinois  in  the  following  described  parcels  or  tracts  of 
land,  will  be  sold  at  public  auction  to  the  highest  and  best  bidder 
for  cash  at  the  Canal  Office  in  Lockport,  County  of  Will  and 
State  of  Illinois,  on  the  second  (2nd)  day  of  August,  1904,  at  ten 
o’clock  in  the  morning,  in  full  conformity  with  “An  act  to  amend 
section  eight  (8)  of  Lin  act  to  revise  the  laws  in  relation  to  the 


■V] 


Illinois  and  Little  Wabasli  Rivers’,  approved  March  27,  1874,  in 
force  July  1st,  1874,  as  amended  by  an  act  of  June  19,  1891,  in  force 
July  1,  1891,”  approved  April  21,  1899,  in  force  July  1,  1899;  sit- 
uated in  the  County  of  A¥ill  and  State  of  Illinois,  to-wit : 

A tract  or  parcel  of  land  in  section  thirty-one  (31),  township 
thirty-four  (34)  north,  of  range  nine  (9)  east  of  the  third  (3rd) 
principal  meridian,  which  lies  north  of  the  center  of  the  Desplaines 
river  and  south  of  the  ninety-foot  reserve  line  of  the  Illinois 
67  and  Michigan  Canal,  in  the  County  of  AVill  and  State  of  Illi- 
nois. 

The  Canal  Commissioners  reserve  the  right  to  reject  any  and 
all  bids. 

C.  E.  Sniveuy, 

President. 

AV.  R.  Newton, 

Secretary. 

AV.  L.  Sackett, 

Treasurer. 

The  Canal  Commissioners  of  the  State  of  Illinois. 

June  16-23  and  30,  ’04. 


68  EXHIBIT  G. 

Lockport,  Illinois,  November  1,  1904. 
To  The  Honorable  Richard  Yates, 

Governor  of  the  State  of  Illinois, 

Springfield,  Illinois. 

Dear  Sir : — 

The  undersigned  Canal  Commissioners  recommend  that  the  in- 
terest of  the  State  of  Illinois  in  and  to  the  parcel  or  tract  of  land 
hereinafter  specifically  described,  being  part  of  the  canal  lands 
or  lots  of  the  State  of  Illinois  other  than  those  connected  with 
water  power  upon  the  said  canal  and  the  ninety-foot  strip  along 
the  canal: 

That  part  of  Section  Thirty-one  (31),  Township  Thirty-four 
(34)  North,  Range  Nine  (9)  East  of  the  Third  (3rd)  P.  M.,  AVill 
County,  Illinois,  lying  southwest  and  southeast  of  the  Illinois  and 
Michigan  Canal  and  Northeast  and  Northwest  of  the  Desplaines 
River  (excepting  and  reserving  the  ninety-foot  strip  of  the  Illi- 


nois  and  Michigan  Canal)  snhject  to  the  right  of  flowage  and  lease 
of  Harold  F.  Griswold),  should  be  sold,  as  in  our  judgment  the 
interests  of  the  State  will  be  promoted  thereby;  and 

The  Canal  Commissioners  request  the  approval  of  your  Excel- 
lency to  the  sale  thereof  at  public  auction  to  the  highest  and 
best  bidder  for  cash  at  the  Canal  Office  in  Lockport,  Illinois,  on  the 
6th  day  of  December,  1904,  at  ten  o’clock  in  the  morning, 

69  thirty  (30)  days  previous  notice  of  said  sale  being  first 
given  in  some  newspaper  published  in  the  County  of  Will, 

where  such  parcel  or  tract  of  land  is  situated. 

C.  E.  Snively, 

President. 
W.  E.  Newton, 

Secretary. 
W.  L.  Sackett, 

Treasurer. 

The  Canal  Commissioners  of  the  State  of  Illinois. 

70  EXHIBIT  H. 

I hereby  approve  of  the  sale  of  the  parcel  or  tract  of  land 
described  in  the  foregoing  report  of  the  Canal  Commissioners 
at  public  auction  to  the  highest  and  best  bidder  for  cash  at  the 
Canal  Office  at  Lockport,  County  of  Will  and  State  of  Illinois, 
on  the  6th  day  of  December,  1904,  at  ten  o’clock  in  the  morn- 
ing, thirty  (30)  days  previous  notice  of  said  sale  being  first  given 
by  The  Canal  Commissioners  in  some  newspaper  published  in 
the  County  of  Will  where  such  parcel  or  tract  of  land  is  situated. 
Done  at  Springfield  this  2nd  day  of  November,  1904. 

Eich.  Yates, 

Governor  of  the  State  of  Illinois. 

71  EXHIBIT  I. 

State  of  Illinois,  } 

Will  County.  f 

The  Will  County  Printing  Company  (incorporated)  does  here- 
by certify  that  it  is  the  publisher  of  the  Lockport  Phoenix-Ad- 
vertiser, a weekly  newspaper  of  general  circulation,  printed  and 


published  in  the  Village  of  Lockport,  in  said  County,  and  that 
the  advertisement  or  notice  hereto  annexed  relating  to  the  mat- 
ter  of  sale  of  Canal  Lands  has  been  published  in  said  paper, 
in  every  copy  and  impression  thereof,  once  each  week,  for  three 
weeks  consecutively  of  the  issues  commencing  November  Mrd,  A. 
D.  1904,  and  ending  November  17th,  A.  D.  1904,  which  are  the  dates 
of  the  first  and  last  papers  containing  the  same. 

Given  under  the  corporate  seal  of  the  Will  County  Printing 
Company  this  17th  day  of  December,  A.  D.  1907. 

The  Will  County  Pkinttng  Co.,  Inc. 

Per  T.  A.  Cheadle, 

(Seal)  Secy.  & Treas. 

Subscribed  and  sworn  to  before  me  by  T.  A.  Cheadle,  this  17th 
day  of  December,  1907. 

William  W.  North, 

(Seal)  ^ Notary  Public. 

72  COPY  OF  NOTICE  HEREIN  REFERRED  TO. 


Office  of  the  Illinois  and  Michigan  Canal. 


Lockport,  Illinois,  November  3rd,  1904. 
Pursuant  to  the  statute  of  the  State  of  Illinois,  the  interest  of 
the  State  of  Illinois  in  the  following  described  parcel  or  tract  of 
land  will  be  sold  at  public  auction  to  the  highest  and  best  bidder 
for  cash  at  the  Canal  Office  in  Lockport,  County  of  Will  and  State 
of  Illinois,  on  the  6th  day  of  December,  1904,  at  ten  o’clock  in  the 
morning,  in  full  conformity  with  ^‘an  act  to  amend  section  eight 
(8)  of  ‘an  act  to  revise  the  law  in  relation  to  the  Illinois  & Mich- 
igan Canal  and  for  the  improvement  of  the  Illinois  and  Little 
Wabash  Rivers’,  approved  Alarch  27,  1874,  in  force  July  1,  1874,” 
approved  April  ^1,  1899,  in  force  July  1,  1899;  situated  in  the 
County  of  Will  and  State  of  Illinois,  towit : 

That  part  of  section  thirty-one.  Township  thirty-four  (34) 
North,  Range  nine  (9)  East  of  the  Third  (3rd)  P.  M.,  Will  County, 
Illinois,  lying  southwest  and  southeast  of  the  Illinois  and  Michigan 
Canal  and  northeast  and  northwest  of  the  Desplaines  River  (ex- 


46 


cepting  and  reserving  tlie  ninety-foot  strip  of  the  Illinois  and 
Michigan  Canal)  subject  to  the  right  of  flowage  and  lease  of 
73  Harold  F.  Griswold. 


The  Canal  Commissioners  reserve  the  right  to  reject  any 
and  all  bids. 


Nov.  3-10-17- ’04. 


C.  E.  Snively, 

President. 
W.  R.  Newton, 

Secretary. 
W.  L.  Sackett, 

Treasurer. 


74  EXHIBIT  J. 


ILLINOIS  AND  MICHIGAN  CANAL. 


Know  all  men  by  these  presents,  that  the  Canal  Commission- 
ers of  the  State  of  Illinois,  under  the  authority  vested  in  them, 
by  the  act  of  the  Legislature  of  the  State  of  Illinois,  entitled  ‘L\n 
act  to  revise  the  law  in  relation  to  the  Illinois  and  Michigan  Canal, 
and  for  the  improvement  of  the  Illinois  and  Little  Wabash  Riv- 
ers”. Approved  March  27th,  1874,  in  force  July  1st,  1874;  as 
amended  June  19th,  1891,  in  force  July  1st,  1891 ; amended  April 
21st,  1899,  in  force  July  1st,  1899,  in  consideration  of  five  hundred 
dollars  ($500),  the  receipt  whereof  is  hereby  acknowledged,  do 
hereby  convey  and  quit-claim  unto  Harold  F.  Griswold,  the  fol- 
lowing described  parcel  or  tract  of  land,  towit: 

That  part  of  section  thirty-one  (31),  Towmship  thirty-four  (34) 
North,  Range  nine  (9)  East  of  the  Third  Principal  Meridian,  AYill 
County,  Illinois,  lying  southwest  and  southeast  of  the  Illinois  and 
Michigan  Canal  and  northeast  and  northwest  of  the  Deplaines 
River,  (excepting  and  reserving  a strip  of  land  ninety  (90)  feet 
in  wudth  on  the  southerly  side  of  the  Illinois  and  Michigan  Canal 
and  bordering  thereupon,  and  continuous  throughout  the  said  sec- 
tion thirty-one  (31),  Township  thirty-four  (34)  North,  Range  nine 
(9)  East  of  the  Third  Principal  Meridian. 


47 


Subject  however,  to  the  terms,  conditions  and  provisions  of  the 
flowage  contract  and  lease  made  with  said  Harold  F.  Gris- 
75  wold  and  hearing  date  September  second  (2nd)  A.  D.  1904, 
which  terms,  conditions  and  provisions  still  remain  in  full 
force  and  shall  he  fully  kept  and  performed. 

DUPLICATE. 

To  HAVE  AND  TO  HOLD  tlie  Same,  together  with  all  the  rights,  priv- 
ileges, immunities  and  appurtenances  thereunto  belonging  unto 
said  Harold  F.  Griswold,  his  heirs  and  assigns  forever. 

In  witness  whereof,  the  said  Canal  Commissioners  of  the  State 
of  Illinois,  have  caused  their  official  seal  to  he  affixed  hereunto 
by  their  secretary  and  their  official  names  subscribed  hereto  by 
their  president,  this  sixth  day  of  January,  A.  1).  1905. 

The  Canal  Commissioners  of  the  State  of  Illinois, 

By  C.  E.  S NIVEL Y, 
President. 

Attest : 

W.  R.  Newton, 

Secretary. 


76  EXHIBIT  K.' 

‘‘Memorandum  of  agreement  made  and  entered  into  between  the 
Canal  Commissioners  of  the  State  of  Illinois,  party  of  the  first 
part,  and  Harold  F.  Griswold,  of  the  City  of  Evanston,  County 
of  Cook  and  State  of  Illinois,  his  successors  and  assigns,  party  of 
the  second  part,  witnesseth: 

“That  the  Canal  Commissioners,  in  considertaion  of  the  cove- 
nants and  agreements  hereinafter  set  forth,  to  be  kept  and  per- 
formed by  the  said  party  of  the  second  part,  hereby  grants  to 
said  party  of  the-  second  part,  the  right  to  place  and  thereafter 
maintain  a line  of  poles  along  and  upon  the  land  belonging  to  the 
State  of  Illinois,  part  and  parcel  of  the  Illinois  and  Michigan 
Canal  lands,  to  he  located  as  hereinafter  designated,  between 
the  west  line  of  Section  25,  Township  34,  North,  Range  8,  Grundy 
County,  Illinois,  and  Roby  street  in  the  City  of  Joliet,  Will  County, 
Illinois;  and  between  the  west  line  of  Section  25,  Township  34, 


48 


North,  Eange  8,  Grnmdy  County,  Illinois,  and  the  west  limits 
of  the  City  of  Morris,  in  the  County  of  Grundy  and  State  of  Illi- 
nois. Said  line  of  poles  and  wires  are  to  be  located  and  built 
side  of  the  said  Canal,  and  under  the  di- 
rection and  supervision  of  said  Canal,  or  the  officer  having  charge 
and  supervision  of  the  said  Canal ; provided  that  where,  in  the 
judgment  of  said  superintendent,  or  officers,  the  topography 

77  of  the  ground  makes  it  necessary  or  expedient  to  have  said 
poles  upon  the  towpath  bank  of  said  canal,  authority  is  here- 
by given  to  said  party  of  the  second  part  to  cross  said  canal  and 
place  poles  along  the  said  towpath  bank.  The  necessity  or  expedi- 
ency thereof,  the  place  and  manner  of  crossing  and  placing  said 
poles  along  said  towpath  bank  to  be  subject  to  the  approval,  and 
under  the  direction  and  supervision  of  said  superintendent,  or 
officer.  It  is  distinctly  understood,  however,  that  the  aforesaid 
line  of  poles  shall  not,  in  any  event,  be  located,  or  maintained 
in  said  place,  or  manner  as  to  interfere  with  the  use  or  operation 
of  the  said  canal. 

‘‘To  have  and  to  hold  said  privilege  to  the  party  of  the  second 
part,  his  successors  and  assigns,  until  the  2nd  day  of  September, 
A.  D.  1924;  provided  that  the  Canal  Commissioners  reserve  the 
right  to  at  any  time  require  any  change  to  be  made  in  the  location 
of  said  line  of  poles,  subject,  however,  to  any  pole  line  rights  now 
existing,  and  the  right  to  grant  other  pole  line  rights  is  hereby 
expressly  reserved  by  the  said  party  of  the-  first  part. 

“In  consideration  of  the  above,  the  said  party  of  the  second 
part,  for  himself,  his  successors  and  assigns,  covenants  and  agrees 
to  pay  to  the  Canal  Commissioners  the  sum  of  $750  for  said 
right  between  the  said  west  line  of  section  25,  Township  34, 
North,  Eange  8,  Grundy  County,  Illinois,  and  Eoby  street, 

78  in  the  City  of  Joliet,  Will  County,  Illinois,  and  the  sum  of 
$250  for  said  right  between  the  west  line  of  said  Section  25 

and  the  west  line  of  the  City  of  Morris,  in  said  Grundy  County, 
Illinois,  the  receipt  of  which  $750  and  said  $250  is  hereby  acknowl- 
edged. 

“It  is  hereby  further  stipulated  and  agreed  that  said  poles  shall 
be  used  for  the  sole  and  only  purpose  of  stringing  thereon  the  wires 
of  the  said  party  of  the  second  part  to  carry  electricity  from  and 


generated  at  the  proposed  plant  of  the  said  party  of  the  second 
part,  in  Section  25,  Towns! lip  34,  North,  Range  8,  Grundy  County. 
Illinois. 

‘‘The  said  party  of  the  second  part  further  covenants  and  agrees 
that  it  will  construct  and  maintain  said  pole  line  and  wires  in  a 
good  and  workmanlike  manner,  and  will  so  maintain  and  operate 
the  same  as  not  to  interfere  with  business  along  said  canal,  or 
the  business  or  property  of  other  persons,  or  corporations,  and 
also  assume  all  lial3ility  for  all  deaths  or  personal  injuries,  or  in- 
jury to  property,  or  others,  which  may  occur  by  reason  of  the  con- 
struction, or  operation  of  said  pole  lines,  and  that  it  will  forever 
indemnify  and  save  harmless  the  Canal  Commissioners  of  the 
State  of  Illinois  from  and  against  all  claims  or  liabilities  for  or 
by  reason  of  any  damage,  the  risk  of  which  is  hereby  assumed 
by  the  party  of  the  second  part;  and  also  from  and  against 
79  all  claims,  liabilities  or  judgments  on  account  of  any  death 
or  injury,  or  damage  to  personal  property,  all  liability  for 
which  is  assumed  by  the  party  of  the  second  part,  and  the  party 
of  the  second  part  agrees  to  pay  all  charges  and  expenses  that 
may  be  incurred,  or  any  judgments  that  may  he  rendered  by  reason 
thereof. 

“In  witness  whereof,  the  said  party  of  the  first  part  have  caused 
this  instrument  to  he  signed  by  the  president  and  attested  by  its 
secretary  and  has  duly  authorized  its  corporate  seal  to  he  hereunto 
attached;  and  said  party  of  the  second  part  has  hereunto  set  his 
hand  and  seal  this  2nd  day  of  September,  A.  D.  1904. 

“The  Canal  Commissioners, 
“By  C.  E.  Snively, 

President. 

(Seal)  “Harold  F.  Griswold. 

“Attest: 

“W.  R.  Newton, 

Secretary.’^ 


50 


80  EXHIBIT  L. 

Resolved,  by  the  Senate,  the  House  of  Representatives  concur- 
ring herein.  That  there  shall  be  submitted  to  the  electors  of  this 
State  at  the  next  election  of  members  of  the  General  Assembly,  a 
proposition  to  amend  the  constitution  of  this  State,  to-wit: 
Resolved,  That  the  separate  action  of  the  Constitution  of  this 
State  relating  to  the  canal  be  amended  to  read  as  follows: 

The  Illinois  and  Michigan  canal,  or  other  canal  or  waterway, 
owned  by  the  State  shall  never  be  sold  or  leased  until  the  specific 
proposition  for  the  sale  or  lease  thereof  shall  first  have  been 
submitted  to  a vote  of  the  people  of  the  State  at  a general  election, 
and  have  been  approved  by  a majority  of  all  the  votes  cast  at 
such  election.  The  General  Assembly  shall  never  loan  the  credit 
of  the  State  or  make  appropriations  from  the  treasury  thereof,  in 
aid  of  railroads-  or  canals ; 

Provided,  That  any  surplus  earnings  of  any  canal,  waterway 
or  water  power  may  be  appropriated  or  pledged  for  its  enlarge- 
ment, maintenance  or  extension;  and, 

Provided,  further.  That  the  General  Assembly  may,  by  suitable 
legislation,  provide  for  the  construction  of  a deep  waterway  or 
canal  from  the  present  water  power  plant  of  the  Sanitary  Drain- 
age District  of  Chicago,  at  or  near  Lockport,  in  the  township  of 
Lockport,  in  the  county  of  Will,  to  a point  in  the  Illinois  river 
at  or  near  Utica,  which  may  be  practical  for  a general  j)lan 

81  and  scheme  of  deep  waterway  along  a route,  which  may  be 
deemed  most  advantageous  for  such  plan  of  deep  waterway; 

and  for  the  erection,  equipment  and  maintenance  of  power  plants, 
locks,  bridges,  dams  and  appliances  sufficient  and  suitable  for  the 
development  and  utilization  of  the  water  power  thereof;  and 
authorize  the  issue,  from  time  to  time,  of  bonds  of  this  state  in  a 
total  amount  not  to  exceed  twenty  million  dollars,  which  shall  draw 
interest,  payable  semi-annually,  at  a rate  not  to  exceed  four  per 
cent  per  annum,  the  proceeds  whereof  may  be  applied  as  the  Gen- 
eral Assembly  may  provide,  in  the  construction  of  said  waterway 
and  in  the  erection,  equipment  and  maintenance  of  said  power 
plants,  locks,  bridges,  dams  and  appliances. 

All  power  developed  from  said  waterway  may  be  leased  in 


51 


part  or  in  whole,  as  the  General  Assembly  may  by  law  provide ; but 
in  the  event  of  any  lease  being  so  executed,  the  rental  specified 
therein  for  water  power  shall  be  subject  to  a revaluation  each  ten 
years  of  the  term  created,  and  the  income  therefrom  shall  be 
paid  into  the  treasury  of  the  State. 

Concurred  in  by  the  House  October  16,  1907,  by  a two-thirds 
vote.  % 


82  EXHIBIT  M. 

To  the  Economy  Light  and  Power  Company : 

I,  W.  H.  Stead,  as  Attorney-General  of  the  State  of  Illinois, 
by  virtue  of  the  authoritj"  vested  in  me  by  law  do  hereby  notify 
and  command  you,  and  your  officers,  agents,  servants,  and  rep* 
resentatives,  to  cease  and  desist  from  in  any  manner  infringing 
upon,  trespassing  upon  or  interfering  with  the  lands  owned  by 
the  State  of  Illinois  or  in  which  the  State  of  Illinois  or  the  People 
of  the  State  of  Illinois  have  an  easement  for  the  benefit  of  the 
^public,  and  located  in  Section  Number  Twenty-five  (25),  in  Town- 
ship Number  Thirty-four  (34)  North,  in  Eange  Number  eight  (8) 
East  of  the  Third  Principal  Meridian,  in  Grundy  County,  Illinois, 
by  the  erection  of  a dam  thereon  or  otherwise,  and  to  cease  and 
desist  from  in  any  way  obstructing  the  Des  Plaines  River  or  Illi- 
nois River  in  said  section  or  elsewhere. 

And  you  are  further  notified  and  commanded  to  remove  any 
and  all  obstructions  that  you  may  have  placed  upon  said  prenn 
ises,  whether  the  same  be  in  the  bed  of  the  Des  Plaines  River  or 
otherwise  located. 

Dated  this  12th  day  of  December,  A.  D.  1907. 

W.  H.  Stead, 

Attorney-General  of  the  State  of  Illinois. 

Received  a copy  of  the  foregoing  notice  this  12th  of  Deceim 
her,  A.  D.  1907. 

The  Economy  Light  and  Power  Company, 
By  John  F.  Gilchrist, 
Secy. 


52 


(Abstract  of  bill) 

3 I.  Suit  brought  by  the  People  of  the  State  of  Illinois  by 
their  Attorney  General  against  the  Economy  Light  and  Power 

Company,  a corporation. 

Ordinance  of  1787. 

II.  Charges  that  in  the  early  history  of  our  country  terri- 
tory embracing  what  is  now  the  States  of  Ohio,  Indiana,  Illinois, 
Michigan  and  Wisconsin  was  claimed  by  Virginia,  and  afterwards 
by  Act  of  the  Legislature  of  Virginia  and  by  deed  of  General 
Sessions,  dated  March  1st,  A.  D.  1784,  said  territory  was  con- 
veyed to  the  United  States;  that  afterwards  on  the  13th  day  of 
July,  1787,  the  Congress  of  the  United  States,  then  existing  under 
the  Articles  of  Confederation,  enacted  a certain  Ordinance  en- 
titled ‘‘An  Ordinance  for  the  Government  of  the  Territory  of  the 
United  States  Northwest  of  the  Eiver  Ohio,”  commonly  known  as 
the  Ordinance  of  1787.  That  said  Ordinance,  among  other 
things  in’  Section  14  thereof  contained  the  following: 

4 “It  is  hereby  ordained  and  declared  by  the  authority  afore- 
said, that  the  following  articles  shall  be  considered  as  articles 

of  compact  between  the  original  states  and  the  People  and  States 
in  said  territory,  and  forever  remain  unalterable,  unless  by  com- 
mon consent,  to-wit . * * * Article  4,  * * * the  navigable 

waters  leading  into  the  Mississippi  and  St.  Lawrence,  and  the 
carrying  places  between  the  same  shall  be  common  highways  and 
forever  free,  as  well  to  the  inhabitants  of  the  said  territory  as  to 
the  citizens  of  the  United  States,  and  those  of  any  other  States 
that  may  be  admitted  into  the  Confederation,  without  any  tax, 
impost,  or  duty  therefor.” 

. Congressional  Legislature. 

On  May  18th,  1796,  the  Congress  passed  a statute  entitled  “An 
Act  providing  for  the  sale  of  lands  of  the  United  States  in  the 
territory  Northwest  of  the  Eiver  Ohio,  and  above  the  mouth  of 
the  Kentucky  Eiver.”  And  Section  9 thereof  provides  as  follows: 
“Section  9.  And  be  it  further  enacted  that  all  navigable  rivers 


within  the  territory  to  be  disposed  of  by  virtue  of  this  act  shall 
be  deemed  to  be  and  remain  public  highways.’’ 

On  May  7,  1800,  Congress  passed  an  Act  entitled,  ‘‘An  Act  to 
divide  the  Territory  of  the  United  States  Northwest  of  the  Ohio 
into  two  separate  governments;’’  that  in  that  division  what  now 
constitutes  the  States  of  Indiana  and  Illinois  were  established 
as  the  territory  of  Indiana. 

5 On  March  26th,  1804,  Congress  passed  a statute  entitled, 
“An  Act  making  provision  for  the  disposal  of  the  public 

lands  in  Indiana  Territory  and  for  other  purposes,”  and  by  Sec- 
tion 6 thereof  it  was  provided  that  “All  the  navigable  rivers, 
creeks  and  waters  within  the  Indiana  Territory  shall  be  deemed 
to  be  and  remain  public  highways. 

Congress  by  its  Act  of  February  3rd,  1809,  entitled  “An  Act 
for  dividing  the  Indiana  Territory  into  two  separate  govern- 
ments” establishes  the  Territory  of  Illinois,  embracing  the  terri- 
tory in  the  State  of  Illinois,  and  among  other  things  in  said  act 
provided  that  “there  shall  be  established  within  the  said  terri- 
tory a government  in  all  respects  similar  to  that  provided  by 
the  Ordinance  of  Congress  passed  on  the  13th  day  of  July,  1787; 
for  the  government  within  the  territory  of  the  United  States, 
Northwest  of  the  River  Ohio;  and  by  an  act  passed  on  the  7th 
day  of  August,  1789,  entitled  ‘An  Act  to  provide  for  the  Gov- 
ernment of  the  Territory  Northwest  of  the  River  Ohio’;  and  the 
inhabitants  thereof  shall  be  entitled  to  and  enjoy  all  and  sin- 
gular the  rights,  privileges  and  advantages,  granted  and  secured 
to  the  people  of  the  Territory  of  the  United  States  Northwest  of 
the  River  Ohio  by  said  ordinance.” 

6 Congress  by  its  Act  of  April  18,  1818,  enacted  a Statute 
entitled  “An  Act  to  enable  the  People  of  Illinois  to  form 

a constitution  and  state  government,  and  for  the  admission  of  such 
state  into  the  union,  on  an  equal  footing  with  the  original  states” 
which  act  among  other  things  contains  the  following  provision : 
“Section  4.  And  be  it  further  enacted  * * * provided,  that 

the  same,  when  formed,  shall  be  republican,  and  not  repugnant 
to  the  Ordinance  of  the  13th  of  July,  1787,  between  the  Original 
States  and  the  people  and  states  of  the  Territory  Northwest 


54 


of  tlie  Eiver  Ohio,  excepting  so  much  of  said  Articles  as  relate 
to  the  boundaries  of  the  States  therein  to  be  formed.  * * 

That  the  people  of  the  Illinois  Territory  adopted  the  Constitu- 
tion of  1818,  the  preamble  of  which  contains  the  following,  to 
wit : 

‘‘The  People  of  the  Illinois  Territory  having  the  right  of 
admission  into  the  general  government  as  a member  of  the 
Union,  consistent  with  the  constitution  of  the  United  States, 
the  Ordinance  of  Congress  of  1787,  and  the  Law  of  Congress, 
approved  April  18,  1818,  entitled  ‘An  Act  to  enable  the  people 
of  the  Illinois  Territory  to  form  a constitution  and  State 
Government,  and  for  the  admission  of  such  State  into  the 
Union  on  an  equal  footing  with  the  original  states,  and  for 
other  purposes’;  in  order  to  establish  justice,  promote  the  wel- 
fare and  secure  the  blessings  of  liberty  to  themselves  and 
their  posterity,  do,  by  their  Eepresentatives  in  convention, 
ordain  and  establish  the  following  constitution  or  form  of 
government,  and  do  mutually  agree  with  each  other  to  form 
themselves  into  a free  and  independent  State,  by  the  name 
of  the  State  of  Illinois.” 

On  December  3,  1818,  Congress  adopted  a certain  resolution  en- 
titled, “Eesolution  declaring  the  admission  of  the  State  of 
7 Illinois  into  the  union,”  which  declared  among  other  things 
that  “the  Constitution  and  State  government  so  formed  is 
Eepublican,  and  in  conformity  to  the  principles  of  the  Articles  of 
Compact  between  the  original  States  and  the  People  and  States 
in  the  Territory  Northwest  of  the  Eiver  Ohio,  passed  on  the  13th 
day  of  July,  1787  ^ ^ L” 


Location  of  Eiveb. 

III.  Charges  that  the  Desplaines  Eiver  is  situated  in  said 
territory  rising  in  Wisconsin,  flows  in  and  through  certain  coun- 
ties in  Illinois,  in  all  a distance  of  about  96  miles. 

That  the  Eiver  Kankakee  rises  in  Indiana  and  flows  into  Illi- 
nois and  through  certain  counties,  uniting  with  the  Desplaines 
Eiver  in  Grundy  County,  and  the  two  rivers  thus  forming  the 
Illinois  Eiver,  which  empties  into  the  Mississippi  Eiver,  and  that 
by  reason  thereof  the  Desplaines  Eiver  is  subject  to  the  pro- 
visions of  the  said  Acts  of  Congress. 


Early  History. 


8 IV.  Charges  that  the  Desplaines  Iliver  is  sliown  liy  the 
history,  explorations  and  discoveries  at  the  time  of  said  ex- 
plorations and  discoveries  was  navigable  from  a point  near 
where  is  now  the  City  of  Chicago  to  its  month,  and  tliat  it  was 
used  as  a highway  for  commercial  purposes,  that  commerce  was 
carried  on  on  said  river  and  on  the  Chicago  Eiver,  located  in 
Cook  County,  Illinois,  and  the  two  connected  by  a short  portage 
near  what  is  now  the  City  of  Chicago,  and  that  the  same  was  used 
as  the  highway  of  commerce  leading  from  Lake  Michigan  and  the 
waters  emptying  into  the  St.  Lawrence  Eiver  on  the  one  hand  to 
the  Illinois  Eiver  and  the  waters  of  the  Mississippi  Eiver  on  the 
other  hand,  and  from  that  time  on  until  the  time  when  the  said 
Ordinance  of  1787  and  the  said  several  Acts  of  Congress  were  re- 
spectively enacted. 


State  Legislation. 

That  afterwards  the  State  of  Illinois,  by  and  through  the  Leg- 
islature thereof,  and  in  obedience  to  the  several  Acts  of  Con- 
9 gress  set  forth,  assumed  and  took  charge  of  the  said  Des- 
plaines Eiver,  and  did,  by  its  certain  Act  of  February  19, 
1839,  authorize  the  building  of  a toll  bridge  across  said  Desplaines 
Eiver  on  the  Northeast  1/4  of  Section  11,  Town  39,  North,  Eange 
12,  East  of  the  Third  P.  M. ; and  by  the  same  iVct  gave  permission 
to  build  another  bridge  across  said  river  on  the  S.  E.  1/4  of  Sec. 
2 in  the  same  town  and  range. 

That  on  February  26,  1839,  the  Legislature  of  Illinois  passed 
an  Act  entitled  ‘L4n  Act  to  amend  the  several  laws  in  relation 
to  the  Illinois  and  Michigan  Canal”  which,  among  other  provis- 
ions, contained  the  following,  to  wit:  ^^Sec.  2.  Sub-Section  9. 

That  no  stream  of  water  passing  through  the  canal  lands  shall 
pass  by  the  sale  so  as  to  deprive  the  state  from  the  use  of  such 
water  if  necessary  to  supply  the  canal,  without  charge  for  the 
same.”  And  sub-section  11  of  said  Section  2 of  said  Act  is  in 
the  words  following,  to-wit:  ^‘Sub-Section  11:  Lands  situated 

upon  streams  which  have  been  meandered  by  the  surveys  of  pub- 


]ic  lands  by  the  United  States  shall  he  considered  as  bounded  by 
the  lines  of  those  surveys,  and  not  by  the  stream.” 

10  The  Legislature  of  Illinois,  by  its  act  entitled  ‘‘An  Act  de- 
claring the  Desplaines  Kiver  a navigable  stream”  in  force 

February  28,  1839,  provided  as  follows: 

“Sec.  1.  Be  it  enacted  by  the  People  of  the  State  of  Illi- 
nois, represented  by  the  General  Assembly,  that  the  Des- 
plaines Elver  from  the  point  where  it  most  nearly  connects 
itself  with  the  Illinois  and  Michigan  Canal,  to  its  source,  with- 
in the  boundaries  of  this  State  is  hereby  declared  a navigable 
stream,  and  shall  be  deemed  and  held  a public  highway,  and 
shall  be  and  remain  free,  open  and  unobstructed  from  said 
point  of  connection  with  said  canal  to  its  utmost  limits  with- 
in this  state,  for  the  passage  of  all  boats  and  water  craft  of 
every  description.” 

That  afterwards,  the  Legislature  by  its  Act  of  March  3,  1845, 
entitled,  “An  Act  to  authorize  Stephen  Forbes  to  construct  a 
dam  across  the  Desplaines  River  in  Cook  County”  provided  as 
follows,  to-wit: 

“Sec.  1.  Be  it  enacted  by  the  People  of  the  State  of  Illi- 
nois, represented  by  the  General  Assembly,  that  Stephen 
Forbes,  or  his  heirs  and  assigns,  be,  and  they  are  hereby  au- 
thorized to  construct,  build  and  continue  a mill-dam  across 
the  Desplaines  River,  on  the  southwest  quarter  of  Section 
thirty-six  (36)  in  Township  number  thirty-nine  (39)  North 
of  Range  twelve  (12),  East,  and  on  the  Northeast  quarter  of 
Section  two  (2),  Township  number  thirty-eight  (38)  North  of 
Range  twelve  (12),  East,  in  the  County  of  Cook  in  this 
State ; provided,  that  this  Act  shall  not  operate  to  prevent  the 
State  from  improving  said  river  by  dams  or  from  using  the 
water  in  said  river  for  the  Illinois  and  Michigan  Canal  at 
any  time  hereafter,  or  for  any  other  purpose;  provided,  that 
he  shall  be  liable  for  any  damage  to  any  individual  in  con- 
sequence of  the  erection  of  such  dam.” 

Tliat  afterwards  the  Legislature,  by  its  Act  entitled  “An  Act 
authorizing  the  building  of  a bridge  and  road  in  Township  thirty- 
six,  North,  Range  10,  East,  in  Will  County,  approved  and  in 

11  force  February  12,  1849,  authorized  the  construction  of  a 
bridge  over  the  Desplaines  River  at  Lockport,  in  AVill  County. 

That  the  Legislature,  by  its  Act  entitled,  “An  Act  to  create 
Sanitary  Districts  and  to  remove  obstructions  in  the  Desplaines 
and  Illinois  Rivers”  in  force  July  1,  1889,  among  other  things^ 
provided  l)y  Section  23,  which  section  provided  for  the  size  of  a 


57 


cliaimel  that  may  be  cut  connecting  with  Lake  Michigan,  and  tlie 
capacity  of  the  same  from  time  to  time,  and  for  the  payment  of 
damages  to  private  property  that  ‘Hhen  such  Sanitary  Dis- 
trict shall,  within  one  year  thereafter,  enlarge  the  entire  channel 
leading  into  said  Desplaines  and  Illinois  Rivers  from  said  dis- 
trict, to  a sufficient  size  and  capacity  to  produce  and  maintain  a 
continuous  flow  throughout  the  same,  of  not  less  than  600,000 
cubic  feet  of  water  per  minute,  with  a current  of  not  more  than 
tliree  miles  per  hour,”  and  further  provides  that  it  shall  furnish 
a supply  of  water  not  less  than  eighteen  feet  deep,  and  the  size  of 
the  channel,  and  authorizes  the  district  constructing  the  channel, 
to  carry  water  from  Lake  Michigan,  to  correct,  modify  and  re- 
move obstructions  in  the  Desplaines  and  Illinois  Rivers  wherever 
it  shall  be  necessary  to  do  so,  to  prevent  overflow  or  damage. 

And  by  Section  24  of  said  Act  it  is  provided : 

^‘Sec.  24.  When  such  channel  shall  be  com])leted  and  the 
water  turned  therein,  to  the  amount  of  300,000  cubic  feet  of 
water  per  minute,  the  same  is  hereby  declared  a navigable 
stream,  and  whenever  the  general  government  shall  improve 
the  Desplaines  and  Illinois  Rivers  for  navigation;  to  connect 
with  this  channel,  said  general  government  shall  have  full 
control  over  the  same  for  navigation  purposes,  but  not  to  in- 
terfere with  its  control  for  sanitary  drainage  purposes.” 

13  The  Legislature  on  May  14,  1903,  passed  an  Act  entitled 
^L\n  Act  in  relation  to  the  Sanitary  District  of  Chicago,  to 
enlarge  the  corporate  limits  of  said  District,  and  to  provide  for 
the  navigation  of  the  channel  created  by  such  district,  and  to  con- 
struct dams,  water-wheels,  and  other  work  necessary  to  develop 
jind  render  available  the  power  arising  from  the  water  ])assing 
through  its  channels,  and  to  levy  taxes  therefor,”  which  Act  con- 
tained the  following: 

^^Sec.  3.  Said  Sanitary  District  shall  permit  all  water 
craft  navigating  or  purposing  to  navigate  said  Illinois  and 
Michigan  Canal,  to  navigate  the  water  of  all  said  channels 
of  said  Sanitary  District  promptly,  without  delay,  and  with 
out  the  payment  of  any  tolls  or  lockage  charges  for  so  nav- 
igating in  said  channels.  * * *” 

^^Sec.  8.  The  said  Sanitary  District  shall,  at  the  expense 
of  said  district,  in  all  respects  comply  with  the  provisions 
of  the  Act  of  Congress  of  May  22,  1822,  and  March  2,  1827, 
as  construed  by  the  courts  of  last  resort  of  the  State  of  Illi- 
nois, and  of  the  United  States,  in  relation  to  the  Illinois  and 


58 


Micliigan  Canal,  so  far  as  it  affects  that  portion  of  the  Illinois 
and  Michigan  Canal  vacated  or  abandoned  in  the  terms  of 
this  Act.” 

That  the  Sanitary  District  of  Chicago  was  formed  in  pursuance 
thereof,  that  it  has  constructed  one  channel  substantially  in 
II  compliance  with  the  provisions  of  said  statute.  That  said 
channel  commences  at  a point  of  junction  with  the  Chicago 
Diver  in  the  City  of  Chicago,  and  e:jvtends  southwesterly  through 
the  County  of  Cook  and  into  Will  County,  where  it  connects  with 
and  enp^ties  its  waters  into  the  Desplaines  Eiver  at  a point  north 
of  Joliet  in  Will  County,  and  through  which  channel  there  is  dis- 
cliarged,  and  has  been  for  several  years  past  300,000  cubic  feet  per 
nainute,  and  that  said  body  of  Avater  is  discharged  into  and 
merges  with  the  waters  of  the  Desplaines  Diver,  to  the  mouth  of 
said  Desplaines  Diver  in  Section  25,  Town  31,  North,  Dange  8, 
East  of  the  Third  P.  M.  in  Grundy  County. 

That  the  Legislature  enacted  its  certain  statute  and  the  same 
became  in  force  from  approval  on  and  after  the  6th  day  of  De- 
cember, 1907,  entitled 

‘LI  bill  for  an  Act  recognizing  the  Desplaines  and  Illinois 
Divers  as  navigable  streams  and  to  prevent  obstructions  be- 
ing placed  therein,  and  remove  obstructions  therein  now  ex- 
isting.” 

“Sec.  I.  Be  it  enacted  by  the  People  of  the  State  of  Illinois, 
represented  in  the  General  Assembly:  That  the  Desplaines 

and  Illinois  Divers  throughout  their  courses,  from  and  below 
the  water  plant  of  the  main  channel  of  the  Sanitary  District 
of  Chicago,  in  the  township  of  Lockport,  at  or  near  Lockport, 
15  in  the  County  of  Will,  are  hereby  recognized  as,  and  are  here- 
by declared  to  be  navigable  streams ; and  it  is  made  the  special 
duty  of  the  Governor  and  of  the  Attorney  General  to  prevent 
the  erection  of  any  structure  in  or  across  said  stream,  with- 
out explicit  authority  from  the  General  Assembly;  and  the 
Governor  and  Attorney  General  are  hereby  authorized  and 
directed  to  take  the  necessary  legal  action  or  actions  to  re- 
move all  and  every  obstruction  now  existing  in  said  rivers 
that  in  anv  wise  interferes  with  the  intent  and  purpose  of  this 
Act.” 


It  Is  Navigable  in  Fact. 

That  the  Desplaines  Diver,  ever  since  the  adoption  of  the  Ordi- 
nance of  1787  by  the  Congress  of  the  United  States,  until  the  pres- 


ent  time,  formed  in  its  ordinary  condition,  and  by  itself,  to  the 
extent  of  its  course,  from  the  point  of  said  portage  and  connection 
with  the  Chicago  Eiver  in  Cook  County,  Illinois,  to  its  mouth  in 
Grundy  County,  Illinois,  and  then  forward  by  uniting  with  the 
said  Illinois  Eiver,  a continued  highway,  with  water  in  sufficient 
volume  and  of  sufficient  depth  to  afford  a channel  for  navigable 
and  commercial  purposes. 

Wherefore  it  charges  that  the  Desplaines  Eiver,  from  near 
Chicago  to  its  mouth,  has  been,  from  the  earliest  knowledge  of 
said  river,  until  the  present  time,  in  law  and  in  fact,  a navigable 
river,  and  that  the  several  Acts  of  the  Legislature  show  that 

16  it  has  been  the  policy  of  the  State  of  Illinois  to  hold  and 
maintain  said  Desplaines  Eiver  to  be  a navigable  river,  and 

the  same  being  a navigable  river,  both  in  law  and  in  fact,  said 
river  is  subjected  to  the  provisions  of  the  several  Acts  of  Con- 
gress hereinbefore  set  forth,  and  by  reason  whereof  the  said  Des- 
plaines Eiver  has  been  and  still  continues  to  be  a highway  of 
commerce,  and  as  such  is  preserved  for  the  use  of  the  people  of 
the  State  of  Illinois,  and  the  people  of  the  States  of  the  United 
States  as  a public  highway,  and  has  not  been  alienated  from  the 
rights  of  the  people  as  a public  highway,  and  that  the  people 
of  the  State  of  Illinois,  and  of  the  United  States  have  an  ease- 
'ment  over  said  river  as  a public  highway  for  commerce,  and  that 
said  river  and  the  bed  and  waters  thereof  are  permanently  im- 
ju’essed  and  burdened  with  said  easement,  and  with  a public  right 
and  public  use  of  navigation. 

V.  Charges  that  the  Congress  of  the  United  States  by  its 
Act  approved  March  2,  1827,  granted  to  the  State  of  Illinois  every 
alternate  section  in  a strip  of  land  ten  miles  wide  along  the  line 
of  the  Illinois  and  Michigan  Canal,  for  the  purpose  of  aiding  the 
opening  of  a canal  to  connect  the  waters  of  the  Illinois  Eiver  with 
those  of  Lake  Michigan,  and  that  among  said  lands  so  conveyed 
is  Section  number  25,  in  Township  number  34,  in  Eange  8,  East  of 
the  Third  Principal  Meridian,  in  Grundy  County,  Illinois. 

17  That  the  Legislature  of  Illinois,  in  the  exercise  of  its  power 
and  control  over  said  lands  passed  its  certain  Act,  to  wit: 

^L\n  Act  to  amend  the  several  laws  in  relation  to  the  Illinois  and 


GO 


^.[idiigan  Canal,”  in  force  Febrnary  26,  1839,  in  which  Act  is 
found  the  following,  to  wit: 

‘‘Sec.  2.  Sub-Section  11:  Lands  situated  upon  streams 

which  have  been  meandered  by  the  surveys  of  public  lands 
by  the  United  States  shall  be  considered  as  bounded  by  the 
lines  of  those  surveys  and  not  by  the  streams.” 


Title  of  Land  Is  in  the  State. 

That  the  Desplaines  Eiver  was  meandered. 

Charges  that  purchasers  of  land  in  said  Section  25  and  other 
land  similarly  situated  with  reference  to  the  Desplaines  Eiver  did 
not  take  and  did  not  claim  to  take,  under  their  several  purchases, 
that  portion  of  said  lands  lying  between  the  meander  line  of  the 
Desplaines  Eiver  and  the  waters  of  said  river;  that  said 
18  lands  so  situated  between  the  meander  line  and  the  bed  of  the 
river  have  never  been  used  by  any  individual  under  claim  of 
authority  or  right,  except  the  defendant. 

Wherefore,  it  is  charged  that  by  reason  thereof  the  land  in 
said  Section  25,  between  the  meander  line  of  the  Desplaines 
Eiver  and  the  bed  of  said  river  has  not  been  sold  by  the  State  of 
Illinois,  and  the  title  of  the  same  has  not  passed  by  any  purchase 
of  adjoining  lands,  and  that  the  same,  and  every  part  thereof,  is 
now  owned  by  the  State  of  Illinois,  and  held  by  said  State  for  the 
use  and  benefit  of  the  people  of  the  State  of  Illinois,  and  of  the 
]^eople  of  the  Lhiited  States,  as  a public  highway  for  commerce. 


Xo  Title  in  Defendant  Through  Boyer  Deed. 

VI.  A deed  was  executed  by  the  Trustees  of  Illinois  and  Mich- 
igan Canal  to  Charles  E.  Boyer,  dated  October  22,  1860,  for  cer- 
tain tracts  of  land  described  therein  as  follows,  to-wit : 

“The  South  fraction  of  the  Northwest  quarter,  and  the 
North  Fraction  of  the  Southeast  quarter,  and  the  North 
Fraction  of  the  Northwest  quarter,  and  the  South  Fraction 
of  the  Southeast  quarter  of  said  Section  25,  in  Township 
19  34,  North,  of  Eange  eight  (8)  East  of  the  Third  Principal 

^leridian,  excepting  and  reserving  so  much  of  said  tract  as 
is  occupied  by  the  canal  and  its  waters,  and  a strip  ninety 
feet  wide  on  either  side  of  said  canal,  containing  196.62  acres, 
more  or  less,  said  tract  being  a portion  of  the  land  granted 
by  the  Lhiited  States  by  the  Act  of  INFarch  21,  1827,  and  the  ' 


G1 


28th  day  of  August,  1854,  to  the  State  of  Illinois,  to  aid  said 
state  in  opening  a canal  to  connect  the  waters  of  the  Illinois 
River  with  those  of  Lake  Michigan,  and  by  said  State  granted 
to  the  said  Board  of  Trustees  of  the  Illinois  and  Michigan 
Canal  for  the  purposes  set  forth  in  said  Act  of  said  State  of 
February  21,  1843.” 

Here  again  is  charged  and  set  forth  the  Act  of  the  Legislature 
of  February  26,  1839,  as  follows: 

^‘Sec.  2.  Sub-Sec.  9.  That  no  stream  of  water  passing 
through  canal  lands  shall  pass  by  the  sale,  so  as  to  de])rive 
the  state  from  the  use  of  such  water  if  necessary  to  supply 
the  canal,  without  charge  for  the  same.” 

‘‘Sec.  2.  Sub-Sec.  11.  Lands  so  situated  upon  streams 
which  have  l)een  meandered  by  the  surveys  of  public  lands 
by  the  United  States  shall  be  considered  as  bounded  l)y  the 
lines  of  those  surveys  and  not  by  the  stream.” 

Wherefore  the  bill  charges  that  the  lands  in  the  Northwest 
quarter  and  in  the  southwest  quarter  of  said  Section  25,  Town 
3-1,  Range  8,  lying  and  being  situate  outside  of  the  meander  line 
of  the  Desplaines  River,  were  conveyed  by  said  deed  to  the  said 
Charles  E.  Boyer,  but  that  the  same  remains  the  property  of  the 
State  of  Illinois. 

Charges  that  the  claim  of  the  defendant,  the  Economy  Light 
& Power  Company,  to  said  portion  of  said  premises  so  situated 
outside  of  the  meander  line  of  the  Desplaines  River  in  said  Sec- 
tion number  25,  is  based  upon  mesne  conveyances  from  the  said 
Charles  E.  Boyer  and  the  several  contracts  and  leases  hereinafter 
set  forth. 

20  VII.  This  paragraph  sets  forth  the  Act  of  Congress  of 
March  2,  1827,  giving  of  alternate  sections  of  land  to  the 

State  of  Illinois,  to  aid  in  the  construction  of  said  canal  and  the 
right  of  way  through  the  other  sections  of  land  through  which  the 
canal  ran,  and  the  manner  and  way  of  determining  what  sec- 

21  tions  were  given  to  the  State  of  Illinois,  and  what  sections 
were  reserved,  and  shows  that  the  odd  numbered  sections 

were  taken  by  the  State  of  Illinois,  and  the  even-numbered  sec- 
tions reserved  by  the  United  States,  and  that  the  canal  was  laid 
out  by  the  Commissioners  and  the  construction  thereof  began  and 
provided  for  the  reservation  of  a 90-foot  strip  of  land  on  each 


62 


side  thereof,  for  use  as  a tow-patli,  and  as  a part  of  the  canal 
throughout  the  length  thereof;  that  in  1847  and  1848  Artemus  J. 
Matthewson,  a surveyor  and  engineer,  under  authority  and  direc- 
tion of  the  Canal  Trustees,  surveyed  and  marked  the  lines  of  the 
90-foot  strip  on  each  side  of  the  canal,  as  finally  located,  from 
22  one  end  to  the  other,  and  pre^Dared  and  filed  in  the  office  of 
the  Board  of  Trustees,  maps  and  profiles  of  said  survey,  and 
that  said  90-foot  strip  of  land  was  reserved  from  sale  by  the  Canal 
Commissioners,  and  Canal  Trustees,  in  said  odd-numbered  sec- 
tions, and  the  title  thereto  remains  in  the  State  of  Illinois,  and 
that  said  90-foot  strip,  together  with  the  lands  necessary  for  the 
right  of  way  through  the  even-numbered  sections,  through  which 
the  canal  was  constructed,  constitute  integral  parts  of  the  said 
canal,  and  are  necessary  for  its  preservation  and  use,  and  are,  by 
law,  preserved  and  protected  against  alienation,  and  said  90-^ 
foot  strip  is  so  expressly  reserved  from  sale  in  said  deed  by  said 
Trustees  of  the  Illinois  and  Michigan  Canal  to  said  Charles  E. 
Boyer. 


Contracts  of  Commissioners  Unauthorized. 

23  VIII.  That  the  Canal  Commissioners  of  Illinois  entered 
into  a certain  contract  dated  September  2,  1904,  with  one 
Harold  F.  Griswold;  that  Griswold  assigned  the  same  to  the  Econ- 
omy Light  & Power  Company.  Copy  of  said  contract  attached  to 
and  made  a part  of  the  bill  as  Exhibit  A. 

xVlso  charges  that  said  Canal  Commissioners  entered  into  a 
contract  and  lease  with  said  Griswold,  dated  September  2,  1904, 
a copy  of  which  is  attached  to  the  bill,  and  marked  Exhibit  I),  and 
made  a j^art  thereof,  and  that  the  same  was  assigned  by  said 
Griswold  to  the  defendant. 

That  the  said  Canal  Commissioners  entered  into  another  con- 
tract with  the  said  Griswold,  dated  August  4,  1905,  a copy  of  which 
it  attached  to  the  bill  and  made  a part  thereof  and  marked  Exhibit 
Ch  and  which  said  contract  was  by  the  said  Griswold  assigned  to  the 
defendant. 

That  the  Canal  Commissioners  made  application  to  the  Gov- 
ernor of  the  State  of  Illinois  for  his  consent  to  the  sale  of  certain 


63 


lands,  which  application  is  dated  June  11,  1904,  a copy  of  the  same 
attached  and  marked  Exhibit  D,  and  made  a part  of  said  bill,  and 
that  a copy  of  the  approval  of  said  application  for  said  sale  by  the 
Governor  as  of  the  date  of  June  14,  1904,  is  attached,  marked  Ex- 
hibit E,  and  made  a part  of  the  bill. 

An  advertisement  of  said  sale  in  the  Lockport  Phoenix-Adver- 
tiser, copy  of  which  said  notice  with  its  certificate  of  publication  is 
attached  and  made  part  of  the  bill  as  Exhibit  F. 

25  That  by  said  notice  the  ])remises  mentioned  were  advertised 
to  be  sold  on  the  2nd  day  of  August,  1904,  but  that  no  sale  of 

said  premises  was  made  on  the  2nd  day  of  August,  1904,  but  that 
the  sale  was  adjourned  and  never  thereafter  resumed. 

That  after  said  2nd  day  of  August,  1904,  and  under  date  of  Sep- 
tember 2nd,  1904,  the  Canal  Commissioners  entered  into  the 
agreement  and  lease  hereinbefore  mentioned  and  marked  res])ec- 
tively  Exhibits  A and  P,  that  afterwards,  on  November  1st,  1904, 
the  Canal  Commissioners  made  application  to  the  Governor  of  the 
state  for  his  consent  to  the  sale  of  certain  lands  in  said  applica- 
tion described,  co])y  of  which  application  is  attached  to  the  bill 
and  made  a part  thereof  as  Exhibit  G.  That  the  approval  of  the 
Governor  under  date  of  the  2nd  of  November,  1904,  is  attached  and 
made  a part  of  the  bill  as  Exhil)it  II.  That  in  pursuance  of  said 
application  and  approval,  notice  of  sale  was  inserted  in  the  Lock- 
port  Phoenix- Advertiser,  copy  of  which  is  hereto  attached  and 
made  a part  of  the  bill  as  Exhibit  I. 

26  That  under  said  notices  the  Canal  Commissioners  executed 
a deed  to  Harold  F.  Griswold  as  of  the  6th  day  of  January, 

1905,  copy  of  which  deed  is  hereto  attached  and  made  a part  of  the 
bill  as  Exhibit  J;  and  charges  upon  information  and  belief  that 
Harold  F.  Griswold  conveyed  said  premises,  so  that  by  mesne 
conveyance,  same  are  purported  to  pass  to  the  defendant  in  this 
case. 

' Charges  upon  information  and  belief  that  said  Canal  Commis- 
sioners entered  into  another  contract  or  lease  with  Harold  F. 
Griswold  as  of  date  of  September  2,  1904,  a copy  of  which  said  con- 
tract of  lease  is  attached  to  and  made  a part  of  the  bill  as  Exhibit 


64 


K,  and  charges  upon  information  and  belief  that  the  same  was  by 
mesne  assignments  conveyed  to  the  defendant. 

27  And  so  it  is,  the  bill  charges  upon  information  and  belief, 
that  the  defendant,  claiming  to  act  by  pretended  right,  by  these 

several  contracts  and  deeds,  to  erect  a dam  across  the  Desplaines 
River  and  across  certain  lands  adjacent  thereto,  and  across  the  90 
foot  strip  of  land  so  used  for  canal  purposes,  immediately  adjoin- 
ing the  waterway  of  the  said  Illinois  and  Michigan  Canal  and  flow 
the  bank  or  tow  path  of  the  said  Illinois  and  Michigan  Canal,  and 
so  to  construct  said  dam  as  to  flood  the  land  along  the  Desplaines 
River  for  a distance  of  ten  miles,  or  thereabouts,  about  the  loca- 
tion of  said  proposed  dam,  and  the  said  proposed  dam  is  located 
on  the  southeast  quarter  of  said  Section  25,  above  described,  and 
that  in  pursuance  of  such  claim  of  right  the  defendant  has  com- 
menced the  construction  of  said  dam.  But  the  bill  avers  that  said 
several  leases  and  deeds  are  ineffectual  to  confer  any  right  to  build 
or  maintain  the  said  dam. 

The  bill  charges  that  by  resolution  of  the  General  Assembly  of 
Illinois,  passed  on  the  16th  day  of  October,  1907,  copy  of 

28  which  is  attached  to  the  bill  marked  Exhibit  L,  and  made  a 
part  thereof,  proposed  the  building  of  a deep  waterway,  com- 
mencing at  the  southern  end  of  the  Chicago  Drainage  Canal,  and 
extending  southwesterly  along  the  line  of  the  Desplaines  and  Illi- 
nois Rivers  in  accordance  with  plans  and  specifications  formulated 
by  the  Corps  of  Engineers  of  the  United  States  Army,  and  under 
and  by  direction  of  certain  Acts  of  Congress,  and  that  the  Legis- 
lature of  Illinois  has  submitted  to  the  people  of  Illinois  the  ques- 
tion of  authorizing  the  construction  of  said  deep  waterway.  That 
if  the  same  is  built  a dam  will  necessarily  be  built  near  the  site 
of  the  proposed  dam  of  the  defendant,  and  the  same  will  incident- 
ally afford  water  power  of  great  value,  and  that  the  same  will  be 
lost  to  the  State  of  Illinois,  if  the  defendant  shall  be  permitted  to 
construct  the  dam  here  mentioned. 

Bill  denies  the  right  or  authority  of  the  Trustees  of  the  Illi- 
nois and  Michigan  Canal,  or  the  Canal  Commissioners  to  convey 
the  lands  composing  the  bed  of  the  stream  of  the  Desplaines 

29  River,  or  any  part  or  portion  of  the  lands  of  said  Section  num- 
ber 25,  outside  of  the  meander  line  of  the  Desplaines  River. 


Charges  that  tlie  90  foot  strip  of  land  along  the  Illinois  and 
Michigan  Canal  is  necessary  for  its  maintenance  and  constitutes  an 
integral  part  of  said  canal,  and  denies  that  the  Trustees  of  the 
Illinois  and  Michigan  Canal,  or  the  Canal  Commissioners  of  Illi- 
nois had  any  authority  under  the  law  to  convey  the  same  hy  deed, 
lease  or  otherwise.  Whep^efore,  the  hill  charges  that  the  defend- 
ant has  not  acquired  any  right,  title  or  interest  in  the  hed  of  the 
stream  of  the  Desi)laines  Kiver,  or  that  portion  of  Section  twenty- 
five  above  described,  lying  and  being  outside  of  the  meander  line  of 
the  said  Desplaines  Iliver,  or  in  and  to  the  90  foot  strip  of  land, 
lying  between  the  waters  of  the  Illinois  and  Michigan  Canal  and 
the  said  Desplaines  Kiver,  and  that  said  deed,  leases,  contracts 
and  other  agreements,  in  so  far  as  they  pertain  to  the  hed  of  the 
stream  of  the  Desplaines  River,  and  to  the  lands  outside  of  the 
meander  line,  and  to  the  90  foot  strip  of  land  so  reserved  for  the 
use  of  the  Illinois  and  Michigan  Canal,  and  so  located  in  said 
southeast  quarter  of  said  Section  25,  are  void  and  of  no 
effect. 

30  Bill  charges  that  by  virtue  of  the  several  enactments  of  the 
Congress  of  the  United  States  herein  set  forth,  and  the  sev- 
eral Acts  of  the  Legislature  of  the  State  of  Illinois  as  herein  set 
forth,  the  bed  of  the  Desplaines  River  is  owned  by  the  State  of 
Illinois,  and  the  same  has  not  been  conveyed  to  anyone,  and  that 
the  lands  outside  of  the  meander  line  in  said  Section  25,  and  other 
sections  along  the  line  of  said  Desplaines  River  so  granted  to  the 
State  of  Illinois,  have  not  been  conveyed  by  the  State  of  Illinois, 
nor  by  any  other  person,  persons  or  corporation  whomsoever,  hav- 
ing authority  so  to  convey  the  same,  and  that  the  same  remain  and 
are  owned  by  the  State  of  Illinois. 

Defendant  About  to  Erect  a Dam. 

IX.  Charges  that  the  defendant  claims  to  own  the  bed  of  the 
stream  of  the  Desplaines  River,  and  other  lands  in  said  South- 

31  east  quarter  of  said  Section  number  25  and  other  lands  for 
several  miles  up  said  river  which  are  outside  of  the  meander 

line  of  the  Desplaines  River,  and  that  they  threaten  to  erect,  and 
have  actually  begun  the  erection  of  a dam  across  the  Desplaines 


G6 


Kiver  and  across  the  90  foot  strip  of  land  so  reserved  for  the  use 
of  the  Illinois  and  Michigan  Canal,  and  across  other  lands  out- 
side of  the  meander  line  of  the  Desplaines  Eiver,  and  to  connect 
said  dam  with  the  bank  or  tow  path  of  the  Illinois  and  Michigan 
Canal,  and  so  construct  said  dam  as  to  cause  the  water  to  be  backed 
up  and  to  overflow  the  lands  belonging  to  the,State  of  Illinois,  and 
other  lands  for  a long  distance  above  said  proposed  dam,  to  wit : 
for  the  distance  of  ten  miles  or  thereabouts. 

‘ Notice  to  Stop. 

Charges  that  the  Attorney  General,  on  the  12th  of  December, 
1907,  served  notice  on  the  defendant  in  writing  to  cease  and  desist 
from  in  any  manner  infringing  upon,  or  interfering  with  the  said 
land  owned  by  the  State  of  Illinois,  or  in  which  the  people  have 
an  easement  for  the  benefit  of  the  public,  located  in  the  said  Sec- 
tion 25  in  Grundy  County,  Illinois,  by  the  erection  of  a dam  there- 
on, or  otherwise,  and  to  cease  and  desist  from  in  any  way  obstruct- 
ing the  Desplaines  Eiver  or  the  Illinois  Eiver  in  said  Section 

32  or  elsewhere,  and  further  notifying  and  commanding  the  de- 
fendant to  remove  any  and  all  obstructions  it  may  have  placed 

upon  said  premises,  whether  the  same  is  in  the  bed  of  the  Des- 
plaines Eiver  or  otherwise,  which  notice  was  served  by  delivering 
a copy  to  John  F.  Gilchrist,  Secretary  of  the  defendant  company, 
who  then  and  there,  in  behalf  of  said  company,  acknowledged  ser- 
vice and  receipt  of  the  same,  copy  of  which  said  notice  is  attached 
to  the  bill  and  made  a part  of  the  same  as  Exhibit  M.  Charges 
that  the  defendant  ignored  said  notice  and  command,  and  con- 
tinued and  persisted  in  the  work  of  constructing  said  dam. 

That  said  dam,  if  permitted  to  be  erected,  will  destroy  and 

33  interfere  with  the  Desplaines  Eiver  as  a navigable  water- 
way; that  it  will  overflow  and  destroy  the  value  of  the  lands 

and  the  use  of  the  lands  belonging  to  the  State  of  Illinois,  adja- 
cent to  said  Desplaines  Eiver  and  outside  of  the  meander  line  of 
said  river;  that  it  will  destroy  the  use  of  the  90  foot  strip  of  land, 
so  to  be  retained  for  the  use  and  benefit  of  the  Illinois  and  Michi- 
gan Canal,  and  render  the  same  inoperative  and  of  purpresture 
impaired  benefit  to  said  canal,  that  it  will  destroy  the  feeder  of 


the  Illinois  and  Michigan  Canal,  and  will  constitute  a purpresture, 
and  that  the  same  will  produce  and  work  irrevocable  loss  and  dam- 
age to  the  Illinois  and  Michigan  Canal,  and  to  the  State  of  Illi- 
nois, and  to  the  rights  of  the  peo])le  of  the  State  of  Illinois. 

Description  of  Contracts. 

X.  Charges  that  said  agreement,  Exhibit  A,  purports  to  give 
authority  and  consent  by  the  Canal  Commissioners  under  Gris- 
wold and  his  assigns,  to  dam  the  Desplaines  River,  to  back  up 
water  upon  the  90  foot  strip,  and  cause  the  same  to  be  flooded; 
to  excavate  and  remove  portions  of  said  Kankakee  feeder,  to 

34  attach  said  proposed  dam  to  the  tow  path  of  the  canal,  to  di- 
vert water  from  the  Desplaines  River,  to  attach  and  close  up 

a levee  to  and  along  the  tow  path  bank  of  said  canal,  to  use  the 
gravel  and  material,  the  property  of  the  state,  to  enter  upon  the 
canal  lands  and  the  canal  itself  in  and  about  said  work,  and  to 
raise,  change  and  alter  buildings  owned  by  the  state  and  used  in 
connection  with  said  canal;  and  charges  that  each  and  all  of  said 
provisions  are  beyond  the  power  of  said  Canal  Commissioners  to 
grant. 

That  said  consent  and  permission  was  without  limit  of  time  and 
should  be  held  in  law  and  in  equity  to  be  without  authority,  and  to 
confer  no  authority,  and  to  be  against  the  public  policy  of  the  state 
anddn  derogation  of  the  right  and  interest  of  the  people,  and  to  be 
revocable  by  the  state. 

That  said  Exhibit  B purported  to  convey  and  demise  inter- 

35  ests  in  the  said  90  foot  strip  in  that  part  of  the  canal  called 
the  Kankakee  feeder,  and  to  give  a first  right  of  renewal  to 

the  said  Griswold,  and  the  same  purported  to  be  made  suliject  to 
the  contract  marked  Exhibit  A;  that  each  of  said  instruments 
purported  to  give  Griswold  the  right  to  assign  said  contract  and 
that  one  of  them  might  be  assigned  to  one  person  and  another  to 
another. 

Charges  that  both  parties  had  knowledge  that  the  grantee  in- 
tended to  erect  a dam  and  develop  water  power  thereon,  and  that 
the  same  amounted  to  a lease  of  water  power  right,  and  lands  and 
lots  connected  therewith.  That  the  said  lease  and  contracts  were 


not,  nor  were  either  of  them,  entered  into  upon  notice  by  publica- 
tion, nor  limited  to  a period  of  ten  years,  contrary  to  the  statute 
of  March  27,  1874,  and  acts  amendatory  thereof,  and  in  particu- 
lar to  the  provisions  of  clause  6 of  Section  8 of  said  statute,  as 
amended  by  the  Act  of  June  19,  1891,  and  the  bill  charges  that  the 
same  are  beyond  the  powers  of  the  Commissioners  to  enter  into, 
and  are  null  and  void. 

36  Charges  that,  treating  the  said  instrument  as  leases  of 
water  power,  they  are  subject  to  the  power  of  the  state  to  re- 
sume, without  compensation  to  the  party  of  the  second  part  there- 
in named,  the  use  of  such  water  power,  and  are  further  subject  to 
the  power  of  the  state  to  abandon  or  destroy  the  works  by  the 
construction  of  which  water  power  the  privilege  therein  purported 
to  be  conferred  shall  have  been  created,  whenever  in  the  opinion 
of  the  Legislature  such  work  shall  cease  to  be  of  advantage  to  the 
state,  all  in  accordance  with  the  provisions  of  said  clause  6 of  said 
Section  8 of  said  Act  approved  March  27,  1874,  as  amended  by  said 
Act  approved  June  19,  1891. 

Eecites  that  in  the  opinion  of  the  Legislature  such  work  has 
ceased  to  be  advantageous  to  the  state,  and  same  was  duly  ex- 
pressed by  statute  approved  and  in  force  December  6th,  1907,  en- 
titled ^L\n  Act  recognizing  the  Desplaines  and  Illinois  Eivers  as 
navigable  streams,  and  to  prevent  obstructions  being  placed  there- 
in, and  to  remove  obstructions  therein  now  existing.” 

Charges  that  said  contract  marked  Exhibit  C,  purports  to  leave 
to  Griswold  such  rights  as  are  under  the  control  of  the  Canal  Com- 
missioners to  divert  the  waters  of  the  Kankakee  Eiver  into 

37  the  Kankakee  feeder  and  discharge  the  same  into  the  Des- 
plaines Eiver,  and  to  destroy  and  reconstruct  the  dam  across 

the  Kankakee  Eiver  and  to  construct  at  each  end  of  said  Kanka- 
kee feeder  suitable  gates  for  controlling  the  discharge  of  the  Kan- 
kakee Eiver  through  said  feeder,  and  to  enter  upon  the  Kankakee 
feeder  for  the  purposes  therein  named. 

But  the  bill  shows  that  the  said  contract  was  a further  lease, 
for  the  purpose  of  enabling  the  assignee  therein  to  develop  and 
create  water  power.  It  was  not  made  in  conformity  to  the  pro- 
visions of  the  statute  last  cited  in  reference  to  the  Illinois  and 


Michigan  Canal ; and  charges  that  the  said  Kankakee  feeder  is  an 
integral  part  of  said  canal,  and  that  said  agreement  was  beyond 
the  power  of  said  Commissioners  to  make. 

The  bill  further  shows  that  said  lease,  Exhibit  C,  contains  the 
following  provision,  to  wit: 

“It  is  herein  further  stipulated  and  agreed  and  the  Canal 
Commissioners  hereby  expressly  reserve  the  right  to  cancel 
this  lease  and  recover  possession  of  the  land,  property  and 
rights  above  demised  and  referred  to,  whenever,  in  the  judg- 
ment of  the  Canal  Commissioners,  or  other  proper  officers  of 
the  state,  at  such  time  having  charge  of  the  canal  property, 
they  shall  deem  the  interests  of  the  state  revquire  it  to  repos- 
sess and  use  said  property  for  state  purposes.” 

And  the  bill  charges  that  such  power  of  revocation  and  cancella- 
tion may  be  exercised  by  the  Legislature  of  the  state,  and  the 
38  same  was  exercised  by  said  Act  in  force  l)ecem])er  6th,  1907, 
above  cited,  and  shows  that  the  exercise  of  the  powers  and 
privileges  and  rights  purporting  to  l)e  conferred  l)y  said  lease, 
Exhibit  C,  constitutes  and  creates  obstructions  of  the  Desplaines 
River. 

That  the  said  deed,  Exhil)it  J,  pur])orts  to  convey  the  land  there- 
in described,  and  in  terms  to  include  lands  lying  and  being  situated 
outside  of  the  meander  line  of  the  Desplaines  River,  and  purports 
to  be  subject  to  the  terms  of  said  flowage  contract,  marked  Ex- 
hibit A,  and  said  lease  marked  Exhibit  B,  and  to  renew  the  cov- 
enants thereof  by  the  certain  provisions  in  said  deed  referring 
thereto,  which  recites  that  the  said  deed  is  “subject,  however,  to 
the  terms,  conditions  and  provisions  of  the  flowage  contract  and 
lease  made  with  the  said  Harold  F.  Griswold,  and  bearing  date 
September  2,  A.  D.  1904,  which  terms,  conditions  and  privileges, 
still  remain  in  full  force,  and  shall  be  fully  kept  and  performed.” 

And  the  bill  charges  that  said  lots  and  land  described  are  con- 
nected with  the  water  power  privileges  sought  and  purported  to  be 
conferred  and  created  by  said  contract.  Exhibit  A,  and  said  lease 
Exhibit  B,  and  that  said  advertisement  thereof  did  not  so  desig- 
nate and  describe  said  property,  and  did  not  limit  the  same  to  the 
term  of  ten  years,  as  prescribed  by  law,  and  that  the  same  are  be- 


70 


yond  the  power  of  said  Commissioners,  and  are  null  and  void 

39  and  subject  to  the  power  of  the  state  to  resume  the  same  and 
to  abandon  and  destroy  the  works  by  the  construction  of  which 

water  privileges  shall  have  been  created,  whenever,  in  the  opinion 
of  the  Legislature,  such  work  shall  be  deemed  to  be  disadvant- 
ageous to  the  state,  and  that  the  Legislature  has  so  declared  by  its 
Act  in  force  December  6th,  1907,  above  quoted. 

The  bill  charges  that  said  pole  line  lease,  marked  Exhibit  K, 
purports  to  convey  to  Griswold,  his  successors  and  assigns,  the 
right  to  maintain  a line  of  poles  along  the  said  canal  from  the  west 
line  of  Section  25,  upon  which  said  dam  has  been  located,  to  Joliet, 
and  from  the  same  point  in  said  Section  25,  to  the  City  of  Morris,  in^ 
Grundy  County. 

And  your  orators  show  that  said  lease  was  made  upon  the  same 
day  as  said  contract  and  lease,  Exhibits  A and  B and  was  for 
the  purpose  of  developing  the  said  water  power,  and  transferring 
and  conveying  the  same,  as  electrical  energy  by  said  proposed  line 
of  poles,  and  was  subject  to  all  the  infirmities  herein  alleged  as  to 
said  contract  and  lease.  Exhibits  A and  B,  and  that  said  contract, 
deeds  and  leases,  were  each  and  all  of  them  entered  into  on 

40  inadequate  consideration.  Then  follows  the  prayer  of  the  bill 

41  and  the  prayer  for  injunction,  and  for  summons. 

42  Bill  sworn  to. 

Then  the  following  order  by  the  Court:  ‘‘That  an  injunc- 
tion issue  according  to  the  prayer  of  the  bill,  with  permission  to 
the  defendant  to  protect  the  works  and  machinery  now  on  the 
ground,  without,  however,  extending  or  increasing  the  work  al- 
ready done,  without  bond.  December  30,  1907,  S.  C.  Stough, 
Judge.” 


43  “EXHIBIT  A”— PART  OF  BILL. 

This  is  the  fiowage  contract,  dated  September  2,  1904,  between 
the  Canal  Commissioners  of  Illinois  and  Harold  F.  Griswold,  his 
successors  and  assigns,  and  recites  that  the  second  party  claims  to 
be  riparian  owner  along  the  Desplaines  and  Illinois  Rivers  in 
Grundy  and  Will  Counties,  and  as  such  is  about  to  improvm 


71 


the  Desplaines  River  by  constructing  a dam  and  other  works 
across  the  mouth  of  said  river  in  Grundy  County,  with  a crest  of 
such  height  that  the  pool  formed  thereby  will  he  on  the  level  with 
the  waters  of  Lake  Joliet  (a  portion  of  said  Desplaines  river  in 
Will  County,  Illinois)  and  about  to  improve  the  Illinois  River 
by  deepening  the  channel  of  said  River  in  Section  25,  Township  34 
North,  Range  8 East  of  the  Third  P.  M. 

Further  recites  that  the  State  of  Illinois  is  a riparian  owner  at 
different  points  on  the  Desplaines  and  Illinois  rivers,  within  the 
territory  conferred  by  this  contract,  as  well  as  the  owner  of  the 
hereinafter  described  parcels  of  land,  under  the  control  of  the 
Canal  Commissioners,  and  which  are  not  connected  with  the 
44  water  power  from  the  Illinois  and  Michigan  Canal,  which 
said  riparian  rights  in  said  lands  have  never  produced  rev- 
enue, and  the  same  is  now  unproductive  of  revenue,  swampy,  un- 
fit for  cultivation,  partially  covered  with  water,  and  said  land  is 
so  situated  that  the  riparian  right  appertaining  thereto  cannot  be 
made  valuable  by  the  State  to  create  water  power,  and. 

Further  recites  that  Griswold  is  desirous  of  obtaining  right 
to  use,  overflow  and  dammage  (in  such  manner  as  will  not  inter- 
fere with  navigation  on  the  Illinois  and  Michigan  Canal)  so  much 
of  the  said  property  as  may  be  necessary  in  the  construction 
of  the  said  dam  and  other  works  in  the  improvement  of  the 
said  Desplaines  River  and  in  the  deepening  of  the  channel  of 
said  river. 

Consideration  $2,200.00,  receipt  of  which  is  acknowledged; 
agreed 

1st.  That  the  Canal  Commissioners  consent  that  Griswold 
shall  have  the  right  and  authority  in  so  improving  the  Desplaines 
River  to  construct  a dam  and  other  works  across  the  Desplaines 
or  Illinois  River,  at  or  near  the  confluence  of  the  Desplaines  and 
Kankakee  Rivers,  in  Grundy  County,  Illinois,  with  a crest  at  an 
elevation  of  not  to  exceed  minus  73.2  Chicago  datum,  but  that  the 
back  water,  caused  by  said  dam,  shall  in  no  event,  extend  beyond 
the  north  limits  of  Lake  Joliet  (said  Lake  Joliet  being  a wide  por- 
tion of  the  Desplaines  River  about  six  miles  in  length,  and  lying 
south  of  the  City  of  Joliet  in  the  County  of  Will  and  State  of 
Illinois)  and  further  consent  that  said  Griswold  may  excavate 


in  and  deepen  the  channel  of  the  Illinois  Eiver  in  Section  25, 
Township  34  North,  Eange  8 East  of  the  Third  P.  M. 

2nd.  That  said  Griswold  shall  have  the  right  and  authority 
to  flow  the  90-foot  reserve  strip  of  the  Illinois  and  Michigan  Canal, 
in  Sections  25  and  36,  in  Township  34  North,  Eange  8,  Grundy 
County,  and  in  Sections  31,  30,  29  and  20,  Township  34  North, 
Eange  9,  Will  County,  Illinois,  up  to  the  canal  bank;  also  so  much 
of  the  North  fraction  of  Section  31,  Township  34  North,  Eange 
9 East  of  the  Third  P.  M.  as  lies  south  of  the  90-foot  reserve  strip 
along  the  tow-path  side  of  the  Illinois  and  Michigan  Canal,  where 
the  same  may  be  overflowed  by  reason  of  the  construction  of  the 
said  dam,  and  other  works  with  the  crest  hereinbefore  specified,  to- 
gether with  the  right  to  flow  the  water  up  against  the  tow-path 
bank  of  the  Illinois  and  Michigan  Canal  in  said  sections,  provided 
the  tow-path  shall  be  protected  and  preserved  as  hereinafter  pro- 
vided. 

3rd.  Said  Griswold  shall  have  the  right  to  excavate  in 
46  and  remove  so  much  of  the  Kankakee  Feeder  (an  abandoned 
feed  of  the  Illinois  and  Michigan  Canal)  lying  north  of  the 
Desplaines  river  and  south  of  the  90-foot  strip  in  Section  31, 
Township  34  North,  Eange  9,  Will  County,  as  may  be  necessary 
to  discharge  the  water  of  the  Desplainer  Eiver  through  said  Sec- 
tion 31  in  a proper  manner,  and  shall  also  have  the  privilege  of  re- 
moving the  old  acqueduct  piers  in  said  Section. 

4th.  That  said  Griswold  shall  have  the  right  to  erect,  attach, 
repair  and  maintain  said  dam  and  other  works  or  structure  up 
against  the  tow-path  bank  of  the  Illinois  and  Michigan  Canal, 
in  Section  25,  Township  34  North,  Eange  8 East  of  the  Third 
P.  M.,  in  Grundy  County,  but  not  so  as  to  interfere  in  any  man- 
ner with  the  use  of  said  tow-path,  in  connection  with  said  canal. 

5th.  Griswold  given  authority  and  right  to  turn  and  divert 
from  the  Desplaines  Eiver  a certain  stream  of  water  called  ^‘The 
Kankakee  Cut-otf’’,  through,  over  and  across  said  Kankakee 
feeder,  and  the  90-foot  strip  on  each  side  of  said  feeder,  in  Sec- 
tion 5,  Township  33  North,  Eange  9 East  of  the  Third  P.  M.,  and 
to  construct  upon  the  banks  of  said  feeder  controlling  gates  for 
flood  protection  from  said  Kankakee  Eiver. 


6th.  Griswold  agrees  to  raise  the  tow-path  bank  of  the 

47  Illinois  and  Michigan  Canal,  not  less  than  two  feet,  and  to 
any  additional  height  which  may  be  necessary  to  prevent 

overdo w,  and  to  perpetually  maintain  the  same  in  good  con- 
dition. The  raising  of  said  tow-path  shall  extend  from  the  point 
in  said  Grundy  County  where  the  dam  or  other  structure  of  said 
Griswold  shall  intersect  said  tow-path  bank  to  lot  No.  7 in  Section 
17,  Township  34  North,  Range  9 East  of  the  Third  P.  M.,  and  when 
raised,  the  height  of  the  tow-path  bank  shall  conform  to  the 
width  of  the  tow-path  as  it  exists  at  the  present  time. 

7th.  Permission  is  given  to  said  Griswold  to  attach  and  close 
a levee  to  the  tow-path  bank  of  the  Illinois  and  Michigan  Canal 
at  the  point  in  said  tow-path  bank,  where  the  east  and  west 
half  section  lines  of  Section  20,  Township  34  North,  Range  9 East 
of  the  Third  P.  M.  inte^'cept  sadd  tow-pa tli  bank;  further  per 
mission  is  also  given  to  construct  levees  on  the  east  and  west  bank 
of  the  DuPage  River  from  the  dam  across  said  river  to  the  north 
line  of  Section  20,  Township  34  North,  Range  9 East  of  the 
Third  P.  M.,  and  attach  and  close  said  levees  to  the  west  and  east 
sides  respectively  of  said  dam  across  the  DuPage  River,  in  Sec- 
tion 17,  Township  34  North,  Range  9 East  of  the  Third  P.  M.,  as 
indicated  by  blue  prints  attached  to  the  contract. 

48  8th.  Permission  given  to  Griswold  to  use  the  gravel  and 
other  material  lying  along  the  Illinois  and  Michigan  Canal, 

the  property  of  the  State  of  Illinois,  to  raise  said  tow-path. 

9th.  That  the  said  Griswold  is  hereby  authorized  to  enter  upon 
the  lands  or  premises  of  the  State  of  Illinois,  part  and  parcel  of 
the  Illinois  and  Michigan  Canal,  and  to  enter  upon  said  canal 
itself  in  a manner  and  to  the  extent  that  shall  be  necessary  to 
raise  and  maintain  the  tow-path  as  above  provided,  and  to  attach 
and  build  said  dam  or  other  works  onto  said  tow-path  bank,  and  to 
repair,  maintain  and  renew  the  same  as  shall  become  necessary 
for  the  preservation  thereof. 

10th.  Provides  for  raising  the  buildings  on  the  tow-path. 

49  11th.  Provides  that  all  work  done  shall  be  under  the  sui)er- 
vision  and  to  the  satisfaction  of  the  Canal  Commissioners, 

or  their  duly  authorized  agent  or  agents,  and  that  said  works 


74 


shall  at  all  times  be  maintained  by  the  said  Griswold  under  like 
supervision  and  approval  of  said  Canal  Commissioners,  or  their 
officers  and  agents. 

12th.  Provides  that  the  cost  of  inspection  of  said  work  shall 
be  paid  by  the  said  Griswold. 

13th.  Provides  that  Griswold  shall  be  responsible  for  damages 
that  may  be  sustained  by  the  State  of  Illinois  or  the  Canal  Com- 
missioners, or  the  canal  property,  or  the  persons  or  ]3roperty 

50  of  said  Illinois  and  Michigan  Canal  occasioned  by  the  con- 
struction of  the  works  and  in  its  subsequent  repair  and  main- 
tenance, or  which  shall  be  occasioned  by  the  use  of  the  dam,  levees 
or  other  works  above  provided,  and  provides  that  this  agreement 
shall  be  binding  upon  and  inure  to  the  benefit  of  the  respective 
successors  and  assigns  of  the  parties  hereto. 

‘‘IlxniBiT  B” — Pakt  op  Sajd  Bill. 

51  Dated  September  2,  1904,  between  the  Canal  Commission- 
ers of  the  State  of  Illinois  and  Harold  F.  Griswold,  in  a lease 

of  certain  premises,  to-wit:  the  90-foot  strip  along  the  top-side 
and  outside  of  the  tow-path  of  the  Illinois  and  Michigan  Canal 
in  Section  25  (and  other  sections) ; also  that  part  of  the  Kan- 
kakee feeder  and  the  90-foot  strip  on  each  side  of  said  feeder, 
being  the  same  as  the  description  set  forth  in  the  foregoing  Exhibit 
A Said  lease  for  twenty  years  from  Septendier  2nd,  1904,  and 
expressly  made  subject  to  the  contract  of  September  2,  1904,  to 
said  Griswold,  affecting  said  premises: 

Consideration  $500,  in  full  for  the  full  term  of  the  lease. 

52  Expressly  charges  the  said  Griswold  with  full  knowledge  of 
all  the  provisions  contained  in  the  contract  marked  Exhibit  A. 

Provides  for  the  first  right  or  privilege  of  the  said  Griswold  to 
re-lease  the  same  after  the  expiration  of  the  lease,  and  provides 
how  the  rental  value  shall  be  fixed,  and  provides  that  if  the  said 
Griswold  shall  desire  to  re-lease  said  premises  at  the  expiration 
of  the  twenty  year  lease  he  shall  give  one  year  notice  in  writing, 
and  provides  that  this  contract  or  lease  shall  be  binding  upon 
the  heirs,  executors,  administrators,  successors  and  assigns  of  the 
parties  to  the  lease. 


54 


‘‘Exhibit  C” — Part  of  Said  Bill. 


Made  August  Slli,  1905,  l)etween  the  Canal  ( ominissioners  and 
Har.old  F.  Griswold,  recites  that  Griswold  has  made  application 
to  the  Canal  Commissioners  to  lease  the  right  of  the  state  to 
divert  the  waters  of  the  Kankakee  Eiver  into  the  Kankakee  feeder 
and  discharge  the  same  into  the  Desplaines  River  in  Section  31, 
Township  34  North,  Range  9 East  of  the  Third  P.  M.,  and  also 
the  right  of  the  state  to  reconstruct  the  dam,  the  property  of  the 
State  of  Illinois,  across  the  Kankakee  River  in  Section  9,  Town- 
ship 34  North,  Range  9 East,  and  the  right  of  the  state  to  repair 
the  branch  of  said  Kankakee  feeder  and  the  right  to  construct 
suitable  gates  to  control  the  discharge  of  said  waters  through  said 
feeder  and  recites : 

That  the  Atchison,  Topeka  & Santa  Fe  Railroad  Company 
and  the  Chicago  & Alton  Railway  Company,  have  made  separate 
fills  or  embankments  across  the  feeder  in  Section  9,  Township 
33  North,  Range  9 East,  with  the  permission  of  the  Canal  Com- 
missioners, and  are  now  using  the  same  as  a part  of  their  re- 
spective roadbeds  across  the  feeder. 

Therefore,  in  consideration  of  the  premises,  and  the  covenants 
hereinafter  set  forth,  the  application  of  said  Griswold  is  granted, 
and  the  Canal  Commissioners  doth  lease  to  said  party  of  the 
second  part  the  right  of  the  state  now  within  the  control  of 
the  Canal  Commissioners,  to-wit,  such  right  as  is  now  under  the 
control  of  the  Canal  Commissioners  to  divert  the  waters  of  the 
Kankakee  River  into  the  Kankakee  feeder,  and  discharge  the  same 
into  the  Desplaines  River  in  Section  31,  Township  34  North,  Range 
9 East,  together  with  such  right  of  the  state  as  is  now  under  the 
control  of  the  Canal  Commissioners  to  restore  and  reconstruct 
the  dam  across  the  Kankakee  River,  in  Section  9,  Township  33 
North,  Range  9,  but  in  such  restoration  the  crest  of  such  dam  shall 
not  be  higher  than  it  has  heretofore  been;  also  such  right  of  the 
state  as  is  within  the  control  of  the  Canal  Commissioners  to  con- 
struct suitable  gates  for  controlling  the  discharge  of  the  water, 
etc. ; and  such  right  of  the  Canal  Commissioners  as  they  now  have 
to  enter  upon  the  Kankakee  feeder  and  the  dam  in  connection 
therewith,  for  the  purpose  of  repairing  the  banks  of  said  feeder. 


76 


or  repairing  the  dam  across  said  Kankakee  Eiver,  or  the 

56  gates  at  each  end  of  said  feeder,  and  to  have  and  to  hold 
the  same  for  twenty  years  from  the  date  hereof,  subject 

to  the  rights  of  said  railroads  and  also  subject  to  the  provisions 
of  certain  leases  heretofore  made  to  Harold  F.  G-riswold  of  the 
City  of  Evanston,  and  Charles  A.  Munroe  of  the  City  of  Chicago^ 
both  of  the  County  of  Cook  and  State  of  Illinois. 

Consideration  for  said  rights  and  privileges  $150  per  year  ; and 
reserves  the  right  to  the  said  Griswold  to  cancel  the  lease  at  any 
time  at  his  option  after  five  years. 

Provides  for  restoring  the  dam  and  feeder  at  the  end  of  the 
lease  by  the  said  Griswold. 

57  Provides  that  the  said  Griswold  and  his  assigns  shall  pro- 
tect and  save  harmless  the  Canal  Commissioners  and  the  State 

of  Illinois  from  all  damages  growing  out  of  the  work  which  the 
said  Griswold  or  his  assigns  shall  or  may  do.  Also  provides 

58  for  the  giving  of  a bond  to  protect  the  Canal  Commissioners 
and  the  State  of  Illinois  against  all  damages  that  may  grow 

out  of  any  or  all  things  done,  or  attempted  to  be  done  by  the  said 
Griswold  or  his  assigns,  by  virtue  of  this  instrument. 

59  Further  provides  for  the  extending  of  this  lease  for  the 
further  period  of  twenty  years,  at  a rental  to  be  fixed  by  an 

appraisal.  Canal  Commissioners  reserve  the  right  to  cancel  this 
lease. 


62  ^‘Exhibit  D” — Part  of  Said  Bill. 

Request  of  the  Canal  Comimssioners  to  the  Governor  for  per- 
mission or  approval  for  the  sale  of  a tract  or  parcel  of  land 
in  Section  81,  Township  34  North,  of  Range  9 East  of  Third 
P.  M.,  which  lies  north  of  the  center  of  the  Hesplaines  River,  and 
south  of  the  90-foot  reserve  line  of  the  Illinois  and  Michigan 
Canal,  in  Will  County,  Illinois. 

64  ^‘Exhibit  E’’ — Part  of  Said  Bill. 

Approval  by  the  Governor  for  the  sale  of  the  tract  of  land 
above  mentioned. 


77 


65  ‘^Exhibit  F” — Part  of  Said  Bill. 

Certificate  of  publication  for  the  sale  of  the  land  above 

66  described.  The  published  notice  for  the  sale  of  the  lands 
above  described,  same  being  part  of  the  bill  of  complaint. 

68  ‘‘Exhibit  G” — Part  of  Said  Bill. 

Bequest  of  the  Canal  Commissioners  of  Illinois  to  the  Governor 
for  approval  of  the  sale  of  the  same  lands  hereinbefore  proposed 
to  be  sold. 

70  “Exhibit  H’’ — Part  of  Said  Bili^. 

Approval  of  the  Governor  of  such  sale. 

71  Notice  published  of  said  proposed  sale. 

72  “Exhibit  I’’ — Part  of  Said  Bill. 

Certificate  of  the  publication  of  said  notice. 

74  “Exhibit  J’’ — Part  of  Said  Bill. 

Deed  by  the  Canal  Commissioners  of  the  State  of  Illinois  to 
Harold  F.  Griswold,  of  the  lands  in  said  notice  described. 

76  “Exhibit  K” — Part  of  Said  Bill. 

Agreement  between  the  Canal  Commissioners  and  Harold  F. 
Griswold,  dated  September  2,  1904.  Agreement  for  the  right  to 
maintain  a pole  line  upon  the  lands  of  the  Illinois  and  Michigan 
Canal  from  Joliet  to  Morris.  Said  privilege  given  for  twenty 
years,  with  certain  conditions  set  forth  in  said  contract. 

80  “Exhibit  L” — Part  of  Said  Bill. 

Besolution  of  the  legislature  for  submitting  to  the  electors 
of  the  State  a proposition  to  amend  the  Constitution  of  the  State 
relating  to  the  canal,  and  which  provides  for  the  making  of  a 
deep  waterway  through  the  Desplaines  and  Illinois  Bivers  and 
disposition  of  the  power  that  may  be  generated  thereby. 


78 


82  ‘^Exhibit  M” — Paet  of  Said  Bill. 

Notice  to  tlie  Economy  Light  & Power  Company  by  W.  H. 
Stead,  Attornej^-General  for  the  State  of  Illinois,  commanding 
them  to  cease  and  desist  from  in  any  manner  infringing  upon, 
trespassing  upon,  or  interfering  with  the  lands  owned  by  the 
State  of  Illinois,  located  in  Township  34,  North,  Kange  8 East,  in 
Grundy  County,  Illinois,  by  the  erection  of  a dam  or  otherwise, 
and  to  cease  and  desist  from  in  any  way  obstructing  the  Des- 
plaines  or  Illinois  Eivers  in  said  Section,  or  elsewhere,  and  com- 
manding them  to  remove  all  obstructions  that  may  have  been 
placed  upon  said  premises,  whether  the  same  be  in  the  bed  of 
the  Desplaines  Eiver  or  otherwise,  and  dated  December  12,  1907, 
and  the  receipt  by  said  Economy  Light  & Power  Company  of  said 
notice. 

83  Notice  to  the  defendant  of  application  for  injunction. 

85  Summons. 

87  Writ  of  injunction,  enjoining  the  Economy  Light  & Power 
Comx)any  and  commanding  it  to  absolutely  desist  and  re- 
frain from  erecting  a dam  across  the  Desplaines  Eiver  and  across 
the  90-foot  strip  of  land  adjoining  the  water  course  of  the  Illinois 
and  Michigan  Canal  on  the  site  thereof,  next  to  the  Desplaines 
Eiver,  and  across  the  lands  outside  of  the  meander  line  of  the 
Desplaines  Eiver,  and  from  causing  the  water  of  the  Desplaines 
Eiver  to  be  backed  up  and  to  overflow  the  lands  belonging  to  the 
State  of  Illinois,  and  from  permitting  the  obstructions  already 
placed  in  said  Desplaines  Eiver,  and  on  said  90-foot  strip  of  land, 
and  on  said  land  outside  of  the.  meander  line  of  the  Desplaines 
Eiver  l)y  the  Economy  Light  and  Power  Company,  all  located  in 
and  on  the  southeast  quarter  of  Section  No.  25,  in  Township  No. 
34  North,  Eange  No.  8,  East  of  the  Third  P.  M.  in  Grundy  County, 
Illinois,  to  remain  therein  and  thereon,  provided,  that  the  defend- 
ant may,  and  is  permitted,  to  protect  the  work  and  machinery 
now  on  the  ground,  without,  however,  extending  or  increasing  the 
work  already  done,  until  this  Honorable  Court,  in  chancery  sit- 
ting, shall  make  other  order  to  the  contrary. 

89  Eeturn  of  the  sheriff  serving  said  writ. 


79 


90  Appearance  of  tlie  Economy  Light  & Power  Company  en- 
tered, and  the  appearance  of  its  solicitors,  Isham,  Lincoln  & 
Beale,  and  Scott,  Bancroft  & Stephens. 

91  Appearance  of  W.  H.  Stead,  Attorney  General  of  the  State 
of  Illinois,  and  Walter  Reeves  and  Merritt  Starr  as  counsel 
for  complainant. 

92  The  answer  in  words  and  figures  following: 

92  In  the  Circuit  Court  of  Grundy  County,  Illinois. 

People  of  the  State  of  Illinois  on  the  re-  "" 
lation  of  Charles  S.  Deneen,  Governor  of 
said  State,  > 

vs. 

Economy  Light  & Power  Company. 

THE  ANSWER 

or  ECONOMY  LIGHT  & POWER  COMPANY,  DEFENDANT,  TO  THE  BILL  OF 
COMPLAINT  OF  THE  PEOPLE.  OF  THE  STATE  OF  ILLINOIS  ON  THE  RELA- 
TION OF  CHARLES  S.  DENEEN,  GOVERNOR  OF  SAID  STATE,  COMPLAINANT. 


This  defendant,  reserving  to  itself  all  right  of  exception  to  the 
said  bill  of  complaint,  for  answer  thereto  says  : 

That  as  to  so  much  and  such  parts  of  said  hill  as  allege  that 
the  title  to  the  lands  lying  without  the  alleged  meander  lines  of 
Despl nines  River  through  section  25,  township  34  north,  range  8, 
east  of  the  third  principal  meridian,  in  Grundy  County,  Illi- 
93  nois,  and  the  lands  lying  in  the  bed  of  the  stream  of  said  I)es- 
plaines  River,  through  said  section  25,  is  in  the  State  of  Illi- 
nois, this  defendant  avers  that  the  People  of  the  State  of  Illinois 
upon  the  relation  of  Charles  S.  Deneen  as  Governor  of  the  State 
of  Illinois,  are  not  the  proper  parties  to  exhibit  said  bill,  and  this 
defendant  avers  that  if  said  lands  have  not  been  alienated  by  the 
State  of  Illinois  they  remain  a part  of  the  canal  lands,  and 
93  under  section  9 of  the  Act  of  the  Legislature  of  the  State 
of  Illinois,  entitled  ^‘An  Act  to  revise  the  law  in  relation  to 
the  Illinois  and  Michigan  Canal  and  for  the  improvement  of  the 
Illinois  and  Little  Wabash  Rivers,”  approved  Atarch  27,  1874, 
in  force  July  1,  1874,  it  is  made  the  duty  of  the  Canal  Commis- 


80 


sioners  of  the  Illinois  and  Michigan  Canal  ‘^to  take  all  necessary 
proceedings  on  behalf  of  the  State  to  establish  the  title  of  the 
State  and  to  recover  possession  of  any  canal  lands  or  real  estate 
owned  by  the  State  which  may  be  claimed  by  or  be  in  the  ad- 
verse possession  of  another  person  or  party,”  and  they  are  there- 
hy  directed  ‘‘when  necessary  for  that  purpose,  to  cause  appropri- 
ate suits  in  the  name  of  the  People  of  the  State  of  Illinois  to  be 
instituted  and  prosecuted  therefor.”  And  this  defendant  avers 
that  if  the  title  to  said  lands  outside  of  the  alleged  meander 
lines  along  the  said  Desplaines  Kiver  and  in  the  bed  thereof  re- 
mains in  the  State,  it  only  so  remains  in  the  State  in  trust  for 
canal  purposes  and  the  Canal  Commissioners  of  the  Illinois  and 
Michigan  Canal  are  the  proper  parties  to  cause  said  suit  to  be 
]>r ought  and  to  control  the  same,  and  that  the  Attorney  General  of 
said  State  upon  the  relation  of  Charles  S.  Deneen,  the  Governor 
thereof,  or  otherwise,  has  no  right,  power  or  authority  to  institute 
or  prosecute  this  suit  wdthout  the  express  consent  and  direction 
of  the  Canal  Commissioners  of  the  Illinois  and  Michigan  Canal; 

and  said  bill  does  not  show  that  it  is  exhibited  by  or  with  the 
94  authority  of  said  Canal  Commissioners,  but,  on  the  contrary 
thereof,  shows  that  it  is  not  exhibited  by  or  with  their 
authority.  And  this  defendant  as  to  so  much  of  said  bill  as  alleges 
title  to  said  lands  outside  of  the  meander  lines  along  said  Des- 
plaines River,  and  in  the  bed  of  the  stream,  through  section  25,  to 
be  in  the  State  of  Illinois,  avers  that  there  is  a lack  of  proper  par- 
ties complainant,  and  a lack  of  power  or  authority  in  the  Attor- 
ney General  of  the  State  of  Illinois  to  institute  or  prosecute  said 
suit,  and  it  prays  the  same  advantages  of  this  answer  as  if  it  had 
demurred  to  such  parts  of  said  bill  upon  the  ground  of  want  of 
proper  parties,  and  lack  of  power  or  authority  in  the  Attorney 
General  of  said  State  to  institute  or  prosecute  said  suit. 

And  as  to  so  much  and  such  parts  of  said  bill  as  charge  that 
this  defendant  is  a trespasser  upon  such  lands,  this  defendant 
avers  that  said  Attorney  General  has  no  right,  power  or  author- 
ity to  exhibit  or  maintain  said  bill  in  the  name  of  the  People  of 
the  State  of  Illinois  upon  the  relation  of  Charles  S.  Deneen,  the 
Governor  of  said  State,  or  otherwise,  but  defendant  avers  that 


81 


by  virtue  of  the  third  clause  of  section  nine  of  said  Act  of 
March  27,  1874,  entitled  '‘An  Act  to  revise  the  law  in  relation  to 
the  Illinois  and  Michigan  Canal  and  for  the  improvement  of  the 
Illinois  and  Little  Wabash  Rivers,”  the  power  and  authority  to 
cause  suits  to  be  commenced  and  prosecuted  against  persons 
trespassing  upon  canal  lands  belonging  to  the  State  of  Illi- 
nois is  vested  in  the  Canal  Commissioners  of  the  Illinois  and 
Michigan  Canal,  and  said  bill  does  not  show  that  it  is  exhibited 
by  said  Attorney  General  by  or  with  the  authority  or  consent 
of  said  Canal  Commissioners,  but,  on  the  contrary  thereof, 
95  shows  said  bill  is  not  exhibited  with  their  authority,  and  this 
defendant,  as  to  so  much  and  such  parts  of  said  bill  as 
charge  that  this  defendant  is  a trespasser  upon  the  canal  lands  of 
the  State,  avers  that  the  Attorney  General  of  the  State  of  Illinois 
has  no  lawful  authority  to  exhibit  said  bill  either  in  the  name  of 
the  People  of  the  State  of  Illinois  upon  the  relation  of  Charles 
S.  Deneen,  Governor  thereof,  or  otherwise;  and  this  defendant 
prays  the  same  benefit  of  this  defense  as  if  it  had  pleaded  or  de- 
murred to  such  parts  of  said  bill  upon  that  ground. 

This  defendant  further  avers  that  by  the  eiglith  section  of  said 
Act  of  March  27,  1874,  revising  the  law  in  relation  to  the  Illinois 
and  Michigan  Canal,  etc.,  said  Canal  Commissioners  are  given  the 
control  and  management  of  the  Illinois  and  Michigan  Canal,  in- 
cluding its  feeders,  basins  and  appurtenances  and  the  property 
thereto  belonging  and  that  by  the  eighth  clause  of  said  section  8 
there  is  vested  in  the  Canal  Commissioners  of  the  Illinois  and 
Michigan  Canal  full  power  and  authority  to  lease  canal  lands  or 
lots  owned  by  the  State,  to  sell  and  convey  any  canal  lands  or  lots 
owned  by  the  State,  whenever  in  their  judgment  the  interest  of 
the  State  would  be  promoted  thereby,  and  by  section  3 of  said 
Act  it  is  provided  that  suit  may  be  prosecuted  by  them  in  the  name 
of  "The  Canal  Commissioners”;  and  defendant  avers  that  if  the 
flowage  contract  and  lease,  dated  the  2nd  day  of  Septem- 
ber, 1904,  Exhibits  A and  B,  and  the  contract  of  August  8, 
1905,  Exhibit  C,  and  the  deed  of  January  6,  1905,  Exhibit  J, 
lo  said  bill,  or  any  or  either  of  them,  are  void,  the  Canal  Commis- 
sioners are  the  proper  parties,  and  the  only  parties,  who  can  main- 


tain  an  action  to  set  aside  said  contracts,  lease  and  deed,  or  any 

96  or  either  of  them,  and  that  the  Attorney  General  of  the  State 
of  Illinois  on  the  relation  of  Charles  S.  Deneen,  the  Governor 

of  said  State,  or  otherwise,  has  no  power  or  authority  to  bring 
or  maintain  said  action,  but  that  any  suit  to  set  aside  said  con- 
tracts, leases  and  deeds  can  only  be  prosecuted  by  said  Commis- 
sioners in  the  name  of  the  Canal  Commissioners  of  the  Illinois 
and  Michigan  Canal;  and  said  bill  does  not  show  that  it  is  ex- 
hibited by  or  with  the  authority  of  said  Canal  Commissioners  of 
the  Illinois  and  Michigan  Canal,  but,  on  the  contrary  thereof, 
shows  that  it  is  not  exhibited  by  or  with  their  authority;  and  this 
defendant  prays  the  same  benefit  of  4his  defense  as  if  it  had 
specifically  pleaded  or  demurred  to  so  much  and  such  parts  of 
said  bill  as  seek  to  have  said  contracts,  leases  and  deeds  declared 
null  and  void,  for  want  of  proper  parties  complainant,  and  for 
lack  of  power  or  authority  in  the  said  Attorney  General  to  insti- 
tute or  prosecute  said  suit. 

Defendant  avers  that  as  to  so  much  of  said  bill  as  alleges  that 
the  said  contracts,  leases  and  deeds  thereto  attached,  are  null 
and  void,  the  complainant  has  a complete  and  adequate  remedy 
at  law,  and  is  not  entitled  to  any  relief  from  a court  of  equity 
and  the  defendant  prays  the  same  benefit  of  said  defense  as  if  it 
had  pleaded  or  demurred  to  said  bill  of  complaint  therefor. 

This  defendant  avers  that  said  bill  shows  that  the  land  outside 
of  the  alleged  meander  lines  of  the  Desplaines  Diver  in  Section  25, 
Township  34  North,  Kange  8,  East  of  the  Third  Principal  Meridian, 
in  Grundy  County,  Illinois,  and  in  the  bed  of  said  river  in  said 
Section  25;  and  also  that  part  of  Section  31,  Township 

97  34  North,  Eange  9 East  of  the  Third  Principal  Meri- 
dian, in  Will  County,  Illinois,  lying  southwest  and  south- 
east of  the  Illinois  and  Michigan  Canal  and  northeast  and 
northwest  of  the  Desplaines  Diver  (excepting  a strip  of  land  90 
feet  in  width  on  the  southerly  side  of  said  canal)  are  in  the  posses- 
sion of  this  defendant  under  bona  fide  claim  of  title  thereto  de- 
duced from  the  State  of  Illinois,  and  defendant  avers  that  so  much 
of  said  bill  as  alleges  that  the  title  to  said  lands  is  in  the  State  of 
Illinois,  and  that  the  defendant  is  a trespasser  thereon,  involves 
the  question  of  the  title  to  said  lands,  which  may  be  tried  and  de- 


8:>> 

termined  at  law,  and  witli  respeet  to  which  the  complainant  has  a 
complete  and  adequate  remedy  at  law,  and  is  not  entitled  to  any 
relief  from  a court  of  equity,  and  as  to  which  the  defendant  is  en- 
titled to  a trial  by  jury  as  guaranteed  by  the  VII  amendment  to  the 
Constitution  of  the  United  States  and  by  Section  5 of  Article  II  of 
the  Constitution  of  the  State  of  Illinois;  and  this  defendant  i)rays 
the  same  benefit  of  this  defense  as  if  it  had  pleaded  or  demurred  to 
so  much  of  said  bill  of  complaint  as  seeks  to  adjudicate  the  ques- 
tion of  the  title  to  such  lands. 

And  this  defendant  further  avers  that  by  virtue  of  Section  35  of 
Chapter  45  of  the  Revised  Statutes  of  the  State  of  Illinois  this  de- 
fendant is  entitled  to  have  its  claim  of  title  determined  in  two  sep- 
arate trials  before  two  separate  juries,  and  defendant  prays  the 
same  benefit  of  this  defense  as  if  it  had  demurred  or  pleaded  the 
same  in  bar  to  said  bill  of  complaint. 

This  defendant  avers  that  said  bill  is  an  attempt  to  take  the  prop- 
erty of  this  defendant  for  public  purposes,  and  that  by  virtue 
98  of  Section  14  of  Article  XI  of  the  Constitution  of  Illinois,  this 
defendant  is  entitled  to  have  its  compensation  for  the  prop- 
erty sought  to  be  taken,  fixed  by  a trial  by  jury,  and  it  prays  the 
same  benefit  of  this  defense  as  if  it  had  pleaded  or  demurred  to 
said  bill  on  that  ground. 

Defendant  further  avers  that  said  bill  is  multifarious  in  that  it 
joins  three  separate  and  distinct  causes  of  action : 

1st.  An  alleged  cause  of  action  in  which  the  state  claims  title  to 
certain  lands  in  fee  in  the  capacity  of  private  owner; 

j 

2nd.  An  alleged  cause  of  action  in  which  the  state  in  its  sover- 
eign political  capacity  seeks  to  assert  the  rights  of  the  public  in  an 
alleged  public  highway ; and 

3rd.  An  alleged  cause  of  action  in  which  the  state  in  its  capa- 
city as  private  owner  seeks  to  set  aside  certain  contracts,  deeds 
and  leases  which  it  claims  were  executed  by  the  Canal  Commission- 
ers of  the  State  of  Illinois  without  authority. 

And  this  defendant  prays  the  same  advantage  of  this  answer 
as  if  it  had  demurred  to  said  bill  on  the  ground  of  multifarious- 
ness. 

This  defendant  further  says  that  the  deed,  leases  and  contracts 


84 


mentioned  in  said  bill,  if  voidable,  could  only  be  set  aside  upon 
restitution  to  this  defendant  of  the  consideration  paid  therefor  by 
Harold  F.  Griswold,  but  the  people  do  not  in  their  said  bill  offer 
to  return  the  said  consideration. 

This  defendant  admits  that,  in  the  early  history  of  our  country 
a certain  territory  embracing  what  is  now  the  States  of  Ohio,  Indi- 
ana, Michigan  and  Wisconsin,  was  claimed  to  be  owned  by  Vir- 
ginia. 

99  Admits  that  by  certain  acts  of  the  legislature  of  Virginia, 
and  by  its  deed  of  cession,  said  territory  was  conveyed  to  the 

United  States,  as  is  alleged  in  the  second  paragraph  of  said  bill, 
and  that  on,  to-wit,  the  13th  day  of  July,  1787,  the  Congress  of  the 
United  States  then  existing  under  the  articles  of  Confederation, 
enacted  the  ordinance  commonly  known  as  the  ordinance  of  1787. 

Admits  that  Section  14  of  said  ordinance  provided  that  the 
Articles  therein  should  be  considered  as  articles  of  compact  be- 
tween the  original  states  and  the  people  and  states  in  said  territory, 
and  should  forever  remain  unalteraable,  unless  by  common  consent, 
and  admits  that  Article  IV  provided  that  ‘Uhe  navigable  waters 
leading  into  the  Mississippi  and  St.  Lawrence,  and  the  carrying 
places  between  the  same,  shall  be  common  highways,  and  forever, 
free,  * * * without  any  tax,  impost  or  duty  therefor,’’  and 

this  defendant  avers  that  it  was  also  provided  in  said  ordinance, 
in  the  fifth  article  thereof,  that  the  states  thereafter  to  be  formed 
out  of  said  territory  should  be  admitted  into  the  Congress  of  the 
United  States  ‘‘on  an  equal  footing  with  the  original  states,  in  all 
respects  whatever.” 

Admits  that  on  the  18th  day  of  May,  1796,  Congress  passed  an 
act  entitled  ‘‘An  act  providing  for  the  sale  of  lands  of  the  United 
States  in  the  Territory  Northwest  of  the  Kiver  Ohio  and  above 
the  mouth  of  the  Kentucky  Eiver,”  and  admits  that  Section  9 of 
said  act  provided  that  ‘‘all  navigable  rivers  within  the  territory 
to  be  disposed  of  by  virtue  of  this  act  shall  be  deemed  to  be  and 
remain  public  highways.” 

100  But  this  defendant  alleges  that  said  act,  by  the  i)rovisions 
thereof,  did  not  relate  to  or  affect  the  land  in  controversy 

in  this  bill,  and  that  said  act  is  wholly  immaterial,  irrelevant  and 


85 


impertinent  to  the  issues  sought  to  be  raised  by  said  bill,  and  to 
the  relief  prayed  therein,  and  defendant  prays  the  same  benefit  of 
this  answer  as  if  it  had  excepted  or  demurred  to  such  portion  of 
said  bill  upon  those  grounds. 

Defendant  admits  the  organization  of  Indiana  Territory  as  al- 
leged in  said  bill. 

Defendant  further  admits  that  on  the  26th  day  of  March,  1804, 
Congress  passed  a statute  entitled  ^‘An  act  making  ])rovision  for 
the  disposal  of  the  public  lands  in  the  Indiana  Territory  and  for 
other  purposes,”  and  that  by  Section  6 thereof  it  was  provided  that 
‘Cill  the  navigable  rivers,  creeks  and  waters  within  the  Indiana 
Territory  shall  be  deemed  and  remain  public  highways.” 

This  defendant  admits  that  Congress,  by  its  act  of  February  3, 
1809,  entitled  ‘C\n  act  for  dividing  the  Indiana  Territory  into  two 
separate  Governments,”  provided  that  that  portion  of  Indiana  Ter- 
iliory  which  now  comprises  the  State  of  Illinois,  for  the  purpose 
of  temporary  government,  should  constitute  a separate  territory 
to  be  called  Illinois,  and  admits  that  it  was  provided  in  said  act 
that  there  should  be  established  within  such  territory  a government 
in  all  respects  similar  to  that  provided  by  the  ordinance  of  1787, 
and  that  the  inhabitants  thereof  should  be  entitled  to  and  enjoy 
all  the  rights,  privileges  and  advantages  granted  and  secured  to 
the  people  of  the  territory  of  the  United  States  northwest  of  the 
River  Ohio  by  said  ordinance. 

101  Defendant  further  admits  that  on  the  18th  of  April,  1818, 
Congress  enacted  a statute  to  enable  the  people  of  Illinois 
to  form  a constitution  and  state  government,  and  for  the  admis- 
sion of  said  state  into  the  Union  on  an  equal  footing  with  the 
original  states,  and  that  said  statute  provided  that  said  gov- 
ernment should  be  republican,  and  not  repugnant  to  the  ordinance 
of  1787. 

Defendant  further  admits  that  the  people  of  the  Illinois  Ter- 
idtory  adopted  a constitution  known  as  the  constitution  of  1818, 
the  preamble  of  which  recited  that  the  people  of  the  Illinois 
Territory,  having  the  right  of  admission  into  the  general  gov- 
ernment as  a member  of  the  Union,  consistent  with  the  Consti- 
tution of  the  United  States,  the  ordinance  of  Congress  of  1787,  and 


8G 


the  law  of  Congress  approved  April  18,  1818,  entitled  ‘‘An  act 
to  enable  the  people  of  the  Illinois  Territory  to  form  a constitu- 
tion and  state  government,  and  for  the  admission  of  such  state 
into  the  Union  on  an  equal  footing  with  the  original  states,”  did 
agree  to  form  themselves  into  a free  and  independent  state. 

Defendant  further  admits  that  on  December  3,  1818,  the  Con- 
gress adopted  a resolution  declaring  the  admission  of  the  State 
of  Illinois  into  the  Union,  and  that  said  resolution  declared, 
among  other  things,  that  the 

“constitution  and  state  government,  so  formed,  is  repub- 
lican, and  in  conformity  to  the  principles  of  the  articles  of 
compact  between  the  original  states  and  the  people  and  the 
states  in  the  Territory  Northwest  of  the  Eiver  Ohio,  passed 
on  the  13th  day  of  July,  1787.” 

102  And  this  defendant  avers  that  the  second  section  of  said 
resolution  declared  that  the  State  of  Illinois  should  be  one  of 
the  United  States  of  America  “and  admitted  into  the  Union  on 
an  equal  footing  with  the  original  states,  in  all  respects  what- 
ever,” and  defendant  avers  that  upon  admission  of  the  State  of 
Illinois  into  the  Union  said  ordinance  of  1787  ceased  to  have, 
has  not  since  had,  and  has  not  now,  any  operative  force  within 
her  territory. 

This  defendant  further  admits  that  the  Elver  Desplaines  is 
situated  in  said  territory,  but  denies  that  it  flows  a distance  of 
96  miles  through  the  Counties  of  Lake,  Cook,  Will  and  Gfrundy  in 
Illinois. 

This  defendant  further  admits  the  allegations  in  paragraph 
III  of  said  bill  relating  to  the  Kankakee  Eiver,  but  this  de- 
fendant alleges  that  the  allegations  concerning  the  Kankakee 
River  are  wholly  immaterial,  irrelevant  and  impertinent  to  the 
questions  sought  to  be  raised  by  said  bill  and  the  relief  prayed 
thereby,  and  defendant  prays  the  same  benefit  of  this  answer  as 
if  it  had  pleaded  or  demurred  thereto  upon  such  grounds. 

Defendant  admits  that  the  Desplaines  River  is  wholly  within 
the  territory  originally  comprising  what  was  known  as  the  North- 
west Territory,  but  denies  that  said  river  is  subject  to  the  pro- 
visions of  the  acts  of  Congress  set  forth  in  the  bill. 

Further  answering,  this  defendant  denies  that  it  is  shown  by 


87 


the  history  of  tlie  explorations  and  discoveries  of  the  territory 
in  what  is  now  the  northern  part  of  Illinois,  or  otherwise,  that 
at  the  time  of  the  ex])lorations  and  discoveries,  or  at  any  other 
time,  the  Desplaines  liiver  was  navigable  from  a point  near 

103  where  is  now  situated  the  City  of  (Chicago,  or  from  any 
other  point,  to  the  mouth  of  said'  Desplaines  in  what  is  now 

Grundy  County,  or  to  any  other  j)oint;  and  this  defendant  fur- 
ther denies  that  by  the  same  history,  dr  otherwise,  it  is  shown 
that  the  portion  of  the  Desplaines  Kiver  last  above  mentioned 
was  used  in  the  early  period  of  tlie  State  of  Illinois  as  a highway 
for  commercial  purposes,  and  denies  that  commerce  was  car- 
ried on  over  said  river,  and  denies  that  connection  was  made 
with  the  Chicago  Eiver  by  a short  portage  between  the  two  rivers 
near  the  site  of  what  is  now  the  City  of  Chicago,  and  denies  that  it 
was  in  use  as  a highway  of  commerce  leading  from  Lake  Michigan 
and  the  waters  emptying  into  the  St.  Lawrence,  on  the  one  hand, 
to  the  Illinois  Kiver,  and  the  waters  of  the  Mississippi  on  the 
other  hand,  thenceforward  from  the  time  of  said  first  use,  or  from 
any  time,  up  to  and  at  the  time  when  the  said  ordinance 
of  1787  and  the  several  acts  of  Congress  were  respectively  enacted. 

This  defendant  further  answering  denies  that  the  State  of  Il- 
linois by  and  through  its  legislature  and  in  obedience  to  the  sev- 
eral acts  of  Congress  set  forth  in  said  bill,  or  otherwise,  assumed 
or  took  charge  of  the  said  Desplaines  River,  but  admits  that  the 
State  of  Illinois  did  by  a certain  act  mentioned  in  said  bill,  purport 
to  authorize  the  building  of  a toll  bridge  across  the  Desplaines 
River  on  the  northeast  quarter  of  section  11,  township  39  north, 
range  12,  east  of  the  third  principal  meridian,  and  the  southeast 
quarter  of  section  2 in  said  town  and  range,  but  denies  that  said 
act  authorized  the  construction  of  two  bridges,  and  avers  that 

104  said  act  was  not  passed  by  virtue  of  or  as  a recognition  of, 
any  power  of  the  state  over  said  river,  but  merely  to  confer 

upon  the  persons  therein  mentioned  the  franchise  to  collect  toll 
for  traffic  over  such  bridge,  and  avers  that  the  place  where  said 
bridge  was  so  authorized  to  be  located,  and  was  located,  was  not 
in  that  part  of  the  river  involved  in  this  case,  but  was  near  the 
Village  of  River  Forest  in  Cook  County  on  that  part  of  said  Des- 
plaines River  which  was  declared  navigable  by  the  Legislature  of 


88 


Illinois  by  its  act  of  February  28,  1839,  entitled  ‘‘An  act  declaring 
the  Desplaines  River  a navigable  stream.’’ 

And  admits  that  afterwards  the  legislature  of  the  State  of  Illi- 
nois passed  an  act  entitled  “An  act  to  amend  the  several  laws  in 
relation  to  the  Illinois  & Michigan  Canal,”  in  force  February  26, 
1839,  but  denies  that  sub-section  9 of  section  2 thereof  provided 

“that  no  stream  of  water  passing  through  the  canal  lands 
sKall  pass,  by  the  sale,  so  as  to  deprive  the  state  from  the 
use  of  such  water,  if  necessary  to  supply  the  canal,  without 
charge  for  the  same.” 

And  denies  that  sub-section  11  of  said  act  provided  that 

“lands  situated  upon  streams  which  have  been  meandered 
by  the  surveys  of  public  lands  by  the  United  States  shall  be 
considered  as  bounded  by  the  lines  of  those  surveys  and  not 
by  the  streams,” 

but  defendant  avers  that  it  was  provided  in  section  2 of  said  act 
that  in  all  sales  of  lands  and  lots  under  the  provisions  of  said  act 
certain  conditions  should  be  annexed,  and  should  compose  a part 
of  the  contract,  which  conditions  included  the  conditions  set  forth 
in  sub-sections  9 and  11  of  said  section  2 above  quoted. 

And  defendant  avers  that  said  bill  does  not  allege  that  the  use 
of  any  of  the  water  of  any  stream  passing  through  the  lands  de- 
scribed in  said  bill  is  necessary  for  the  use  of  such  canal;  but 
105  defendant  alleges  that  on  the  contrary  thereof  the  use  of  such 
water  is  not  necessary  to  supply  the  said  canal,  and  that  the 
said  Canal  Commissioners  do  not  need  or  desire  said  waters  for 
canal  purposes ; and  defendant  avers  that  if  the  use  of  such  water 
was  necessary  to  supply  the  canal,  the  Canal  Commissioners  would 
be  the  proper  parties  to  take  such  steps  as  might  be  necessary  to 
obtain  such  water,  and  that  the  people  of  the  State  of  Illinois  by 
their  Attorney  General,  upon  the  relation  of  Charles  S.  Deneen, 
their  Governor,  or  otherwise,  have  no  authority  to  bring  or  main- 
tain any  suit  for  the  purpose  of  acquiring  the  waters  of  such 
streams  for  such  purposes  or  otherwise. 

And  defendant  denies  that  the  lands  of  the  Desplaines  River 
were  meandered  by  the  survey  of  the  United  States. 

Defendant  avers  that  section  2 of  said  act  of  February  26,  1839, 
and  sub-sections  9 and  11  of  section  2,  by  the  express  terms  there- 


89 


of,  only  apply  to  sales  by  the  Canal  Commissioners  of  lands  and 
lots  theretofore  authorized  to  be  sold. 

And  this  defendant  avers  that  by  the  provisions  of  an  act  of  the 
Legislature  of  the  State  of  Illinois  passed  and  in  force  February 
21,  1843,  entitled  ^‘An  act  to  provide  for  the  completion  of  the 
Illinois  and  Michigan  Canal,  and  for  the  payment  of  tlie  canal 
debt,”  granting  to  the  Board  of  Trustees  of  the  Illinois  and  Michi- 
gan Canal,  the  canal  and  canal  lands,  it  was  provided  in  section 
18  thereof,  that  when  said  act  should  go  into  effect,  so  much  of  the 
acts  thertofore  passed  by  the  Legislature  of  said  State  in  relation 
to  the  Illinois  and  Michigan  Canal,  and  the  canal  lands  and 
106  property,  as  conflicted  with  the  provisions  of  that  act,  were 
thereby  repealed;  and  this  defendant  avers  that  said  sub-sec- 
tions 9 and  11  of  section  2 of  the  said  act  of  1839  were  in  conflict 
with  the  provisions  of  said  act  of  February  21,  1843,  and  were 
thereby  repealed. 

And  this  defendant  avers  that  by  section  13  of  said  act  of  Febru- 
ary 21,  1843,  it  was  provided  that  sales  of  lands  should  be  made 
in  the  manner  prescribed  in  the  act  of  the  9th  of  January,  1836, 
and  this  defendant  avers  that  no  such  provisions  as  were  contained 
in  sub-sections  9 and  11  of  section  2 of  the  act  of  1839  were  con- 
tained in  said  act  of  1836. 

This  defendant  further  answering,  admits  that  the  Legislature 
of  Illinois,  by  an  act  approved  and  in  force  February  28,  1839,  de- 
clared the  Desplaines  River  from  the  point  where  it  most  nearly 
connects  itself  with  the  Illinois  and  Michigan  Canal,  to  its  source 
within  the  boundaries  of  said  State,  a navigable  stream,  and  de- 
clared that  it  should  be  deemed  and  held  a public  highway  and 
should  be  and  remain,  free,  open  and  unobstructed,  from  said  point 
of  connection  with  said  canal  to  its  utmost  limits  within  said  state 
for  the  passage  of  all  boats  and  water-craft  of  every  description. 

And  this  defendant  avers  that  said  river  was  not  in  fact  navi- 
gable through  the  course  described,  or  any  portion  thereof,  and 
denies  that  the  Legislature  of  said  State  could  by  its  enactment 
impart  to  said  stream  the  character  of  navigability  which  it  lacked 
before  the  passage  of  said  act;  and  defendant  avers  that  said 
declaration  was  a recognition  by  the  Legislature  of  the  State  of 


90 


Illinois  tliat  said  Desplaines  Biver  from  tlie  point  where  said 

107  river  most  nearly  connects  itself  with  said  canal  to  its  mouth 
was  not  navigable  and  defendant  avers  that  the  point  where 

it  is  constructing  its  said  dam  is  in  that  part  of  said  river. 

And  this  defendant,  further  answering,  admits  that  the  Legis- 
lature of  the  State  of  Illinois,  by  act  of  March  3,  1815,  authorized 
Stephen  Forbes  to  construct  a dam  across  the  Desplaines  Biver 
in  Cook  County  on  the  southwest  quarter  of  section  36,  township 
39  north,  range  12  east,  and  on  the  northeast  quarter  of  section  2, 
township  38  north,  range  12,  east,  in  Cook  County,  Illinois;  and 
that  said  statute  contained  the  proviso : 

^‘That  this  act  shall  not  operate  to  prevent  the  State  from 
improving  said  river  by  dams  or  from  using  the  water  in  said 
river  for  the  Illinois  and  Michigan  Canal  at  any  time  here- 
after, or  for  any  other  j)urpose’’; 

and  this  defendant  alleges  on  information  and  belief  that  said 
Stephen  Forbes  did,  pursuant  to  this  act,  and  on  or  about  the 
year  1866,  construct  a dam  across  said  Desplaines  Biver  on  sec- 
tion 2,  in  township  38  north  of  range  12,  east,  and  section  35,  town- 
ship 39  north  of  range  12  east,  without  any  provision  therein 
for  the  passage  of  boats,  and  he  and  his  grantees  and  successors 
in  title  or  interest  have  maintained  said  dam  ever  since,  without 
any  provision  therein  for  the  passage  of  boats,  and  that  no  boats 
ever  could  or  did  pass  said  dam,  from  the  date  of  the  construction 
thereof  down  to  the  present  time;  and  this  defendant  alleges  that 
the  place  where  said  dam  was  authorized  to  be  constructed,  and 
was  so  constructed,  was  in  that  part  of  said  Desplaines  Biver  which 
had  theretofore  been  declared  a navigable  stream  by  the  Legis- 
lature of  Illinois;  and  that  said  act,  authorizing  the  construction 
of  said  dam  by  said  Stephen  Forbes,  and  the  construction  of  said 
dam  were  inconsistent  with  the  use  of  said  stream  for  the  pur- 
poses of  navigation,  and  that  the  said  dam  so  constructed  by 

108  said  Forbes  would  have  completely  prevented  the  navigation 
of  said  stream  if  said  stream  had  in  fact  been  navigable. 

This  defendant  further  admits  that  the  Legislature  of  the  State 
of  Illinois,  by  its  certain  law,  entitled  ‘LDi  act  authorizing  the 
building  of  a bridge  and  road  in  township  36  north,  range  10  east, 
in  Will  County,”  approved  and  in  force  February  12,  1849,  author- 


91 


ized  the  construction  of  a l)ridge  over  the  Des])laines  Kiver  at 
Lockport  in  Will  County,  hut  this  defendant  avers  that  said  act 
of  tlie  legislature  authorizing  the  construction  of  said  bridge  is 
inconsistent  with  the  use  of  said  stream  as  a navigable  stream,  and 
defendant  avers  that  the  olrject  of  said  act  was  to  provide  for  the 
submission  to  the  voters  of  said  township  d(i  of  the  (juestion  of 
levying  a tax  for  the  purpose  of  improving  the  road  from  the 
canal  bridge  in  the  town  of  Lockport  to  some  suitable  point  on 
the  opposite  blutf  and  constructing  a bridge  across  said  stream 
at  Lockport  upon  said  road,  and  not  for  the  pur})ose  of  authoriz- 
ing the  construction  of  a bridge  over  a navigable  stream. 

This  defendant  further  answering,  admits  that  the  Legislature 
of  the  State  of  Illinois,  by  its  certain  act  entitled  “An  act  to  create 
Sanitary  Districts,  and  to  remove  obstructions  in  the  Desplaines 
and  Illinois  Rivers,”  approved  May  29,  1889,  in  force  July  ],  1889, 
provided  as  is  set  out  in  said  bill,  and  admits  that  section  23  of 
said  act  provided  that  said  act  should  not  be  construed  to  author- 
ize the  injury  or  destruction  of  existing  wmter-power  rights. 

And  this  defendant  avers  that  the  water-power  rights  which' 
are  involved  in  this  cause  were  in  existence  at  the  date  of  the 
109  ])assage  of  said  act  and  have  since  been  acquired  by  this  de- 
fendant, and  that  said  act  not  only  does  not  furnish  the  com- 
plainant any  right  to  injure  or  destroy  said  right,  but,  on  the  con- 
trary thereof,  expressly  prohibits  the  injury  or  destruction  there- 
of. 

Defendant  further  admits  that  it  was  provided  in  section  24  of 
said  last  mentioned  act,  that  “whenever  the  general  government 
shall  improve  the  Desplaines  and  Illinois  Rivers  for  navigation, 
to  connect  with  this  channel,  said  general  government  shall  have 
full  control  over  the  same  for  navigation  purposes.” 

And  this  defendant  avers  tluit  said  section  24  is  a recognition 
by  the  Legislature  of  the  State  of  Illinois  that  the  Desplaines 
River  is  not  a navigable  stream. 

This  defendant  further  admits  that  the  Legislature  of  the  State 
of  Illinois,  on  May  14,  1903,  enacted  a certain  statute  entitled  “An 
act  in  relation  to  the  Sanitary  District  of  Chicago,”  etc.,  as  is  al- 
leged in  paragraph  IV  of  said  bill,  but  this  defendant  avers  that 


92 


said  act  of  May  14,  1903,  is  wholly  irrelevant,  immaterial  and  im- 
l)ertinent,  and  shows  no  right,  title  or  interest  on  the  part  of  the 
relator,  or  the  State  of  Illinois,  or  the  people  thereof,  in  or  to  the 
subject  matter  of  said  bill,  or  the  relief  prayed  therein,  and  de- 
fendant prays  the  same  benefit  of  this  answer  as  if  it  had  demurred 
therefor. 

This  defendant  further  answering,  admits  the  organization  of 
the  Sanitary  District  known  a^  the  Sanitary  District  of  Chicago, 
and  the  construction  of  the  channel  as  alleged  in  paragraph  IV  of 
said  bill,  but  alleges  that  said  fact  is  wlioly  immaterial,  irrelevant 
and  impertinent,  and  prays  the  same  advantage  of  this  answer  as 
if  it  had  demurred  therefor. 

110  Defendant  admits  that  afterwards  the  State  of  Ilinois  enact- 
ed a certain  statute,  approved  December  6,  1907,  and  entitled 
‘‘A  bill  for  an  act  recognizing  the  Desplaines  and  Illinois  Eivers 
as  navigable  streams,  and  to  prevent  obstructions  being  placed 
therein,  and  remove  obstructions  therein  now  existing.”  And  that 
setcion  1 of  said  act  provided: 

”Be  it  enacted  by  the  people  of  the  State  of  Illinois  repre- 
sented in  the  General  Assembly:  That  the  Des  Plianes  and 

Illinois  Rivers  throughout  their  courses  from  and  below  the 
water-power  plant  of  the  main  channel  of  the  Sanitary  Dis- 
trict of  Chicago  in  the  township  of  Lockport,  at  or  near  Lock- 
port,  in  the  County  of  Will,  are  hereby  recognized  as  and  are 
hereby  declared  to  be  navigable  streams;  and  it  is  made  the 
special  duty  of  the  governor  and  of  the  attorney  general  to 
prevent  the  erection  of  any  structure  in  or  accross  said  streams 
without  explicit  authority  from  the  general  assembly;  and  the 
governor  and  attorney  general  are  hereby  authorized  and  di- 
rected to  take  the  necessary  legal  action  or  actions  to  remove 
all  and  every  obstruction  now  existing  in  said  rivers,  that  in 
any  wise  interferes  with  the  intent  and  purpose  of  this  act,” 

But  this  defendant  alleges  that  so  much  of  said  act  as  declares 
the  rivers  mentioned  therein  to  be  navigable  streams,  is  uncon- 
stitutional and  of  no  effect,  inasmuch  as  the  power  to  adjudge  and 
declare  the  navigability  of  streams  is  vested  exclusively  in  the 
judiciary;  and  the  defendant  further  alleges  that  said  act  is  un- 
constitutional in  that: 

1st.  The  body  of  said  act  is  broader  than  the  title  thereof; 

2nd.  It  confers  upon  the  xVttorney  General  and  Governor  of  the 


state  of  Illinois  judicial  powers,  to  wit,  the  determination  of  what 
obstructions  interfere  with  the  intent  and  purpose  of  said  act; 

3rd.  It  deprives  this  defendant  of  its  i)i*operty  without  due 
process  of  law,  in  violation  of  the  14th  amendment  to  the  Consti- 
tution of  the  United  States  and  Section  2 of  Article  II  of  the  Con- 
stitution of  Illinois; 

4th.  It  denies  to  this  defendant  the  equal  protection  of  the 

111  laws  in  violation  of  the  14th  amendment  to  the  Constitution  of 
the  United  States; 

5th.  It  is  a taking  of  the  private  property  of  this  defendant 
without  just  compensation,  in  violation  of  Section  13  of  Article  II 
of  the  Constitution  of  Illinois; 

6th.  It  is  a special  law  laying  out  or  o])ening  a highway  in  vio- 
lation of  Section  22  of  Article  IV  of  the  Constitution  of  Illinois. 

7th.  It  is  a special  law  affecting  only  property  in  and  along 
the  Desplaines  Biver  and  not  affecting  other  property  similarly 
situated  upon  other  streams,  and  is  in  violation  of  Section  22  of 
Article  IV  of  the  Constitution  of  Illinois. 

This  defendant  admits  that  Charles  S.  Deneen  is  the  Governor 
referred  to  in  said  statute,  but  denies  that  he,  by  virtue  and  reason 
of  said  statute  and  the  direction  therein  contained,  or  by  virtue  of 
his  office  as  Governor  and  his  constitutional  duty  to  take  care 
that  the  laws  be  faithfully  executed,  or  otherwise,  has  a special, 
or  any,  interest  in  the  matters  therein  set  forth. 

Defendant  denies  that  the  Desplaines  Biver  has  from  the  time 
when  said  ordinance  of  1787  was  passed,  or  from  any  other  time, 
unto  the  present  time  or  unto  any  other  time,  formed  in  its  or- 
dinary condition  and  by  itself  to  the  extent  of  its  course,  or  other- 
wise, from  the  point  of  said  alleged  portage  and  connection  with 
the  Chicago  Biver,  or  from  any  other  point,  to  its  mouth  in  Grundy 
County,  or  to  any  point  or  extent,  a continued  highway  with  water 
in  sufficient  volume  and  of  sufficient  depth  to  afford  a channel  for 
navigable  and  commercial  purposes. 

112  This  defendant  denies  that  the  said  Desplaines  Biver  from 
near  the  City  of  Chicago  to  the  mouth  of  said  river  in  Grundy 

County,  or  from  any  point  to  any  other  point,  has  been  from  the 
earliest  knowledge  of  said  river  until  the  present  time,  or  at  any 


94 


time,  ill  law  or  in  fact  a navigable  river,  and  denies  that  tlie  sev- 
eral  acts  of  the  Legislature  recited  in  said  bill  of  complaint  show 
the  fact  so  to  be,  and  denies  that  it  is  a fact,  that  it  has  been, 
or  is  the  policy  of  the  State  to  hold  and  maintain  said  Desplaines 
Liver  to  be  a navigable  river,  and  denies  that  said  river  is  sub- 
ject to  the  provisions  of  the  several  acts  of  Congress  set  forth  in 
said  bill,  and  denies  that  by  reason  of  said  acts  the  said  Desplaines 
River  has  been,  or  still  continues  to  be,  a highway  of  commerce, 
or  that  it  is  preserved  for  the  use  of  the  people  of  the  State  of 
Illinois,  or  the  people  of  all  the  States  of  the  United  States,  as 
a public  highway;  denies  that  it  has  not  been  alienated,  and  de- 
nies that  the  people  of  the  State  of  Illinois  have  an  easement  over 
said  river  as  a public  highway  for  commerce,  or  otherwise,  or  that 
said  river  or  the  bed  and  waters  thereof  are  permanently,  or  other- 
wise, impressed  or  burdened  with  said  alleged  easement  or  with  a 
public  right  or  public  use  of  navigation,  or  otherwise,  but  this 
defendant  alleges  that  on  the  contrary  thereof  there  has  never  at 
any  time  been  any  navigation  on  said  river  of  any  kind  or  char- 
acter and  that  said  stream  from  its  source  to  its  mouth  through- 
out its  entire  course  is  in  fact  incapable  of  being  navigated. 

Defendant  avers  that  the  said  Desplaines  River  in  its  original 
or  natural  state  or  condition  had  not  sufficient  water  for  more  than 
fifteen  days  in  the  year  to  float  a canoe,  and  was  not  navigable 
113  in  fact  and  was  not  capable  of  being  navigated  for  purposes 
of  commerce;  that  there  never  has  been  any  navigation  of  said 
river  for  useful  or  commercial  purposes;  that  from  the  point  where 
the  said  river  crosses  the  state  line  between  Illinois  and  Vriscon- 
sin,  to  the  mouth  of  the  stream  said  stream  is  a series  of  pools 
and  shallows,  and  more  nearly  resenilhes  a brook  or  rivulet  than 
a river. 

Defendant  further  avers  that  from  Lockport  to  the  mouth  of 
the  Desplaines  River,  a distance  of  about  18  miles,  there  is  a fall 
of  90  feet,  an  average  of  5 feet  per  mile;  that  approximately  one- 
half  the  distance  is  composed  of  rapids  and  riffles;  that  between 
Lockport  and  Brandon’s  bridge,  a distance  of  7 miles,  there  is  a 
fall  of  34  feet,  or  about  4.6  feet  per  mile,  and  that  between  Jack- 
son  street  and  ^McDonough  street,  in  the  City  of  Joliet,  a distance 
of  5,000  feet,  there  is  a fall  of  9 feet, — an  average  of  1.8  feet  per 


thousand  feet  or  over  9.5  feet  per  mile;  and  from  McDonough 
street  to  Brandon’s  bridge,  a distance  of  2,000  feet,  tliere  is  a fall 
of  3.75  feet  or  9.9  feet  per  mile,  and  that  along  Treat’s  island, 
for  a distance  of  2,000  feet,  there  is  a fall  of  5.5  feet,  or  over  14.52 
feet  per  mile,  and  that  below  that  point,  at  a point  called  Smith’s 
bridge,  in  a distance  of  3,000  feet,  there  is  a fall  of  2 feet,  or  7.92 
feet  per  mile,  and  that  at  Dresden  Heights,  where  the  dam  of  this 
defendant  is  being  constrncted,  in  a distance  of  2,000  feet,  there 
is  a fall  of  3.2  feet  or  8.44  feet  per  mile;  that  from  Jackson  street, 
in  the  City  of  Joliet,  to  Brandon’s  road,  a little  over  2 miles,  in 
the  first  5,000  feet  there  is  a fall  of  9 feet,  in  the  next  2,000  feet 
there  is  a fall  of  3.75  feet;  in  the  next  2,000  feet  there  is  a fall 
114  of  5.5  feet,  and  in  the  next  3,000  feet  there  is  a fall  of  2 feet, 
making,  in  a distance  of  12,000  feet,  20.25  feet  fall,  or  an  aver- 
age of  8.91  feet  per  mile. 

And  defendant  further  avers  that  during  times  of  freshets  or 
high  water  which  usually  last  only  for  very  short  periods  varying 
from  one  day  to  two  weeks,  the  current  over  said  slopes  is  so  swift 
that  no  boats  could  descend  the  river  except  at  imminent  peril  to 
life  and  property,  and  that  it  would  be  wholly  impossible  for  boats 
of  any  description  carrying  merchandise  or  otherwise,  to  ascend 
such  river  at  such  times. 

Defendant  avers  that  various  dams  and  bridges  have  been  erected 
over  said  stream  as  hereinafter  set  out,  all  of  which  were  con- 
structed without  legislative  authority. 

That  in  1833  a dam  known  as  Beard’s  Dam  was  constructed 
across  said  Desplaines  Biver  near  the  mouth  thereof,  in  Section 
25,  Township  34  North,  Range  8,  East  of  the  Third  Principal 
Meredian,  in  Grundy  County,  at  sul)stantially  the  same  place  where 
defendant  is  constructing  its  dam,  without  any  provision  therein 
for  the  passage  of  boats,  and  that  said  dam  was  maintained  at  said 
location  for  many  years  without  any  provision  therein  for  the 
passage  of  boats  of  any  kind  or  size,  and  that  in  fact  no  boats 
ever  could  or  did  pass  through,  over  or  around  said  dam. 

That  in  1835,  or  prior  thereto,  there  were  dams  located  across 
each  channel  of  said  Desplaines  River  in  section  11,  township  34 


96 


north,  range  9,  east  of  the  third  principal  meridian  and  that  said 
dams  remained  in  said  river  many  years. 

And  this  defendant  avers  that  said  two  dams  last  above  men- 
tioned were  located  upon  odd-numbered  sections,  through  which 
sections  the  state  now  claims  that  the  shore  and  the  bed  of  said 
stream  were  reserved  from  sale;  and  defendant  avers  that 

115  the  said  dams  were  constructed  by  the  owners  of  the  lands  ad- 
joining said  stream  upon  either  side,  and  were  so  constructed 

as  an  exercise  of  the  right  of  ownership  and  dominion  of  and 
over  the  shores  of  said  stream  and  the  land  in  the  bed  thereof. 

That  in  1839  there  was  a dam  built  across  the  Desplaines  River 
near  what  is  now  McDonough  street  in  the  City  of  Joliet,  which 
is  sometimes  called  the  Adam  dam  and  sometimes  Malcom’s 
dam,  and  that  said  dam  remained  in  said  river  from  said  date 
until  1898  when  it  was  removed  by  the  Sanitary  District  of  Chi- 
cago upon  its  paying  as  damages  therefor  a sum  upwards  of 
$80,000. 

That  in  the  summer  and  fall  of  1833  there  was  a dam  built 
entirely  across  the  river  just  south  of  what  is  now  Cass  street, 
in  the  City  of  Joliet,  which  said  dam  remained  in  said  river  until 
1811,  when  it  was  removed  by  the  State  of  Illinois  upon  its 
paying  as  damages  therefor  the  sum  of  $17,655. 

And  defendant  avers  that  said  dam  was  constructed  in  said 
stream  by  the  owner  of  the  land  abutting  upon  both  sides  of  said 
stream  and  was  so  constructed  by  him  in  the  exercise  of  dominion 
and  ownership  over  the  land  abutting  upon  said  stream  and  in 
the  bed  thereof ; and  defendant  avers  that  if  said  Desplaines 
River  was  at  the  time  of  the  removing  of  said  dam  a navigable 
stream,  and  the  said  dam  was  an  obstruction  to  the  navigation 
thereof,  the  said  dam  was  in  said  stream  without  right  or  au- 
thority, and  that  the  state  could  have  removed  said  dam  as  a 
])urpresture,  without  the  payment  of  any  damages  therefor;  and 
defendant  avers  that  the  action  of  the  state  in  paying  said  dam- 
ages was  an  admission  that  said  stream  was  not  navigable  and 
that  said  dam  was  lawfully  in  said  stream. 

116  That  in  1833  a dam  known  as  Norman’s  dam,  opposite 
where  the  state  penitentiary  is  now  located,  was  built  across 

one  channel  of  the  Desplaines  River. 


97 


That  prior  to  1839  there  was  a dam  known  as  Daggett’s  dam 
bniit  entirely  across  the  river  at  Lockport. 

That  prior  to  1847  there  was  a dam  constructed  across  the 
Desplaines  River  in  Lake  Comity,  Illinois,  extending  entirely 
cl  cross  the  river. 

And  this  defendant  avers  that  there  were  no  provisions  in  any 
of  said  dams  for  the  passage  of  boats,  and  that  in  fact  no  boats 
could  or  ever  did  pass  any  or  either  of  said  dams. 

This  defendant  further  avers  that  for  many  years  there  were 
no  bridges  across  the  Desplaines  River,  but  that  the  river  was 
forded  at  many  points,  and  that  afterwards  bridges  were  estab- 
lished and  are  now  located  at  tlie  following  points: 

Smith’s  bridge  in  section  21,  township  34  north,  range  9,  east 
of  the  third  principal  meridian; 

The  bridge  known  as  the  Millsdale  bridge,  located  in  section 
11,  township  34  north,  range  9,  east  of  the  third  principal  me- 
ridian, near  Millsdale  in  Will  County,  and  that  said  bridge  and 
the  abutments  thereof  were  constructed  upon  and  over  the  shore 
and  bed  of  the  stream  as  an  exercise  of  ownership  and  dominion 
over  said  land. 

The  bridge  now  known  as  Brandon’s  bridge,  located  in  section 
30,  township  35  north,  range  10,  east  of  the  3rd  P.  M. ; 

Six  bridges  in  the  City  of  Joliet:  one  known  as  the  McDonough 
street  bridge,  crossing  the  river  at  McDonough  street,  in  Joliet; 

the  Chicago,  Rock  Island  & Pacific  IP.  R.  Co.’s  bridge  just 
117  north  of  McDonough  street;  the  bridge  across  the  river  at 
eJefferson  street;  one  at  Cass  street;  one  at  Jackson  street, 
and  one  at  Ruby  street  in  Joliet. 

That  there  is  also  a bridge  across  the  river  in  the  township 
of  Lockport,  on  the  Lockport  highway. 

And  this  defendant  avers  that  all  of  these  bridges  above  men- 
tioned are  fixed  bridges  and  have  no  provision  for  the  passage 
of  boats,  and  that  boats  cannot  pass  said  bridges  or  any  or  either 
of  them. 

This  defendant  further  avers  that  no  legislative  permits  were 
ever  granted  by  the  State  for  the  erection  of  any  of  the  dams 


98 


hereinabove  enumerated,  or  for  the  location  of  any  of  the  bridges 
hereinabove  enumerated. 

That  in  1846  the  State  of  Illinois  completed  the  dam  known  as 
dam  No.  1,  entirely  across  the  said  Desplaines  River,  forming 
what  is  known  as  the  Upper  Basin  of  the  Illinois  and  Michigan 
Canal,  which  dam  is  now  in  existence. 

And  that  in  1841  the  State  of  Illinois  built  the  dam  known  as 
dam  No.  2 in  the  vicinity  of  what  is  now  Jefferson  street,  Joliet, 
extending  entirely  across  the  said  Desplaines  River  and  forming 
the  pool  known  as  the  Lower  Basin  of  the  Illinois  and  Michigan 
Canal ; that  said  dam  No.  2 remained  in  said  river  from  1841  until 
1899,  when  it  was  removed  by  the  Sanitary  District  of  Chicago 
by  and  with  the  consent  of  the  Canal  Commissioners. 

This  defendant  avers  that  by  stipulation  filed  in  the  case  of 
Raven  v.  The  Board  of  Trustees  of  the  Illinois  and  Michigan 
Canal  in  the  Circuit  Court  of  Will  County,  tried  at  the  October 
term,  1848,  of  that  court,  it  was  admitted  by  the  Canal  Trustees 
that  the  Desplaines  River  was  not  navigable  in  fact,  although 
118  a portion  of  it  had  been  declared  to  be  so  by  act  of  the  Legis- 
lature. 

Defendant  avers  that  in  a proceeding  brought  in  the  Circuit 
Court  of  Will  County,  Illinois,  by  the  Sanitary  District  of  Chi- 
cago against  William  J.  Adams,  the  dam  hereinabove  referred 
to  as  the  Haven  dam,  together  with  the  water-power  rights  con- 
nected therewith,  was  taken  by  said  Sanitary  District  by  virtue 
of  the  Eminent  Domain  Law  of  the  State  of  Illinois,  and  the  said 
Circuit  Court  in  said  proceedings  adjudged  and  decreed  that  the 
defendants  in  said  case  had  a valuable  property  right  in  the  said 
dam,  and  the  water-power  thereby  created,  and  awarded  said 
defendants  a large  sum  as  compensation  therefor,  and  for  other 
property  connected  therewith,  and  that  said  case  was,  on  appeal, 
affirmed  in  the  Supreme  Court  of  Illinois;  and  this  defendant 
avers  that  said  judgment  of  the  said  Circuit  Court  and  said  af- 
firmance in  the  Supreme  Court  were  in  effect  a finding  that  said 
dam  was  lawfully  in  said  stream,  and  that  no  easement  of  navi- 
gation or  otherwise  existed  therein. 

This  defendant  admits  that  by  act  of  Congress  approved  March 


2nd,  1827,  there  was  granted  to  the  State  of  Illinois,  every  al- 
ternate section  in  a strip  of  land  ten  miles  wide  along  the  line 
of  the  Illinois  and  Michigan  Canal  ‘‘for  the  iDurpose  of  aiding 
the  opening  of  a canal  to  connect  the  waters  of  the  Illinois  Iliver 
with  those  of  Lake  Michigan,”  as  is  alleged  in  paragraph  V of 
said  bill,  and  admits  that  among  the  lands  thus  conveyed  by  Con- 
gress, was  section  25,  in  Township  34  north,  range  8,  east  of  the 
third  principal  meridian,  in  Grundy  County,  Illinois. 

119  This  defendant  admits  that  the  Desplaines  and  Kankakee 
Rivers  unite  and  form  the  Illinois  River  in  the  southeast 

quarter  of  said  section  25,  but  denies  that  by  the  survey  of 
public  lands  by  the  United  States  said  Desplaines  River  was 
meandered,  and  denies  that  the  purchasers  from  the  State  of  Illi- 
nois of  lands  in  said  section  25  or  in  other  similarly  situated 
land  with  reference  to  the  Desplaines  River,  did  not  take,  or  did 
not  claim  to  take,  under  their  several  purchases,  that  portion  of 
said  lands  lying  between  the  alleged  meander  line  of  the  Des- 
plaines River  and  the  waters  of  said  river,  and  denies  that  said 
land  between  said  alleged  meander  line  and  the  waters  of  said 
river  have  never  been  used  by  any  individual  under  any  claim 
of  authority  or  right  vested  in  the  purchasers  of  said  lands  from 
the  State,  save  and  except  as  claimed  by  the  defendant. 

Denies  that  the  land  lying  between  the  alleged  meander  line  of 
the  Desplaines  River  and  the  waters  of  said  river  in  the  south- 
east quarter  of  said  section  25,  together  with  the  bed  of  the 
stream  of  the  said  Desplaines  River  in  said  quarter  section  of 
land  last  above  described  or  in  other  lands  similarly  situated 
with  reference  to  the  Desplaines  River,  or  either  or  any  of  such 
lands,  have  not  passed  by  purchase  from  the  State  of  Illinois, 
and  denies  that  the  same,  and  each  and  every  or  any  part  thereof, 
is  owned  by  the  State  of  Illinois,  or  held  by  the  State  for  the 
use  and  benefit  of  the  people  of  the  State  or  the  people  of  the 
United  States  as  a public  highway  for  commerce,  or  otherwise. 

But,  on  the  contrary  thereof,  this  defendant  alleges  that  the 
purchasers  from  the  Board  of  Trustees  of  the  Illinois  and 

120  Michigan  Canal  of  lands  donated  to  the  State  by  the  United 
States  for  the  purpose  of  aiding  in  the  opening  of  a canal 

to  connect  the  waters  of  the  Illinois  River  with  those  of  Lake 


100 


Michigan,  did  by  virtue  of  their  several  deeds  and  purchases, 
acquire  all  the  right,  title  and  interest  of  the  State  in  and  to  all 
of  the  land  described  in  tlieir  respective  deeds,  including  the  land 
betwee^the  alleged  meander  lines  and  the  waters  of  streams  run- 
ning through  said  lands,  and  in  the  beds  of  said  streams,  and 
have  always  claimed  title  thereto,  and  that  their  title  to  the 
lands  between  the  alleged  meander  lines  and  the  waters  of  said 
streams  and  in  the  beds  of  said  streams  have  always  been  recog- 
nized, and  that  the  lands  between  said  alleged  meander  lines  and 
the  banks  of  said  streams  have  been  used  and  cultivated  by  the 
purchasers  of  the  lands  through  which  said  streams  pass  down 
to  the  hanks  of  such  streams,  without  reference  to  any  alleged 
meander  lines,  from  the  dates  of  their  respective  purchases  to 
the  present  time. 

And  this  defendant  admits  that  the  trustees  of  the  Illinois 
and  Michigan  Canal  executed  and  delivered  to  one  Charles  E. 
Boyer,  a deed  bearing  date  the  22nd  day  of  October,  1860,  for 
the  south  fraction  of  the  northwest  quarter  and  the  north  frac- 
tion of  the  southeast  quarter  and  the  north  fraction  of  the  north- 
west quarter,  and  the  south  fraction  of  the  southeast  quarter  of 
said  section  25,  in  township  34  north,  of  range  8,  east  of  the  third 
principal  meridian,  excepting  and  reserving  so  much  of  said  tract 
as  was  occupied  by  the  canal  and  its  waters,  and  a strip  90  feet 
wide  on  either  side  of  said  canal,  said  tract  containing  19B.62 
acres  and  being  a portion  of  the  land  granted  by  the  United 
States  to  the. State  of  Illinois  to  aid  said  State  in  open- 
121  ing  a canal  to  connect  the  waters  of  the  Illinois  River  with 
those  of  Lake  Michigan,  and  by  said  State  granted  to  said 
Board  of  Trustees  of  the  Illinois  and  Michigan  Canal  for  the 
purposes  set  forth  in  the  act  of  said  State,  of  February  21st,  1843. 

And  this  defendant  denies  that  no  part  of  the  land  in  the  north- 
west quarter  and  in  the  southeast  quarter  of  said  section  25, 
situated  outside  of  the  alleged  meander  line  of  the  Desplaines 
River,  were  conveyed  by  said  deed  of  the  Board  of  Canal  Trus- 
tees to  said  Charles  E.  Boyer,  and  denies  that  the  same  remained 
the  property  of  the  State  of  Illinois ; but,  on  the  contrary  thereof, 
this  defendant  avers  that  said  deed  from  the  Board  of  Trustees 
to  said  Charles  E.  Boyer  was  a conveyance  by  said  trustees  to 


101 


said  Charles  E.  Boyer  of  all  the  lands  belonging  to  the  State  of 
Illinois  in  the  subdivisions  therein  described,  including  the  land 
situated  outside  of  said  alleged  meander  line,  and  the  land  lying 
in  the  bed  of  the  stream  of  the  Desplaines  Elver,  and  that  the 
title  to  all  of  said  lands  passed  to  the  said  Boyer  by  virtue  of 
said  conveyance. 

This  defendant  admits,  that  its  claim  to  said  premises  so  situ- 
ated outside  of  the  alleged  meander  lines  of  the  Desplaines  Elver 
in  said  section  25,  is  based  upon  mesne  conveyances  from  the  said 
Charles  E.  Boyer,  and  the  several  leases  and  contracts  attached 
to  said  bill. 

Defendant  admits  that  on  March  2nd,  1827,  Congress  passed 
an  act  entitled  ‘‘An  act  to  grant  a quantity  of  land  to  the  State 
of  Illinois  for  the  purpose  of  aiding  in  opening  a canal  to  con- 
nect the  yaters  of  the  Illinois  Eiver  with  those  of  Lake 
122  Michigan,”  as  alleged  in  said  bill,  and  that  said  act  provided 
that  “the  lands  shall  be  subject  to  the  disposal  of  the  Legis- 
lature of  the  said  State  for  the  purpose  aforesaid  and  no  other.” 

This  defendant  admits  that  by  the  act  of  March  2nd,  1827,  Con- 
gress granted  by  implication  the  right  of  way  for  the  construction 
of  said  canal  through  the  sections  of  public  land  which  were  not 
donated  to  the  State,  and  that  the  said  grant  of  right  of  way  by 
implication  extended  to  the  land  necessary  to  be  used  for  the  canal 
of  the  width  contemplated. 

This  defendant  further  admits  that  afterwards  such  proceed- 
ings were  had  pursuant  to  law  and  said  statute,  that  the  route 
and  location  of  the  canal  were  duly  surveyed  and  laid  out,  and 
the  odd-numbered  sections  of  land  upon  the  survey  of  the  same 
duly  selected  by  the  commissioner  of  the  land  office,  as  alleged  in 
said  bill. 

Denies  that  Artemus  J.  Mathewson,  under  the  authority  and 
direction  of  the  Canal  Trustees,  surveyed  and  marked  lines  of  a 
90-foot  strip  on  each  side  of  the  canal  as  finally  located  and  con- 
structed, from  one  end  of  said  canal  to  the  other,  or  that  he  filed 
in  the  office  of  said  Board  of  Trustees  maps  and  profiles  of  said 
survey  and  of  said  90-foot  strip;  and  denies  that  he  had  any  law- 
ful authority  so  to  do. 


102 


Admits  that  a strip  of  land  ninety  feet  in  width  on  each  side 
of  the  canal  as  aforesaid,  was  reserved  from  the  sale  by  the 
Canal  Commissioners  and  the  Canal  Trustees  in  many  of  the 
sales  of  canal  lands  in  odd-nnmbered  sections,  and  that  the  title 
thereto  remains  in  the  State  of  Illinois,  but  denies  that  said 
strip,  together  with  the  lands  necessary  for  the  right  of  way 

123  through  the  alternate  even-numbered  sections  of  said  land 
through  which  said  canal  is  constructed,  constitute  integral 

parts  of  the  canal,  or  that  they  are  necessary  for  its  preservation 
and  use,  or  that  they  are  by  law  preserved  and  protected  against 
alienation,  but  on  the  contrary  thereof  avers  that  said  Canal  Com- 
missioners are  expressly  authorized  by  law  to  sell  and  convey 
any  portion  of  said  90-foot  strip  excepting  such  portions  thereof 
as  are  now  utilized  in  connection  with  the  use  of  water  power  upon 
the  said  canal  or  the  sale  of  Avhich  would  prevent  or  interfere 
with  the  proper  use  and  operation  of  the  said  canal  as  a water- 
way,  but  admits  that  the  90-foot  strip  was  expressly  reseiwed 
from  sale  in  said  deed  of  the  trustees  of  the  Illinois  and  Michi- 
gan Canal  to  said  Boyer. 

Defendant  believes  that  the  exhibits  attached  to  said  bill  are 
substantially  accurate  copies  of  the  originals  of  which  they  pur- 
])ort  to  be  copies,  but  it  does  not  admit  that  they  are  true  copies. 

This  defendant  admits  that  the  Canal  Commissioners  of  the 
State  of  Illinois  entered  into  a certain  contract  bearing  date  the 
2nd  day  of  September,  1904,  with  one  Harold  F.  Griswold,  a pur- 
ported copy  of  which  is  attached  to  said  bill  and  marked  Exhibit 
A,  and  admits  that  the  said  contract  was  assigned  by  the  said 
Harold  F.  Griswold  to  this  defendant. 

This  defendant  further  admits  that  the  said  Canal  Commis- 
sioners entered  into  a contract  of  lease  with  one  Harold  F.  Gris- 
Avold  as  of  the  date  of  Septemebr  2,  1904,  copy  of  which  is  at- 
tached to  said  bill  and  marked  Exhibit  B,  and  admits  that  said 
Harold  F.  Griswold  assigned  the  said  contract  to  this  defend- 
ant. 

124  This  defendant  further  admits  that  the  Canal  Commis- 
sioners entered  into  another  certain  contract  Avith  Hai'old  F. 

Griswold,  as  of  the  date  of  the  8th  of  August,  1905,  a purported 


103 


copy  of  which  is  attached  to  said  bill  and  marked  Exhibit  C,  and 
admits  that  said  Harold  F.  Griswold  assigned  the  said  contract 
to  this  defendant. 

This  defendant  admits  that  said  Canal  Commissioners  made 
an  application  to  the  Governor  of  the  State  of  Illinois  for  his 
consent  to  the  sale  of  certain  lands,  which  application  bears  date 
the  11th  day  of  June,  1904,  a purported  copy  of  which  is  attached 
to  said  bill  and  marked  Exhibit  D,  and  that  a purported  copy  of 
the  approval  of  said  application  by  the  Governor  as  of  the  14th 
day  of  June,  1904,  is  attached  to  said  bill,  marked  Exhibit  E. 

This  defendant  admits  that  a certain  notice  of  proposed  sale 
was  inserted  in  the  Lockport  ‘‘Phoenix  Advertiser,’’  as  is  al- 
leged in  said  information,  but  that  the  sale  so  advertised  to  be 
made  was  adjourned  and  never  thereafter  resumed. 

Defendant  further  admits  that  after  the  2nd  day  of  August, 
and  under  date  of  September  2,  1904,  the  Canal  Commissioners 
entered  into  the  agreement  and  lease  hereinabove  mentioned  re- 
spectively as  Exhibits  A and  B,  and  that  afterwards,  and  under 
date  of  November  1,  1904,  the  Canal  Commissioners  of  the  State 
of  Illinois  made  an  application  to  the  Governor  for  his  consent 
to  the  sale  of  certain  lands  described  in  said  application,  a pur- 
ported copy  of  which  is  attached  to  the  bill,  marked  Exhibit  G, 
and  that  the  approval  of  said  application  for  sale  by  the 
125  Governor  was  made  in  writing,  a purported  copy  of  which, 
bearing  date  the  2nd  day  of  November,  1904,  is  attached  to 
said  bill,  marked  Exhibit  H;  that  pursuant  to  said  application 
and  approval,  notice  of  sale  was  inserted  in  the  Lockport  “Phoe- 
nix Advertiser,”  as  alleged  in  said  bill. 

Defendant  admits  that  pursuant  to  said  application  last  above 
mentioned,  and  the  approval  of  the  Governor  thereof,  and  of  the 
advertisement  in  the  Lockport  Phoenix  Advertiser  last  above  men- 
tioned, the  said  Canal  Commissioners  sold  the  lands  therein  men- 
tioned, and  executed  a certain  deed  to  Harold  F.  Griswold  as  of 
the  date  of  January  5,  1905,  a purported  copy  of  which  deed  is 
attached  to  said  bill  marked  Exhibit  J,  and  admits  that  said 
Harold  F.  Griswold  conveyed  said  premises  so  that  by  mesne  con- 
veyance said  premises  passed  to  this  defendant. 


104 


This  defendant  further  admits  that  said  Canal  Commissioners 
entered  into  a contract  of  lease  with  Harold  F.  Griswold  as  of 
the  date  of  December  2,  1904,  a purported  copy  of  which  is  at- 
tached to  said  bill  and  marked  Exhibit  K and  made  a part  there- 
of, and  that  said  lease  was  assigned  by  Griswold  to  this  defend- 
ant. 

This  defendant  admits  that  by  virtue  of  the  several  deeds, 
leases  and  contracts  mentioned  in  said  bill,  and  also  by  virtue 
of  its  ownership  of  the  bed  and  shore  of  the  Deseplaines  Eiver, 
it  claims  a right  to  construct  a dam  across  the  Desplaines  Eiver 
and  across  the  lands  adjacent  thereto,  and  across  the  90-foot 
strip  of  land,  and  immediately  adjoining  the  water-way  of  said 
Illinois  & Michigan  Canal  and  up  to  the  bank  or  towpath  of 
126  the  said  Illinois  and  Michigan  Canal,  and  to  construct  said 
dam  so  as  to  flood  the  lands  along  the  Desplaines  Eiver  for 
a distance  of  several  miles  above  the  location  of  said  proposed 
dam,  and  on  the  southeast  quarter  of  said  section  25,  but  denies 
that  said  90-foot  strip  of  land  is  used  for  canal  purposes,  and 
avers  that  said  90-foot  strip  of  land  through  said  southeast  quar- 
ter section  has  not  heretofore  been  used  for  any  purpose  whatso- 
ever either  by  the  Canal  Commissioners  or  by  any  one  pursuant 
to  the  authority  granted  by  them,  or  otherwise,  and  that  said 
land  was  swampy,  unfit  for  cultivation,  partially  covered  with 
water,  and  unproductive  of  revenue. 

This  defendant  further  avers  that  during  the  year  1904,  one 
Charles  A.  Munroe  and  associates  acquired,  in  connection  with 
the  land  purchased  and  leased  from  the  Canal  Commissioners 
under  the  various  instruments  from  the  said  Canal  Commissioners 
to  Harold  F.  Griswold,  referred  to  in  said  bill,  by  purchase  from 
the  owners  thereof,  some  1,800  acres  of  other  lands,  at  an  ex- 
penditure of  upwards  of  $200,000,  the  ownership  of  which  gave 
to  said  Munroe  and  associates  the  right  to  construct  a dam  at 
the  mouth  of  the  Desplaines  Eiver  with  a crest  at  such  a height 
as  would  back  the  level  of  the  waters  of  the  Desplaines  Eiver 
to  the  level  of  the  waters  of  I.ake  Joliet,  and  defendant  avers 
that  at  the  time  of  the  making  of  said  leases,  deeds  and  contracts, 
the  said  Canal  Commissioners  knew  that  the  sai'd  IMunroe  and 
associates  had  ac(piired  and  were  accpiiring  a large  amount  of 


105 


other  lands  at  a large  expenditure  of  time  and  money,  for  the 
purpose  of  utilizing  the  same  in  connection  with  the  lands  so 
acquired  from  said  Canal  Commissioners,  for  the  purpose  of  cre- 
ating water  power. 

127  Defendants  avers  that  before  the  beginning  of  the  construc- 
tion of  its  said  dam  and  in  order  that  said  dam  might  be 

located  at  such  a point  as  would  contribute  to  a waterway,  if  one 
should  ever  be  constructed  in  said  stream,  one  Charles  A.  Mun- 
roe  submitted  the  plans  of  said  proposed  dam  to  said  War  De- 
partment, of  the  United  States,  and  requested  that  said  Depart- 
ment would  give  some  expression  of  opinion  as  to  whether  the 
plans  submitted  would  be  in  harmony  with  the  work  of  improver 
ment  proposed  by  the  United  States  Government,  to-wit,  the  con- 
struction of  a navigable  waterway  from  Lockport,  Illinois,  to  St. 
Louis,  Missouri,  via  the  Desplaines,  Illinois  and  Mississippi  Div- 
ers, and  that  thereupon  the  Chief  of  Engineers  of  the  L^nited 
States  Army  referred  the  matter  to  Lieut.  Col.  W.  H.  Bixby,  of 
the  Corps  of  Engineers  of  the  United  States  Army,  in  charge  of 
the  district  in  which  said  proposed  work  was  to  be  constructed, 
to  examine  said  plans  and  said  proposed  work  and  to  report  his 
recommendations  thereon ; that  thereupon  the  said  Bixby  reported 
to  the  Chief  of  Engineers  of  the  United  States  Army  as  follows : 

‘^United  States  Engineer  Office, 

508  Federal  Building, 

Chicago,  111.,  March  27,  1906. 

Brig.  Gen.  A.  Mackenzie, 

Chief  of  Engineers,  U.  S.  Army, 

Washington,  D.  C. 

General : 

1.  In  reply  to  Department  letter  (E.  D.  58726)  dated 
March  16,  1906,  as  to  the  proposed  plans  of  a water  power 
company  for  a dam  across  the  Des  Plaines  Diver,  111.,  just 

128  above  its  mouth,  which  have  been  verbally  and  informally 
presented  to  your  office  by  the  Hon.  H.  M.  Snapp  and  the 
water-power  representatives,  I have  herewith  to  submit  re- 
port as  follows: — 

2.  The  dam  in  question  is  that  proposed  by  Chas.  A.  Miin- 
roe,  of  Chicago,  111.,  as  explained  by  his  letter  to  this  office 
under  date  of  March  20,  1906,  with  inclosures  (copies  here- 
with— 2 letters,  3 blue-prints).  (5  incls.) 

3.  The  Des  Plaines  Diver,  so  far  as  now  known  to  this 
office,  has  never  yet  been  considered  a navigable  stream  of 


106 


the  United  States.  It  is  therefore  apparently  as  yet  subject 
only  to  such  jurisdiction  as  applies  to  all  other  unnavigable 
streams  and  not  subject  to  the  provisions  of  Sections  9-13, 
Act  of  March  3,  1899,  or  to  other  similar  U.  S.  legislation. 

4.  The  agents  of  the  water  power  company  in  question, 
informally  claim  to  have  secured  possession  of  all  the  land 
on  each  hank  of  the  river  necessary  to  allow  for  construction 
of  the  dam  and  of  its  accessories,  and  to  protect  themselves 
from  all  future  claims  for  over-flowage  created  thereby,  so 
far  as  any  existing  known  rights  are  concerned;  and  they 
likewise  claim  that  there  is  no  existing  State  law,  or  United 
States  law  which  prohibits  their  legally  going  ahead  with 
their  proposed  construction  and  that  no  special  law  is  needed 
therefor.  They  admit,  however,  that  in  some  minor  matters, 
they  still  lack  necessary  authority  from  the  local  Board  of 
Supervisors,  to  condemn  certain  properties  which  they  still 
wish  to  acquire  in  order  to  facilitate  or  simplify  their  future 
work  (such  permission,  however,  not  being  absolutely  essen- 
tial to  such  work)  and  they  state  that  the  Board  of  Super- 
visors are  willing  to  grant  such  authority  as  soon  as  it  is 
evident  that  the  proposed  power  dam  construction  will  not 
interfere  with  the  future  development  of  the  river  for  navi- 
gation purposes. 

5.  The  water  power  company  agents  likewise  state  that 
their  object  in  bringing  the  matter  up  before  the  War  De- 
partment at  present,  is  to  make  evident  that  the  proposed 
dam  construction  not  only  does  not  conflict  with  any  existing 
U.  S.  law,  but  also  will  assist  rather  than  injure  the  possible 
future  navigation  of  the  Desplaines  and  Illinois  Eivers, 
should  the  improvement  of  such  rivers  ever  be  authorized 
by  Congress  in  the  manner  proposed  by  the  last  Board  Ee- 
port  of  August  26,  1905,  upon  the  feasibility  and  cost  of  a 
navigable  waterway  from  Lockport,  111.,  to  St.  Louis,  Mo., 
via  the  DesPlaines,  Illinois,  and  Mississippi  Eivers  (House 
Document  No.  263,  59th  Congress,  1st  Session) ; and  they 
desire  to  secure  from  the  AVar  Department  some  expression 
of  opinion,  informal  or  otherwise,  so  far  as  it  can  properly 
be  given,  that  will  allow  them  to  assure  all  inquirers  that  the 
4Var  Department  so  understands  the  situation,  and  is  mak- 
ing no  objection  to  such  prompt  progress  of  the  work  as  is 
necessary  to  a business  enterprise  of  its  magnitude  and  im- 
portance. 

6.  Paragraph  17  of  the  Board  Eeport  of  August  26,  1905, 
above  referred  to,  specially  stated  that  the  plan  submitted 
by  the  Board  was  ^‘not  designed  to  develop  water  power,  but 
there  will  probably  be  no  difficulty  in  modifying  it  so  as  to 
confirm  to  such  development  if  those  who  are  to  benefit  there- 
by will  co-operate  with  the  Government.  They  should  pay 

129  the  cost  of  the  dams,  and  the  damage  from  flowage,  which  is 


no  more  than  they  would  l)e  compelled  to  do  if  the  Govern- 
ment made  no  improvement.”  The  i)lans  herewith  sub- 
mitted by  Mr.  Munroe  .show  plainly  a proposed  co-operation 
such  as  that  described  in  the  above  Board  re])ort,  offered  in 
such  manner  as  not  only  to  pay  the  cost  of  this  power  dam, 
and  to  protect  the  United  States  against  howage  damage, 
but  also  to  lessen  by  one  the  number  of  locks  and  dams  nec- 
essary for  future  navigation  and  to  otherwise  save  both  time 
and  money  ($142,385  in  first  cost,  and  $4,000  annually  there- 
after for  maintenance  and  operation)  to  the  United  States, 
in  case  Congress  should  finally  decide  to  undertake  the  im- 
provement covered  by  the  August  26,  1905,  Board  report,  or 
to  otherwise  make  this  river  navigable  in  this  neighborhood. 
All  information,  so  far  received  by  this  office,  appears  to 
substantiate  the  statements  of  Mr.  Munroe,  ns  described 
above;  and  I consider  that  his  proposition  should  be  en- 
couraged and  that  he  should  receive  from  the  War  Depart- 
ment whatever  expression  of  favorable  consideration  may  be 
proper  and  allowable  under  such  circumstances. 

7.  I have  carefully  considered  the  question  of  this  ])ower 
dam  project  and  have  talked  it  over  at  intervals  witli  Mr. 
Woermann,  while  he  was  Assistant  Engineer  in  local  charge 
of  the  Illinois  Eiver  survey  under  this  office  before  he  had 
been  employed  by  Mr.  Munroe,  as  well  as  since  that  time, 
and  have  discussed  the  matter  also  with  Mr.  Munroe;  and 
I believe  that  the  provisos  of  the  next  paragraph  below  are 
fair  and  advantageous  to  both  sides,  and  will  leave  to  the 
future  only  the  question  of  regulating  pool  levels  so  as  to 
avoid  a conflict  between  depths  of  water  needed  for  naviga- 
tion and  heads  of  water  needed  for  power  purposes,  and  so 
as  to  divide  up  the  river  water  between  the  two  according  to 
such  rights  as  may  exist  when  the  river  shall  become  a navi- 
gable water  (which  it  appears  not  to  be  at  present),  and  when 
the  United  States  shall  decide  to  give  up  the  use  of  the  canal 
and  to  assume  the  improvement  of  the  river.  Until  such  time, 
I do  not  see  how  the  War  Department  can  assume  any  definite 
jurisdiction  of  the  Desplaines  Eiver  or  make  any  definite 
demands  upon  any  water-power  company  already  organized 
for  the  use  of  this  river.  It  is  my  present  understanding 
that  these  provisos  will  be  accepted  by  Mr.  Munroe. 

8.  I have  therefore  to  recommend  that  the  Hon.  H.  M. 
Snapp  and  Mr.  Charles  A.  Munroe  be  informed  that  the  War 
Department  will  waive  any  and  all  objections  which  it  may 
have  to  the  progress  of  such  water  power  dam  construction 
as  proposed  by  Mr.  Munroe ’s  letter  of  March  20,  1906,  and 
its  inclosures,  provided  that  he,  on  the  part  of  the  power  dam 
owners,  agrees 

130  (a)  that  he  will  construct  and  maintain  in  good  repair,, 

just  above  the  mouth  of  the  Des  Plaines  Eiver,  in  location 


108 


as.  approximately  shown  on  the  blue  prints,  a dam  and  spill- 
way sufficient  to  hold  the  water  surface  of  its  upper  pool  at 
a height  equal  to  the  present  mean  level  of  Lake  Joliet  (taken 
at  512.0  feet,  Memphis  datum)  ; and  later  whenever  Congress 
shall  have  ordered  the  improvement  of  the  Des  Plaines  Kiver 
for  navigation  purposes,  will  raise  this  dam  3.0  feet  higher 
giving  pool  level  of  515.0  feet,  Memphis  datum)  if  the  War 
Department  shall  so  order;  and  will  grant  the  United  States 
the  use  of  such  pool  so  far  as  needed  for  navigration ; 

(b)  that  he  will  assume  the  cost  of,  and  protect  the  United 
States  from,  claims  for  all  flowage  damages  caused  by  this 
dam  between  its  site  and  the  north  line  of  Section  11,  Town- 
ship 34,  Eange  9 East,  which  line  is  about  1.5  miles  by  river 
above  the  next  higher  lock  and  dam  proposed  by  the  Board 
report  (i.  e..  Lock  No.  4 and  Dam  No.  2,  at  the  foot  of  Treat’s 
Island) ; 

(c)  that  he  will  grant  to  the  United  States  a strip  of  land 
at  least  150  feet  wide  across  the  north  end  of  this  dam,  to 
he  so  located  between  it  and  the  tow  path  of  the  present  Illi- 
nois and  Michigan  Canal,  as  to  connect  the  present  mid  river 
above,  to  the  same  below,  in  the  manner  approximately  indi- 
cated on  the  accompanying  blue  prints ; such  strip  to  be  used 
by  the  United  States  for  the  construction  and  maintenance 
of  a boat  lock,  its  necessary  approaches,  and  other  purposes 
of  navigation;  * 

(d)  that  he  will  do  all  the  above,  free  of  cost  to  the  United 
States ; 

Provided,  that  the  War  Department  will  waive  any  and 
all  objections  which  it  may  have  to  the  progress  of  such  water 
power  dam  construction. 

Very  respectfully, 

W.  H.  Bixby, 

Lt.  Col.,  Corps  of  Engineers.^* 
that  thereupon  the  Chief  of  Engineers  of  the  United  States 
131  Ai’iny  concurred  in  said  recommendation  and  reported  the  re- 
sult of  his  findings  and  his  recommendations  to  the  Secretary 
of  War,  and  thereupon  and  on  or  about  the  7th  day  of  June,  1906, 
the  IVar  Department,  by  Pobert  Shaw  Oliver,  Assistant  Secretary 
of  War,  sent  to  said  Charles  A.  Munroe,  a letter  reading  as  fol- 
lows : 

^‘War  Department, 
Washington,  June  7,  1906. 

Sir — 

In  re])ly  to  your  letter  of  June  5,  1906,  addressed  to  the  War 
Department,  in  the  matter  of  the  construction  by  yourself  and 
associates  of  a dam  and  spillway  across  the  Desplaines  Piver 
near  its  mouth,  at  the  location  and  as  shown  on  maps  sub- 


KM) 


mitted,  with  your  letter  of  Mareli  20,  1900,  addressed  to  Lieu- 
tenant Colonel  W.  H.  Bixby,  Corx)s  of  Engineers,  U.  S.  Army, 
I have  the  honor  to  advise  you  as  follows: 

It  is  understood  that  yourself  and  associates  are  willing  to 
comply  with  the  following  conditions,  viz.: 

First.  That  the  details  of  construction  shall  be  such  as  to 
insure  permanency  and  of  sufficient  ca])acity  to  hold  the  water 
surface  of  its  upper  pool  at  a height  e(iual  to  the  ])resent 
mean  level  of  Lake  Joliet  (taken  at  512.0  feet  Memphis 
datum)  ; and  later  whenever  Congress  shall  have  ordered  the 
improvement  of  the  Desi)laines  River  for  navigation  pur- 
poses, the  dam  shall  be  raised  by  you  and  your  associates  3.0 
feet  higher  (giving  pool  level  of  515.0  feet,  Memphis  datum), 
if  the  War  Department  shall  so  order;  the  United  States  and 
the  public  to  have  the  free  use  of  such  pool  so  far  as  needed 
for  navigation  purposes,  and  the  use  of  water  for  power  pur- 
poses shall  be  so  limited  that  the  level  of  the  ])ool  shall  at  no 
time  be  reduced  below  that  ado])ted  for  navigation  in  the  ])lans 
. of  the  United  States  for  the  slack-water  improvement  of  the 
river. 

Second.  That  the  United  States  shall  be  protected  from 
claims  for  all  flowage  damage  caused  by  the  dam  between  its 
site  and  the  north  line  of  Section  11,  Township  31,  Range  9 
East,  which  line  is  about  1.5  miles  by  river  above  the  next 
higher  lock  and  dam  proposed  by  the  board  of  engineers’  re- 
port {i.  e.,  Lock  No.  4 and  dam  No.  2 at  the  foot  of  Treat’s 
Island). 

Third.  That  there  shall  be  conveyed  to  the  United  States 
free  of  cost  a strip  of  land  at  least  150  feet  wide  across  the 
north  end  of  this  dam,  to  be  so  located,  between  it  and  the  tow 
132  path  of  the  present  Illinois  and  Michigan  canal,  as  to  con- 
nect the  present  mid-river  above  to  the  same  below  in  the 
manner  approximately  indicated  on  the  accompanying  blue 
prints;  the  right  of  the  United  States  to  enter  upon  and  use 
such  strip  of  land  for  the  construction  and  maintenance  of  a 
boat  lock,  its  necessary  approaches,  and  for  other  purposes  of 
navigation,  if  it  so  desires,  without  liability  for  damages  re- 
sulting in  any  way  from  its  operation  in  connection  with  con- 
struction or  maintenance  of  said  lock  and  appurtenant  works 
to  be  duly  guaranteed. 

If  these  conditions  are  complied  with,  in  the  opinion  of  the 
Chief  of  Engineers,  U.  S.  Army,  concurred  in  by  this  depart- 
ment, the  work  proposed  is  in  general  harmony  with  the  work 
of  improvement  recommended  by  the  Board  of  Engineers  ap- 
pointed under  authority  of  the  River  and  Harbor  Act  of  June 
13,  1902  (32  Stat.  L.,  331,  364),  in  its  report  dated  August  26, 
1905,  printed  as  House  Document  No.  263,  59th  Congress,  first 
session. 


no 


Inasmuch,  however,  as  Congress  has  not  as  yet  authorized 
the  improvement  of  this  river,  this  department  does  not  deem 
it  expedient  to  take  further  and  definite  action  in  the  matter 
of  approving  the  plans. 

Very  respectfully, 

Eobert  Shaw  Oliver, 
Assistant  Secretary  of  War. 


Mr.  Charles  A.  Monroe, 

The  Eookery,  Chicago,  Illinois.” 


And  defendant  avers  that  afterwards,  to-wit,  on  or  about  the 
15th  day  of  December,  1906,  this  defendant  acquired  from  the  said 
Munroe  and  associates,  all  the  lands  and  rights  so  acquired  by 
them,  including  the  leases,  deeds  and  contracts  from  the  said  Canal 
Commissioners  to  said  Griswold,  set  forth  in  said  bill,  and  that  at 
the  time  it  so  acquired  the  said  lands  and  rights  it  paid  full  con- 
sideration therefor  without  any  notice  or  knowledge  of  any  claim 
that  the  said  leases,  contracts  and  deeds  from  the  said  Canal  Com- 
missioners to  the  said  Harold  F.  Griswold  were  invalid,  and  that 
at  said  time,  and  before  the  payment  of  the  consideration 
133  therefor,  the  said  Canal  Commissioners  had  knowledge  that 
this  defendant  was  so  acquiring  said  lands  and  rights. 


This  defendant  furthers  avers,  and  states  the  fact  to  be,  that 
after  said  lands  were  so  acquired  by  it,  it  immediately  entered  in 
and  upon  the  work  of  constructing  its  dam  at  the  mouth  of  said 
Desplaines  Eiver,  procured  complete  plans  and  drawings  of  the 
proposed  work,  and  entered  into  a contract  for  the  construction 
of  said  dam  at  a cost  of  upwards  of  $500,000,  and  entered  into  a 
contract  for  the  purchase  of  hydraulic  machinery  to  the  amount 
of  $145,000,  upon  which  it  has  already  paid  the  sum  of  $52,500,  and 
has  become  liable  for  the  balance  thereof,  and  defendant  avers  that 
the  State  of  Illinois,  with  knowledge  that  this  defendant  was  pro- 
ceeding with  the  construction  of  its  said  dam  at  great  expense 
relying  upon  the  validity  of  said  deeds,  leases  and  contracts,  hav- 
ing stood  by  and  permitted  this  defendant  to  make  large  outlays 
of  money  and  incur  heavy  liability  in  and  about  the  construction 
of  its  said  dam,  without  protest  or  notice  that  it  claimed  that  said 
leases,  contracts  and  deeds  were  invalid,  is  now  estopped  to  claim 
that  they  are  invalid ; but  defendant  denies  that  said  several  leases, 
deeds  and  contracts  are  ineffectual  to  confer  any  right  to  build  or 


m 


maintain  said  dam,  but  avers  tliat  said  leases,  deeds  and  contracts 
confer  upon  this  defendant,  full  right,  power  and  authority  to 
construct  and  maintain  said  dam. 

And  defendant  further  avers  tliat  the  eartlien  portion  of  said 
dam  vdiich  occupies  the  space  between  the  power-house  and  the 
Illinois  and  Michigan  Canal,  and  which  said  space  is  reserved 
for  the  construction  of  a lock,  has  been  entirely  completed;  that 
the  space  between  said  earthen  dam  and  the  Desplaines  Kiver  has 
been  excavated  to  a depth  of,  to-wit,  20  feet,  and  that  from  the 

134  north  bank  of  said  Desplaines  Kiver  to  the  center,  a distance 
of  500  feet,  the  river  has  been  enclosed  in  a coffer  dam;  that 

in  connection  with  said  work,  the  said  contractor  has  erected 
some  17  buildings,  and  has,  and  had  on  the  ground  at  the  time 
the  injunction  was  issued  in  this  case,  engines,  derricks,  cars, 
boats,  stone,  cement,  lumber,  and  material,  to  the  amount  of  $150,- 
000. 

And  defendant  avers  that  the  plans  upon  which  it  was  proceed- 
ing to  construct  its  said  dam  at  the  time  of  the  entering  of  the 
temporary  injunction  herein  were  the  same  plans  which  were  so 
submitted  to  the  War  Department  and  defendant  avers  that  it  pro- 
poses and  intends  to  construct  its  said  dam  in  accordance  there- 
with ; that  it  proposes  to  build  its  dam  of  such  details  of  construc- 
tion as  shall  insure  permanency  and  of  sufficient  capacity  to  hold 
the  water  surface  of  its  upper  pool  at  a height  equal  to  the  pres- 
ent mean  level  of  Lake  Joliet  (taken  at  512.0  feet  Memphis  datum) ; 
and  that  whenever  Congress  or  the  State  of  Illinois  shall  author- 
ize and  undertake  the  improvement  of  the  Desplaines  Eiver  for 
navigation  purposes  it  proposes  to  comply  with  all  the  conditions 
specified  in  said  letter  to  the  end  that  its  dam  and  works  shall 
be  in  harmony  with  and  will  not  obstruct  such  improvement. 

This  defendant  further  answering  denies  that  the  General  As- 
sembly of  the  State  of  Illinois,  has,  by  resolution  duly  passed 
by  the  Senate,  and  concurred  in  by  the  House  of  Representatives, 
on  the  16th  day  of  October,  1907,  a purported  copy  of  which  is 
attached  to  said  bill,  proposed  the  building  of  a deep  waterway, 
commencing  at  the  southern  end  of  the  Chicago  Drainage 

135  Canal  and  extending  southwesterly  along  the  line  of  the  Des- 
plaines and  Illinois  Rivers  in  accordance  with  plans  and  speci- 


112 


fications  formulated  by  the  corps  of  engineers  of  the  IT.  S. 
Army  under  and  by  direction  of  a certain  act  of  the  Congress  of 
the  United  States ; but  avers  that  the  General  Assembly  did  by  said 
resolution  propose  to  submit  to  the  electors  of  the  State  of  Illi- 
nois a proposition  to  amend  the  Constitution  of  said  State  in  the 
manner  stated  in  said  resolution,  but  defendant  admits  that  in  case 
a deep  waterway  is  built  in  said  Desplaines  Eiver,  locks  and  dams 
with  special  provisions  for  navigation,  and  securing  and  safe- 
guarding the  passage  of  boats  will  necessarily  be  constructed  across 
said  deep  waterway  in  the  channel  of  the  Desplaines  Eiver  at  or 
near  the  location  of  the  site  of  this  defendant’s  dam,  and  that 
such  a dam  would  afford  water  power  of  great  value;  but  denies 
that  any  water  power  which  might  be  created  thereby  will  be  lost 
to  the  State  of  Illinois  if  defendant  shall  be  permitted  to  construct 
the  dam  herein  mentioned,  but,  on  the  contrary  thereof,  this  de- 
fendant avers  that  the  state  has  no  water  power  or  right  or  title 
thereto  u]3on  the  said  southeast  quarter  of  section  25;  but  this  de- 
fendant avers  that  the  water  power  existing  upon  the  southeast 
quarter  of  said  section  25  belongs  to  this  defendant,  and  that  the 
legislature  of  the  State  of  Illinois  has  no  right,  power  or  authority 
to  create  water  power  and  no  right,  power  or  authority  to  take  the 
property  of  this  defendant  for  that  purpose. 

And  this  defendant  avers  that  the  act  of  the  legislature  of  the 
State  of  Illinois,  passed  on  the  6th  day  of  December,  1907,  en- 
titled ‘AV  bill  for  an  act  recognizing  the  Desplaines  and  Illinois 
Eivers  as  navigable  streams  and  to  prevent  obstructions  being 
placed  therein,  and  to  remove  obstructions  therein  now  exist- 
136  ing,”  and  the  joint  resolution  of  the  General  Assembly,  a pur- 
ported copy  of  which  is  attached  to  said  bill  and  marked  Ex- 
hibit L,  is  an  attempt  upon  the  part  of  the  said  state  to  take  to  it- 
self, without  compensation  to  this  defendant,  the  water  power 
of  this  defendant,  and  that  the  resolution  of  the  General  Assembly 
hereinabove  mentioned  in  so  far  as  it  attempts  to  provide  for  the 
construction  of  a deep  water-way  along  the  Desplaines  Eiver  and 
the  creation  of  water  power  therein,  is  a violation  of  the  rights  of 
this  defendant  in  and  to  the  bed  and  shores  of  said  stream  in  the 
southeast  quarter  of  said  Section  25,  and  is  a taking  of  the  private 
property  of  this  defendant  without  due  process  of  law  in  viola- 


11  a 

tion  of  the  XIV  amendment  to  the  Constitution  of  the  United 
States  and  Section  13  of  Article  II  of  the  Constitution  of  Illinois, 
and  is  special  legislation  in  violation  of  Section  22  of  Article  4 
of  the  Constitution  of  Ilinois. 

This  defendant  further  answering,  avers  that  by  the  act  of 
cession  of  the  State  of  Virginia,  of  December  20,  1783,  and  the 
deed  of  cession  of  March  1,  1784,  executed  pursuant  thereto,  the 
State  of  Virginia  did  conve}^,  transfer,  assign  and  make  over  unto 
the  United  States  for  the  benefit  of  the  said  states,  Virignia  in- 
clusive, all  right,  title  and  claim  as  well  of  soil  as  of  jurisdiction, 
which  the  said  Commonweath  then  had  to  the  tenltory  or  tract  of 
country  within  the  limits  of  the  Virginia  charter,  situated,  lying 
and  being  to  the  northwest  of  the  Kiver  Ohio,  to  and  for  the  uses 
and  purposes,  and  on  the  conditions  in  said  act  recited,  among 
which  was  the  condition  that  the  states  formed  out  of  said 
137  territory  should  be  republican  states,  and  should  be  admitted 
members  of  the  Federal  Union,  with  the  same  rights  of  sov- 
ereignty, freedom  and  independence  as  the  other  states,  and  that 
the  lands  within  the  territory  so  ceded  to  the  United  States  should 
l)e  considered  as  a common  fund  for  the  use  and  l)enefit  of  such 
of  the  United  States  as  had  become  members  of  the  Confedera- 
tion or  federal  alliance  of  the  said  states,  Virginia  inclusive,  ac- 
cording to  their  several  respective  proportions  in  the  general 
charge  and  expenditure,  and  should  be  faithfully  and  hona  fide  dis- 
posed of  for  that  purpose,  and  for  no  other  use  or  purpose  what- 
ever. 

And  this  defendant  avers  that  the  land  in  said  Section  25  here- 
inabove described  was  among  the  lands  so  conveyed  by  the  State 
of  Virginia  to  the  general  government;  and  this  defendant  avers 
that  by  virtue  of  said  act  and  deed  of  cession  the  general  gov- 
ernment of  the  United  States  acquired  and  held  all  of  the  lands 
thereby  conveyed,  in  trust,  for  the  benefit  of  all  the  states  of  the 
United  States,  Virginia  inclusive,  according  to  their  usual  respect- 
ive proportions  in  the  general  charge  and  expenditure,  and  had 
no  right  or  authority  to  use  or  convey  said  lands  for  any  other 
use  or  purpose  whatsoever. 

And  this  defendant  avers  that  the  United  States,  holding  said 
lands  in  trust  as  aforesaid,  did  by  its  act  of  March  2,  1827,  grant 


114 


to  the  State  of  Illinois,  among  other  lands,  Section  25  in  Town- 
ship 34,  Eange  8,  East  of  the  Third  Principal  Meridian,  in  what  is 
now  Grundy  County,  Illinois,  for  the  purpose  of  aiding  the  said 
state  in  opening  a canal  to  unite  the  waters  of  the  Illinois  Elver 
with  those  of  Lake  Michigan,  and  provided  in  said  act  that 

138  the  said  lands  should  he  subject  to  the  disposal  of  the  legis- 
lature of  the  state  for  that  purpose,  and  no  other. 

And  this  defendant  avers  that  the  state  thereafter,  by  virtue  of 
said  act,  held  the  said  lands,  including  Section  25  aforesaid,  in 
trust  for  the  purposes  therein  expressed,  and  no  other,  and  that 
the  said  state  had  no  right  or  authority  to  divert  the  said  Section 
25,  or  any  portion  thereof,  from  the  uses  for  which  the  same  were 
granted  by  the  United  States  and  had  no  authority  to  retain,  use 
or  devote  the  bed  of  the  Uesp] nines  through  said  Section  25,  or 
the  lands  bordering  upon  said  stream  within  the  alleged  meander 
lines  thereof,  for  any  purpose  other  than  the  construction  of  said 
canal,  and  that  the  application  of  said  lands  to  any  purpose  other 
than  those  upon  which  the  grant  was  made,  would  be  a violation 
of  the  trust  uj^on  which  said  lands  were  granted  by  the  general 
government  to  said  state,  and  would  be  a violation  of  the  trust 
upon  which  the  United  States  took  and  held  said  lands  by  virtue 
of  the  act  and  deed  of  cession  of  the  State  of  Virginia  above  men- 
tioned. 

Defendant  avers  that  in  the  year  1842,  the  State  of  Illinois,  after 
having  expended  nearly  $5,000,000  upon  the  construction  of  the  Illi- 
nois & Michigan  Canal,  and  finding  the  same  far  from  completion; 
its  treasury  empty,  the  interest  upon  its  bonds,  and  other  indebted- 
ness, long  past  due,  and  unpaid;  a large  portion  of  the  canal  lands 
sold,  and  the  proceeds  expended  in  the  construction  of  said  canal, 
and  a large  indebtedness,  in  addition  thereto,  incurred  in  the  con- 
struction of  the  same;  and  the  value  of  the  remaining  canal  lands 
entirely  inadequate  at  their  then  value  to  complete  the  canal 

139  at  the  estimated  cost  thereof,  and  no  one  willing  to  extend  her 
further  credit  upon  her  own  faith, — applied  to  some  of  the 

large  holders  of  her  canal  bonds  and  indebtedness  for  a further 
loan  for  the  purpose  of  completing  the  construction  of  said  canal; 
and  after  considerable  negotiations  with  various  large  holders  of 
her  bonds  and  indebtedness,  some  of  those  holders  offered  to  sub- 


115 


scribe  to  a loan  to  the  state  to  the  amount  of  $1,600,000  for  the 
13urpose  of  completing  said  canal  upon  the  condition  that  the  state 
should  convey  to  trustees  for  the  benefit  of  the  subscribers  to  said 
loan,  all  of  her  canal  lands,  town  lots,  water  power,  coal  beds,  stone 
quarries,  and  all  of  the  canal  property,  together  with  all  of  the  tolls 
that  might  be  derived  from  transportation  upon  the  canal,  and,  in 
addition  thereto,  that  the  state  would  at  the  next  session  of  its 
legislature,  adopt  and  establish  a system  of  revenue  by  which  pro- 
vision should  be  made  for  the  prompt  and  continuous  payment  of 
part  of  the  accruing  interest  upon  the  whole  state  debt,  and  should 
also  provide  for  the  gradual  payment  of  the  arrears  of  interest 
then  due  and  of  such  arrears  as  should  thereafter  accrue  from  her 
then  inability  to  pay  the  whole  interest  at  its  exact  maturity;  and 
thereafter,  pursuant  to  said  offer,  the  legislature  of  the  State  of 
Illinois,  at  its  session  in  1843,  passed  an  act  entitled  ‘‘An  act  to 
provide  for  the  completion  of  the  Illinois  & Michigan  Canal  and 
for  the  payment  of  the  canal  debt,”  approved  February  21,  1843, 
Section  1 of  which  provided  that  for  the  purpose  of  raising  a fund 
for  the  completion  of  the  Illinois  & Michigan  Canal,  “the  Gover- 
nor of  this  state,  be,  and  is  herel)y  fully  authorized  and  empow- 
ered to  negotiate  a loan  solely  on  the  credit  and  pledge  of  the 
140  said  canal,  its  tolls,  revenues  and  lands”  to  be  granted  to 
trustees  as  thereinafter  provided,  of  $1,600,000. 

And  Section  10  of  said  act  provided  that  “for  the  purpose  of 
placing  in  the  hands  of  trustees  full  and  ample  security  for  the 
payment  of  said  loan  authorized  by  this  act,  and  the  interest  there- 
on, as  well  as  for  securing  a preference  in  the  payment  of  such 
canal  bonds  and  other  evidences  of  indebtedness  issued  by  this 
state  for  the  purpose  of  aiding  in  the  construction  of  the  Illinois 
& Michigan  Canal,  as  may  be  owned  by  the  subscribers  to  the  said 
loan,  the  state  does  hereby  irrevocably  grant  to  the  said  Board  of 
Trustees  of  the  Illinois  and  Michigan  Canal,  the  bed  of  said  Illi- 
nios  & Michigan  Canal,  and  the  land  over  which  the  same  passes, 
including  its  banks,  margins,  towpaths,  feeders,  basins,  right  of 
way,  locks,  dams,  water  power,  structures,  stone  excavated  and 
stone  and  materials  quarried,  purchased,  procured  or  collected  for 
its  construction;  and  all  the  property,  right,  title  and  interest  of 
the  state,  of,  in  and  to  said  canal,  with  all  the  hereditaments  and 


116 


appurtenances  thereunto  belonging,  or  in  any  wise  appertaining; 
and  also  all  the  remaining  lands  and  lots  belonging  to  said  canal 
fund,  or  which  hereafter  may  be  given,  granted,  or  donated  by  the 
general  government  to  the  state,  to  aid  in  the  construction  of  the 
said  canal,  and  the  buildings  and  erections  belonging  to  the  state 
thereon  situated ; the  said  Board  of  Trustees  to  have,  hold,  possess 
and  enjoy  the  same  as  fully  and  absolutely,  in  all  respects,  as  the 
state  now  can  or  hereafter  could  do,  for  the  uses,  purposes  and 
trusts  hereinafter  mentioned.’’ 

And  that  by  Section  20  of  said  act,  the  state  solemnly  pledged 

141  its  faith  to  supply,  by  future  legislation,  all  such  defects  as 
might  be  found  necessary  to  enable  the  said  trustees  to  carry 

into  full  effect  the  fair  and  obvious  intent  of  the  act. 

And  defendant  avers  that  thereafter,  and  pursuant  to  said  act, 
subscriptions  were  made  to  said  loan  in  accordance  with  the  said 
agreement  to  subscribe;  that  thereafter,  and  at  its  session  in  the 
year  1845,  the  legislature  of  the  State  of  Illinois  passed  an  act 
entitled  ‘^An  act  supplemental  to  ‘an  act  to  provide  for  the  com- 
pletion of  the  Illinois  & Michigan  Canal,  and  for  the  payment  of 
the  canal  debt,’  approved  February  21,  1843,”  approved  March  1, 
1845,  Section  1 of  which  provided  that  after  the  contract  for  the 
loan  of  $1,600,000  as  contemplated  in  the  act  entitled  “An  act  to 
provide  for  the  completion  of  the  Illinois  & Michigan  Canal  and 
for  the  payment  of  the  canal  debt  ’ ’ should  have  been  duly  executed 
in  all  respects  as  was  provided  by  the  terms  of  the  above  men- 
tioned act  as  modified  by  the  provisions  of  this  act,  and  trustees 
were  appointed  as  contemplated  in  said  act,  the  Governor  of  said 
state  should  execute  and  deliver  unto  the  said  trustees  a deed  of 
trust  of  all  the  property  mentioned  in  the  10th  Section  of  said  act 
of  February  21,  1843,  which  said  conveyance  should  include  the 
lands  and  lots  remaining  unsold,  donated  by  the  United  States  to 
the  State  of  Illinois  to  aid  in  the  completion  of  the  canal,  to  be  held 
in  trust  as  in  the  said  act  stipulated;  and  defendant  avers  that 
thereafter  the  Governor  of  the  State  of  Illinois  did  execute  and 
deliver  a deed  of  trust  as  provided  in  said  act. 

142  And  this  defendant  avers  that  by  virtue  of  said  act  of  the 
General  Assembly  of  the  State  of  Illinois  passed  February  21, 

1843,  and  entitled  “An  act  to  provide  for  the  completion  of  the 


117 


liliiiois  & Michigan  Canal  and  for  the  payment  of  the  canal  debt,” 
and  said  deed  of  trust  said  Board  of  Trustees  of  the  Illinois  & 
Michigan  Canal  acquired  all  the  right,  title  and  interest  of  the  state 
in  and  to  the  lands  in  Section  25  hereinabove  described,  including 
the  bed  of  the  Desplaines  Eiver  in  said  section  and  the  lands  be- 
tween said  alleged  meander  lines  in  said  section,  for  the  purpose 
of  securing  the  payment  of  the  loan  authorized  by  said  act  to  be 
made  for  the  purpose  of  completing  said  canal,  and  were  author- 
ized ])y  said  act  to  sell  said  lands  at  public  auction  in  lots  and  legal 
subdivisions,  said  sales  to  be  made  for  cash  or  for  credit  in  the 
manner  prescribed  in  the  act  of  the  9th  of  January,  1836. 

And  this  defendant  avers  that  pursuant  to  such  authority  the 
said  Board  of  Trustees  did  sell  to  the  said  Charles  B.  Boyer,  the 
south  fraction  of  the  northwest  quarter,  and  the  north  fraction 
of  the  southeast  quarter,  and  the  north  fraction  of  the  northwest 
quarter,  and  the  south  fraction  of  the  southeast  quarter,  of  Sec- 
tion 25,  in  Township  34,  North  of  Eange  8,  East  of  the  3rd  P.  M., 
excepting  and  reserving  so  much  of  said  tract  as  is  occupied  by 
the  canal  and  its  waters,  and  a strip  90  feet  wide  on  either  side  of 
said  canal,  containing  196.62  acres,  more  or  less,  and  did  execute 
and  deliver  to  the  said  Boyer  their  deed  dated  the  22nd  clay  of  Oc- 
tober, 1860,  in  words  and  figures  substantially  as  follows,  to-wit; 

143  ‘MCxow  ALL  MEN  BY  THESE  PKESENTS,  That  the  Boai'd  of 
Trustees  of  the  Illinois  and  Michigan  Canal,  under  the  au- 
thority vested  in  said  board  by  the  act  of  the  Legislature  of 
the  State  of  Illinois  of  February  21,  1843,  entitled,  L\n  act 
to  provide  for  the  completion  of  the  Illinois  and  Michigan 
Canal  and  for  the  payment  of  the  canal  debt,’  has  sold  to 
Charles  E.  Boyer  the  following  described  tract  of  land,  to- 
wit: 

The  south  fraction  of  the  northwest  quarter  and  the  north 
fraction  of  the  southeast  quarter,  and  the  north  fraction  of 
the  northwest  quarter,  and  the  south  fraction  of  the  south- 
east quarter  of  Section  Twenty-five  (25)  in  Township  Thirty- 
four  (34)  North,  of  Eange  Eight  (8)  East  of  the  Third  Prin- 
cipal Meridian,  excepting  and  reserving  so  much  of  said 
tract  as  is  occupied  by  the  canal  and  its  waters,  and  a strip 
ninety  (90)  feet  wide  on  either  side  of  said  canal,  containing 
one  hundred  ninety-six  and  sixty-two  hundredths  (196.62) 
acres,  more  or  less,  said  tract  being  a portion  of  the  land 
granted  by  the  United  States  by  the  act  of  March  21,  1827, 
and  the  29th  day  of  August,  1842,  and  the  3rd  of  August,  1854, 


118 


to  the  State  of  Illinois,  to  aid  said  state  in  opening  a canal 
to  connect  the  waters  of  the  Illinois  River  with  those  of  Lake 
Michigan,  and  by  said  state  granted  to  the  said  Board  of 
Trustees  of  the  Illinois  and  Michigan  Canal,  for  the  purposes 
set  forth  in  said  act  of  said  state  of  February  21,  1843. 

Know  Ye  Also,  That  the  said  Charles  E.  Boyer  paid  to 
the  treasurer  of  said  Board  of  Trustees  tlie  sum  of  one 
thousand  five  hundred  and  fifty-six  dollars  and  fifty-two 
cents  ($1,556.52),  being  in  full  payment  of  the  purchase  money 

144  for  said  land,  and  made  according  to  the  conditions  set  forth 
in  the  act  of  January  9,  1836,  entitled  ‘An  act  for  the  con- 
struction of  the  Illinois  and  Michigan  Canal.’  In  considera- 
tion thereof  and  the  premises,  the  said  Board  of  Trustees 
of  the  Illinois  and  Michigan  Canal  has  granted,  bargained 
and  sold,  and  by  these  presents  do  grant,  bargain,  and  sell 
unto  the  said  Charles  E.  Boyer,  the  said  tract  of  land  above 
designated  and  described. 

To  have  and  to  hold  the  same,  together  with  all  rights, 
privileges,  immunities  and  appurtenances  thereunto  belong- 
ing unto  the  said  Charles  E.  Boyer,  his  heirs  and  assigns,  for- 
ever. 

Iisr  WITNESS  WHEREOF,  the  said  Board  of  Trustees  of  the 
Illinois  and  Michigan  Canal  have  caused  the  corporate  seal 
of  said  hoard  to  he  affixed  hereunto  and  the  names  of  the 
president  and  secretary  of  said  hoard  to  he  affixed  hereunto 
this  22nd  day  of  October  in  the  year  of  our  Lord,  1860. 

W.  H.  Swift, 

William  Gooding, 

Secretary/^ 

145  And  defendant  avers  that  the  said  Board  of  Trustees  did 
by  their  said  deed  convey  the  lands  therein  described  to  the 

said  Boyer  and  that  this  defendant,  by  mesne  conveyances  from 
the  said  Charles  E.  Boyer,  and  by  virtue  of  the  deed  of  convey- 
ance from  the  said  Board  of  Trustees  of  the  Illinois  & Michigan 
Canal  to  said  Boyer,  acquired  all  the  right,  title  and  interest  of 
the  said  State  of  Illinois  in  and  to  the  said  northwest  quarter 
and  the  southeast  quarter  of  Section  25,  excepting  so  much  of 
said  tract  as  was  occupied  by  the  canal  and  its  waters  and  said 
90-foot  strip. 

And  this  defendant  avers  that  its  grantors  and  predecessors 
in  title  have  used  and  cultivated  the  land  lying  between  the  al- 
leged meander  line  and  the  waters  of  said  Desplaines  River  in 
said  southeast  quarter  of  said  Section  25  down  to  the  bank  of 
said  river,  for  more  than  40  years  last  past,  during  all  of  which 


119 


time  they  have  been  in  open,  notorious  and  peaceable  possession 
thereof,  claiming  title  thereto  in  fee  simple. 

And  this  defendant  avers  that  the  taxing  authorities  of  the 
State  of  Illinois  and  the  County  of  Grundy,  in  the  State  of  Illi- 
nois, have  from  the  date  of  the  deed  from  the  Canal  Commis- 
sioners to  said  Charles  E.  Boyer,  levied  state,  school  and  county 
taxes  upon  all  of  said  land,  including  the  land  lying  between  the 

alleged  meander  lines  and  the  waters  of  said  Desplaines  Eiver 

and  in  the  bed  of  the  stream  thereof,  in  said  southeast  quarter 

of  said  Section  25,  and  have  from  time  to  time  demanded  and  ex- 

acted of  this  defendant,  and  defendant  \s  grantors  and  predeces- 
sors in  title,  the  payment  of  such  taxes,  and  this  defendant 
146  and  its  predecessors  in  title  have  ever  since  the  date  of  the 
deed  from  said  Board  of  Trustees  to  said  Boyer,  down  to 
the  present  time,  a period  of  forty-seven  years,  paid  state,  school 
and  county  taxes  upon  all  of  said  land,  including  the  land  lying 
between  the  alleged  meander  lines  and  the  waters  of  said  Des- 
plaines Kiver,  and  in  the  bed  of  said  stream,  and  the  F.ald  State 
of  Illinois  and  the  people  thereof  are  thereby  estopped  from 
claiming  that  the  title  to  the  lands  lying  between  the  alleged 
meander  lines  and  the  waters  of  said  Desplaines  Eiver  and  in 
the  bed  of  the  stream  thereof  in  said  southeast  quarter  of  said 
Section  25  has  not  passed  from  the  State  of  Illinois,  or  that  it  is 
not  now  vested  in  this  defendant. 

This  defendant  further  answering,  denies  that  the  90-foot  strip 
of  land  along  the  Illinois  & Michigan  Canal  is  necessary  for  the 
proper  maintenance  and  use  of  the  canal,  or  that  it  constitutes 
a necessary  integral  part  of  said  canal,  and  denies  that  the  Board 
of  Trustees  and  said  Canal  Commissioners  of  the  State  of  Illi- 
nois had  not  the  right  and  authority,  under  the  law,  to  convey 
the  same  by  deed,  lease  or  otherwise ; but,  on  the  contrary  there- 
of, this  defendant  avers  that  the  90-fooI  strip  is  not  a part  of 
the  Illinois  & Michigan  Canal  but  is  a nart  of  the  canal  lands, 
and  has  been  so  held  by  the  Supreme  Court  of  this  State,  and  that 
said  strip  has  been  to  a large  extent  sold  by  the  state,  before  the 
date  of  the  said  lease  and  contract  of  September  2,  1904. 

Defendant  avers  that  the  land  described  in  the  deed  from  the 
Canal  Commissioners  to  Harold  F.  Griswold,  bearing  date  the 


6tli  day  of  January,  1904,  a purported  copy  of  which  is  attached 
to  said  bill  as  Exhibit  J,  to-wit,  that  part  of  Section 

147  31,  Township  34  North,  Eange  9,  East  of  the  Third  Princi- 
pal Meridian,  in  Will  County,  Illinois,  lying  southwest  and 

southeast  of  the  Illinois  & Michigan  Canal,  and  northeast  and 
northwest  of  the  Desplaines  Elver  (excepting  a strip  of  land  90 
feet  in  width  on  the  southerly  side  of  the  Illinois  & Michigan 
Canal  and  bordering  thereon  and  continuous  through  said 
Section  31)  were  canal  lands  and  were  not  connected  with  water 
power  upon  the  said  canal  or  the  90-foot  strip  along  the  canal, 
and  that  the  said  Canal  Commissioners  had  full  power  and  au- 
thority to  sell  and  convey  the  same. 

This  defendant  avers  that  by  mesne  conveyances  from  the  said 
Charles  E.  Boyer,  it  did  acquire  title  in  fee  simple  to  the  lands 
lying  in  the  bed  of  said  Desplaines  Elver  and  outside  of  the  al- 
leged meander  lines  of  said  stream  in  the  southeast  quarter  of 
said  Section  25,  and  that  by  virtue  of  said  contracts.  Exhibits 
A and  B,  this  defendant  did  acquire  the  right  purported  to  be 
granted  thereby,  in  and  to  the  90-foot  strip  of  land  lying  between 
the  waters  of  the  Illinois  & Michigan  Canal  and  the  said  Des- 
plaines Eiver,  and  that  the  said  deeds,  leases,  contracts  and  other 
agreements  are  valid  and  subsisting  deeds,  leases,  contracts  and 
agreement  to  the  premises  therein  respectively  described;  and 
this  defendant  denies  that  by  virtue  of  the  several  enactments 
of  the  Congress  of  the  United  States,  and  the  several  acts  of  the 
legislature  of  the  State  of  Illinois,  as  set  forth  in  said  bill,  the 
bed  of  the  Desplaines  Eiver  is  owned  by  the  State  of  Illinois,  or 
that  the  same  has  not  been  conveyed  by  any  deed  to  anybody 

148  whomsoever;  and  denies  that  the  lands  on  said  Section  25 
last  above  described,  and  other  sections  of  land  along  the 

line  of  the  Desplaines  Eiver,  so  granted  to  the  State  of  Illinois 
by  the  act  of  Congress  hereinbefore  referred  to,  outside  of  the 
alleged  meander  line  of  the  Desplaines  Eiver,  have  not  been  con- 
veyed by  the  State  of  Illinois  nor  by  any  other  person  or  per- 
sons, or  corporation  whomsoever,  having  authority  to  so  convey 
the  same,  and  deny  that  the  same  remain,  and  are,  owned  by  the 
State  of  Illinois;  but,  on  the  contrary  thereof,  this  defendant 
avers  that  by  virtue  of  the  act  and  deed  of  cession  of  the  State 


of  Virginia,  and  the  act  of  Congress  of  March  2,  1827,  and 
the  act  of  tlie  legislature  of  the  State  of  Illinois  of  February  21, 
1843,  the  act  of  the  legislature  of  the  State  of  IlFinois  of  March 
1,  1845,  and  the  deed  of  trust  executed  pursuant  thereto,  and  the 
deed  of  the  Board  of  Trustees  of  the  Illinois  & Michigan  Canal, 
hereinabove  referred  to,  and  by  mesne  conveyances  from  the  said 
Charles  E.  Boyer  to  this  defendant,  this  defendant  acquired  all 
the  said  lands  in  the  southeast  (juarter  of  Section  25,  Township 
34,  Range  8,  East  of  the  Third  Princi];)al  Meridian,  in  Grundy 
County,  Illinois,  excepting  so  much  of  said  tract  as  is  occupied 
by  the  canal  and  its  waters,  and  a strip  90  feet  wide  on  either 
side  of  said  canal. 

This  defendant  admits  that  it  claims  to  be  the  owner  of  the 
bed  of  the  stream  of  the  Desplaines  River  and  other  lands  of 
said  southeast  quarter  of  said  Section  25,  and  other  lands  for  a 
distance  of  nine  miles  up  the  Desplaines  River,  which  are  outside 
of  the  alleged  meander  lines  of  said  river,  but  denies  that 
149  said  claim  is  in  violation  of  the  rights  and  interest  of  the 
People  of  the  State  of  Illinois,  as  alleged  in  said  bill;  and 
defendant  avers  that  it  has  at  great  expense  acquired  lands  in 
the  bed  of  said  Desplaines  River,  and  along  the  shore  thereof  for 
a distance  of  about  nine  miles,  including  all  the  lands  which  will 
be  flooded  by  its  proposed  dam,  for  the  purpose  of  creating 
water  power  as  alleged  in  said  bill ; admits  that  it  had  actually 
begun  the  erection  of  a dam  across  the  said  Desplaines  River  and 
across  the  90-foot  strip  of  land  alleged  by  said  bill  to  be  reserved 
for  the  use  of  the  Illinois  & Michigan  Canal,  and  across  other 
lands  outside  of  the  alleged  meander  lines  of  the  Desplaines 
River  to  connect  with  the  bank  or  towpath  of  the  canal,  and  was 
so  constructing  said  dam  as  to  cause  the  water  to  be  backed  up 
and  to  overflow  the  lands  along  said  river  for  the  distance  of 
9 miles  or  thereabouts,  but'  denies  that  any  of  the  lands  so  to  be 
overflowed  belong  to  the  State  of  Illinois. 

This  defendant  admits  that  on  the  12th  day  of  December,  1907, 
the  attorney  general  of  the  State  of  Illinois  caused  to  be  served 
upon  it  a certain  notice  as  is  alleged  in  paragraph  9 of  said  bill, 
copy  of  which  is  attached  to  said  bill,  marked  Exhibit  M;”  and 
admits  that  it  disregarded  said  notice  as  it  had  a right  to  do; 


and  admits  that  after  the  service  of  said  notice,  it  continued  in 
the  work  of  constructing  said  dam  at  said  place  in  the  bed  of 
said  river,  as  alleged  in  said  bill;  and  admits  that  it  continued 
such  construction  up  until  the  issuance  of  the  temporary  injunc- 
tion herein ; but  denies  that  the  completion  of  said  dam  would 

150  be  to  the  great  impairment,  or  any  impairment,  of  the  ease- 
ment of  navigation,  if  any  such  easement  existed,  or  to  the 

great  and  irreparable  injury,  or  to  any  injury,  of  the  people  of 
the  State  of  Illinois,  but  avers  that  in  case  the  United  States  or 
the  State  of  Illinois  should  hereafter  construct  a deep  waterway 
in  said  Desplaines  Eiver  said  dam  will  be  a distinct  aid  and 
benefit  thereto,  to  the  extent  of  more  than  $500,000. 

Denies  that  if  said  dam  is  permitted  to  be  erected  by  said  de- 
fendant, it  will  destroy  and  interfere  with  the  Desplaines  Eiver 
as  a navigable  water  way  for  the  use  of  the  people  of  the  State 
of  Illinois,  or  for  the  people  of  the  United  States,  and  avers  that 
its  said  dam  does  not  and  will  not  in  anywise  interfere  with  the 
intent  and  purpose  of  said  act  of  the  Legislature  of  Illinois  of 
December  6,  1907. 

Denies  that  it  will  overflow  or  destroy  the  value  of  lands,  and 
the  use  of  lands,  belonging  to  the  state,  adjacent  to  the  Desplaines 
Eiver,  or  that  it  will  destroy  the  use  of  the  90-foot  strip  of 
land,  or  that  it  will  render  the  same  inoperative,  and  a purpres- 
ture,  or  that  it  will  impair  the  benefit  of  the  same  to  said  canal ; 
denies  that  it  will  destroy  a feeder  of  the  Illinois  & Michigan 
Canal,  or  that  it  will  constitute  a purpresture  or  that  the  same 
will  produce  and  work  irreparable  loss  and  damage,  or  any  loss 
and  damage  to,  the  Illinois  & Michigan  Canal,  or  to  the  State  of 
Illinois,  or  to  the  rights  of  the  people  of  the  State  of  Illinois. 

This  defendant  further  answering,  admits  that  the  agreement. 
Exhibit  A,  purports  to  give  rights  as  therein  set  forth;  but 

151  denies  that  each  and  every,  or  any,  of  the  provisions  of  such 
agreement  relating  to  such  rights  were  beyond  the  power  of 

the  said  Canal  Commissioners  to  grant;  but  avers  that  at  the 
date  of  said  several  agreements,  the  said  Canal  Commissioners, 
had  full  power  and  authority  to  grant  the  rights  and  privileges 
granted  in  and  by  each  and  every  of  said  contracts. 

This  defendant  admits  that  the  lease.  Exhibit  B,  purported  to 


123 


convey  and  demise  an  interest  in  the  said  90-foot  strip  within 
the  area  described  in  said  lease,  in  that  part  of  the  canal  called 
the  Kankakee  Feeder,  and  purported  to  give  a right  of  renewal 
to  the  party  of  the  second  part  therein  named,  and  purported  to 
be  made  subject  to  said  contract  Exhibit  A. 

Admits  that  each  of  said  contracts  purported  to  be  contracts 
on  the  part  of  the  Canal  Commissioners  with  said  Griswold,  his 
successors  and  assigns,  but  denies  that  by  their  terms  they  might 
be  assigned  one  to  one  assignee  and  the  other  to  another  or  dif- 
ferent assignee. 

This  defendant  admits  that  the  said  contract  was  so  entered 
into  between  the  parties  thereto,  with  the  mutual  knowledge  and 
understanding  that  the  party  of  the  second  part,  or  his  assignee, 
intended  to  make  use  of  the  same  in  erecting  said  dam  and  de- 
veloping water  power  in  the  Fesplaines  Fiver,  but  denies  that 
the  same  amount  to  a lease  of  water  power  rights  on,  or  of  lots 
and  lands  connected  with  water  power  on  the  Illinois  and  Michi- 
gan Canal. 

Admits  that  said  lease  and  contract  were  not  entered  into  upon 
notice  by  publication,  and  that  they  were  not  limited  to  a ])eriod 
of  ten  years,  but  denies  that  that  fact  was  contrary  to  the  pro- 
visions of  a certain  act  entitled  ‘^An  act  to  revise  the  law  in  rela- 
tion to  the  Illinois  & Michigan  Canal  and  for  the  im- 
152  provement  of  the  Illinois  and  Little  Wabash  Fivers,’’  ap- 
proved March  27,  1874,  and  acts  amendatory  thereof,  and  in 
particular  to  the  provisions  of  Clause  6 of  Section  8 of  said  stat- 
ute as  amended  by  a certain  act  amendatory  thereof,  approved 
June  19,  1891,  in  force  July  1,  1891,  and  deny  that  the  said  lease 
and  contract  were  beyond  the  power  of  the  commissioners  to 
enter  into,  or  that  the  same  are  null  and  void. 

This  defendant  denies  that  treating  said  instruments  as  leases 
of  water  power,  they  are  subject  to  the  power  of  the  state  to 
resume,  without  compensation  to  this  defendant,  the  use  of  such 
water  power,  or  that  they  are  further  subject  to  the  power  of  the 
state  to  abandon  or  destroy  the  work  by  the  construction  of  which 
the  water  privilege  therein  purported  to  be  conferred  shall  have 
been  created  whenever,  in  the  opinion  of  the  legislature,  such 
work  shall  cease  to  be  advantageous  to  the  state. 


124 


This  defendant  denies  that  Clause  6 of  Section  8 of  the  act 
approved  March  27,  1874,  as  amended  by  act  approved  June  19, 
1891,  applies  to  the  premises  so  leased  by  said  instrument,  and 
avers  that  said  act  only  authorizes  the  abandonment  or  destruc- 
tion of  works  over  which  the  state  or  the  Canal  Commissioners 
have  control. 

This  defendant  denies  that  the  opinion  of  the  legislature  that 
such  work  has  ceased  to  be  advantageous  to  the  state,  was  ex- 
pressed by  the  statute  approved  and  in  force  December  6,  1907, 
entitled  ‘^An  act  recognizing  the  Desplaines  and  Illinois  Divers 
as  navigable  streams,  and  to  prevent  obstructions  being 
153  placed  therein,  and  to  remove  obstructions  therein  now  ex- 
isting.’’ 

This  defendant  avers  that  said  act  last  mentioned  has  no  ref- 
erences to  any  work  connected  with  said  canal,  over  which  the 
said  Canal  Commissioners  or  the  legislature  of  the  State  of  Illi- 
nois had  any  authority  or  control. 

This  defendant  denies  that  said  contract  was  a further  lease 
for  the  purpose  of  enabling  the  assignee  therein  to  develop  and 
create  water  power,  but  avers  that  the  same  was  merely  a flow- 
age  contract  and  not  necessary  to  be  made  in  conformity  with 
the  provisions  of  the  statute  last  above  cited  in  reference  to  the 
Illinois  & Michigan  Canal. 

Denies  that  the  Kankakee  Feeder  was  an  integral  part  of  said 
canal  or  that  said  agreement  was  beyond  the  power  of  the  Canal 
Commissioners  to  make;  but,  on  the  contrary  thereof,  said  feeder 
has  long  since  been  abandoned,  and  was  wholly  unnecessary  for 
the  operation  of  said  canal. 

This  defendant  admits  that  said  lease.  Exhibit  C,  contained  a 
provision  expressly  reserving  to  the  Commissioners  the  right 
to  cancel  the  lease  and  to  recover  possession  of  the  land,  property 
and  rights  therein  demised  and  referred  to,  whenever  in  the  judg- 
ment of  the  Canal  Commissioners  or  other  proper  officers  of  the 
state  at  such  time  having  charge  of  the  canal  property,  they  shall 
deem  the  interest  of  the  state  required  it  to  re-possess  and  use 
said  property  for  state  purposes;  but  this  defendant  denies  that 
said  power  of  revocation  and  cancellation  may  be  exercised  by 


the  legislature  of  the  state,  and  denies  that  the  same  was 
J;~4  exercised  by  the  legislature  of  the  state  by  the  enactment 
of  the  statute  of  December  6,  1904,  above  referred  to;  and 
denies  that  the  exercise  of  the  powers,  privileges  and  rights  con- 
ferred by  said  lease  Exhibit  C will  constitute  and  create  obstruc- 
tions of  the  Desplaines  River. 

This  defendant  admits  that  Exhibit  J purports  to  convey  the 
lands  therein  described,  and  in  terms  includes  the  lands  lying  and 
being  situated  outside  of  the  alleged  meander  lines  of  the  Des- 
plaines River,  and  that  it  purports  to  be  subject  to  the  terms  of 
said  tlowage  contract.  Exhibit  A,  and  said  lease.  Exhibit  B. 

This  defendant  denies  that  the  lands  and  lots  described  in  said 
deeds  are  lands  and  lots  connected  with  the  water  power  privi- 
leges.  , 

Denies  that  Exhibits  A and  B purj)ort  to  convey  and  create 
water  power  privileges. 

Admits  that  said  advertisement  thereof  did  not  designate  and 
describe  said  premises  as  water  power  privileges,  and  did  not 
limit  the  same  to  the  term  of  ten  years,  but  denies  that  leases  of 
water  power  privileges  were  at  the  time  of  the  execution  of  said 
lease  limited  by  law  to  a term  of  ten  years,  but  avers  that  by  tlie 
sixth  clause  of  Section  8 of  the  act  of  March  27,  1874,  entitled 
^‘An  act  to  revise  the  law  in  relation  to  the  Illinois  & Michigan 
Canal  and  for  the  improvement  of  the  Illinois  and  Little  AVabash 
Rivers,’^  as  amended  by  act  approved  April  21,  1899,  in  force 
155  July  1,  1899,  the  Commissioners  were  given  power  to  lease 
wafer  power  and  lands  and  lots  connected  therewith  for  a 
period  of  twenty  years,  and  power  to  provide  for  the  extension 
of  any  lease  from  time  to  time. 

And 'this  defendant  denies  that  said  contract  and  lease.  Ex- 
hibits A and  B,  were  beyond  the  power  of  said  commissioners, 
or  were  null  and  void,  and  denies  that  the  same  were  leases  of 
water  power  or  lands  and  lots  connected  therewith  within  the 
meaning  of  any  of  said  acts,  or  that  they  were  subject  to  any 
power  in  the  state  to  resume  the  same,  or  to  abandon  and  destroy 
the  work  by  the  construction  of  which  water  power  shall  have 
been  created,  whenever  in  the  opinion  of  the  legislature  such  work 
should  have  ceased  to  be  advantageous  to  the  state. 


126 


And  this  defendant  denies  that  the'  opinion  of  the  legislature 
that  the  work  ceased  to  be  advantageous  to  the  state  was  ex- 
pressed by  the  statute,  approved  and  in  force  December  6,  1907', 
entitled  ‘^An  act  recognizing  the  Desplaines  and  Illinois  Elvers  as 
navigable  streams  and  to  prevent  obstructions  being  placed  there- 
in, and  to  remove  obstructions  therein  now  existing.” 

This  defendant  admits  that  the  pole  lease.  Exhibit  K,  conveyed 
to  said  Griswold,  his  successors  and  assigns,  the  right  to  main- 
tain a line  of  poles  along  said  canal  from  the  west  line  of  said 
Section  25,  upon  wJiicli  said  dam  has  been  located  to  Eobey  street, 
in  the  City  of  Joliet,  and  from  the  same  point  in  said  Section  25 
to  the  west  limits  of  the  City  of  Morris,  in  Grundy  County;  and 
this  defendant  admits  that  the  said  lease  was  made  upon  the  same 
day  as  said  contract  and  lease.  Exhibit  A and  Exhibit  B,  and 
admits  that  it  was  for  the  purpose  of  transferring  and  con- 
156  veying  electrical  energy  by  said  proposed  line  of  poles,  but 
denies  that  it  was  subject  to  all  the  infirmities  alleged  in  said 
bill  as  to  said  contract  and  lease.  Exhibits  A and  B,  or  to  any  in- 
firmity. 

This  defendant  denies  that  said  contracts,  deeds  and  leases,  or 
either,  or  any  of  them,  were  entered  into  on  an  inadequate  con- 
sideration; but,  on  the  contrary  thereof,  avers  that  the  considera- 
tion paid  therefor  by  said  Harold  F.  Griswold  to  said  Canal  Com- 
missioners was  wholly  adequate  and  was  the  full  value  of  the 
rights  thereby  granted. 

Defendant  avers  that  the  granting  of  the  temporary  injunction 
herein  without  bond  has  resulted  in  irreparable  injury  to  this  de- 
fendant, and  was  a taking  of  the  property  of  this  defendant 
without  due  process  of  law  in  violation  of  the  14th  Amendment 
to  the  Constitution  of  the  United  States,  and  Section  2 of  Article 
III  of  the  Constitution  of  Illinois. 

This  defendant  denies  that  the  said  complainant,  the  State  of 
Illinois,  or  the  people  thereof,  are  entitled  to  the  relief  prayed 
for  in  said  bill,  or  any  part  thereof,  and  prays  the  same  advantage 
of  this  answer  as  if  it  had  pleaded  or  demurred. to  said  bill  of 
complaint,  and  it  prays  that  the  temporary  injunction  heretofore 
issued  herein  be  dissolved,  and  that  defendant  be  hence  dismissed. 


127 


with  its  reasonable  costs  and  charges  in  this  behalf  most  wrong- 
fully sustained. 

Economy  Light  & Power  Company, 

By  Scott,  Bancroft  & Stevens. 

Scott,  Bancroft  & Stevens, 

IsHAM,  Lincoln  & Beale, 

Solicitors  for  said  Defendant. 

92  (Abstract  of  the  foregoing  answer  for  the  convenience  of 
the  Court.) 

State  Not  Proper  Party  Complainant. 

Answer  states  that  as  to  the  land  in  the  1)ed  of  the  Desplaines 
Biver  and  outside  of  the  meander  line  of  Section  25,  Township  34 
North,  Range  9,  East  of  the  Third  P.  M.  in  Grundy  County,  that 
complainants  in  this  action  are  not  the  proper  parties  to  exhibit 
the  bill,  and  aver  that  if  said  lands  have  not  been  alienated  by  the 
State  of  Illinois,  they  remain  a part  of  the  Canal  lands,  and  that 
it  would  be  the  duty  of  the  Canal  Commissioners,  under  the  act 
of  March  27th,  1874,  ‘Go  take  all  necessary  proceedings  on  behalf 
of  the  State  to  establish  the  title  of  the  State  and  recover  posses- 
sion of  any  canal  lands  or  real  estate  owned  by  the  State,  which 
may  be  claimed  by,  or  be  in  the  adverse  possession  of  another  i)er-  . 
son  or  party.’’ 

Denies  the  right  and  power  of  the  Attorney  General  and  Gover- 
nor to  institute  or  prosecute  this  suit  without  the  express  consent 
and  direction  of  the  Canal  Commissioners,  and  avers  the  lack  of 
proper  parties  complainant  in  this  bill,  and  avers 

That  so  much  and  such  parts  of  said  bill  as  charge  this  defend- 
ant is  a trespasser  upon  said  land,  that  the  Attorney  General 
has  no  authority  or  right  to  exhibit  or  maintain  this  bill,  but  that 
it  is  the  duty  of  the  Canal  Commissioners. 

Avers  that  by  the  act  of  March  27,  1874,  revising  the  Act  relat- 
ing to  the  Illinois  and  Michigan  Canal,  etc.,  that  the  Canal  Com- 
missioners are  given  the  control  and  management  of  the  Illinois 
and  Michigan  Canal,  and  that  suits  may  be  prosecuted  by  them  in 
the  name  of  the  Canal  Commissioners,  and  that  if  the  contracts  in 
the  said  bill  mentioned,  or  any  of  them,  are  invalid,  that  the  Canal 


128 


Commissioners  are  the  proper  parties,  and  the  only  proper  parties, 
who  can  maintain  an  action  to  set  aside  such  lease,  contracts  or 
deeds,  or  any  of  them. 

Adequate  Eemedy  at  Law. 

Avers  that  as  to  so  much  of  said  bill  as  alleges  the  contracts, 
leases  and  deeds  thereto  attached  are  null  and  void,  the  complain- 
ant has  a complete  and  adequate  remedy  at  law,  and  is  not  entitled 
to  any  relief  from  a court  of  equity. 

Avers  that  the  hill  shows  that  the  land  outside  of  the  alleged 
meander  lines  of  the  Desplaines  Eiver  in  Section  25,  Township  34, 
North  Eange  9,  East,  and  in  the  bed  of  said  Eiver  in  said  Section 
25,  and  the  certain  other  lands  mentioned  in  said  bill,  are  in  pos- 
session of  this  defendant  (excepting  a strip  of  land  90  feet  in 
width  on  the  southerly  side  of  said  canal)  under  bona  fide  claim 
of  title  thereto,  deduced  from  the  State  of  Illinois,  and  claims  that 
the  remedy  is  at  law,  instead  of  in  equity.  Avers  that  the  defend- 
ant has  the  right  to  have  his  title  tried  by  two  separate  tnals 
before  two  separate  juries. 

Avers  that  the  bill  is  an  attempt  to  take  the  joroperty  of  the 
defendant  for  public  purposes,  and  that  the  defendant  is  entitled 
to  liave  his  comt^ensation  for  the  property  sought  to  be  taken  fixed 
" by  a trial  by  jury. 

Avers  that  said  bill  is  multifarious  in  that  it  joins  three  separate 
and  distinct  causes  of  action,  first,  an  alleged  cause  of  action  by 
which  the  State  claims  title  to  certain  lands  in  fee  in  the  capacity 
of  indvate  owner,  second,  an  alleged  cause  of  action  in  which  the 
State  in  its  sovereign  political  capacity  seeks  to  assert  the  rights 
of  the  public  in  an  alleged  public  highway,  and  third,  an  alleged 
cause  of  action  in  which  the  State,  in  its  capacity  as  private  owner, 
seeks  to  set  aside  certain  contracts,  deeds  and  leases,  which  it 
claims  were  executed  by  the  Canal  Commissioners  of  the  State  of 
Illinois  without  authority. 

Defendant  prays  the  same  advantage  of  the  answer  as  if  it  had 
demurred  on  the  ground  of  multifarionsness.  Defendant  says  that 
the  deeds,  leases  and  contracts  mentioned  in  the  said  bill  could 
only  be  set  aside  upon  restitution  of  the  consideration  paid  by 
Griswold.  The  people  do  not  offer  to  return  same. 


129 


Ordinance  of  1787. 

Said  answer  admits  that  in  the  early  history  certain  territory 
embracing  Ohio,  Indiana,  Michigan  and  Wisconsin  was  claimed  to 
be  owned  by  Virignia.  Admits  that  by  certain  acts  of  the  legis- 

99  lature  of  Virginia  and  deed  of  cession  said  territory  was  con- 
veyed to  the  United  States;  that  on  the  13th  day  of  July,  1787, 

the  Congress  of  the  United  States  enacted  the  ordinance  commonly 
known  as  the  ordinance  of  1787;  admits  that  Section  14  of  said 
ordinance  provided  that  the  articles  therein  should  be  considered 
as  articles  of  compact  between  the  original  states  and  the  people 
and  the  states  in  said  territory  unalterably,  unless  by  common 
consent.  Admits  that  Article  4 provided 

^‘The  navigable  waters  leading  into  the  Mississippi  and 
St.  Lawrence  and  the  carrying  places  between  the  same  shall 
be  common  highways  and  forever  free  ^ * * without  any 

tax,  imposts  or  duty  therefor.” 

Avers  that  it  was  provided  in  said  ordinance  in  the  Fifth  Ar- 
ticle that  states  thereafter  formed  out  of  said  territory  should  be 
admitted  into  congress  ‘‘on  an  equal  footing  with  the  original 
states  in  all  respects  whatever.” 

Admits  Congressional  Legislation. 

Said  answer  admits  that  on  May  18,  1796,  Congress  passed  “An 
Act  providing  for  the  sale  of  lands  of  the  United  States  in  the 
territory  northwest  of  the  River  Ohio  and  above  the  mouth  of  the 
Kentucky  River.”  Admits  that  Section  9 of  said  act  provided  that 
“All  navigable  rivers  within  the  territory  to  be  disposed  of  by 
virtue  of  this  act  shall  be  deemed  to  be  and  remain  public  high- 
ways.” 

100  Defendant  alleges  that  said  act  did  not  affect  the  land  in 
controversy  in  this  bill  and  is  immaterial  to  the  issue  therein, 

and  prays  the  same  benefit  as  if  it  had  excepted  or  demurred  to 
such  portions  of  the  bill  upon  those  grounds. 

Said  answer  admits  the  organization  of  Indiana  territory,  and 
that  on  March  26,  1804,  Congress  passed  “An  act  making  pro- 
vision for  the  disposal  of  the  public  land  in  Indiana  territory,  and 
for  other  purposes.”  Admits  that  Section  6 thereof  provided 


130 


that  ‘‘All  navigable  rivers,  creeks  and  waters  within  Indiana  ter- 
ritory shall  be  deemed  and  remain  public  highways.”  Admits 
that  Congress  by  Act  of  February  3,  1809,  provided  that  the  ter- 
ritories now  comprising  the  State  of  Illinois,  constitute  a separate 
territory;  admits  that  said  act  provided  that  there  should  be  es- 
tablished within  such  territory  a government  similar  to  that  pro- 
vided by  the  ordinance  of  1787,  and  that  the  inhabitants  should  be 
entitled  to  all  rights  and  advantages  secured  to  the  people  of  the 
Northwest  territory  by  said  ordinance. 

101  Admits  the  passage  of  an  act  by  Congress  on  April  18,  • 
1818;  that  said  statute  j^rovided  that  the  government  thereof 

should  be  reimblican  and  not  rei^ugnant  to  the  ordinance  of  1787. 
Admits  that  the  people  of  Illinois  territory  adopted  the  consti- 
tution of  1818,  the  preamble  of  which  recited  that  the  peoj)le  of 
said  territory  having  the  right  of  admission  to  the  Union  consistent 
with  the  constitution  of  the  United  States,  the  ordinance  of  1787 
and  the  Act  of  April  18,  1818,  agreed  to  form  themselves  into  a 
free  and  independent  state. 

Admits  that  on  December  3,  1818,  Congress  adopted  a resolu- 
tion declaring  the  admission  of  Illinois  into  the  Union;  that  said 
resolution  declared  that  the  constitution  and  state  government  so 
formed  was  in  conformity  to  the  ordinance  of  1787.  Def end- 

102  ant  avers  that  the  second  section  of  said  resolution  declared 
Illinois  admitted  into  the  Union  on  an  equal  footing  with  the 

original  states,  and  that  upon  admission  of  Illinois  into  the  Union 
the  ordinance  of  1787  ceased  to  have,  and  has  not  now,  any  force 
within  her  territory. 

Desplaines  River  Is  m the  Northwest  Territory. 

Admits  that  the  River  Desplaines  is  situated  in  said  territory, 
but  denies  that  it  flows  a distance  of  96  miles  to  Lake,  Cook,  Will 
and  Grundy  Counties  in  Illinois ; admits  the  allegations  in  para- 
graph 3 of  said  bill  relating  to  the  Kankakee  River,  alleges  they 
are  immaterial  and  prays  benefit  of  the  answer  as  if  it  had  pleaded 
or  demurred.  Admits  that  the  Desplaines  is  wholly  within  the 
Northwest  Territory,  but  denies  that  it  is  subject  to  the  provisions 
of  the  Acts  of  Congress  set  forth  in  the  bill.  Defendant  denies 


131 


that  it  is  shown  by  the  history  of  explorations  and  otherwise  that 
the  Desplaines  River  was  then  navigable  from  a point  near  the 
location  of  tlie  City  of  Chicago,  or  from  any  point  to  the  mouth  of 
the  Desplaines  in  Grundy  County  or  to  any  other  point.  De- 
103  nies  that  that  portion  of  the  river  was  used  as  a highway  for 
commercial  purposes  in  the  early  period  of  the  state  of  Illi- 
nois and  that  commerce  was  carried  on  thereover,  and  that  con- 
nection was  made  with  the  Chicago  River  by  portage,  and  that  it 
was  in  use  as  a highway  of  commerce  from  Lake  Michigan  to  the 
Ohio  River,  and  from  that  time  up  to  the  passage  of  the  ordinance 
of  1787  and  the  said  Acts  of  Congress. 


Illinois  Legislation. 

Defendant  denies  that  Illinois  by  its  legislature  or  otherwise 
assumed  or  took  charge  of  the  Desplaines.  Admits  that  said  state 
dtd  by  the  act  mentioned  in  the  bill  purport  to  authorize  the  build- 
ing of  a toll  bridge  thereover  on  the  northwest  quarter  of  Section 
11,  Township  39  North,  Range  12,  East  of  the  Third  P.  M.,  and  the 
southeast  quarter  of  Section  2 in  said  Town  and  Range.  Denies 
that  said  act  authorized  the  construction  of  two  bridges;  avers 
that  said  act  was  not  passed  by  virtue  of  any  i^ower  of  the 
104  state  over  said  river,  but  merely  to  confer  the  franchise  to 
collect  toll,  and  that  the  place  where  said  bridge  was  so  au- 
thorized to  be  located  was  not  on  a part  of  the  river  involved  in 
this  case  but  on  that  part  of  the  river  declared  navigable  by  the 
legislature  by  act  of  February  28,  1839. 

Admits  that  the  legislature  passed  an  Act,  in  force  February  26, 
1839,  entitled  ^‘An  Act  to  amend  the  several  laws  in  relation  to  the 
Illinois  and  Michigan  Canal”.  Denies  that  sub-section  9 of  Sec- 
tion 2 thereof  provided 

‘^That  no  streams  of  water  passing  through  the  canal  lands 
shall  pass,  by  the  sale,  so  as  to  deprive  the  state  from  the 
use  of  such  water,  if  necessary  to  supply  the  canal,  without 
charge  for  the  same,” 

And  that  sub-section  11  provided  that 

‘‘Lands  situated  upon  streams  which  have  been  meandered 
by  the  surveys  of  public  lands  by  the  United  States  shall  be 


132 


considered  as  bounded  by  the  lines  of  those  surveys  and  not 
by  the  streams,” 

and  avers  that  it  was  provided  in  Section  2 of  said  act  that  in  all 
sales  of  land  and  lots  under  the  provisions  of  said  act,  certain  con- 
ditions should  be  annexed,  which  conditions  included  those  set 
forth  in  sub-section  9 and  11  of  Section  2. 

Avers  that  the  bill  does  not  allege  that  the  use  of  any  water  of 
any  stream  passing  through  the  lands  described  in  said  bill  is 
105  necessary  for  the  canal.  Defendant  alleges  that  the  use  of 
such  water  is  not  necessary  to  supply  the  canal;  that  the  Canal 
Commissioners  do  not  need  such  water  for  canal  purpose;  that 
if  such  use  was  necessary  the  Canal  Commissioners  would  be  the 
proper  party  to  take  steps  to  obtain  such  water;  that  the  com- 
plainants have  no  authority  to  maintain  suit  for  that  purpose. 

Defendant  denies  that  the  lands  of  the  Desplaines  Eiver  were 
meandered  by  survey  of  the  United  States. 

Avers  that  Section  2 of  the  Act  of  February  26,  1839,  and  sub- 
sections 9 and  11  of  Section  2 only  apply  to  sales  by  Canal  Com- 
missioners of  lands  theretofore  authorized  to  be  sold.  Avers  that 
said  sub-sections  9 and  11  were  repealed  by  act  of  the  legislature 
of  Illinois  of  February  21,  1843,  entitled,  ^‘An  act  to  provide  for 
the  completion  of  the  Illinois  and  Michigan  canal,  and  for  payment 
of  the  canal  debt.  ’ ’ Avers  that  by  Section  13  of  the  act  of  February 
21,  1843,  it  was  provided  that  sales  of  land  should  be  made  as  de- 
scribed in  the  act  of  January  9,  1836.  That  said  last  mentioned 
act  contained  no  such  provisions  as  in  sub-sections  9 and  11  of 
Section  2 of  the  act  of  1839. 

The  answer  admits  that  the  legislature  by  the  act  of  February 
28,  1839,  declared  the  Desplaines  navigable  from  a point  where  it 
most  nearly  connects  with  the  Illinois  and  Michigan  canal  to  its 
source  within  the  state  and  should  be  open  for  passage  of  all  boats 
and  water  crafts. 

Defendant  avers  that  said  river  was  not  in  fact  navigable  through 
that  course,  or  any  portion,  and  denies  that  the  legislature  could 
ini])art  the  character  of  navigability,  and  avers  that  said  declara- 
tion was  a recognition  by  the  legislature  that  that  river  was  nob 
navigable  from  a point  where  it  most  nearly  connects  with  the 


canal  to  its  moutli,  and  that  the  j)omts  where  it  is  constructing 
said  dam  is  in  that  part  of  said  river. 

107  Said  answer  admits  that  hy  the  act  of  Marcli  3,  1845,  tJie 
legislature  authorized  Stephen  Forbes  to  construct  a dam 

across  the  Desplaines  River  in  Cook  County  at  the  point  named 
in  sai'd  act,  and  that  said  statute  contained  the  proviso, 

‘‘That  this  act  shall  not  operate  to  prevent  the  state  from 
improving  said  river  by  dams,  or  from  using  the  water  in 
said  river  for  the  Illinois  and  Michigan  canal  at  any  time 
hereafter  or  for  any  other  purpose”; 

and  defendant  alleges  on  information  and  belief  that  said  Forbes 
about  1866  constructed  a dam  across  the  said  river  at  the  place 
named  without  provision  therein  for  the  passage  of  boats,  and 
he  and  his  successor  in  title  have  maintained  same  ever  since  with- 
out the  provision  for  the  passage  of  boats ; that  no  boats  ever  could 
pass  said  dam.  Alleges  that  the  site  of  said  dam  was  in  that  part 
of  the  Desplaines  declared  navigable  by  aforesaid  act,  and  that  the 
act  authorizing  the  construction  thereof,  and  the  construction 
thereof,  was  inconsistent  with  the  use  of  said  stream  for  naviga- 
tion ; that  said  dam  would  have  completely  prevented  navigation  if 
said  stream  had  been  in  fact  navigable. 

108  Said  answer  admits  that  the  legislature  by  its  act  of  Febru- 
ary 12,  1849,  authorized  the  construction  of  a bridge  over  the 

Desplaines  River  at  Lockport,  and  avers  that  said  act  was  incon- 
sistent with  the  use  of  said  stream  as  a navigable  stream,  and 
that  the  object  of  said  act  was  to  provide  for  the  submission  to 
said  township  of  the  question  of  levying  a tax,  and  not  for  the 
purpose  of  authorizing  the  construction  of  a bridge  over  a navi- 
gable stream. 

Said  answer  admits  that  by  its  act  of  May  29,  1889,  the  legisla- 
ture provided  as  is  set  out  in  said  bill,  and  admits  that  Section  23 
of  said  act  provided  that  said  act  should  not  be  construed  to  au- 
thorize the  injury  or  destruction  of  existing  water  power  rights, 
and  avers  that  the  water  power  rights  involved  in  this  cause  were 
in  existence  at  the  date  of  the  passage  of  said  act,  and  have 

109  since  been  acquired  by  the  defendant;  that  said  act  specially 
prohibits  the  injury  or  destruction  thereof.  Defendant  admits 

that  Section  24  of  said  act  provided  that. 


134 


‘^Whenever  the  general  government  shall  improve  the  Des- 
plaines  and  Illinois  Eivers  for  navigation  to  connect  with  this 
channel,  said  general  government  shall  have  full  control  over 
the  same  for  navigation  purposes.” 

Defendant  avers  that  said  Section  24  was  a recognition  by  the 
legislature  of  Illinois  that  the  Desplaines  is  not  a navigable  stream. 

Said  answer  admits  that  the  legislature  of  Illinois  on  May  14, 
1903,  enacted  a statute  entitled  ‘‘An  act  in  relation  to  the  Sani- 
tary District  of  Chicago,”  etc.  Defendant  avers  that  said  act  is 
irrelevant  and  prays  the  benefit  as  if  it  had  demurred. 

Act  of  December  6th,  1907,  Unconstitutional. 

Said  answer  admits  the  organization  of  the  Sanitary  District, 
the  construction  of  the  channel  as  alleged  in  the  bill,  and  alleges 
that  that  fact  is  immaterial  and  prays  benefits  as  of  demurrer. 
1 10  Defendant  admits  enactment  of  act  of  December  6th,  1907,  en- 
titled “Bill  for  an  act  recognizing  the  Desplaines  and  Illinois 
Kivers  as  navigable  streams,  and  to  prevent  obstructions  being 
placed  therein  and  remove  obstructions  therein  now  existing.” 
Admits  the  provisions  of  Section  1 of  said  act  and  alleges  that  so 
much  of  said  act  as  declared  the  rivers  mentioned  to  be  navigable 
was  unconstitntional,  as  the  power  to  adjudge  and  declare  the 
navigability  of  streams  was  vested  in  the  judiciary;  also  that  it  is 
unconstitutional  in  that : 

1st.  The  body  of  said  act  is  broader  than  the  title  thereof; 

2nd.  It  confers  upon  the  Attorney  General  and  Governor  of  the 
State  of  Illinois  judicial  joowers,  to  wit,  the  determination  of  what 
obstructions  interfere  with  the  intent  and  purpose  of  said  act; 

3rd.  It  deprives  this  defendant  of  its  property  without  due 
process  of  law; 

4th.  It  denies  this  defendant  the  equal  protection  of  the  laws ; 

5th.  It  is  taking  private  property  of  this  defendant  without 
just  compensation; 

6th.  It  is  a special  law  laying  out  or  opening  a highway; 

7th.  It  is  a special  law  atfecting  only  property  in  and  along  the 
Desplaines  Eiver. 

Said  answer  admits  that  Charles  S.  Deueen  is  the  governor  re- 
ferred to  in  said  statute,  but  denies  that  by  reason  of  said  statute. 


135 


by  virtue  of  liis  office,  lie  lias  any  interest  in  the  matters  therein 
set  forth.  Said  answer  denies  that  the  Desplaines  has  at  any  time 
formed  a continued  highway  with  water  in  sufficient  volume  to 
afford  a channel  for  navigable  and  commercial  purposes.  Said 

112  answer  denies  that  the  Desplaines  has  been  a navigable  stream 
from  any  point  to  any  other  point,  and  that  said  act  of  the 

legislature  shows  the  fact  so  to  be,  and  denies  that  it  has  been, 
or  is  the  policy  of  the  state  to  hold  and  maintain  said  river  a navi- 
gable stream.  Denies  that  said  river  is  subject  to  the  provisions 
of  said  acts  of  Congress  and  that  liy  reason  thereof  said  river  was 
a highway  of  commerce  or  preserved  for  the  use  of  the  people 
of  the  state  or  states  as  a public  highway.  Denies  that  it  has  not 
been  alienated  and  that  the  people  of  the  state  have  any  easement 
thereover  for  commerce;  that  the  bed  or  waters  thereof  are  im- 
pressed with  said  easement  or  public  right  of  navigation,  and  al- 
leges that  there  has  never  been  any  navigation  on  said  river  of 
any  kind  or  character,  and  that  said  stream  from  its  source  to  its 
mouth  is  in  fact  incapable  of  being  navigated. 

Dentes  Eiver  Is  Navigable  in  Fact. 

Defendant  avers  that  said  river  in  its  natural  state  had  not  suffi- 
cient water  for  more  than  fifteen  days  in  the  year  to  float  a canoe, 
and  was  not  capable  of  being  navigated  for  commerce.  That  • 

113  there  had  never  been  any  navigation  of  said  river  for  com- 
mercial purposes.  That  said  river  from  the  place  where  it 

crosses  the  state  line  between  Illinois  and  Wisconsin  to  its  mouth 
is  a series  of  pools  and  shallows,  and  more  nearly  resembles  a 
lirook  or  rivulet  than  a river.  That  from  Lockport  to  the  mouth 
of  said  river,  a distance  of  about  18  miles,  there  is  a fall  of  90 
feet:  that  approximately  half  of  the  distance  is  composed  of  rapids 
and  riffles;  that  between  Lockport  and  Brandon’s  Bridge,  a dis- 
tance of  7 miles,  there  is  a fall  of  34  feet,  and  between  Jackson 
street  and  McDonough  street,  in  the  City  of  Joliet,  a distance  of 
5,000  feet,  there  is  a fall  of  9 feet,  an  average  of  1.8  feet  per  thous- 
and feet,  or  over  9.5  feet  per  mile.  From  McDonough  street  to 
Brandon’s  bridge,  a distance  of  2,000  feet,  there  is  a fall  of  3.75 
feet,  or  9.9  feet. per  mile.  That  along  Treat’s  Island  for  a dis- 
tance of  2,000  feet  there  is  a fall  of  5.5  feet,  or  over  14.52  feet  per 


136 


mile;  that  at  a point  called  Smith’s  bridge,  a distance  of  3,000 
feet,  there  is  a fall  of  2 feet,  or  7.92  feet  per  mile;  that  at  Dresden 
Heights,  where  the  dam  of  the  defendant  is  being  constructed,  in 
a distance  of  2,000  feet,  there  is  a fall  of  3.2  feet,  or  8.44  feet  per 
mile;  that  from  Jackson  street  in  Joliet  to  Brandon’s  bridge,  a 
little  over  2 miles,  in  the  first  5,000  feet  there  is  a fall  of  9 feet; 
in  the  next  2,000  feet  of  3.75  feet;  in  the  next  2,000  feet  5.5 

114  feet,  and  in  the  next  3,000  feet,  2 feet,  making  in  a distance 
of  12,000  feet,  20.25  feet  fall,  or  an  average  of  8.91  per  mile. 

Defendant  avers  that  during  times  of  freshets  or  high  water, 
which  usually  last  only  for  very  short  periods,  from  one  day  to  two 
weeks,  the  current  over  said  slopes  is  so  swift  that  no  boats  could 
descend  the  river  except  at  peril  to  life  and  property;  that  it  would 
be  impossible  for  boats  carrying  merchandise  to  ascend  at  such 
times. 

Erection  of  Prior  Dams. 

Defendant  avers  that  dams  and  bridges  have  been  located  over 
said  stream  without  legislative  authority,  as  set  out  in  said  answer, 
viz. : a dam  known  as  Beards  dam  in  1833,  at  substantially  the 
place  where  defendant  is  constructing  its  dam,  without  any  pro- 
vision for  the  passage  of  boats;  that  said  daiii  was  maintained  for 
many  years.  That  in  1835  dams  were  located  across  each  channel 
of  said  river  in  Section  11,  Township  39  North,  Kange  9 East. 
That  said  two  last  mentioned  dams  were  located  upon  odd  num- 
bered sections,  through  which  sections  the  state  now  claims  that 
the  shore  and  bed  of  said  stream  were  reserved  from  sale. 

115  That  said  dams  were  constructed  by  the  owners  of  the  ad- 
joining land  as  an  exercise  of  the  right  of  ownership. 

That  there  was  a dam  built  in  1839  near  what  is  now  McDonough 
street  in  Joliet  that  remained  in  said  river  from  then  until  1898 
when  it  was  removed  by  the  Sanitary  District  upon  its  paying 
damages  therefor  a sum  of  $80,000.  That  there  was  a dam  built 
in  the  summer  of  1833  entirely  across  the  river  just  south  of  what 
is  now  Cass  street  in  Joliet  which  remained  until  1841,  when  it 
was  removed  by  the  state  upon  paying  as  damages  therefor  $17,- 
655.  Defendant  avers  that  said  dam  was  constructed  by  the  owner 
of  the  abutting  land  in  the  exercise  of  ownership  over  the  abutting 


land  and  tbe  bed  of  the  stream;  that  if  Ihe  river  was  at  tlie  time 
of  removing-  said  dam  a navigal)le  stream  and  said  dam  was  an 
ol)striiction,  it  was  in  said  stream  witliont  right,  and  tlie  state 
could  have  removed  same  witliont  payment  of  damages,  and  avers 
that  the  action  of  the  state  in  ])aying  damages  was  an  admission 
that  said  stream  was  not  navigalile  and  that  said  dam  was 
IK)  lawful  in  said  stream. 

That  in  1838  a dam  known  as  Norman’s  dam  was  built  across 
one  channel  of  the  river  opposite  where  the  state  penitentiary  is 
now  located.  That  in  1839  there  was  a dam  known  as  Daggett’s 
dam  entirely  across  the  river  at  Lockport.  That  prior  to  1847 
there  was  a dam  across  the  river  in  Lake  County. 

Defendant  avers  that  there  were  no  provisions  for  passage  of 
boats  in  any  of  the  said  dams. 

Defendant  avers  that  for  many  years  there  were  no  bridges 
across  said  river  and  that  the  river  was  forded  at  many  points ; 
that  afterwards  bridges  were  established  and  are  now  located  at 
the  following  points: 

Smith’s  bridge  in  Section  21;  Millsdale  bridge  in  Section  11; 
Brandon’s  bridge  located  in  Section  30;  six  bridges  in  Joliet 
known  respectively  as  the  McDonough  street  bridge,  the  C.,  E. 

I & P.  E.  E.  Co’s  bridge,  the  Jefferson  street  bridge,  one 
117  at  Cass  street,  one  at  Jackson  street  and  one  at  Euby  street; 
also  a bridge  crossing  the  river  in  the  Townshi]r  of  Lockport. 

Defendant  avers  that  all  these  bridges  are  fixed  bridges  with 
no  provision  for  passage  of  boats  and  that  boats  cannot  pass 
any  thereof,  and  avers  that  no  legislative  permits  were  granted 
by  the  state  for  location  of  any  of  said  dams  or  locations  of  any 
of  said  bridges. 

That  in  1846  the  state  completed  dam  No.  1 entirely  across  the 
Desplaines  Eiver,  forming  the  upper  basin  of  the  I.  & M.  canal, 
which  dam  is  now  in  existence.  That  in  1841  the  state  built  dam 
No.  2,  extending  entirely  across  said  river  and  forming  the  lower 
basin  of  the  canal,  which  dam  remained  there  from  1841  until 
1899  when  it  was  removed  by  the  Sanitary  District  with  the  consent 
of  the  Canal  Commissioners. 

Defendant  avers  that  by  stipulation  filed  in  case  of  Haven  v. 


138 


Board  of  Trustees  of  the  I.  S M.  Canal  in  the  Circuit  Court  of 
Will  County,  tried  at  the  October  Term,  1848,  it  was  admitted  by 
the  Canal  Trustees  that  the  Desplaines  River  was  not  navi- 

118  gable  in  fact,  although  a portion  of  it  had  been  declared  to 
be  so  by  act  of  legislature. 

Defendant  avers  that  in  a proceeding  in  the  Circuit  Court  of 
Will  County  by  the  Sanitarij  District  against  William  J.  Adams, 
the  Haven  dam  above  referred  to,  together  with  the  water  power 
rights  connected  therewith  was  taken  by  the  Sanitary  District 
by  eminent  domain,  and  the  court  awarded  the  defendants  a large 
sum  as  'compensation  therefor  and  for  the  property  connected 
therewith.  Defendant  avers  that  said  judgment  anT  said  affirm- 
ance were  in  effect  a finding  that  said  dam  was  lawful  in  said 
stream,  and  that  no  easement  of  navigation  existed  therein. 

Admits  Grant  of  Canal  Lands. 

Said  answer  admits  that  by  act  of  Congress  of  March  2nd, 
1827,  there  was  granted  to  the  State  of  Illinois  every  alternate 
section  in  a strip  of  land  ten  miles  wide  along  the  line  of  the  Illi- 
nois and  Michigan  Canal  ‘‘for  the  purpose  of  aiding  the  opening 
of  a canal  to  connect  the  waters  of  the  Illinois  River  with  those 
of  Lake  Michigan”  as  is  alleged  in  the  bill.  Admits  that  Section 
25  in  Township  34  North,  Range  8 East  of  the  3rd  P.  M.  in 
Grundy  Comity,  Illinois,  was  among  said  lands.  Admits  that 

119  the  Desplaines  and  Kankakee  Rivers  unite  and  form  the  Illi- 
nois River  in  the  southeast  quarter  of  said  Section  25,  but  de- 
nies that  by  survey  of  public  lands  by  the  United  States  the  Des- 
plaines River  was  meandered  and  that  purchasers  from  the  state  of 
lands  in  said  section  did  not  take  or  claim  to  take  that  portion 
of  said  land  lying  between  the  meander  lines  of  the  Desplaines 
and  the  waters  of  the  river.  Denies  that  said  land  between  said 
meander  line  and  the  water  have  never  been  used  under  claim  of 
right  vested  in  said  purchasers,  except  as  claimed  by  defendant. 
Denies  that  land  lying  between  the  alleged  meander  line  and  the 
waters  of  said  river  in  the  southeast  quarter  of  said  Section  25, 
together  with  the  bed  of  the  stream  of  said  river  in  said  quarter 
section  have  not  passed  by  purchase  from  the-  state,  and  denies 
that  same  is  owned  by  the  state  or  held  for  use  and  benefit  of  the 
people  of  the  state. 


139 


Denies  Title  of  State  to  Land. 

Defendant  alleges  that  the  purchasers  from  the  Board  of 

120  Trustees  of  the  Illinois  and  Michigan  Canal  of  lands  donated 
by  the  United  States  to  the  state  for  said  purposes  did  by 

their  deeds  and  purchases  acquire  all  right,  title  and  interest  of 
the  state  in  and  to  said  land  described  in  their  deeds,  including 
lands  between  the  meander  lines  and  the  waters  of  streams  run- 
ning through  said  land  and  in  the  beds  of  said  streams,  and  have 
always  claimed  title  thereto;  that  their  title  has  always  been 
recognized,  and  that  lands  between  meander  lines  and  banks  oT 
streams  have  been  cultivated  by  purchasers  from  the  dates  of 
their  purchases  to  the  present  time. 

Said  answer  admits  that  the  trustees  of  the  Illinois  & Michigan 
Canal,  executed  and  delivered  to-  one  Charles  E.  Boyer,  a deed 
dated  October  22,  1860,  to  the  south  fraction  of  the  northwest 
quarter  of  Section  25,  and  the  north  fraction  of  the  southeast 
quarter  and  the  north  fraction  of  the  northwest  quarter  and  the 
south  fraction  of  the  southeast  quarter  of  said  Section  25,  ex- 
cepting and  reserving  so  much  of  said  tract  as  was  occupied  by 
the  canal  and  its  waters,  and  a strip  90  feet  wide  on  either  side 
of  said  canal,  said  tract  containing  196.62  acres  and  being  a por- 
tion of  the  land  granted  by  the  United  States  to  the  state  to 

121  aid  in  opening  said  canal,  and  by  the  state  granted  to  the 
Board  of  Trustees  of  said  canal  for  the  purjioses  set  forth  in 

the  act  of  said  state  of  February  21,  1843. 

Denies  that  no  part  of  said  northwest  ipiarter  and  southeast 
quarter  of  said  Section  25  outside  of  the  alleged  meander  line 
of  the  Desplaines  Eiver  were  conveyed  by  said  deed  to  said  Boyer, 
and  denies  that  the  same  remained  the  property  of  the  state; 
avers  that  said  deed  was  a conveyance  of  all  lands  belonging  to 
the  state  in  the  subdivisions  therein  described,  including  the  land 
situated  outside  of  the  alleged  meander  line  and  the  land  lying 
in  the  bed  of  the  stream  of  the  Desplaines  Eiver  and  that  title 
to  all  thereof  passed  to  Boyer  by  virtue  of  said  conveyance.  Ad- 
mits that  defendant’s  claim  to  said  premises  outside  of  the  al- 
leged meander  line  of  the  Desplaines  Eiver  in  Section  25  is  based 
upon  mesne  conveyances  from  said  Boyer  and  the  several  leases 
and  contracts  attached  to  said  bill. 


140 


Admits  that  on  March  2,  1827,  Congress  passed  an  act  entitled, 
^^An  act  to  grant  a quantity  of  land  to  the  State  of  Illinois  for 
the  purpose  of  aiding  in  opening  a canal  to  connect  the  waters 
of  the  Illinois  Elver  with  those  of  Lake  Michigan’’;  that  said 

122  act  provided  ‘‘the  said  lands  shall  be  subject  to  the  disposal 
of  the  legislature  of  the  said  state  for  the  purpose  aforesaid, 

and  no  other.” 

Admits  that  by  said  act  of  Congress  that  there  was  granted  by 
implication  the  right  of  way  for  the  construction  of  said  canal 
through  tlie  sections  of  public  land  not  donated  to  the  state,  and 
that  said  grant  extended  to  land  necessary  to  be  used  for  the 
canal  of  the  width  contemplated. 

Admits  that  the  route  and  location  of  the  canal  were  duly  sur- 
veyed and  laid  out  and  the  odd  numbered  sections  selected  by  the 
Commissioner  of  the  Land  Office,  as  alleged  in  the  bill. 

Denies  Eesekvation  of  Ninety-Foot  Strip. 

Denies  that  Artemus  J.  Mathewson  under  authority  and  direc- 
tion of  the  Canal  Trustees  surveyed  and  marked  lines  of  a 90-foot 
strip  on  each  side  of  the  canal  as  finally  located  from  one  end 
of  said  canal  to  the  other,  or  that  he  filed  in  the  office  of  said 
Board  of  Trustees  maps  and  profiles  of  survey  of  said  90-foot 
strip ; denies  that  he  had  any  lawful  authority  so  to  do. 

Admits  that  a strip  of  land  90  foot  wide  on  each  side  of  the 
canal  was  reserved  from  sale  by  the  canal  commissioners  and 
canal  trustees  in  many  of  the  sales  of  canal  lands  in  the  odd  num- 
bered sections,  and  that  the  title  thereto  remains  in  the  state. 
Denies  that  said  strip  with  the  lands  necessan^  to  the  right  of 
way  through  which  the  canal  is  constructed  constitute  inte- 

123  gral  parts  of  the  canal,  or  that  they  are  necessary  for  its 
preservation  and  use,  or  preserved  and  protected  by  law 

against  alienation.  Avers  that  said  commissioners  are  expressly 
authorized  by  law  to  sell  any  portion  of  said  90-foot  strip  ex- 
cept portions  thereof  utilized  in  connection  with  the  use  of  water 
power  upon  said  canal,  or  the  sale  of  which  would  prevent  or 
interfere  with  the  proper  use  and  operation  of  said  canal  as  a 
waterway.  Admits  that  the  90-foot  stri])  was  expressly  reserved 
from  sale  in  said  deed  of  the  trustees  of  the  canal  to  said  Boyer. 


141 


Defendant  does  not  admit  that  exhibits  attached  to  the  bill 
are  true  copies,  but  believes  they  are  substantially  accurate. 

Admits  the  Contracts  Were  Made  as  Alleged. 

Admits  that  the  canal  commissioners  entered  into  contract  bear- 
ing date  September  2,  1904  (Exhibit  A to  the  bill)  with  Harold 
P.  Griswold,  and  that  said  contract  was  assigned  by  said  Gris- 
wold to  defendant. 

Admits  that  said  commissioners  entered  into  a contract  of 
lease  (Exhibit  B to  the  bill)  with  said  Griswold  dated  September 
2,  1904,  and  that  said  Griswold  assigned  said  contract  to  defend- 
ant. 

124  Admits  that  said  commissioners  entered  into  another  con- 
tract with  said  Griswold  (Exhibit  C to  the  bill)  as  of  date 

August  8,  1905,  and  that  said  Griswold  assigned  said  contract  to 
the  defendant. 

Admits  that  said  commissioners  made  application  to  the  gov- 
ernor of  the  state  for  his  consent  to  the  sale  of  certain  lands,  dated 
June  7,  1904  (Exhibit  D to  the  bill)  and  that  a purported  copy 
of  approval  of  the  governor  as  of  June  14,  1904,  is  attached  to 
the  bill  (Exhibit  E). 

Admits  that  a certain  notice  of  proposed  sale  was  inserted  in 
the  Lockport  Phoenix  Advertiser”  as  alleged  in  said  informa- 
tion, but  that  the  sale  so  advertised  to  be  made  was  adjourned 
and  never  thereafter  resumed. 

Admits  that  after  August  2 and  under  date  of  September  2, 
1904,  said  commissioners  entered  into  the  agreement  and  lease 
mentioned  as  Exhibits  A and  B,  and  under  date  of  November  1, 
1904,  said  commissioners  made  application  to  the  governor  for 
his  consent  to  the  sale  of  lands  described  therein  (Exhibit  G to 
the  bill)  and  that  approval  of  said  ap])lication  by  tlie  gov- 

125  ernor  was  made  in  writing  (Exhibit  H to  the  bill),  bearing 
date  November  2,  1904;  that  pursuant  thereto  notice  of  sale 

was  inserted  in  the  ‘‘Lockport-Phoenix  Advertiser”  as  alleged  in 
said  bill. 

Admits  that  pursuant  to  said  application  last  mentioned  and 
the  governor’s  approval  and  said  advertisement  last  mentioned. 


142 


said  commissioners  sold  the  lands  therein  mentioned  and  exe- 
cuted a certain  deed  to  said  Griswold  of  date  of  January  5,  1905 
(Exhibit  J to  the  bill) ; admits  that  said  Griswold  conveyed  said 
premises  so  that  by  mesne  conveyances  they  passed  to  defend- 
ant. 

Admits  that  said  commissioners  entered  into  a contract  of 
lease  with  Griswold  as  of  date  December  2,  1904  (Exhibit  K to 
the  bill),  and  that  said  lease  was  assigned  by  Griswold  to  de- 
fendant. 

Admits  that  by  virtue  of  the  several  deeds,  leases  and  con- 
tracts mentioned  in  said  bill  and  of  its  ownership  of  the  bed 
and  shore  of  the  Desplaines  River  it  claims  the  right  to  construct 
a dam  across  the  Desplaines  River  and  lands  adjacent  thereto 
and  the  90-foot  strip  of  land  immediately  adjoining  the  waterway 
of  the  Illinois  & Michigan  Canal  and  up  to  the  towpath  of  the 
said  Illinois  & Michigan  Canal  and  to  construct  the  said  dam 
126  so  as  to  flood  the  lands  along  the  Desplaines  River  for  a 
distance  of  several  miles  above  the  location  of  said  dam  and 
on  the  southeast  quarter  of  said  Section  25. 

Denies  that  said  90-foot  strip  is  used  for  canal  purposes;  avers 
that  said  strij)  through  said  quarter  section  has  not  been  used 
for  any  purpose  whatsoever  either  by  said  commissioners  or  by 
any  one  pursuant  to  authority  granted  them,  and  that  said  land 
was  swampy  and  unproductive. 

Plans  of  Charles  A.  Munroe. 

Avers  that  during  the  year  1904  one  Charles  A.  Munroe  and 
associates  acquired  some  1800  acres  of  other  land  in  connection 
with  the  land  referred  to  in  said  instruments  at.  an  expenditure 
of  upwards  of  $200,000,  the  ownership  of  which  gave  said  ^lun- 
roe  and  associates  the  right  to  construct  the  dam  at  the  mouth 
of  the  Desplaines  with  a crest  of  such  height  as  would  hack  the 
level  of  the  waters  of  the  Desplaines  River  to  the  level  of  the 
waters  of  Lake  Joliet. 

Avers  that  at  the  time  of  making  of  said  leases,  deeds  and  con- 
tracts said  commissioners  knew  that  said  Munroe  and  associates 
had  acquired  and  were  acquiring  a large  amount  of  other  land  at 


143 


a large  expenditure  of  money  for  the  purpose  of  utilizing  same 
in  connection  with  the  land  so  acquired  from  said  commissioners 
for  the  purpose  of  creating  water  power. 

127  Avers  that  before  the  beginning  of  the  construction  of  its 
said  dam,  and  in  order  that  said  dam  might  be  located  at  such 
point  as  would  contribute  to  a waterway,  if  one  should  be  con- 
structed, one  Charles  A.  Munroe  submitted  plans  of  said  dam  to 
the  War  Department  of  the  United  States  and  requested  said  de- 
partment to  express  an  opinion  as  to  whether  said  plans  would 
be  in  harmony  with  the  work  of  inqn’ovement  ])roj)osed  hy  the 
United  States,  i.  e.,  a waterway  from  Lockport  to  St.  Louis  via 
the  Desplaines,  Illinois  and  Mississippi  Rivers;  that  the  chief  of 
engineers  of  the  army  referred  the  latter  to  Lieut.  Col.  W.  H. 
Bixby;  that  said  Bixby  reported  to  the  chief  of  engineers  of  the 
United  States  army. 

128-130  (Here  follows  in  the  answer  the  text  of  the  letter  of  said 
Bixby  to  said  chief  of  engineers,  dated  March  27,  1906,  which 
is  set  out  in  full  elsewhere  in  this  abstract.  Page  105  et  seq.) 

131  That  said  chief  of  engineers  concurred  in  said  recommenda- 
tion and  reported  to  the  Secretary  of  War,  and  on  or  about 

June  7,  1906,  the  War  Department  by  Robert  Shaw  Oliver  sent  to 
said  Munroe  a letter. 

(Here  follows  the  full  text  of  said  letter,  bearing  date  of  June 
7,  1906,  from  Robert  Shaw  Oliver,  Secretary  of  War,  to  Mr. 
Charles  A.  Monroe,  (sic)  which  letter  appears  elsewhere  in  full 
in  this  abstract.  Page  108  et  seq.) 

Defendant  Secured  Rights  of  Munroe. 

132  Defendant  avers  that  on  December  15,  1906,  it  acquired 
from  said  Munroe  and  associates  all  lands  and  rights  ac- 
quired by  them  aforesaid;  that  it  paid  full  consideration  therefor 
without  notice  or  knowledge  of  any  claim  that  said  leases,  etc., 
from  said  commissioners  were  invalid  and  before  the  payment’ 

of  said  consideration  said  commissioners  had  knowledge  that 

133  defendant  was  acquiring  said  lands  and  rights. 

Avers  that  after  said  lands  were  acquired  defendant  im- 
mediately entered  upon  the  work  of  constructing  its  dam  at  the 


144 


moutli  of  the  Desplaines  River,  and  entered  into  a contract  for 
the  construction  thereof  at  a cost  of  upwards  of  $500,000  and  a 
contract  for  the  purchase  of  machinery  to  the  amount  of  $145,000, 
upon  which  it  has  paid  the  sum  of  $52,500  and  has  become  liable 
for  the  balance  thereof ; that  the  State  of  Illinois  having  stood 
by  without  notice  that  it  claimed  said  leases,  etc.,  were  invalid, 
it  is  estopped;  denies  that  said  leases,  etc.,  are  ineffectual  to  con- 
fer any  right  to  build  and  maintain  said  dam,  and  avers  that  they 
confer  upon  defendant  full  right  so  to  do. 

Avers  that  the  earthern  portion  of  said  dam  occupying  the 
space  between  the  power  house  and  the  I.  & M.  Canal,  which 
space  is  reserved  for  a lock,  has  been  entirely  completed;  that 
the  space  between  said  earthen  dam  and  the  river  has  been  ex- 

134  cavated  to  a depth  of  20  feet;  that  a space  of  500  feet  from 
the  north  bank  of  the  river  to  the  center  has  been  enclosed 

in  a coffer  dam ; that  in  connection  with  said  work  said  contractor 
has  erected  17  buildings  and  had  on  the  ground  at  the  time  the 
injunction  was  issued  engines,  etc.,  to  the  value  of  $150,000. 

Avers  Plans  Same  as  Submitted  to  War  Department. 

Avers  that  the  plans  upon  which  defendant  was  proceeding  to 
construct  its  dam  were  the  same  as  were  submitted  to  the  War 
Department,  and  that  defendant  proceeded  to  construct  its  dam 
in  accordance  therewith;  that  it  proposed  to  build  its  dam  to 
insure  permanency  and  of  sufficient  capacity  to  hold  the  water  of 
its  upper  pool  at  a height  ecpial  to  the  present  level  of  Lake 
Joliet  taken  at  512  feet  Memphis  datum;  whenever  Congress  or 
the  state  shall  undertake  the  improvement  of  the  Desplaines  for 
navigation  defendant  jmrposes  to  comply  with  all  the  conditions 
specified  in  said  letter  to  the  end  that  its  dam  will  not  obstruct 
such  improvements. 

Denies  that  the  General  Assembly  of  Illinois  has  by  a joint  resolu- 
tion dated  October  lb,  1907,  proposed  the  building  of  a deep  water- 
way. Avers  that  it  did  propose  to  submit  to  the  electors  the  ])ro])o- 
sition  to  amend  the  constitution  in  the  manner  stated.  Admits 

135  that  in  (*ase  a dee])  waterway  is  built  in  said  river,  locks  and 
dams  would  necessarily  be  constructed  across  said  waterway  in 


145 


the  channel  of  the  Desplaines  River  at  or  near  the  location  of  the 
site  of  defendant’s  dam,  and  that  such  dam  would  afford  water- 
])ower  of  great  value;  denies  that  any  water  power  which  might 
be  created  thereby  will  he  lost  to  the  state  if  defendant  shall  he 
permitted  to  construct  its  dam;  avers  that  the  state  has  no  water 
power  upon  the  said  southeast  quarter  of  Section  25;  that  the 
water  power  there  existing  belongs  to  the  defendant;  that  the 
legislature  of  the  state  has  no  right  to  create  water  ])ower,  and  no 
right  to  take  property  of  the  defendant  for  that  purpose. 

Avers  that  the  act  of  the  legislature  passed  December  6,  1907, 
and  the  joint  resolution  of  the  General  Assembly  (Kxhil)it  L 
336  to  the  bill)  is  an  attempt  on  the  part  of  the  state  to  take  the 
water  power  of  this  defendant  without  compensation  in  viola- 
tion of  the  constitution  of  the  Ihiited  States  and  of  the  State  of 
Illinois  and  is  special  legislation. 

Grant  of  Land. 

Avers  that  by  the  act  of  cession  of  the  State  of  Virginia  of  De- 
cember 20,  1783,  and  the  deed  of  cession  of  March  1,  1784,  the 
State  of  Virginia  did  convey,  etc.,  over  to  the  United  States  for 
the  benefit  of  said  states,  all  rights,  title  and  claim  as  well  of  the 
soil  as  of  jurisdiction  which  the  said  commonwealth  then  had  to 
the  tract  of  country  lying  and  being  to  the  northwest  of  the  Ohio 
River  for  the  purposes  and  on  the  conditions  in  said  act,  recited, 
among  which  was  the  condition  that  the  states  formed  of  said 
137  territory  should  be  republican  and  should  be  admitted  mem- 
bers of  the  Union  with  the  same  rights  as  other  states,  and 
that  the  lands  within  the  territory  so  ceded  should  be  considered 
as  a common  fund  for  the  use  and  benefit  of  such  of  the  United 
States  as  had  become  members  of  the  confederation,  according  to 
their  several  respective  proportions  in  the  general  charge  and  ex- 
penditures, and  should  be  faithfully  disposed  of  for  that  purpose. 

Avers  that  the  land  in  said  Section  25  above  described  was 
among  the  lands  so  conveyed.  That  by  virtue  of  the  said  act  and 
deed  of  cession  the  United  States  acquired  and  held  all  of  the  lands 
thereby  conveyed  in  trust  for  the  benefit  of  all  the  states  of  the 
United  States;  that  the  United  States  by  the  act  of  March  2,  1827, 


146 


granted  to  Illinois  said  Section  25,  among  other  lands,  for  the  ' 
purpose  of  aiding  the  state  in  opening  a canal,  and  provided 
138  that  said  land  should  be  subject  to  the  disposal  of  the  legis- 
lature for  that  purpose.  Avers  that  the  state  thereafter  held 
said  land  including  Section  25  in  trust  for  the  purposes  therein 
expressed,  and  that  said  state  had  no  right  to  divert  Section  25,  or 
any  portion  thereof,  from  the  uses  for  which  same  was  granted, 
and  had  no  right  to  use  the  bed  of  the  Desplaines,  or  land  border- 
ing upon  said  stream  within  the  alleged  meander  line  for  any  other 
purpose  than  the  construction  of  said  canal,  and  that  the  applica- 
tion of  said  lend  to  any  purpose  other  than  that  would  be  a viola- 
tion of  the  trust. 


Canal  Legislation. 

Avers  that  in  1842  the  state  after  having  expended  nearly 
$5,000,000  upon  the  construction  of  the  I.  & M.  Canal,  a large  por- 
tion of  the  canal  land  being  sold  and  the  value  of  the  remaining 

139  canal  land  being  inadequate  to  complete  the  canal,  applied  to 
the  holders  of  canal  bonds  for  a further  loan;  that  said  holders 

offered  to  subscribe  to  a loan  to  the  amount  of  $1,600,000  for  the 
canal,  upon  the  condition  that  the  state  should  convey  to  trustees 
for  the  benefit  of  the  subscriliers  to  said  loan  all  the  canal  land, 
etc.,  and  that  the  state  should  establish  a system  of  revenue  by 
which  i3ro vision  should  be  made  for  payment  of  part  of  the  accru- 
ing interest  on  the  whole  state  debt.  That  pursuant  to  said  offer 
the  legislature  at  its  session  in  1843  passed  an  act.  Section  1 of 
which  provided  that 

‘^The  governor  of  this  state  be  and  is  hereby  fully  author- 
ized and  empowered  to  negotiate  a loan  solely  on  the  credit 
and  pledge  of  the  said  canal,  its  tolls,  revenues  and  lands.” 

140  Defendant  quotes  from  Section  10  of  said  act  providing  for 
carrying  out  said  arrangement  and  avers  that  by  Section  20 

141  of  said  act  the  state  pledged  its  faith  to  supply  all  defects  to 
enable  trustees  to  carry  into  full  effect  the  intent  thereof. 

Avers  that  subscriptions  were  made  pursuant  to  said  loan;  that 
on  ^larch  1,  1845,  the  legislature  passed  a further  act.  Section  1 
of  which  provided  that  after  the  contract  for  the  loan  above  de- 
scribed in  said  answer  had  been  executed  and  the  trustees  ap- 


147 


pointed  as  contemplated  the  governor  should  execute  a deed  of 
trust  of  all  said  property  to  be  held  in  trust  as  in  said  act  stipu- 
lated; avers  that  the  governor  did  execute  a deed  of  trust  as 
142  provided.  Avers-that  by  said  act  of  February  21,  1843,  said 
Canal  Trustees  acquired  all  right,  etc.,  of  the  state  in  the  lands 
in  Section  25  above  described,  including  the  bed  of  the  river  for 
the  purpose  of  securing  said  loan,  and  were  authorized  by  said 
act  to  sell  said  land  at  public  auction  in  the  manner  prescribed  in 
act  of  January  9,  1836. 

Defendant '’s  Title  to  Land. 

Avers  that  pursuant  to  such  authority  said  trustees  sold  the 
south  fraction  of  the  northwest  quarter  and  the  north  fraction  of 
the  southeast  quarter  and  the  north  fraction  of  the  northwest 
quarter  and  the  south  fraction  of  the  southeast  (piarter  of  Section 
25  to  said  Charles  E.  Boyer,  reserving  so  much  as  was  occupied 
by  the  canal  and  its  waters  and  the  90  foot  strip  containing  196.62 
acres,  and  executed  their  deed  to  said  Boyer  dated  October 
22,  1860. 

143-44  (Here  follows  the  text  of  said  deed  set  out  in  full  as  found 
elsewhere  in  this  abstract  (page  117  et  seq.). 

145  Avers  that  said  trustees  did  by  said  deed  convey  the  land 
therein  described  to  said  Boyer  and  that  this  defendant  by 
mesne  conveyances  from  the  said  Boyer  acquired  said  rights,  etc., 
of  the  said  state  to  said  northwest  quarter  and  southeast  quarter 
of  Section  25,  excepting  so  much  as  was  occupied  by  the  canal  and 
said  90  foot  strip. 

Avers  that  its  grantors  and  predecessors  in  title  have  used  and 
cultivated  the  land  lying  between  the  meander  line  and  the  waters 
of  said  river  in  the  said  southeast  quarter  of  Section  25  down  to 
the  bank  for  more  than  40  years  past,  during  all  of  which  time 
they  have  been  in  open,  notorious  and  peaceable  possession  thereof, 
claiming  title  thereto  in  fee  simple. 

Avers  that  the  taxing  authorities  of  the  State  of  Illinois  and 
County  of  Grandy  have  from  the  date  of  said  deed  from  said  com- 
missioners to  said  Boyer  levied  state,  school  and  county  taxes 
upon  all  of  the  said  land,  including  the  land  lying  between  the  al- 


148 


leged  meander  line  and  the  waters  of  said  river,  and  have  exacted 
payment  oT  such  taxes,  and  defendant  and  its  predecessors  have 
paid  said  taxes  from  date  of  said  deed  to  the  present  time,  a 

146  period  of  twenty-seven  years,  and  that  the  state  is  estopped 
from  claiming  that  the  title  to  the  land  lying  between  the  me- 
ander line  and  the  waters  of  said  river  and  in  the  bed  of  the  stream 
in  the  said  southeast  quarter  of  Section  25  has  not  passed  from 
the  state,  or  is  not  vested  in  defendant. 

Denies  that  the  90  foot  strip  of  land  along  the  canal  is  neces- 
sary for  the  i^roper  maintenance  and  use  of  the  canal,  or  that  it 
constitutes  a necessary  integral  part  of  said  canal ; denies  that 
the  Canal  Trustees  and  Commissioners  had  not  the  right  to  convey 
the  same  by  deed  or  lease;  avers  that  the  90  foot  strip  is  not  a 
part  of  the  canal,  hut  is  a part  of  the  canal  land,  and  that  said 
strip  has  been  to  a large  extent  sold  by  the  state  before  the  date 
of  said  lease  and  contract  of  September  2,  1904. 

Avers  that  the  land  described  in  deed  from  said  commissioners 
to  said  Griswold  dated  January  6,  1904  (Exhibit  J to  the  bill), 
to  wit,  that  part  of  Section  31,  Township  34  North,  Range  9 East 
of  the  Third  P.  M.  in  Will  County  lying  southwest  and  south- 

147  east  of  the  canal  and  northeast  and  northwest  of  the  river, 
excepting  a strip  of  land  90  feet  wide  on  the  southerly  side 

of  the  canal,  were  canal  lands  and  were  not  connected  with  the 
water  power  upon  said  canal  or  the  90  foot  strip,  and  that  said 
commissioners  had  full  powder  to  sell  the  same. 


Avers  Title  in  Defendant. 

Avers  that  by  mesne  conveyances  from  said  Boyer  it  acquired 
title  in  fee  simple  to  the  lands  lying  in  the  bed  of  the  Desplaines 
outside  of  the  alleged  meander  line  in  the  southeast  quarter  of 
Section  25 ; that  by  contracts.  Exhibits  A and  B,  the  defendant  ac- 
quired the  right  purported  to  be  granted  thereby  in  the  90  foot 
strip  described,  that  said  deeds,  leases,  contracts,  etc.,  are  valid 
and  subsisting;  denies  that  by  virtue  of  enactments  of  Congress 
and  acts  of  the  Legislature  of  the  state  set  forth  in  said  bill  the  bec| 
of  the  river  is  owned  by  the  state  or  that  the  same  has  not  been 


149 


conveyed  by  deed  to  any  one.  Denies  that  the  land  in  Sec- 

148  tion  25  and  other  sections  along  the  Desplaines  River  outside 
of  the  meander  line  have  not  been  conveyed  by  the  state,  and 

that  same  remain  and  are  owned  by  the  state ; avers  that  by  virtue 
of  the  act  and  deed  of  cession  and  the  act  of  Congress  of  March  2, 
1827,  the  Acts  of  the  Legislature  of  Illinois  of  February  21,  1843, 
and  March  1,  1845,  and  the  said  deeds  of  trust  and  the  said  deed 
to  said  Boyer  and  said  mesne  conveyances  this  defendant  acquired 
all  of  said  land  in  the  southeast  (juarter  of  said  Section  25,  except-"" 
ing  so  much  of  said  tract  as  was  occupied  by  the  canal  and  its 
waters  and  a strip  90  feet  in  width  on  either  side  of  said  canal ; 
admits  that  defendant  claims  to  be  the  owner  of  the  bed  of  the 
Desplaines  River  and  other  lands  in  said  southeast  cpiarter  of  said 
Section  25,  and  other  lands  for  a distance  of  9 miles  up  said  river 
which  are  outside  of  tlie  alleged  meander  line;  denies  that  said 
claim  is  in  violation  of  rights  and  interests  of  the  ])eople  of 

149  the  state;  avers  that  defendant  has  at  great  expense  acquired 
lands  in  the  bed  of  said  Desplaines  River,  including  all  the 

land  which  will  be  flooded  by  the  proposed  dam,  for  the  purpose 
of  creating  water  power,  as  alleged  in  said  bill.  Admits  that  de- 
fendant has  actually  begun  the  erection  of  said  dam  across  said 
river  and  across  said  90  foot  strip,  and  was  so  constructing  said 
dam  as  to  cause  the  water  to  be  backed  up  and  to  overflow  lands 
along  said  river  for  a distance  of  nine  miles;  denies  that  any  of 
the  lands  belong  to  the  state. 

Admits  Service  of  Notice  to  Stop. 

Admits  that  on  December  21,  1907,  the  Attorney  General  of  the 
state  caused  to  be  served  upon  it  a notice  (Exhibit  M to  the  bill) ; 
admits  that  it  disregarded  said  notice;  admits  that  after  service 
of  said  notice  it  continued  in  the  wmrk  of  constructing  said  dam 
up  until  the  issuance  of  the  temporary  injunction  herein;  denies 
that  the  completion  of  said  dam  will  be  any  impairment  of  the 
easement  of  navigation,  if  any  such  existed,  or  any  injury  to 

150  the  people  of  the  state.  Avers  that  in  case  the  United  States' 
or  the  state  should  construct  a deep  waterway  said  dam  will 

be  a distinct  aid  and  benefit  to  the  extent  of  more  than  $500,000. 


150 


Admits  ok  Dentes  Specific  Allegations. 

Denies  that  said  dam  if  erected  will  destroy  and  interfere  with 
the  Desplaines  as  a navigable  stream.  Avers  that  its  said  dam 
does  not  and  will  not  in  any  wise  interfere  with  the  purpose  of 
said  Act  of  the  Legislature  of  Illinois  of  December  6,  1907. 

Denies  that  it  will  overflow  or  destroy  the  value  of  the  land  of 
the  state  adjacent  to  said  river,  or  the  use  of  said  90  foot  strip,  or 
impair  the  benefit  of  the  same  to  said  canal.  Denies  that  it  will 
destroy  the  feeder  of  the  said  canal  and  that  it  will  work  a loss  to 
said  canal,  or  the  state,  or  the  people  thereof. 

Admits  that  the  agreement.  Exhibit  A,  purports  to  give  rights 
as  therein  set  forth.  Denies  that  any  of  the  provisions  thereof 
were  beyond  the  power  of  the  said  commissioners  to  grant; 

151  avers  that  at  the  date  thereof  said  commissioners  had  full 
power  to  grant  the  rights,  etc.,  granted  thereby. 

Admits  that  Exhibit  B purported  to  convey  an  interest  in  said 
90  foot  strip  in  the  Kankakee  feeder,  and  to  give  a right  of  re- 
newal, and  purported  to  be  made  subject  to  Exhibit  A. 

Admits  that  each  of  the  said  contracts  purported  to  be  contracts 
on  the  part  of  the  said  commissioners  with  the  said  Griswold,  his 
successors  and  assigns. 

Denies  that  by  their  terms  they  may  be  assigned  one  to  one  as- 
signee and  the  other  to  another. 

Admits  that  said  contract  was  entered  into  with  the  mutual 
understanding  that  the  party  of  the  second  part  or  his  assigns  in- 
tended to  make  use  of  the  same  in  erecting  said  dam  and  develop- 
ing water  power  in  said  river;  denies  that  the  same  amount  to  a 
lease  of  water  power  rights  on,  or  of  lots  and  lands  connected  with 
water  power  on  the  Illinois  and  Michigan  Canal. 

Admits  that  the  said  lease  and  contract  were  not  entered  into 
upon  notice  by  publication;  that  they  were  not  limited  to  a period 
of  ten  years;  denies  that  such  fact  was  contrary  to  the  provisions 
of  an  act  entitled  ‘L^n  act  to  revise  the  law  in  regard  to  the  Illinois 
and  Michigan  Canal,  and  for  the  im])rovement  of  the  Illinois  and 
Little  AY abash  Divers,”  approved  March  27,  1871,  and  acts 

152  amendatory  thereof,  and  in  particular  to  provisions  of  clause 
six  of  Section  8 of  said  statute  as  amended  by  the  act  ap- 


151 


proved  June  19,  1891;  denies  said  lease  and  contract  were  beyond 
the  powers  of  the  commissioners  to  enter  into  or  that  the  same 
were  null  and  void. 

Denies  that  treating  said  instruments  as  leases  of  water  power, 
they  are  subject  to  the  power  of  the  state  to  resume,  without  com- 
pensation to  defendant,  or  the  power  of  the  state  to  abandon  or 
destroy  whenever  in  the  opinion  of  the  Legislature  the  work  l)y 
the  construction  of  which  the  water  power  privileges  shall  have 
been  created  shall  cease  to  be  advantageous  to  the  state. 

Denies  that  Clause  6 of  Section  8 of  the  act  a]i])i*oved  March  27, 
1874-,  as  amended  by  act  approved  June  19,  1891,  applies  to  the 
premises  so  leased  by  said  instrument;  avers  that  said  act  only 
authorized  the  abandonment  or  destruction  of  works  over  which 
the  State  Canal  Commissioners  have  control. 

Denies  that  the  opinion  of  the  Legislature  that  such  work  has 
ceased  to  be  advantageous  to  the  state  was  expressed  by  the  Act  of 
the  Legislature  of  December  16,  1907,  entitled,  ^‘An  act  recognizing 
the  Desplaines  and  Illinois  Eivers  as  navigable  streams,  and  to 
prevent  obstruction  being  placed  therein,  and  to  remove  obstruc- 
tions now  therein  existing.”  Avers  that  the  act  last  nien- 
153  tioned  has  no  reference  to  any  work  connected  with  said  canal 
over  which  said  Commissioners  or  the  Legislature  has  any  au- 
thority or  control. 

Denies  that  the  said  contract  was  a further  lease  for  the  pur- 
pose of  enabling  the  assignee  to  develop  and  create  water  power; 
avers  that  same  was  merely  a flowage  contract  and  not  necessary 
to  be  made  in  conformity  with  the  provisions  of  the  statute  last 
above  cited. 

Denies  that  the  Kankakee  feeder  was  an  integral  part  of  said 
canal,  or  that  said  agreement  was  beyond  the  power  of  the  com- 
missioners to  make,  but  on  the  contrary  thereof  said  feeder  has 
long  since  been  abandoned,  and  was  wholly  unnecessary  for  the 
operation  of  said  canal. 

Admits  that  said  lease.  Exhibit  C,  contained  a provision  reserv- 
ing to  the  commissioners  the  right  to  cancel  lease  and  recover  pos- 
session of  said  land  whenever  in  the  judgment  of  said  commis- 
sioners or  proper  officers  of  the  state,  at  such  time  having  charge 


152 


of  said  canal  property,  tliey  shall  deem  the  interests  of  the  state 
required  it  to  re-possess  said  property  for  state  purposes;  denies 
that  said  power  of  revocation  and  cancellation  may  be  exercised 
by  the  Legislature;  denies  that  same  was  exercised  by  the  act 

154  of  December  6,  1904,  above  referred  to.  Denies  that  the  exer- 
cise of  the  powers,  etc.,  conferred  by  Exhibit  C will  create 

obstructions  in  the  Desplaines  Eiver. 

Admits  Exhibit  J purports  to  convey  lands  therein  described 
and  in  terms  includes  lands  situated  outside  of  the  alleged  meander 
line  to  the  said  river,  and  that  it  purports  to  be  subject  to  the  terms 
of  Exhibit  A and  Exhibit  B. 

Denies  that  the  said  lands  and  lots  are  lands  and  lots  connected 
with  the  water  power  privileges.  Denies  that  Exhibit  A and  Ex- 
hibit B purport  to  convey  and  create  water  power  privileges. 

Admits  that  said  advertisements  thereof  did  not  designate  said 
premises  as  water  power  privileges,  or  limit  same  to  a term  of  ten 
years. 

Denies  that  leases  of  water  power  privileges  were  at  the  time  of 
execution  of  said  lease  limited  by  law  to  a term  of  ten  years. 
Avers  that  by  clause  6 of  Section  8 of  the  act  of  March  27,  1874,  as 
amended  by  the  act  of  April  21,  1899,  the  commissioners  were 
given  power  to  lease  water  power  and  lands  and  lots  con- 

155  nected  therewith  for  period  of  twenty  years,  and  power  to 
provide  for  extension  of  any  lease  from  time  to  time. 

Denies  that  Exhibits  A and  B were  beyond  the  power  of  said 
commissioners,  that  the  same  were  leases  of  water  power,  etc.,  that 
they  were  subject  to  any  power  of  the  state  to  resume  or  to  aban- 
don and  destroy;  denies  that  the  opinion  of  the  Legislature  that 
the  work  ceased  to  be  advantageous  to  the  state  was  expressed 
by  act  of  December  6,  1907. 

Admits  that  Exhibit  K conveyed  to  said  Griswold,  his  succes- 
sors and  assigns,  the  right  to  maintain  a line  of  poles  along  said 
canal  from  the  west  line  of  said  Section  25  to  Eobey  street  in 
Joliet,  and  from  the  same  point  in  Section  25  to  the  west  limits 
of  Morris  in  Grundy  County;  admits  that  said  lease  was  made  upon 
the  same  day  as  Exhibits  A and  B;  that  it  was  for  the  purpose 


153 


of  transferring  and  conveying  electrical  energy  by  the  said 

156  proposed  line  of  poles;  denies  that  it  was  subject  to  infirmi- 
ties alleged  in  said  bill  as  to  said  Exhibits  A and  B. 

Denies  that  said  contract,  etc.,  were  entered  into  on  an  inade- 
quate consideration;  avers  that  the  consideration  paid  by  said 
Griswold  to  said  Commissioners  was  adequate  and  the  full  value 
of  the  rights  thereby  granted. 

Avers  that  the  granting  of  the  temporary  injunction  herein  with- 
out bond  has  resulted  in  irre])arable  injury  to  this  defendant,  and 
the  taking  of  property  without  due  process  of  law,  in  violation  of 
the  14th  amendment  to  the  Constitution  of  the  United  States  and 
Section  2 of  Article  3 of  the  Constitution  of  Illinois. 

Denies  that  complainant  is  entitled  to  the  relief  prayed  for  or 
any  part  thereof.  Prays  the  same  advantage  as  if  it  had  pleaded 
or  demurred  to  the  bill;  that  the  temporary  injunction  be  dissolved 
and  that  defendant  be  dismissed  with  its  costs. 

Endorsed:  Filed  this  30th  day  of  March,  1908,  Fred  S.  John- 
son, Clerk. 

157  General  replication  filed  April  15,  1908. 

159  Order  of  April  20,  1908,  requesting  the  Honorable  Julian 
W.  Mack,  one  of  the  Judges  of  the  Circuit  Court  of  the 

160  County  of  Cook  and  State  of  Illinois,  to  hear  this  cause. 

Placita. 

Pleas  before  the  Honorable  Julian  W.  Mack,  one  of  the  judges 
of  the  Circuit  Court  of  Cook  County  and  State  of  Illinois,  holding 
a branch  of  the  Circuit  Court  of  Grundy  County,  at  the  request  of 
the  Honorable  Samuel  C.  Stough,  one  of  the  judges  of  the  13th 
Judicial  Circuit  of  the  State  of  Illinois. 

Present,  said  judge,  Julian  W.  Mack,  Fred  S.  Johnson,  Clerk; 
Charles  F.  Hanson,  State’s  Attorney;  Thomas  Steele,  Sheriff. 

161  Decree  Entered  June  27,  1908. 

Be  it  remembered,  that  on,  to  wit,  the  27th  day  of  June, 
A.  D.  1908,  the  following  among  other  proceedings  were  had,  made 
and  entered  of  record  in  said  court,  the  Honorable  elulian  W.  Mack, 
one  of  the  judges  of  the  Circuit  Court  of  the  County  of  Cook  and 


154 


State  of  Illinois,  holding  a branch  in  and  for  the  County  of  Grundy 
and  State  of  Illinois,  which  said  proceedings  are  in  the  words  and 
figures  following,  to  wit: 


The  Economy  Light  & Power  Co. 

This  cause  having  come  on  to  be  heard  on  final  hearing  upon  the 
])leadings  and  upon  the  depositions  taken  and  filed  herein  and  upon 
the  evidence  taken  and  heard  on  behalf  of  the  parties  respectively 
in  open  court  and  the  court  being  fully  advised  and  having  heard 
argument  of  counsel  it  is  ordered,  adjudged  and  decreed  that  the 
information  or  Bill  of  Complaint  herein  be  and  it  is  hereby  dis- 
missed for  want  of  equity  without  prejudice  however  to  the  right 
of  the  State  of  Illinois  to  hereafter  claim  in  any  future  proceed- 
ing that  the  provisions  of  the  lease  (in  said  Information  men- 
tioned and  made  Exhibit  B thereof)  made  by  the  Canal  Commis- 
sioners of  Illinois  to  Harold  E.  Griswold  under  date  of  September 
second,  1904,  relating  to  the  making  of  renewal  at  the  expiration 
of  the  term  of  said  lease  are  void  and  of  no  effect. 

Whereupon  the  complainants  pray  an  appeal  to  the  Supreme 
Court  of  Illinois  which  is  hereby  allowed  and  time  is  granted 
162  and  leave  is  given  to  complainants  to  file  a certificate  of  evi- 
dence by  September  I5th,  1908,  and  said  appeal  is  allowed 
without  bond. 

Enter  Julian  W.  Mack,  Judge. 

June  27,  1908. 

163-205  Orders  continuing  hearing  of  case  from  day  to  day  dur- 
ing trial  on  the  following  days,  to  wit,  April  20,  21,  22,  23, 


Circuit  Court  of  Grundy  County^ 


March  Term,  1908. 


The  People  ex  rel  Charles  S.  Deenen  and 
AVilliam  H.  Stead,  Atty.  Gen., 


vs. 


155 


22,  25,  26,  27,  28,  29,  and  June  1,  2,  3,  4,  8,  9,  10,  11,  12,  13,  15, 
16,  20,  22,  23,  24  and  25. 

206  Order  of  June  27,  A.  1).  1908,  adjourning  March  term  of 
said  court  from  court  to  court  in  course. 


COMPLAINANT’S  DEPOSITIONS. 

209  Deposition  of  Geo.  W.  Peed. 

* (Filed  March  20,  1908.) 

Venue.  Caption.  Notice  to  Isham,  Lincoln  & Beale,  counsel 
for  defendant.  Notice  that  on  26th  day  of  Pel)ruary,  1908,  at 
10  A.  M*.,  at  the  home  of  Geo.  AV.  Peed,  coin})lainant  would  pro- 
ceed to  take  deposition  of  said  Geo.  AY.  Peed.  To  commence  at 
10  A.  M.  and  to  be  continued  from  day  to  day  until  completed. 

210  Said  complainant  deems  the  testimony  of  said  witness  nec- 
essary in  said  cause.  Signed  by  counsel  for  complainant. 

211  Acknowledgment  of  receipt  by  Isham,  Lincoln  & Beale.  Com- 
missioners’ introduction. 

That  said  witness  was  first  duly  sworn. 

George  AV.  Peed, 

a witness  for  complainant,  testified  as  follows : 

213  I live  in  Bradford,  Stark  County,  Illinois.  I will  be  eighty- 

214  four  years  old  the  2nd  of  March,  1908.  I was  born  March 
2nd,  1824,  in  Clark  County,  Indiana,  near  Terre  Haute.  I 

came  to  Illinois  in  1829,  to  what  was  called  Peed’s  Grove,  in 
AYill  County.  My  father  settled  in  that  place  and  bought  the 
land  there  and  it  was  called  Peed’s  Grove.  It  was  nine  or  ten 
miles  from  Joliet,  pretty  near  south,  and  three  or  four  miles 

215  from  the  Desplaines  Piver.  I lived  with  my  father.  I was 
only  four  or  five  years  old  then.  Father  bought  and  sold 

land.  At  one  time  he  was  considered  worth  $100,000,  which  was 
a good  deal  of  money  them  times,  but  he  soon  lost  it.  AA^e  were 
there  all  the  time  except  a short  time  we  went  back  to  Indiana 
during  the  Black  Hawk  AYar  (1831).  AYe  stayed  in  Indiana 
about  four  months  and  came  back  in  the  fall  of  the  year.  AA^e 


156 


Reed, — Direct  Exam. — Continued. 


came  back  to  where  my  father  founded  a site  where  Joliet  now 
stands  and  he  built  a log  cabin  and  started  to  construct  a 

216  dam  and  mill.  It  was  in  1832,  in  October  or  November.  We 
built  a cabin  there,  about  four  rods  from  where  the  old  Na- 
tional Hotel  stands  now.  Mr.  George  H.  AVoodruff,  one  of  our 
old  historians,  had  a drug  store  there  across  the  street  for  forty 

years  before  he  died.  Father  was  digging  a race  and  con- 

217  templating  building  a mill  for  grinding  corn  and  wheat.  He 
began  building  a dam  in  the  river  near  the  south  end  of  the 

Jefferson  street  bridge.  We  lived  in  Joliet  until  1836  or  1837 
and  then  moved  back  to  our  old  farm  at  Eeed’s  Grove.  In  1840, 
or  a little  later,  my  father  moved  to  Winnebago  County  with  me 
and  in  a year  or  two  we  returned  to  Eeed’s  Grove.  I left  Eeed’s 
Grove  in  1855  for  good  and  went  to  Mercer  County,  farmed 
same  and  settled  a canal  claim.  I farmed  in  Mercer  County 

218  a couple  of  years  and  came  to  Stark  County  in  1857  and  have 
lived  on  my  farm  here  and  here  in  Bradford  ever  since  ex- 
cept three  ^mars  that  I was  in  the  army.  I owned  my  farm  in 

219  Stark  County  and  do  now.  After  coming  back  from  the  army 
I moved  to  Bradford  and  engaged  in  mercantile  business, 
continuing  in  it  for  over  thirty  years.  My  money  is  still  in 

220  the  business,  as  a silent  partner.  AAJien  we  lived  in  Joliet 
and  Will  County  there  didn’t  seem  to  be  many  folds  in  the 

river.  I don’t  remember  of  crossing  at  but  two  or  three  places 
in  the  nine  miles  of  the  stream  from  there  down,  and  that  was 
in  low  water.  One  ford  was  just  below  a little  islet  about  150 
yards  below  my  father’s  dam.  Along  in  the  summer,  in  the  dry 
or  low  stage  of  the  water  it  would  come  up  over  the  wagon  hubs, 
pretty  near  up  to  the  wagon  box,  in  fording  it.  There  was  an- 
other ford  about  three  miles  down,  just  below  an  islet.  That 
was  fully  as  deep  as  the  other.  It  did  not  seem  to  be  a shallow 
riffle  at  all,  but  we  picked  it  out  for  a good  smooth  ford,  the  best 
that  we  could  find.  There  was  one  jnst  about  a mile  east 

221  of  Channahon.  ANas  similar  to  the  othei’s,  about  the  same 
depth.  I saw  but  little  difference.  There  were  but  very  few 

])eo]Je  there  then  and  they  forded  generally  when  they  could. 
Some  forded  when  it  was  ])i*etty  dee]);  some  crossed  in  skiffs  and 
little  boats  they  had.  I don’t  remember  them  having  a ferry 
boat.  There  was  no  bridge  except  a foot  bridge  ])ut  up  on  long 


157 


slabs  in  the  upper  part  of  the  town.  They  had  that  one  season. 
In  high  water  it  was  between  a quarter  and  a half  a mile  wide; 
in  low  water  it  was  not  near  so  wide.  1 went  up  and  down  the 
river  fishing  a good  deal  while  living  at  the  point  now 

222  Joliet.  During  the  first  year  of  our  work  there,  when  father 
had  his  dam  partly  in,  one  day  we  heard  music  on  the  river 

and  I saw  a boat  coming  down  the  river  with  some  people  on  it. 
They  were  playing  on  a long  horn  of  some  kind  and  seemed  to 
be  enjoying  themselves  bully.  They  came  right  along  and  went 
on  through  and  down  the  river  wdthout  any  trouble  whatever. 
It  seemed  to  me,  as  far  as  I can  remember  now,  that  it  was  a 
kind  of  a flat  boat  or  scow  or  maybe  a ferry  boat.  It  must  have 
been  about  30  or  40  feet  long,  maybe  as  long  as  40  feet,  and  Ifl 
to  20  feet  wide.  It  looked  to  me  like  it  was  al)out  4 feet  deep 

223  and  drawing  about  2 to  2 1 feet  of  water.  It  might  have  been 
an  old  boat  that  this  family  had  bought  up  north  in  Wis- 
consin or  some  place  and  was  going  down  south  on.  They  said 
they  were  going  to  a warmer  country  and  that  it  was  too  cold 
up  north  for  them.  There  were  five  people  on  the  boat  anyway, 
some  men  and  some  women.  They  had  farming  utensils  and  bed 
clothes,  chairs  and  such  like,  sacks  of  provisions  and  carried  a 
pile  of  such  things  as  a family  would  have.  We  were  four  or 
five  rods  from  them.  That  must  have  been  about  1833  or  near 
that.  I have  nothing  down  by  which  to  fix  it  except  the  Indian 
war  and  one  thing  and  another  that  I remember  along  about  then. 
I observed  that  boat  for  ten  or  fifteen  minutes,  I suppose.  I saw 
it  coming  from  up  the  river  for  half  a mile  and  saw 
it  go  down  for  half  or  three  quarters  of  a mile.  It  was  propelled 
just  by  the  current.  I suppose  they  had  paddles  or  poles  to 

keep  it  from  the  shore  and  off  the  rocks.  I did  not 

224  see  the  boat  have  any  trouble  whatever  in  going  down  the 
river.  They  said  they  had  gotten  along  nicely.  I can’t  remem- 
ber any  other  boats  except  skiffs.  They  passed  up  and  down  the 
river  without  any  difficulty.  By  small  boats  I mean  skiffs,  scows, 
flat  boats  and  the  like.  I wouldn’t  think  there  would  have  been 
any  difficulty  in  using  them  all  the  time,  at  all  seasons.  . 

During  most  of  the  year  the  Desplaines  Eiver  was  of 
sufficient  depth  to  permit  the  navigation  of  boats  for  com- 


158 


Reed, — Cross-Examination. 


mercial  purposes.  There  might  have  been  a drought  or  low  water 
and  at  that  stage  it  would  not  have  been  safe,  but  as  a general 
thing  through  the  biggest  part  of  the  year  it  took  such  boats  as 
I speak  of  up  and  down  without  any  trouble.  I know  that  to 
be  a fact  from  my  knowledge  of  the  depth  of  the  river,  as  I ob- 
served it  at  that  time.  That  is  the  way  I looked  at  it — the 

225  depth  of  the  river.  I remember  one  time  when  I was  living 
at  Reed’s  Grove,  before  I moved  south  in  Mercer  County, 

that  my  brother  was  down  at  the  river  and  got  some  wheat  from 
a man  who  had  gotten  the  wheat  wet  in  transporting  it  in  a boat- 
and  was  selling  it  to  the  farmers.  My  brother  fetched  home  five 
or  six  bushels  and  we  spread  it  out  on  sheets  and  quilts  to  dry  and 
use  it.  It  was  spoiling  as  it  was,  and  we  had  to  dry  it  to  keep 
it  from  spoiling. 

Q.  How  did  that  wheat  get  wet? 

Objected  to  by  defendant  on  account  of  calling  for  a con- 
clusion, not  a matter  of  knowledge  to  the  witness. 

(Ruling  on  said  objection  by  trial  court  ‘‘Objection  sus- 
tained.”) 

Said  ruling  recorded  on  Trans,  p.  1805. 

226  I won’t  swear  where  it  was  they  were  taking  it,  whether 
Ottawa  or  Chicago.  They  were  going  to  market.  I have  no 

means  of  knowing  that.  I would  think  it  was  about  1842  or 
1843.  It  must  have  been  pretty  near  that  date.  That  is  the  only 
date  I am  guessing  at,  for  when  I left  the  county  it  was  about 
1850,  ’51  or  ’52;  it  was  before  that  likely  that  this  happened — 
two  or  three  years,  maybe  more.  It  seems  to  me  that  the  dam 
my  father  was  building  was  on  the  south  side  of  where  the  Jef- 
ferson street  bridge  is.  Things  change  around  so  on  the  river 
and  canal  a person  gets  off  the  track. 

Cross-Examination. 

227  Mr.  McKee  bought  the  land  from  my  father.  He  finished 
the  dam  and  put  up  the  mill.  It  was  called  McKee’s  dam. 

I couldn’t  tell  how  deep  the  boat  went  into  the  water,  only  by  the 
sides  that  showed  out  of  the  water.  It  was  a fiat  boat.  I don’t 
think  it  was  decked  over,  except  a double  flooring  in  it  maybe  six 


159 


inches  from  the  bottom  to  keep  the  goods  off  the  bottom.  If  I 
remember  right  it  didn’t  have  any  upper  deck.  That  was  not  cov- 
ered over.  It  didn’t  seem  to  me  to  be  like  a ferry  boat  exactly, 
that  is,  covered  over  the  top. 

Q.  You  said  you  never  saw  any  other  boat  going  up  and  down 
the  river  except  skiffs,  did  you  I A.  That  is  all  I remember  of. 
I was  not  on  the  river  very  much  then.  There  wasn’t  many  skiffs 
going  up  and  down,  only  just  what  was  used  in  Joliet  for  the 
purpose  of  crossing  the  stream.  I didn’t  see  that  I can  swear  to, 
freight  or  passengers  being  cai-ried  up  or  down  the  river. 

The  only  thing  I learned  about  the  boat  was  that  the  grain  got 
wet  and  the  man  who  had  it  was  selling  it  out  l)ecause  he  couldn’t 
take  it  on  to  market.  On  account  of  it  being  wet  it  would  spoil 

228  and  not  sell  on  the  market.  I learned  that  from  my  brother 
He  went  down  to  the  river  and  he  met  a man  who  had  gotten 

some  of  the  wheat,  who  told  him  the  wheat  was  wet  and  there 
was  a man  on  the  river  in  a boat  selling  it  out,  so  my  brother  went 
and  bought  some.  I heard  it  talked  in  the  neighborhood  about 
it  being  too  bad  that  the  wheat  got  wet.  My  brother  was  about 
20  or  21  years  old  when  that  happened.  1 was  not  so  familiar 
with  the  Desplaines  Kiver  in  1833  and  1834  as  I was  before  that. 
I remember  the  Beard  dam  at  Beardstown,  across  the  river.  I 
don’t  remember  the  date.  It  was  about  the  time  the  feeder  dam 
was  put  across  the  Kankakee.  That  was  several  years  after  my 
father  was  building  the  dam  at  Joliet.  I don’t  rememl)er 

229  Norman’s  dam.  I don’t  remember  any  falls  or  anything  that 
you  could  call  rapids  between  Joliet  and  the  mouth  of  the 

river.  There  were  some  places  not  so  deep  and  some  places  the 
water  was  pretty  swift.  I don’t  remember  any  rocks  across  the 
channel.  It  was  a pretty  smooth  limestone  bottom.  Those  fords 
I think  they  did  aim  to  find,  generally,  just  above  riffles.  I don’t 
think  there  was  much  ditference  between  the  fords  and  the  places 
below,  not  enough  to  do  any  hurt.  I never  went  by  boat  down  the 
river  from  Joliet  to  the  mouth  of  the  stream,  not  the  full  way;  I 
have  partly.  I remember  the  grist  mill  at  Treat’s  Island.  I 

230  couldn’t  tell  you  just  where  the  place  was  that  that  wheat 
was  sold.  The  people  on  that  boat  with  the  farming  imple- 


160 


Reed, — Re-direct  Examination. 


ments  said  they  were  going  to  a warmer  country.  That  was  in 
the  fall  of  the  year.  We  raised  grain  on  the  farm  at  Eeed^s  Grove. 
When  we  got  to  taking  it  any  place  we  took  it  to  Chicago  by  ox 
teams.  We  met  other  people.  The  roads  were  full  of  teams  going 
and  coming,  some  from  Sangamon  County,  as  far  as  120  or  130 
miles.  I remember  an  old  sailor  along  the  road  with  me  one  day. 
He  said  ^‘Do  you  ever  drink?’’  I said  ^‘Yes,  sometimes.”  He 
said  ^‘AVell,  we  will  have  something  to  drink.”  We  met  an  old 
fellow  coming  along  cracking  up  his  horses  and  he  says  ^^Here, 
hello,  give  us  a drink.”  He  says  haven’t  got  any  whiskey.” 

231  Pretty  soon  we  met  another  fellow.  He  says  ‘H  guess  I have,” 
so  he  stopped  his  team  and  we  had  a drink  out  of  a jug.  We 

were  all  jolly  fellows  at  this  time.  It  runs  in  my  mind  that  that 
boat  with  the  grain  came  from  the  Bull  Bony  settlement  (Bour- 
bonnais  Grove),  a settlement  on  the  Kankakee  Kiver.  That  was 
way  up  near  Kankakee  city.  Kankakee  is  right  where  the  Bull 
Bony  settlement  was  then  I think.  I never  used  the  river  for 
transporting  grain.  I don’t  remember  the  Havens  or  Adams  dam. 
I couldn’t  say  when  that  bridge  was  built.  I remember  one  bridge 
was  built  and  went  off  with  high  water  along  the  first  part  of  the 
settling  there,  but  I couldn’t  give  the  dates  as  to  the  building  of 
the  bridges.  Those  people  in  that  boat  with  the  farming  imple- 
ments said  they  were  hunting  a warmer  country.  I suppose  they 
went  on  down  out  of  our  reach. 

232  Re-direct  Examination. 

Q.  Was  the  water  in  the  Desplaines  Kiver  from  Lockport  to 
the  mouth  of  the  river  at  the  time  you  lived  at  Joliet  deep  enough 
at  all  times  and  at  all  seasons  of  the  year  for  boats  drawing  from 
three  to  four  feet  of  water  to  navigate  up  and  down  the  river 
without  trouble? 

Objected  to  by  the  defendant  as  calling  for  a conclusion. 
Examination  permitted  subject  to  objection. 

A.  Well,  I would  think  it  was,  but  I would  not  say  that  it  was 
at  all  seasons.  I believe  it  was  sufficient  for  boats  drawing  three 
feet  of  water  during  the  most  of  the  year. 


161 


Q.  You  base  that  conclusion  from  your  knowledge  of  the  depth 
of  the  water  in  the  Desplaines  River?  A.  Yes,  sir. 

(Killing  on  said  objection  by  trial  court. 

Objected  to  by  counsel  for  defendant. 

‘‘Counsel  for  Complainant.  The  witness  in  response  to  the 
cross-examination  says  that  he  made  the  trip  part  of  the  way  on 
the  river  and  stated  that  he  had  lived  there  on  the  river  for  five 
years;  that  his  father  was  building  a dam  on  the  river  and  that 
he  took  particular  notice  of  the  river  at  the  time  they  lived  there 
at  Joliet.  I think  it  is  sufficient  to  enable  his  answer  to  go  for 
what  it  is  worth,  particularly  when  counsel  on  the  cross-examina- 
tion proceeded  to  ask  him  whether  he  made  use  of  the  river  for 
transporting  grain.’’ 

“The  Court.  He  said  he  had  not.  Objection  sustained.” 

Said  ruling  is  recorded  on  Trans,  p.  1826.) 

The  fords  I have  spoken  of  we  aimed  to  have  at  the  shallowest 
places. 

Re-cross  Examination. 

That  is,  if  the  shallowest  place  wms  very  swift  it  might  be  that 
we  could  select  a place  not  so  swift  just  above.  I can’t  say  that 
that  was  the  case  in  these  instances.  We  endeavored  to  get  the 
best  bottom  we  could.  In  the  extreme  dry  seasons  I never  remem- 
ber having  knowm  it  being  so  low  as  not  to  be  2 to  2|  feet  deep 
233  in  the  shallowest  places.  I did  not  go  up  the  river  from  Joliet 
afoot  nor  follow  it  in  all  its  windings.  I used  to  see  it  fre- 
quently. There  might  have  been  shallower  places,  but  I don’t  think 
so. 

(At  the  close  of  the  reading  of  the  deposition  of  the  witness 
Keed  before  the  trial  court. 

Counsel  for  Complainant.  “You  now  having  heard  the  re- 
cross continued  by  the  counsel,  containing  the  answer  ‘I  never  re^ 
member  having  known  it  to  be  so  low  as  to  be  two  and  two  and 
one-half  feet  deep  in  the  shallow  places,  I would  not  say  that  I 
was  familiar  with  it  all,  but  I used  to  see  it  frequently,  there  might 
have  been  shallower  places  than  I described,  but  I do  not  think 


80.’  I think  his  answer  on  the  river  as  a whole  ought  to  be  ad- 
mitted for  what  it  is  worth. 

The  Court.  No.  I will  sustain  the  objection.” 

Said  ruling  is  recorded  on  Trans,  p.  1826.) 

234  Here  follows  stipulation  to  waive  the  signature  of  said  wit- 
ness. 

235  Here  follows  certificate  of  Commissioner  James  H.  Eem 
nick. 

237  Fee  Bill. 

240  Deposition  of  Gr.  H.  Erhard. 

(Filed  March  18,  1908.) 

Commissioners’  introduction.  On  the  16th  day  of  March,  1908, 
at  the  offices  of  Skidmore  & Walker,  in  the  City  of  Columbus, 
County  of  Cherokee,  Kansas,  the  said  deposition  was  taken. 

The  said  G>  H.  Erhard  was  first  duly  sworn. 

240  George  H.  Erhard, 

a witness  for  complainant,  testified  as  follows: 

Direct  Examination. 

1 am  over  69  years  old;  live  at  Sherwin  Junction,  Cherokee 
County,  Kansas.  I was  born  in  Joliet,  Will  County,  111.,  on 

241  Nov.  22,  ’38.  As  a resident  I know  of  the  plaintiff,  the  Peo- 
ple. I know  of  the  defendant.  I know  of  Mr.  Allen,  one  of  the 

parties  connected  with  the  defendant’s  business. 

I resided  at  Joliet  continuously  until  1893,  when  I moved  here. 
After  living  here  three  years  I returned  to  Joliet  and  remained 
until  ’99,  when  I removed  my  residence  here  permanently. 

I knew  the  Desplaines  Eiver  since  I was  7 years  old.  In  1845 
I lived  right  on  the  bank  of  the  river  and  went  swimming  and 
fishing  very  frecpiently  in  it;  saw  it  every  day  up  till  1860. 

The  Desplaines  Eiver  had  different  stages  called  high  and 
medium  stages.  In  the  high  and  medium  stages  of  water  any  raft 
or  boats  could  run  up  and  down  the  river  at  any  such  seasons 
when  the  river  was  not  frozen,  I would  say  from  Lamont  down  to 


163 


Dresden  Pleiglits.  This  is  as  far  as  I know  positively  that  such 
rafts  or  boats  could  be  propelled  in  the  Desplaines  River.  Dur- 

242  ing  the  years  I lived  on  the  Desplaines  and  saw  it  daily  there 
were  high  and  medium  stages  of  water.  It  was  generally  high 

during  the  spring  and  fall  seasons.  I would  say  those  high  and 
medium  stages  would  continue  probably  six  months  or  more  of 
the  year  and  that  the  water  was  much  higher  before  the  year  1848 
than  thereafter  as  the  same  was  impeded  and  prevented  from  the 
natural  flow  by  dams  and  other  obstructions,  and  the  cultivation 
of  the  soil  and  tile  drainage  caused  the  water  to  escape  faster 
and  in  a larger  flow  than  before. 

Before  1848  the  stream  was  a good-sized  river  and  I have  fre- 
quently seen  cattle  swim  the  river  in  the  summer  time  across  to 
Brushy  Island  and  the  entire  stream  at  that  time  was  quite  deep, 
If  we  did  not  have  a dry  season  we  would  have  a good  stage  of 
water  all  summer,  and  generally  there  was  three  or  four  months 
in  the  latter  part  of  the  year  that  the  high  or  medium  stages  con- 
tinued to  exist. 

243  During  the  time  I resided  on  the  river  I saw  small  boats 
and  rafts  going  upon  the  river.  The  boats  went  up  and  down 

the  river  and  the  rafts  went  down  the  river.  They  came,  so  far 
as  I know,  from  Lamont,  Cook  County,  Illinois,  and  floated  on 
the  river  to  south  of  Joliet  and  to  the  Hayden  saw-mill.  I fre- 
quently saw  the  boats  and  rafts  come  into  the  mill  containing  hard- 
wood for  manufacture.  I often  heard  of  merchandise  being 
shipped  on  the  river,  but  have  no  positive  knowledge  of  such  trans- 
action. I remember  that  my  brother-in-law,  Jacob  Adler,  of  Joliet, 
fenced  a pasture  across  the  river  and  was  compelled  to  put  gates 
across  the  Desplaines  just  below  the  city  limits  of  Joliet,  and  that 
in  erecting  such  fence  he  was  required  to  and  did  put  in  a swing- 
ing gate  in  order  to  let  the  boats  and  rafts  go  up  and  down  the 
river.  The  river  at  that  time  was  regarded  as  a navigable  stream 
and  used  for  such  purposes  and  for  that  reason  he  was  required 
to  use  swinging  gates  so  that  the  boats  could  go  up  and  down  the 
river.  I was  often  in  the  river  swimming  and  was  around  it  fish- 
ing and  knew  it  well  from  Lamont  down  to  where  the  Kankakee 
and  Desplaines  form  the  Illinois  River,  whicli  was  commonly  known 
as  the  Channahon  district. 


164 


Erhard, — C ross-Examination. 
Cross-Examination. 


244  I think  it  was  in  1847  or  ’48  that  the  upper  dam  was  finished 
in  Joliet.  Then  there  was  a dam  right  on  Jefferson  street. 

That  was  there  before  my  recollection,  which  was  torn  away  a few 
years  ago;  the  Haven’s  saw-mill  and  grist  mill  dam  south  of  Joliet,. 
I don’t  remember  when  that  was  built.  I think  that  has  been  torn 
away  also.  It  was  built  when  I was  a small  boy. 

I knew  of  there  being  some  rapids  or  riffles  in  the  Desplaines 
River  near  to  the  mouth  at  Dresden  Heights.  I don’t  know  their 
length.  It  was  a great  fishing  place.  I saw  them  often. 

I have  been  across  the  rapids  at  Smith’s  bridge.  Am  well  ac- 
quainted with  the  country  and  rapids  around  Brandon’s  bridge. 
I have  also  been  at  the  rapids  at  Treat’s  Island.  I cannot  state 
their  extent;  have  no  knowledge,  could  only  guess.  I cannot 

245  say  just  what  the  depth  of  the  water  was  prior  to  1900  over 
these  rapids.  I know  that  there  was  generally  a good  body 

of  water  in  the  river  before  they  began  to  obstruct  the  river  and 
drain  the  country. 

I never  attempted  to  run  a skiff  over  those  rapids  either  at  high 
or  low  water  mark.  I have  seen  skiffs  come  up  and  down  the  river 
at  nearly  all  seasons.  I don’t  know  where  they  came  from  or 
went  to. 

Xo,  it  is  not  true  that  the  only  boats  ever  used  in  the  Desplaines 
River  were  skiffs  used  occasionally  in  pools  or  deep  places  by 
fishermen  or  hunters. 

I never  personally  saw  boats  used  for  commercial  purposes  ex- 
cept carrying  produce,  grain  or  freight  navigating  the  river,  ex- 
cept I have  seen  the  rafts  come  down  the  river  as  I have 
stated. 

246  I am  not  able  to  say  positively,  but  to  the  best  of  my  judg- 
ment the  curves,  slopes  and  declivities  in  the  river  did  not  pre- 
vent vessels  from  going  up  and  down  the  river  when  the  same  was 
at  a high  or  medium  stage  of  water. 

The  high  water  stage  would  probably  last  a month  each  in  the 
spring  and  fall,  and  the  medium  stage,  I should  judge,  would  last 
for  about  six  months,  and  the  remainder  of  the  year,  if  it  was  a 


fair  season,  we  would  have  a medium  stage  of  water  most  of  the 
year,  but  if  it  was  extremely  dry  the  water  would  get  (]uite  low, 
but  as  for  the  depth  of  these  rapids  at  any  time  I am  unable  to 
state. 

247  Here  follows  certificate  of  A.  H.  Skidmore,  commissioner. 

248  Here  follows  notice  of  taking  said  deposition,  dated  March 
9,  1908. 

Acknowledgment  of  receipt  of  notice. 

248-251  Interrogatories  of  complainant. 

252-254  Cross-interrogatories  of  defendant. 

255  Dedimus. 

Depositions  of  Alexander  McKenzie,  T.  E.  Burton  and  Wm. 

Lorimer. 

(Filed  March  23,  1908.) 

258  Notice  to  Isham,  Lincoln  & Beale  and  Frank  H.  Scott, 
counsel  for  defendant,  of  taking  of  depositions,  on  Tuesday, 

the  third  day  of  March,  A.  D.  1908,  at  10  a.  m.,  before  John  P. 
McMahon,  a notary  public,  at  the  committee  room  of  the  Com- 
mittee on  Elvers  and  Harbors  of  the  House  of  Representalives 
of  Congress,  in  the  City  of  Washington,  D.  C.  Commencing  at 
10  A.  M.  on  March  3rd  and  continuing  from  day  to  day  until  com- 
pleted. 

Said  complainant  deems  the  testimony  of  said  witnesses 

259  necessary  in  said  cause.  Witnesses’  name,  Theodore  E.  Bur- 
ton and  other  witnesses.  Signed  by  complainant’s  counsel 

Acknowledgment  of  receipt  of  notice  by  Isham,  Lincoln  & Beale. 

‘‘Stipulation.” 

It  is  stipulated  that  the  date  of  taking  the  depositions  above 
referred  to,  be  changed  a statutory  length  of  time  for  notice 
is  waived,  and  said  depositions  may  be  taken  commencing  Feb- 
ruary 25,  1908,  at  12  o’clock  noon,  and  that  such  adjournment 
thereof  at  that  date  as  may  be  by  the  officer  taking  the  same  and 
otherwise  same  to  be  pursuant  to  said  notice  above,  and  all  with- 


166 


! 


out  i^rejudice  to  other  outstanding  notices,  and  the  taking  of  depo- 
sitions thereunder. 

W.  H.  Stead, 

Walter  Eeeves, 

Merritt  Starr, 

For  complainant. 
IsHAM,  Lincoln  & Beale. 

260  Commissioners^  Introduction. 

The  depositions  of  Alexander  McKenzie  of  AVashington, 
D.  C.,  Theodore  E.  Burton  of  Cleveland,  Ohio  and  AVilliam  Lori- 
mer,  Chicago,  Ills.  Said  witnesses  being  produced,  sworn  and 
examined  on  oath,  testified  as  follows: 

General  Alexander  McKenzie, 
a witness  for  complainant,  testified  as  follows : 

Direct  Examination. 

261  I am  63  years  and  nine  months  old;  residence  AA^ashington, 
D.  C.;  occupation.  Brigadier  General  and  Chief  of  Engineers, 

United  States  Army. 

I have  been  in  the  service  of  the  Government  of  the  United 
States  about  forty-four  years,  not  including  the  four  years  at 
AA^est  Point.  I am  a graduate  of  the  AA^est  Point  Military 

262  Academy,  of  1864.  My  official  position  is  Chief  of  Engineers, 
United  States  Army.  I have  not  been  in  any  other  service 

in  the  United  States  Government,  excepting  the  Engineer  Corps. 

I commenced  my  service  in  Arkansas  and  the  Indian  Territory 
during  the  latter  part  of  the  Civil  AA^ar;  subsequent  to  that,  for 
a time,  I was  on  duty  in  AVashington,  and  later  on  the  lower  Alis- 
sissippi.  Following  that  I was  on  duty  for  a number  of  years 
in  Milwaukee  in  connection  with  the  improvement  of  certain  lake 
harbors,  and  subsequently  to  that  at  AAhllett’s  Point  for  a num- 
ber of  years  with  the  Battalion  Engineers  and  School;  later  than 
that  at  Detroit  and  at  Louisville,  in  charge  of  various  river  and 
harbor  works;  then  at  Eock  Island  for  about  17  years,  and  from 
there  to  AVashington,  where  I have  served  for  about  thirteen  years. 
During  the  seventeen  years  that  I was  stationed  at  Eock  Island, 
Illinois,  I have  had  under  my  jurisdiction  the  upiier  Afississippi 


107 


River,  which  did  not  include  directly  the  tributaries.  The 

263  only  improvement  that  I had  under  my  charge  at  that  time 
was  the  upper  Mississippi  River  from  St.  Paul  to  the  mouth 

of  the  Missouri  River. 

T have  necessarily  made  a study  during  these  many  years  of 
my  service  of  the  various  rivers  and  harbors  of  the  United  States; 
principally  1 might  say,  though  with  regard  to  many  of  them, 
through  the  reports  submitted  by  other  officers.  All  these  re- 
})orts  come  to  our  Department  for  consideration  from  time  to 
time. 

I know  the  Desplaines  River  in  Illinois,  principally  through 
the  records  and  reports ; not  jiarticularly,  personally.  I have 

264  seen  it.  The  Desplaines  River  is  regarded  by  the  War  De- 
partment of  the  United  States  Government,  officially,  as  a 

navigable  stream  under  the  law. 

As  to  what  is  the  minimum  depth  or  water  in  a stream  on 
which  profitable  commercial  navigation  can  he  had, — can  hardly 
be  answered  definitely,  because  there  are  other  considerations  be- 
sides the  depth  which  might  be  involved.  In  certain  streams  a 
very  small  depth,  even  a depth  of  one  foot  can,  furnish  profitable 
navigation,  all  other  conditions  favorable. 

Suppose  that  the  boulders,  if  any,  in  a stream,  be  removed, 
and  where  rapids  exist  a lock  and  dam  be  put  in,  then  what  the 
minimum  depth  is  under  which  or  on  which,  profitable  corn- 

265  mercial  navigation  could  be  carried  on, — that  could  best  be 
answered  by  giving  such  examples  as  we  have.  The  plans 

now  contemplate  a six-foot  navigation  on  the  upner  Mississippi 
River.  Up  to  within  a recent  time  they  contemplated  four  to  four 
and  a half-foot  navigation,  on  which  it  was  considered  that  a 
profitable  navigation  might  be  conducted,  although  that  is  a 
question  of  fact  that  could  not  exactly  be  predicted. 

There  are  a number  of  rivers  in  the  south,  the  upper  waters 
of  which  have  as  little  as  two  feet  of  water,  upon  which  business 
is  transacted. 

The  document  now  handed  me,  which  is  a record  of  Document 
numbered  264,  of  the  Fifty-first  Congress,  first  session, — House 
of  Representatives  Document,  purporting  to  be  a survey  made  by 


168  McKenzie, — Direct  Exam, — Continued. 

Captain  W.  L.  Marshall  of  the  Corps  of  Engineers,  and  transmit- 
ted by  Eedtield  Proctor,  Secretary  of  War,  to  the  Speaker  of  the 
House  of  Eepresentatives, — this  is  an  official  document,  pub- 

266  lished  by  the  Government  of  the  United  States,  and  to  the 
best  of  my  knowledge  and  belief  is  a copy  of  the  original 

document. 

As  to  what  constitutes  a navigable  river,  as  the  same  is  under- 
stood and  acted  upon  by  the  War  Department  of  the  United 
States, — the  consideration  given  by  the  War  Department  in  a 
question  of  this  kind  is  based  on  the  decisions  of  the  Supreme 
Court;  their  description  of  what  constitutes  a navigable  stream 
is  in  general  terms  that  a stream  is  navigable  in  law  when  it  is 
navigable  in  fact,  and  it  is  navigable  in  fact  when  it  can  be  utilized 
for  the  commerce  of  the  locality. 

267  Obstructions  in  a river,  as  I understand  the  decision  of  the 
Supreme  Court,  which  would  not  completely  shut  oft  all  pos- 
sible navigation,  would  not  interfere  with  the  navigability  in  law, 
inasmuch  as  the  floating  of  logs  or  the  floating  of  small  boats 
which  can  frequently  pass  over  rapids,  is  understood  to  constitute 
navigation.  I understand  that  such  a river  is  still,  under  the  law, 
considered  a navigable  water.  I might  add  that  the  War  Depart- 
ment has  never  officially  considered  it  has  any  authority  to  de- 
clare a river  unnavigable. 

The  fact  that  the  volume  of  water  in  a given  river  is  such  that 
it  does  not  afford  at  all  seasons  of  the  vear  sufficient  water  for 
navigation  does  not  destroy  the  navigable  character  of  the  river, 
according  to  the  custom  of  considering  the  matter  in  the  War 
Department. 

The  four  volumes,  on  the  back  of  which  I find  the  woi*ds:  ‘‘Ee- 
port  of  the  Chief  of  Engineers,  United  States  Army,  Volumes 
Numbered  1,  2,  3 and  4,  1884,”  are  official  documents,  and  to  the 
best  of  my  knowledge  and  belief  copies  of  the  original  docu- 
ment. 

268  The  book  now  handed  me,  entitled:  “Annual  Report  upon 
the  improvement  of  the  Harbors  of  Chicago  nnd  Calumet  and 

Illinois  and  Calumet  Eivers,  Illinois;  Location  of  Illinois  and 
Mississippi  Canal,  and  Operating  and  care  of  the  Lagrange  Lock 


169 


in  the  Illinois  River,  in  charge  of  W.  L.  Marshall,  Ca])tain,  Corps 
of  Engineers,  United  States  Army,  being  appendix  J.  J.  of  the 
Annual  Report  of  the  Chief  of  Engineers  for  1890,”  is  an  official 
document  of  the  Government  of  the  United  States,  and  is  to  the 
best  of  my  knowledge  and  belief  a copy  of  the  original  docu- 
ment. 

The  document  now  handed  me,  entitled:  ^‘Executive  Document 
Numbered  16,  Fortieth  Congress,  first  session.  House  of  Repre- 
sentatives,” purporting  on  its  face  to  l)e  a survey  of  the  Illinois 
River — a letter  from  the  Secretary  of  IVar  communicating  the 
report  of  Brevet  Major  General  J.  H.  IVilson  on  the  survey  and 
examination  of  the  Illinois  River,— is  an  official  document  of  the 
Government  of  the  United  States,  and  is  to  the  best  of  my  knowl- 
edge and  belief  a copy  of  the  original  document. 

269  The  volume  now  handed  me,  on  the  hack  of  which  a[)pears 
these  words:  ‘‘Survey  of  Waterway  from  Lake  Michigan  to 

the  Illinois  River  at  La  Salle,  Illinois,”  and  apparently  being  a 
volume  of  maps, — is  an  official  document  of  the  United  States, 
and  to  the  best  of  my  knowledge  and  belief  a co]:>y  of  the  original 
document. 

The  volume  now  handed  me  entitled:  “Document  Numbered 

263,  Fifty-ninth  Congress,  first  session.  House  of  Representa- 
tives,” purporting  on  its  face  to  be  “A  Report  upon  Survey,  with 
Plans  and  Estimates  of  Cost,  for  a Navigable  Waterway  14  Feet 
Deep  from  Lockport,  Illinois,  by  way  of  Despl nines  and  Illinois 
Rivers,  to  the  Mouth  of  said  Illinois  River,  and  thence  by  way  of 
the  Mississippi  River  to  St.  Louis,  Missouri,  and  for  a Navigable 
ANaterway  of  7 and  8 feet  depth,  respectively,  from  the  Head  of 
Navigation  of  Illinois  River  at  La  Salle,  Illinois,  through  said 
River  to  Ottawa,  Illinois,” — is  an  official  document  of  the  United 
States  Government,  and  is  to  the  best  of  my  knowledge  and  be- 
lief a correct  copy  of  the  original. 

270  The  volume  now  handed  me,  purporting  to  be  “Reports 
upon  Transportation  Routes  to  the  Seaboard,”  being  “Ap- 
pendix C C of  the  Annual  Report  of  the  Chief  of  Engineers  for 
1875,”  is  an  official  document  of  the  United  States,  and  is  to  the 
best  of  my  knowledge  and  belief  a copy  of  the  original. 


170  il/ cKenzie,— C ross-Exa  m i n a t i on . 

Cross-Examination. 

I cannot  state  the  points  at  which  I personally  saw  the  Des- 
plaines  Eiver,  and  I can  only  say  that  I have  seen  it.  I have  not 
seen  it  sufficiently  to  know  any  of  its  details  and  peculiarities.  My 
knowledge  of  the  river,  of  its  directions  and  slopes  is  from  the 
Government  reports  and  Engineer’s  reports.  I have  more  or  less 
familiarity  with  the  slopes  of  the  river  and  the  depth  of  water 

271  and  flow  in  it.  I could  not  give  the  figures  definitely  to  you 
as  to  the  slopes  of  the  river  between  Joliet  and  the  mouth. 

The  slopes  affect  the  question  of  navigability  materially.  That  is 
it  would  for  up  stream  navigation.  Of  course,  there  are  streams 
where  the  navigation  would  he  all  one  way,  and  so  the  question 
of  slopes  would  not  affect  the  legal  proposition  so  much. 

The  limit  of  slope  in  fact  for  the  purposes  of  navigation  is  a 
([uestion  of  the  current  and  the  foundation  and  obstructions.  There 
are  so  many  conditions  involved,  that  it  is  very  difficult  to 

272  answer.  I have  in  mind  special  cases  where  boats  do  navi- 
gate certain  currents  under  certain  conditions,  but  it  may  be 

because  there  is  plenty  of  water  there  for  them  to  operate  in,  or 
some  other  conditions.  They  have  on  the  Eock  Island  Eapids 
slopes  which  at  times  give  an  estimated  current  of  seven  miles 
per  hour,  which  boats  do  operate  on.  There  is  also  on  the  Falls 
of  the  Ohio, — I do  not  know  what  the  slope  is, — but  they  do  ope- 
rate boats  in  passing  from  one  side  of  the  river  to  the  other,  and 
navigate  steep  slopes. 

Interrogatory  37th:  Now  one  of  these  reports  that  Mr.  Eeeves 
has  that  you  identified,  is  the  Engineer’s  Eeport  made  in  1901  to 
1904,  that  is,  I refer  to  the  report  published  in  1905,  of  survey 
for  a deep  waterway;  and  I call  your  attention  to  the  fact  that 
in  that  report  it  is  shown  that  during  the  low-water  season  of 
1901,  the  fall  in  the  Desplaines  Eiver  between  Jackson  street  and 
McDonough  street  in  the  City  of  Joliet,  a distance  of  5,000  feet, 
a fall  of  nine  feet  in  this  five  thousand  feet,  being  a fall  of  1.8 
feet  per  thousand  feet.  Now,  I ask  you  if  it  would  be  ])ossible  for 
open-water  navigation  upstream  to  be  carried  on  for  the  purpose 
of  commerce  over  that  stretch  of  five  thousand  feet  with  that 

273  slo])e?  A.  I could  not  say,  exce])t  that  boats  do  at  times  ])ull 
up  on  lines  when  the  water  is  too  steep  to  use  their  natural 


171 


power.  I mean,  l)y  putting  out  lines  aliead  and  hauling  up  the 
boats  by  tlie  process  known  as  cordelling.  T would  not  like  to  state 
the  maximum  slope  on  which  that  could  be  done.  • 

Interrogatory  40th:  I call  your  attention  to  the  fact  that  this 

report  to  which  I have  referred  says  that  in  the  high  water  sea- 
son of  1902  and  1904  the  slope  in  the  l)esplaines  Kiver,  between 
Jackson  street  and  McDonough  street  was  eight  feet  in  four  thou- 
sand feet,  or  about  two  feet  per  thousand  feet,  and  ask  you  if  you 
think  it  would  be  possible  for  pui’poses  of  useful  commerce  to  nav- 
igate that  portion  of  the  river  u})stream,  or  downstream  either? 
A.  Well,  it  would  be  undoubtedly  difficult  navigation,  very  dif- 
ficult navigation  under  those  conditions,  but  whether  it  would  be 
successful  or  not  is  prol)lematical,  that  is  difficult  navigation  for 
steamboats  and  barges,  and  that  class. 

It  can  not  be  said  that  anything  of  that  kind  is  im]mssible.  It 
would  be  very  difficult,  even  if  it  was  a gradual  slope. 

274  Without  any  artificial  aids,  simply  a boat  steaming,  1 think 
it  would  be  so  difficult  as  to  be  virtually  not  successful. 

Interrogatory  42 : Would  the  fact  that  there  never  had  been 

any  navigation  of  that  particular  stretch  of  the  Desplaines  River 
have  some  weight  with  you  in  making  up  your  opinion  upon  that 
point.  A.  Well,  I think  it  would  with  anyone. 

I do  not  know  as  a fact  that  there  has  never  been  any  navigation 
on  the  Desplaines  River  between  Lockport  and  the  mouth.  The 
matter  has  never  been  under  consideration  with  me.  I do 

275  not  understand  that  there  is  navigation  there,  that  is,  only 
stating  from  memory.  1 understand  that  it  is  not  navigated. 

It  is  the  impression  that  I have  from  the  reports.  I haven’t  any 
definite  information  one  way  or  the  other.  There  are  records  in 
our  office  which  say  that  at  a very  early  day  there  w^as  navigation 
on  the  river.  I do  not  remember  exactly  the  date.  It  was  in  the 
early  days. 

Interrogatory  47 : Are  you  aware  of  the  fact  that  from  a very 
early  day  the  river  has  had  some  dams  in  it  from  its  mouth  to 
Lockport  Bridge,  clear  across  the  river,  and  which  would  be  an 
effectual  obstruction  to  navigation!  A.  Yes,  sir. 

Interrogatory  48 : I call  your  attention  to  the  fact  that  this  re- 


172 


M cK  e nz  i e , — Cross-Exam . — C o 1 1 tii  i ued. 


port,  published  in  1905,  shows  that  between  McDonough  street, 

276  in  the  City  of  Joliet,  and  what  is  called  Brandon’s  Bridge,  a 
distance  of  about  two  thousand  feet,  the  slope  in  1901,  during 

a period  of  low  water,  was  3.75  feet  for  this  two  thousand  feet,  or 
being  about  1.88  feet  per  thousand  feet,  and  that  in  the  high 
water  season  of  1902  and  1904  the  slope  for  that  same  stretch 
of  river  was  about  1.1  feet  per  thousand  feet.  Do  you  think  it 
would  be  possible  for  navigation  for  useful  purposes  of  commerce 
to  be  carried  on  without  improvement  of  that  river  over  that 
stretch  of  the  river?  A.  Under  these  same  conditions  upstream 
navigation  wmuld  be  undoubtedly  very  difficult. 

I do  not  understand  the  Desplaines  River  to  be  navigable  in 
fact  in  the  sense  as  being  actually  navigated  at  this  time. 

As  I said  before,  we  have  some  records  which  indicate  that  it 
was  at  one  time,  at  an  early  date,  used  by  a certain  class  of 

277  boats.  I may  be  able  to  refer  to  those  records.  I do  not  re- 
member how  far  those  records  go.  I suppose  that  the  kind 

of  boats  used  were  pole  boats,  or  skiffs,  and  boats  of  that  char- 
acter. The  light  in  which  we  look  at  this  is  whether  this  river  is 
navigable  along  the  finding  of  the  Supreme  Court.  We  use  our 
best  judgment  in  coming  to  that  conclusion.  From  the  re- 

278  ports  which  we  have,  I should  judge  that  the  river  is  not 
capable  to-day  of  conducting  profitable  commerce,  in  the  way 

commerce  is  usually  conducted  now.  Whether  it  has  in  the  past, 
or  whether  there  was  a time  when  it  was,  or  not,  I could  not  say. 
When  we  speak  of  the  navigability,  I can  only  say  that  a river, 
which  will  float  a log  is  to  us  a navigable  river,  and  undoubtedly 
the  Desplaines  River  is  capable  of  such  navigation. 

279  I do  not  think  it  is  capable  of  carrying  commerce  now; 
whether  the  time  ever  was  that  the  commerce  made  it  capa- 
ble of  being  operated  profitably  T do  not  know.  As  to  whether 
there  are  long  stretches  during  several  months  of  the  year  between 
Tmckport  and  its  mouth  when  the  water  is  not  over  twelve  inches 
deep,  T would  not  know  without  examining  the  record. 

Interrogatory  59:  Do  you  know  as  a matter  of  fact  there  are 

times  in  dry  seasons  when  there  is  scarcely  any  water  in  stretches 
of  the  river?  A.  I do  not  know  that. 


173 


The  Engineers’  Report  published  in  1905  relates  to  the  pro- 
posed improvement  of  that  river  with  locks  and  dams  in  connec- 
tion with  the  pro})osed  fourteen-foot  waterway.  It  was  ])ioposed 
as  a part  of  the  plan  suggested  that  some  locks  and  dams  be 
placed  in  the  Desplaines  River. 

280  The  Economy  Light  & Power  Comj^any,  or  Mr.  Charles  A. 
Miinroe,  })i*oposed  to  build  a dam  near  the  mouth  of  the  Des- 
plaines River  and  filed  plans  for  his  work  in  my  office  at  one  time. 
As  a result  of  the  inesentation  of  those  plans,  which  were  simply 
presented  for  the  pur})ose  of  seeing  whether  they  were  in  har- 
mony with  the  plans  for  the  improvement  of  the  river, — it  re- 
sulted in  Air.  Alunroe  l)eing  informed  that  under  certain  condi- 
tions they  would  harmonize  with  the  plans  for  improving  the 
river. 

Interrogatory  hi:  Is  not  it  a fact  that  those  conditions  were 

to  be  met  by  Mr.  Munroe — that  ])rovisions  should  be  made  for 
a lock  at  the  side  of  the  dam,  and  that  the  Government  should  be 
given  control  of  the  pool  to  be  formed  by  the  dam?  A.  Those 
conditions  mentioned  were  a part  of  the  conditions ; I do  not 

281  remember  full}^  what  they  were. 

As  to  rivers  in  the  South,  on  which  commercial  business  was 
transacted,  I could  not  rememl)er  the  rivers  just  now.  I do  not 
mean  to  say  that  there  is  not  to  exceed  two  feet  at  many  ])laces  in 
the  river,  but  there  are  shoals  over  which  they  pass. 

Interrogatory  66:  Well,  on  those  rivers,  as  well  as  on  many 

rivers,  a question  whether  navigation  could  be  carried  on  would 
depend  upon  the  slope  to  a large  extent,  as  well  as  upon  the  depth 
of  water?  A.  As  I stated  before  there  are  so  many  conditions 
involved  that  it  is  difficult  to  answer. 

Interrogatory  67 : AVell,  if  you  had  two  feet  of  water  in  a 

river  and  a slope  of  ten  feet  per  thousand  feet,  it  would  be  im- 
possible to  carry  on  navigation,  would  it  not.  General  ? A.  As 
I said  before,  if  there  was  an  urgent  necessity,  there  might  be 
some  way  of  carrying  it  on.  I would  not  like  to  say  that  anything 
of  that  kind  is  possible. 

282  Interrogatory  69:  It  would  be  impossible,  would  it  not  un- 
der navigation  as  it  is  carried  on  generally  now, — it  would  be 


174 


McKenzie, — Cross-Exam. — Continued. 


impossible  with  the  character  of  the  boats  that  are  now  used? 
A.  We  have  many  cases  of  streams,  which  in  my  Department  are 
classed  as  navigable  streams,  where  there  is  nothing  but  log  nav- 
igation. 

I do  not  recall  the  slope  of  the  river  between  Lockport  and  its 
mouth,  as  shown  by  Major  Marshall’s  report,  published  in  1888, 
before  the  water  from  Lake  Michigan  was  emptied  into  the  Des- 
plaines  Eiver.  I have  not  the  thought  of  it  in  my  mind. 

283  I cannot  give  any  information  as  to  whether  before  the 
water  of  Lake  Michigan  was  turned  into  the  Drainage  Canal, 

the  river  could  ever  have  been  used  for  purposes  of  commerce. 

There  was  great  difficulty  in  navigating  the  Eock  Island  Eapids 
at  one  time.  Improvements  have  been  going  on  there  for  over 
thirty  years.  They  have  been  removing  rocks  and  making  chan- 
nels, and  now  they  have  built  a lock  at  the  lower  end  of  the  Eapids. 
Those  Eapids  are  not  continuous,  they  are  simply  a series  of  long 
pools,  connected  by  rapids,  so  that  the  fall  there  is  concentrated 
in  a number  of  places. 

284  S.  T.  Abert  was  United  States  Civil  Engineer  on  duty  with 
the  Engineer  Department.  I could  not  say  without  referring 

to  the  records  whether  he  recommended  at  one  time  the  improve- 
ment of  the  Yadkin  Eiver  in  North  Carolina.  It  is  my  impression 
that  there  has  been  work  done  on  said  river  by  the  Government, 
but  wliat  improvement  has  l)een  made  I could  not  state  off  band. 
I do  not  recall  any  of  the  data  about  this  river. 

Major  E.  H.  Euffner,  now  Colonel,  is  an  Engineer  Officer  in  the 
United  States  Army.  I do  not  recall  that  he  made  a record  of 
his  o|)inion  to  the  effect  that  the  limit  of  slope  for  open  river 

285  navigation  is  about  18  inches  to  the  mile.  Colonel  Eutfner  is 
still  a member  of  the  Corps  of  Engineers,  stationed  at  New 

Orleans. 

I could  not  tell  whether  the  Yadkin  Eiver  is  now  used  for  pur- 
poses of  commerce.  The  reports  of  the  Chief  of  Engineers  will 
show. 

The  opinion  which  I expressed  to  Secretary  Taft  last  year 
280  was  1 presume  in  connection  with  a hearing  that  the  Secre- 
tary had  in  regard  to  that  river.  T do  not  remember  that  I 


17f3 


fully  expressed  the  question  of  the  navigal)ility  under  the  law. 
That  was  not  the  principal  question  involved  at  that  time.  That 
hearing,  in  a general  way,  was  a protest  on  the  part  of  Mr.  Isham 
Randolph  against  the  proposed  construction  of  a dam  by  the 
Economy  Light  & Power  Company  at  Dresdon  Heights.  As  I rec- 
ollect, it  was  an  informal  presentation  by  persons  representing 
the  State  of  Illinois  against  the  state  being  deprived  of  certain 
rights  and  authority  in  connection  with  the  water  power  con- 
nected with  the  fourteen-foot  waterway. 

287  Well,  I will  say,  the  statements  made  at  that  hearing  that 
the  river  was  not  navigable  in  fact,  was  my  general  thought 

as  to  the  present  condition,  and  was  not  made  exactly  in  relation 
to  the  actual  legal  conditions.  As  I recollect  in  that  matter,  the 
Secretary  in  his  finding,  which  was  an  improni])tu  matter,  made  a 
reference  to  the  fact,  of  non-navigahility,  l)ut  that  was  based  prin- 
cipally on  the  presentation  made  by  Air.  Sna])]),  and  the  fact  (the 
Secretary  did  not  have  to  decide  whether  it  was  navigable  or  not). 
That  was  not  a ])art  of  the  decision. 

Referring  to  these  answei*s,  as  I have  said,  our  Bureau  of  the 
War  Department  would  not  consider  that  they  had  any  right  to 
decide  that  a river  was  unnavigahle  in  law.  The  only  way  in 
which  such  a matter  comes  before  us  is  where  ]3ermits  are  asked 
for,  and  then  the  Secretary  has  to  determine  -the  (piestion,  and 
he  will  naturally  determine  on  the  safe  side. 

In  a general  way,  the  policy  of  my  department  is  to  con- 

288  sider  all  rivers  navigable  that  could  he  improved  and  made 
navigable,  where  there  is  a prospect  of  their  becoming  a use- 
ful line  of  navigation  according  to  the  present  day  methods. 

R e-dj rect  Examin at  ion. 

Tlie  surveys  that  are  made  of  the  different  rivers  and  harbors 
of  the  United  States  by  officers  of  the  Engineer  Corps,  are  all  re- 
ported to  the  Chief  of  Engineers,  and  by  him  reported  to  the  Sec- 
retary of  War,  and  by  him  transmitted  to  the  Congress.  The  AYar 
Department  determines  whether  or  not  a river  shall  be  regarded 
as  navigable  or  otherwise,  from  whatever  information  may  he 


176  McKenzie, — Re-direct  Exam. — Continued. 

available,  and  to  a large  extent  from  the  reports  above  men- 
tioned. 

289  Tlie  War  Department,  of  course,  obtains  a great  many  re- 
ports that  do  not  go  beyond  the  office  of  the  Chief  of  Engin- 
eers. Where  we  find  a slope  in  the  river  creating  a current  too 
rapid  to  be  navigated,  it  is  naturall}^  not  a good  river;  it  is  still  a 
river  sul^iect  to  improvement.  The  way  a place  of  that  kind  is 
treated,  is  by  putting  a lock  in  the  stream,  or  in  other  cases,  by 
cutting  out  a channel  or  smoothing  it.  Both  methods  are  used. 
Well,  the  river,  I should  think,  would  still  be  considered  a navi- 
gable river,  even  if  there  were  occasional  places  where  navigation 

was  quite  difficult. 

290  The  statement  that  in  order  to  accommodate  navigation  and 
make  navigation  easier  and  better  the  rivers  have  been  im- 
proved by  the  state  or  general  government  applies  to  a very  large 
number  of  them.  Take  the  Mississippi  River,  as  that  is  import- 
ant. It  was  necessary  to  put  a lock  and  dam  in  it.  The  necessity 
for  this  lock  and  dam,  as  in  the  illustration  just  given,  does  not  at 
all  detract  from  the  fact  of  the  navigable  character  of  the  river. 
In  the  case  that  I mentioned  above  these  rapids,  it  was  originally 
navigated  by  a special  boat. 

In  my  reference  to  the  early  navigation  on  the  Desplaines 
River,  that  was  a very  general  statement  I made,  and  not  con- 
nected with  the  subject  of  cordeling.  I simply  stated  that  I have 
knowledge  of  that  way  of  handling  boats.  In  early  days  there 

291  was  no  way  of  transportation  hardly  except  by  water.  In  the 
matter  of  cordelling,  that  is  applied  to  either  small  or  large 

boats.  I remember  the  case  of  the  expedition  up  the  Yellowstone 
River  a great  many  years  ago,  in  which  they  pulled  the  boats  u]) 
for  miles. 

I recall  that  there  was  a survey  and  report  made  by  Major 
liong  about  the  year  1819  of  the  Desplaines  River  and  transmit- 
ted to  the  Congress  by  John  C.  Calhoun,  Secretary  of  War,  in 
which  the  Desplaines  River  was  reported  as  a navigable  river,  and 
advice  was  given  as  to  how,  by  slight  improvements,  it  could  be 
made  a great  waterway  for  commerce;  but  I have  not  seen  it  for 
years.  I do  not  recall  the  details. 


177 


In  the  Upper  Savannah  River,  I know  there  were  used  what 
they  called  push  boats  on  the  upper  portions  of  that  river,  which 
to-day  would  be  considered  almost  useless  for  commerce.  There 
is  evidence  that  such  boats  propelled  by  poles,  did  carry  cot- 
ton. 

292  The  Santee  River  is  one  of  the  rivers  I had  in  mind  when 
I mentioned  some  of  the  southern  rivers,  whose  depth  of 
water  was  two  feet  or  less.  The  same  condition  is  true  of  the 
Upper  Tennessee  River.  T would  not  give  the  depths,  but  it  is 
true  it  is  a shoal  stream.  There  are  a number  of  cases  of  rivers 
of  that  sort  in  tlie  southern  states,  that  are  now  ]>eing  navigated 
for  navigation  purposes,  where  the  water  is  less  than  two 
feet. 

298  In  regard  to  the  hearing  before  Secretary  Taft  in  Febru- 
ary, 1907,  according  to  my  recollection,  the  statements  with 
regard  to  the  navigability  of  the  river  and  the  connection  of  the 
government  with  it,  were  made  by  Congressman  Snapp.  I do  not 
remember  anyone  else,  and  they  were  probably  adopted,  except  by 
the  Secretary  of  War. 

Re-cross  Examination. 

The  only  record  made  in  regard  to  the  navigability  of  the  river, 
was  when  the  question  was  asked  the  department.  According  to 
my  recollection  it  was  asked  by  the  Attorney  Greneral  of  the  State 
of  Illinois,  and  it  was  simply  up  to  us  to  give  an  answer,  and  we 
recommended  to  the  Secretary  of  War  that  he  answer  that  the 
river  was  navigable.  We  did  not  mean  to  go  any  further  than  we 
did,  we  simply  had  to  give  an  answer  to  the  question  asked. 

294  I knew  there  were  dams  on  the  Desplaines  River.  In  con- 
sidering the  question  of  the  navigability  of  a river,  we  are 

not  influenced  by  the  existence  of  dams  which  were  put  in  without 
permission.  No  permission  was  obtained  from  the  Government 
for  the  construction  of  any  of  those  dams.  No  protest  was  ever 
made  so  far  as  I know  by  the  Government  against  the  construction 
or  maintenance  of  those  dams.  My  department  has  been 

295  aware  of  the  existence  of  dams  in  that  river  for  a great  many 
years.  All  those  dams  we  knew  were  obstructions  to  any 

possible  navigation  of  the  river. 


178 


McKenzie, — Re-cross  Exam. — Continued. 


Interrogatory  llStli:  Just  to  be  perfectly  clear  about  that 

hearing  that  was  had  before  the  Secretary  of  War  in  February, 
1907,  I hold  in  my  hand  what  purports  to  be  a copy  of  the  pro- 
ceedings had  upon  that  hearing,  and  I ask  you.  General,  if  the  fol- 
lowing interrogatories  and  answers  did  not  take  place  between 
you  and  the  Secretary  of  War: 

Secretary  Taft : As  a matter  of  fact  it  is  not  now  navi- 
gable (referring  to  the  Desplaines  Kiver). 

General  Mackenzie:  It  is  not  now  navigable. 

Secretary  Taft:  And  if  they  sunk  a 14-ft.  channel  in  the 

river  and  affected  private  interests  they  would  have  to  buy 
them,  would  they  not? 

General  Mackenzie : Yes.  As  Mr.  Snapp  says,  these  plans 
were  brought  here  to'  the  War  Department.  They  were 
looked  over  and  compared,  and  the  War  Department  wrote  a 
letter  stating  that  if  they  satisfied  certain  conditions  they 
would  be  in  accord  with  the  plans  proposed  by  the  Board  of 
Engineers  for  the  14-ft.  waterway.  I have  a copy  of  the  let- 
ter. 

Secretary  Taft:  But  you  are  not  seeking  to  exercise  any 

authority  over  an  existing  navigable  stream? 

General  Mackenzie:  No,  sir. 

Secretary  Taft:  Or  to  grant  a permit  so  as  to  protect  the 
interests  of  the  United  States  in  the  stream? 

General  Mackenzie:  No,  sir. 

29b  Secretary  Taft:  Suppose  they  were  to  go  ahead  without 

coming  here  at  all.  You  could  not  go  into  court,  or  could  not, 
by  an  order  of  this  department,  prevent  them  from  doing 
anything,  could  you? 

General  Mackenzie:  I do  not  think  we  could.  Of  course, 

under  all  the  conditions,  so  far  as  they  have  gone,  possibly 
w^e  could  call  the  attention  of  the  Department  of  Justice  to 
the  matter,  simply  to  have  them  consider  it  as  a legal  propo- 
sition. 

Secretary  Taft:  Where  would  ‘the  Department  of  Justice 

get  any  power? 

General  Mackenzie : Only  from  the  general  law — that  in 

case  of  any  violation  of  any  law  for  the  protection  of  navi- 
gable streams. 

Secretary  Taft : Yes,  but  the  Desphiines  Biver  is  not  a navi- 
gable stream,  is  it? 

General  Mackenzie:  It  is  not,  to-day,  sir. 

Secretary  Taft:  And  it  could  not  become  so  except  by  a 

declaration  of  Congress  to  carry  work  on  it? 

General  Mackenzie:  That  is  it  exactly. 

Secretary  Taft:  Then  where  do  I get  any  power  to  deal 

with  it  at  all? 


179 


General  Mackenzie:  I do  not  know  that  there  is  any,  Mr. 

Secretary. 

Were  those  questions  and  answers  given  at  that  hearing  be- 
fore Secretary  Taft,  as  I have  read  them! 

Counsel  fok  Complainant.  I object  to  this  as  being  no  part  of 
tlie  cross-examination  and  immaterial  in  this  cause. 

A.  I suppose,  essentially  so,  but  the  explanation  must  go  with 
this,  with  the  fact  that  there  was  no  question  of  a permit.  There 
was  no  question  as  to  the  legal  status  of  it,  and  there  was  no  neces- 
sity for  the  Government  to  exercise  the  power  of  stopping  any- 
thing. All  they  could  do  was  to  report  it  to  the  Department  of 
Justice,  which  would  consider  the  law  in  the  matter. 

Interrogatory  115:  I would  like  to  get  this  thing  clear, 

297  General,  so  that  I can  understand  it  thoroughly.  I gather  that 
your  opinion  and  position  in  the  matter  is  this;  that  as  a 
legal  question,  whether  the  river  is  navigable  in  law,  or  whether  the 
United  States  has  any  right  to  regulate  it,  is  a question  that  you 
cannot  pass  upon,  and  not  intending  to  express  any  opinion  except 
the  United  States  and  your  department  consider  all  rivers  navi- 
gable until  somebody  proves  them  otherwise! 

Counsel  fok  Complainant.  To  that  I object,  as  a statement 
not  warranted  by  what  the  witness  said. 

Counsel  for  Defendant.  Do  I state  your  position  fairly.  Gen- 
eral ! 

A.  Essentially,  yes.  We  do  take  that  view  on  the  ground  that 
there  is  no  authority  outside  of  Congress  and  the  court  that  can 
declare  a river  uimavigable. 

Interrogatory  116:  So,  on  the  other  hand,  you  do  not  mean  to 

say  that  when  your  department  states  this  is  a navigable  river,  it 
does  not  say  that  useful  commerce  can  be  carried  on  that  river 
without  improvement!  A.  We  do  not  pretend  to  answer  that 
question. 

Interrogatory  117:  You  do  not  pretend  to  say  this;  that  com- 
merce can  be  carried  on  without  improvement  of  the  river!  A. 
I do  not  pretend  to  make  a statement  in  that  connection.  We  con- 
sider it  navigable  in  law.  We  do  not  consider  it  navigable  in  fact. 
(See  answer  to  No.  49.) 


180 


Re-re-direct  Examina ti on. 

The  inquiry  by  the  Attorney  General  of  the  State  of  Illinois  as 
to  whether  or  not  the  Desplaines  Eiver  was  a navigable  river,  was 
about  the  21st  day  of  October,  1907. 

The  document  now  handed  to  me  is  the  answer  of  the  War 
298  Department  to  that  inquiry  from  Attorney  General  Stead. 

The  suggestion  that  that  answer  be  given  to  the  Attorney 
General  was  made  from  our  office. 

Thereupon  the  letter,  identified  by  General  Mackenzie,  dated 
“War  Department,  Washington,  D.  C.,  October  28,  1907,”  ad- 
dressed to  the  Hon.  W.  H.  Stead,  Attorney  General,  State  of  Illi- 
nois, Springfield,  Illinois,  and  signed  by  Robert  Shaw  Oliver,  Act- 
ing— Secretary  of  War, — was  received  in  evidence  and  marked 
“Exhibit  A.”  (Abst.,  p.  181.) 

(Objected  to  as  being  incompetent,  irrelevant  and  immaterial, 
and  the  following  stipulation  was  entered  into  between  coun- 
sel) : 

“It  is  agreed  between  the  parties  that  a carbon  copy  of  a letter, 
dated  October  21,  1907,  purporting  to  be  a letter  addressed  to 
Hon.  William  H.  Taft,  Secretary  of  War,  Washington,  D.  C.,  and 
signed  W.  H.  Stead,  Attorney  General,  is  a true  copy  of  the  letter 
to  which  ‘Exhibit  A’  is  a reply,  and  that  said  carbon  copy  is  here- 
to attached  marked  ‘Exhibit  B.’  ” (Abst.,  p.  181.) 


Re-re- cross  Examin atio 1 1 . 

299  There  is  a record  in  my  department  in  regard  to  some  ac- 
tion relating  to  Charles  A.  Munroe. 

To  the  best  of  my  recollection,  nothing  has  ever  come  to  the  de- 
partment from  this  Economy  Light  & Power  Company. 

There  is  no  application  for  the  approval  of  the  plans  to  the  best 
of  my  recollection.  The  question  presented  by  Mr.  Munroe  was 
whether  the  plan  submitted  would  be  in  harmony  with  the  work 
of  improvement  proposed  by  the  Government. 


‘‘Exhibit  A.’’ 


Wak  Department. 

Washington. 

October  28,  1907. 

John  P.  McMahon, 

Notary  Public,  D.  C. 

Dear  Sir: 

Answering  your  letter  of  the  21st  instant,  in  wliich  you  ask 
to  be  informed  whether  the  Des  Plaines  and  Illinois  Ki\mrs  are 
navigable  between  Lockport  and  Utica;  also  whether  the  War 
Department  has  been  called  upon  to  pass  u])on  the  right  of  the 
Economy  Light  and  Power  Company  of  Joliet,  Illinois,  to  dam 
the  former  river,  I beg  to  inforn/you  that  the  Des  Plaines 
and  Illinois  Rivers  at  points  mentioned  in  your  communi- 
cation are  considered  by  the  War  Department  to  be  navigable 
streams. 

There  appears  to  be  no  record  in  the  Department  of  any  ac- 
tion relating  to  the  Economy  and  Power  Company  of  Joliet. 

Very  respectfully, 

Robert  Shaw  Oliver, 
Acting  Secretary  of  War. 

Hon.  W.  H.  Stead, 

Attorney  General, 

State  of  Illinois, 

Springfield,  111. 


-1  “Exhibit  B.” 


“John  P.  McMahon, 
Notary  Public,  D.  C. 
B— III. 


October  21,  1907. 

Hon.  William  H.  Taft, 

Secretary  of  War, 

Washington,  D.  C. 

Dear  Sir: 

A question  has  arisen  in  this  department  involving  the  ]>ro- 
position  whether  or  not  the  Illinois  and  Des  Plaines  Rivers 
between  Lockport  on  the  Des  Plaines  and  the  village  of  Utica 
on  the  Illinois  are  navigable  rivers.  Will  you  kindly  advise 
me  if  the  Department  of  War  has  been  called  upon  to  ]iass 
upon  the  question  as  to  whether  or  not  said  rivers  are  navi- 
gable rivers  of  the  United  States,  and  particularly  if  the  De- 
partment has  passed  upon  the  question  as  to  the  right  of  the 
Economy  Light  and  Power  Company  of  Joliet,  Illinois,  to  con- 


182 


struct  a dam  across  the  Des  Plaines  river  just  above  the  mouth 
of  the  Kankakee  river.  If  your  Department  has  passed  upon 
and  determined  the  question  as  to  the  navigability  of  those 
streams  or  of  either  of  them,  I wish  you  would  send  me  a cer- 
tified copy  of  the  finding  of  your  Department.  The  cost  of 
such  certified  copy,  or  copies,  will  he  promptly  remitted  upon 
receipt  of  a bill  therefor. 

Very  respectfullv, 

W.  H.  Stead, 
Attorney  General. 

L.— 4 

303  Theodoke  E.  Burton, 

a witness  for  complainant,  testified  as  follows : 

Direct  Examination. 

My  age  is  56  years;  legal  residence,  Cleveland,  Ohio;  by  occu- 
pation attorney,  though  I have  been  here  now  for  quite  a con- 
siderable time.  By  here,  I mean,  Washington  City. 

I am  a member  of  Congress;  I have  been  a member  of  Congress 
consecutively  since  1895,  and  also  from  1889  to  1891.  Since  1895 
I have  been  assigned  to  the  Eiver  and  Harbor  Committee,  and  have 
been  chairman  of  that  committee  since  December,  1898.  I have 
made  a study  of  the  rivers  and  harbors  of  the  United  States 

304  necessarily  in  connection  with  my  position.  Well,  of  course 
in  the  preparation  of  river  and  harbor  bills  and  hearings,  and 

considerable  amount  of  attention  here  at  Washington,  and  then  I 
have  visited  most  of  the  leading  rivers  of  the  United  States  and  a 
considerable  nmuber  of  the  minor  streams.  I do  not  know  how 
much  time  I have  occupied  in  that^ — quite  a number  of  months 
probably;  that  is,  I have  occupied  in  visiting. 

I was  in  Europe  for  four  months  at  one  time,  investigating  river 
navigation  and  have  given  some  slight  attention  at  other  times. 
I went  to  Europe  especially  to  study  water  transportation  and 
things  of  that  kind.  I have  been  identified  for  about  a year 

305  past  with  the  Inland  Waterways  Commission,  appointed  by 
the  President,  consisting  of  nine  members.  I was  Clmirman 

of  the  Commission,  made  so  by  direction  of  the  President  of  the 
United  States,  and  also  by  the  formal  confirmation  of  the  mem- 
bers. In  pursuance  of  that  appointment  I have  made  a consider- 
able study  and  some  examination  of  rivers  and  harbors  and  means 


of  transportation  in  the  United  States.  The  examination,  how- 
ever, was  over  waterwa^^s  which  I liad  already  visited. 

306  They  would  include  a ])retty  large  list  of  rivers:  The  Pen- 
obscot, Merrimac,  Hudson,  Delaware,  Patabsco  and  James,  the 

Inland  Water  Koute  on  the  east  side  of  North  Carolina,  the  Con- 
garee,  Santee  and  Wateree  in  South  Carolina,  the  Savannah,  the 
St.  Johns,  the  Alabama,  the  Coosa,  the  Black  Warrior,  the  War- 
rior, the  Tennessee,  the  Cumberland,  the  Atchafalaya,  the  Sabine, 
the  Neches,  the  Trinity,  the  Brazos;  and,  of  course  the  larger  riv- 
ers, the  Ohio  and  the  Mississippi;  and  on  the  Pacific  Coast,  the  San 
Joaquin,  and  the  Sacramento,  the  Columbia  and  the  Snake. 

I have  visited  these  different  rivers  with  a view  to  their  ex- 
amination and  study  with  reference  to  their  improvement  l)y  the 
Government,  and  for  a study  of  the  general  problems.  There  are 
some  minor  rivers  which  I have  visited  and  which  I have  not  men- 
tioned in  the  list  just  given. 

I have  seen  the  Desplaines  Piver  in  Illinois,  though  I have  never 
been  on  a boat  on  it.  I have  seen  it  at  a place  where  the  Drain- 
age Canal  empties  its  water  into  the  river,  and  upon  a course 
where  it  parallels  the  Drainage  Canal,  though  that  is  the  diverted 
channel — the  artificial  channel  alongside. 

307  As  to  what  constitutes  a navigable  river,  of  course,  there 
are  a number  of  definitions  that  you  can  find  in  a legal  dic- 
tionary, but  really  defined  it  is  a river  which  can  be  utilized  for  the 
profitable  transportation  of  commodities  of  commerce  by  boats  or 
otherwise.  I do  not  think  you  can  fix  any  standard  as  to  what 
volume  of  commerce  would  be  necessary  to  have  on  a river  to  con- 
stitute it  a navigable  stream. 

In  1902  I prepared  a list  of  the  rivers  in  the  country  which 
carry  respectively  less  than  50,000  tons,  and  less  than  100,000  tons, 
or  a traffic  worth  less  than  one  million  dollars — and  this  is  per- 
haps wandering  a little — made  a comparison  with  minor  railroads. 
There  are  some  streams  that  are  under  improvement  and  profit- 
ably navigated  that  do  not  carry,  more  than  ten  thousand  tons  a 
year,  or  even  less. 

308  As  to  whether  a river,  which  was  capable  of  floating  a boat 
that  would  carry  a bigger  load  of  freight  than  could  success- 


184 


Bur  to  n, — Di  r ect  Exam. — C o 1 1 tinued. 


fully  be  hauled  by  wagon,  was  navigable, — depends  somewhat  upon 
the  topography  of  the  country  and  the  course.  Generally  speak- 
ing, I would  say  that  the  capability  for  carrying  a load  in  compe- 
tition with  other  available  means  of  carriage  would  render  the 
navigation  of  a river  profitable,  whether  by  wagon  or  in  any  other 
way.  You  can  even  conceive  of  competition  by  carrying  on  the 
back,  as  they  do  on  the  road  from  Vera  Cruz  to  Mexico.  This  is 
the  best  known  road  in  the  new  world,  and  for  a part  of  the  way, 
it  is  impossible  to  go  with  teams.  That  would  be  an  extreme 
case, — where  navigation  competes  with  carriage  other  than  by 
vehicles. 

It  is  not  necessary  for  a river  to  be  capable  of  being  navigated 
by  boats  carrying  freight  for  commercial  purposes  the  entire  year 
in  order  that  it  shall  be  regarded  as  a navigable  river.  It  is  not 
necessary  for  a river  to  be  navigable  through  its  length  in 

309  order  to  be  a navigable  waterway;  partly  because  detached 
reaches  may  be  available  for  navigation  and  the  obstacles 

may  be  removed;  partly  because  you  must  take  a river  as  an  en- 
tirety, and  in  maintaining  the  regimen  or  the  flow  it  is  necessary 
to  control  the  whole  river,  including  those  portions  in  which  there 
are  obstacles  by  reason  of  rapids,  as  well  as  those  portions  where 
the  slope  of  the  river  is  such  as  to  render  the  navigation  of  the 
river  difficult  or  impossible. 

If  obstructions  appear  in  parts  of  a river  by  means  of  bould- 
ers in  the  water,  or  rapids  in  the  river,  those  facts  do  not  destroy 
the  navigable  character  of  the  river;  particularly  because  capabil- 
ity is  a test,  rather  than  actual  use,  and  partly  for  the  reason  I 
have  already  stated,  that  you  must  take  the  river  as  a whole;  and 
for  securing  the  proper  flow  in  those  sections  which  are  navigable 
without  improvement,  you  must  also  take  into  account  and  have 
control  over  the  portions  which  are  not  navigable  without  treat- 
ment. 

The  Columbia  Eiver  is  a navigable  river.  There  is  a portion 

310  of  that  river,  relatively  midway  in  its  navigable  part,  called 
“The  Dalles,”  through  which  boats  do  not  pretend  to  ])ass. 

There  is  another  obstacle  between  “The  Dalles”  and  the  mouth  of 
the  Willamette,  and  then  at  Priest  Eapids  and  a number  of  other 
places  there  are  obstacles  in  the  way  of  ra})ids.  Obstacles  such  as 


the  ones  just  mentioned  do  not  take  from  a river  its  navigable 
character. 

As  to  what  is  the  minimum  amount  of  water  depth  that  I know 
to  be  navigated  in  the  United  States  for  profitable  commercial 
navigation, — that  is  a question  which  is  somewhat  difficult  to  an- 
swer, because  the  statistics  as  to  most  of  the  rivers  are  for  low- 
water  depth.  Rivers  are  profitably  navigated  at  a depth  of  20  in- 
ches, or  even  less.  Perhaps  I had  better  qualify  that  statement, — 
on  a draft  of  20  inches  or  even  less. 

Well,  there  is  the  Tar  River,  the  portion  of  it  in  North  Caro- 

311  lina,  that  has  only  20  inches.  Then  on  the  rivers  in  the  cotton 
country,  between  the  Mississi])pi  and  the  Atlantic,  there  are 

boats  which  carry  cotton  and  other  commodities  profitably  on  a 
draft  say  of  sixteen  inches,  thougli  the  rivers  at  certain  seasons 
have  greater  depth  and  the  boats  can  draw  more  than  that.  Take 
for  instance  the  Ocmnlgee,  the  Oconee,  the  Coosa,  the  Alabama. 
There  is  a river  in  the  State  of  Delaware  known  as  Smyrna  River 
the  original  depth  of  which  was  2 1/2  feet.  It  has  now  been 
deepened  until  it  is  considerably  more  than  that.  There  is  a large 
number  of  three  to  fonr-ft.  rivers  where  ]:>rofital)le  navigation 
is  conducted.  Of  these  a very  large  list  could  be  given.  The  Ten- 
nessee, from  Chattanooga  to  Knoxville,  at  times  does  not  have  a 
depth  of  more  than  eigliteen  inches,  and  boats  occasionally  are 
used  on  that  river  on  a draft  of  not  more  than  eighteen  or  even 
sixteen  inches.  Of  course,  the  Ocmnlgee  and  Oconee,  at  certain 
seasons  of  the  year,  have  a greater  depth  than  that;  most  of  the 
year  they  have  a greater  depth  than  I have  named,  l)ut  boats  are 
used  on  them  with  only  that  draft.  The  projected  depth  of  these 
two  is  three  feet  each. 

Interrogatory  32:  From  the  study  and  investigation  that  you 

have  had  of  rivers  and  the  knowledge  you  have  of  the  Desplaines 
River  in  Illinois,  state  whether  that  is  a navigable  stream. 

Counsel  for  Defendant.  I object  to  that. 

312  Interrogatory  33 : If  the  Desplaines  River,  for  a period  of 
three  or  four  months  in  a year,  exclusive  of  the  time  it  is 

frozen  over,  contains  a depth  of  water  ranging  from  eighteen  in- 
ches to  ten  feet  in  depth,  and  the  river  ranging  in  width  during 


186 


Burton, — Direct  Exam.— Continued. 


these  times  at  from  sixty  feet  to  a quarter  of  a mile,  without  ref- 
erence for  the  moment  to  the  question  of  slope,  would  you  char- 
acterize that,  or  say  that  it  is  a navigable  river? 

Counsel  for  Defendant.  To  that  question  I object  on  the 
ground  of  its  being  irrelevant,  incompetent  and  immaterial,  and  on 
the  ground  that  not  sufficient  facts  have  been  stated  in  the  hypo- 
thetical question  upon  which  a proper  answer  can  be  made. 

A.  Well,  I take  the  question  as  this:  A minimum  depth  of 

eighteen  inches  for  at  least  three  months  of  the  year,  and  a width 
varying  from  sixty  feet  to  a quarter  of  a mile.  I would  say  it  is 
navigable. 

Interrogatory  34:  If  in  the  Desplaines  Kiver  there  are  rapids 

in  places,  and  boulders  or  stone  on  the  rapids,  would  that  fact  take 
the  river  out  of  the  list  of  navigable  rivers!  A.  Not  necessarily. 
It  would  depend  somewhat  upon  what  share  of  the  river  was  made 
up  of  rapids  and  what  share  of  channel,  with  a slope  not  too  great 
for  convenient  navigation. 

The  method  of  treating  or  improving  a river  where  there 

313  are  stones  or  boulders  in  the  river’s  course  is,  well,  there  are 
(luite  a number  of  ways;  one  is  to  take  out  the  rocks  or  the 

obstacles.  That  however,  frequently  lets  out  the  pool  above,  and 
Avhile  it  does  away  with  the  rapids  at  the  obstruction  created  by 
the  rocks,  it  diminishes  the  level  of  the  river  in  a portion  that  is 
navigable.  Of  course,  if  it  is  a mere  detached  rock,  the  way  is  to 
pick  it  out,  blast  it,  or  remove  it  in  some  other  way;  another  is  by 
the  construction  of  what  are  called  ‘^wing  dams”  going  out  at  right 
angles  to  the  bank  at  the  side  to  narrow  the  channel  of  the  river. 
That  does  not  necessarily  overcome  the  rapids.  Still  another  way 
and  the  one  that  is  most  effective,  is  the  construction  of  locks  and 
dams.  I would  say  that  the  improvements  of  such  rivers  as  have 
been  improved  have  rendered  them  more  valuable  as  navigable 
streams.  Of  course  there  are  a great  many  rivers  which  have  not 
l)een  improved  by  the  United  States  Government.  If  you  take 

314  all  the  streams  which  are  styled  rivers,  a majority  of  them 
have  not  been  inq)roved.  Nearly  all  the  rivers  of  the  United 

States  that  are  actually  being  navigated,  have  been  improved  in 
one  or  more  of  the  methods  I have  suggested.  I did  not  state  I 


187 


sliould  say  liere,  all  the  methods  of  improvement.  Other  ways  of 
improving-  are  by  wing  dams,  longitudinal  dams  and  dredging. 
These  are  the  prinei})al  means  employed.  Of  course,  where  it  is  a 
great  alluvial  stream,  the  ])rotection  by  revetment  to  ])i*event  the 
washing  out  and  where  there  are  great  floods,  levees  or  other 
methods.  The'  matter  of  improvements  of  rivers  and  harbors  by 
the  Government  of  the  United  States,  that  is  to  say,  the  question  of 
whether  they  shall  be  improved  or  not,  is  a question  that  is  pri- 
marily submitted  to  the  Committee  of  the  House  of  Representa- 
tives, of  which  I am  the  Chairman. 

C ross-Exa  m ina  tion . 

Tnterrogatoi'y  39th:  Mr.  Burton,  you  define  a navigal)le  river  as 
one  which  could  be  used  for  profitable  commerce  in  competition 
with  other  means  of  transportation.  Su])pose  a river  cannot  be 
used  for  profitable  commerce  in  competition  with  other  means 

315  of  transportation  unless  improved  largely  throughout  its 
length,  would  you  consider  that  to  be  a navigable  river?  A. 

I would  consider  that  navigable. 

In  actual  practice  I should  say  you  will  hardly  ever  find  such  a 
stream.  A river  will  be  navigable  in  a certain  portion  of  it,  say  4 
miles  here,  then  there  is  an  obstacle;  then  2 miles,  then  there  is  an- 
other obstacle.  Now,  these  separate  stretches  or  reaches  of  the 
river  can  no  doubt  be  navigated,  and  that  makes  it  a navigable 
stream;  but  I would  make  the  definition  broad  enough  to  include 
a stream  which  can  be  rendered  navigable  by  improvement.  It  is 
hard  to  say  whether  it  is  a legal  proposition.  My  experience  has 
been  so  combined,  so  made  up  of  study  of  actual  physical  condi- 
tions of  the  rivers,  their  navigability,  the  uses  to  which  they  are 
applied,  with  the  legal  proposition,  it  is  pretty  difficult  to  say 
whether  I regard  that  as  a legal  prox^osition  or  a question  of 

316  fact.  Under  my  definition  all  streams  are  not  practically  navi- 
gable streams;  unless  it  promises  returns  for  the  money  in- 
vested in  its  improvement,  I should  not  say  that  river  was  a navi- 
gable one.  It  is  true  that  is  a x^ractical  view  to  take  of  it.  But  if 
a river  is  all  cut  up  with  rax3ids,  and  where  the  expense  of  treat- 
ing it  and  cax^italizing  would  more  than  counter-balance  any  bene- 
fit derived  from  the  use  of  it,  I would  question  whether  that 


188 


Burton, — Cross-Exam. — Continued. 


should  be  regarded  as  a navigable  stream.  You  must  take  into  ac- 
eount  that  I look  upon  it  from  the  standpoint  of  the  benefits  de- 
rived from  improvement,  the  expense  and  difficulty  of  improve- 
ment. 

Interrogatory  43rd:  Well,  suppose  the  Desplaines  Eiver,  of 

which  Mr.  Eeeves  has  asked  you,  is  18  miles  long  from  Lockport 
to  its  mouth,  and  that  it  would  take  at  least  three  locks  and  dams 
to  make  that  river  callable  of  navigation,  actual  navigation,  would 
heights  of  eighteen,  twenty-one  and  twelve  feet,  lifts  at  the  locks, 
that  river  having  a fall  in  those  eighteen  miles  of  about  sixty-six 
feet,  being  an  average  of  about  four  feet  per  mile,  and  the  river 
being  paralleled  by  the  Illinois  and  Michigan  Canal,  used  for  pur- 
poses of  transportation  and  by  three  trunk  railways,  would  you 
say  that  was  a navigable  stream?  A.  What  is  the  depth  of  pools 
that  vrould  be  created? 

Counsel  for  Defendant.  That  would  be  somewhere  between 
twelve  and  fourteen  feet. 

317  A.  I would  say  that  would  be  navigable,  most  certainly. 

I think  it  would  be  profitable  to  do  that  work  for  the  pur- 
pose of  navigation.  There  are  rivers  in  France,  I do  not  recall 
the  names  just  now,  where  there  are  locks  every  half  mile.  You 
must  bear  in  mind  that  on  so  comparatively  a short  stretch  as  that, 
that  difficulty  of  handling  at  the  beginning  and  the  end  of  the  rail- 
vray,  and  of  the  maintenance  of  a canal — canals  can  never  be  made 
equal  to  a natural  stream  unless  you  make  them  abnormally  wide — 
would  cut  a very  considerable  figure,  and  navigation  would  be  a 
l)rofitable  means  of  transportation.  Of  course  the  rate  on  a rail- 
road would  Ije  very  much  higher  per  ton  mile  for  such  a distance 
than  it  would  be  on  a river — both  the  actual  rate  charged  and  the 
actual  ex})ense.  AVhether  or  not  this  river  in  its  natural  state  or 
in  its  present  state,  is  capable  of  navigation  for  the  purposes 

318  of  useful  commerce,  would  depend  somewhat  on  the  slope  and 
the  length  of  the  pools  which  are  not  impeded  by  rapids.  It 

has  not  been  stated  how  long  those  })ools  are.  The  facts  have  not 
been  sufficiently  stated  to  me  to  exj)ress  any  opinion  as  to  whether 
the  river  is,  or  is  not  navigable;  I would  say  if  there  were  three 
obstacles  in  a distance  of  eighteen  miles,  it  would  dei)end  on  the 


189 


length  of  the  rapids,  or  extent  of  the  obstacles  at  those  places, 
hut  there  would  he,  at  any  rate,  navigation  on  the  detached  por- 
tions, if  the  obstructions  by  rapids  or  other  obstacles,  are  not 

319  unusually  long.  It  would  be  capable  of  navigation  over  the 
portions  where  the  obstacles  do  not  prevent.  An  ordinary 

rapid  is  not  an  inseparable  prevention  to  navigation.  The  rule  as 
laid  down  in  the  text  books  of  seventy-five  years  ago,  was  that 
about  11/4  ft.  per  mile  was  the  maximum  consistent  with  conven- 
ient navigation,  but  since  then  methods  have  been  devised  to  over- 
come rapids.  Take  it  at  the  iron  gates  of  the  Danube — there  the 
descent  is  considerably  more  than  that.  Just  above  the  boundary 
line  of  Hungaria  and  Eoumania,  Servia  being  on  the  opposite  side, 
Hungaria  taking  the  responsibility  and  taking  the  lead, 
they  have  a fixed  post  and  a drum  on  the  boat,  and  wire  rope  that 
hauls  the  boat  by  power  in  itself  over  the  rapids.  The  slope  of 
those  rapids  in  places  must  be  4 ft.  or  more  to  the  mile.  I think 
I am  conservative  in  stating  that. 

As  to  this  Desplaines  Eiver,  my  impression  is  for  the  whole 
river,  a descent  of  100  ft.  in  60  miles. 

320  Interrogatory  53rd : Now,  Mr.  Burton,  assuming  that  be- 

tween Jackson  street  and  McDonough  street  in  the  City  of 

Joliet,  a distance  of  about  5,000  feet,  nearly  a mile,  there  is  a fall 
of  9 ft.,  or  about  1.8  ft.  per  1,000  ft.,  during  the  low  water  season, 
and  during  high  water  season,  there  is  a fall  of  about  2 ft.  per 
1,000  ft.  Now,  on  18  inches  of  water,  which  was  the  minimum 
depth  given  in  the  hypothetical  question  that  Mr.  Eeeves  asked 
you — do  you  say  that  boats  carrying  commerce  could  navigate  up 
and  down  that  stretch  of  one  mile  without  the  improvement  of  it? 
A.  I do  not  think  so,  if  it  is  say  only  18  inches  deep. 

Interrogatory  54th:  Well,  suppose  it  was  2 feet.  A.  I do  not 
think  so.  That  however  would  not  take  away  the  quality  of  the 
stream. 

Whether  the  boats  could  be  navigated  up  the  stream  as  it  now 
exists,  well,  it  would  be  very  difficult,  if  not  impossible.  I have 
come  so  to  consider  the  legal  question  and  the  practical  questions 
together,  that  it  is  pretty  difficult  to  separate  the  two. 

321  Interrogatory  56th:  Now,  below  McDonough  street  in 

Joliet,  and  between  that  and  Brandon’s  Bridge,  assume  that 


190 


Burton, — Cross-Exam, — Continued. 


there  is  a fall  for  a distance  of  2,000  ft.,  of  3.75  ft.,  or  about  1.88 
ft.  per  1,000  ft.,  during  low  water,  and  that  during  high  water,  the 
fall  for  the  same  stretch  of  river  is  about  1.1  per  1,000  ft.;  this  be- 
ing a stretch  of  river  just  below  the  5,000  ft.  stretch  that  I have  al- 
ready asked  yon  about,  would  you  say  that  if  there  was  from  18 
inches  to  2 ft.  or  3 ft.  of  water,  that  it  would  be  possible  to  navi- 
gate boats  used  for  commerce  up  that  stretch  of  river?  A.  It 
would  probably  be  possible,  but  not  practicable  without  treatment 
of  some  kind. 

Interrogatory  57th:  Now,  assuming  Mr.  Burton,  that  from 

Lockport  to  Brandon’s  Bridge,  a distance  of  about  7 miles  in  those 
18  miles  of  river,  there  is  a fall  of  34  ft.  of  continuous  descent; 
and  assuming  now  that  a dam  which  is  called  dam  number  1 ex- 
isted there,  and  will  be  removed,  and  there  will  be  a continuous 
descent  of  34  ft.  in  a distance  of  7 miles,  or  about  5 ft.  per  mile,  do 
you  think  it  would  be  possible,  with  the  water  from  18  inches  to 
2 ft.  in  depth,  to  navigate  that  stretch  of  the  river  for  the  pur- 

322  pose  of  useful  commerce,  without  any  improvement?  A.  It 
would  be  very  doubtful.  It  could  be  navigated  by  devices 

which  could  be  employed  if  the  stream  is  fairly  straight  without 
treatment  of  the  channel. 

If  there  is  a sharp  bend  in  the  stream  that  would  be  a serious 
obstacle,  it  would  depend  of  course,  upon  the  width  of  the  chan- 
nel and  the  depth  of  the  channel.  It  is  very  likely  that  the  chan- 
nel would  be  deeper  or  shallower  around  the  bend. 

Interrogatory  59th:  Well,  now,  I will  ask  you  another  hypo- 
thetical question.  There  is  a fall  between  Lockport  and  Brandon’s 
Bridge,  a distance  of  7 miles,  of  34  ft.  or  about  5 ft.  x^er  mile. 
Then,  there  is  about  5,000  ft.  between  Jackson  street  and  Mc- 
Donough street,  with  a 9 foot  fall  in  that  5,000  ft.  Then  from  Mc- 
Donough street  to  Brandon’s  Bridge,  there  is  a fall  of  3.75  ft.  ]ier 
2,000  ft.  Then  a little  below  that,  along  Treat’s  Island,  for  a 
stretch  of  2,000  ft.,  there  is  a fall  of  5.5  ft.  A little  below  that  at 
a point  called  Smith’s  Bridge,  for  a stretch  of  3,000  ft.,  there  is  a 
fall  of  2 ft.,  and  a few  miles  below  that,  at  Dresden  Heights, 

323  where  this  dam  of  the  Economy  ijight  & Power  Comxumy’s 
dam  is  in  ]>rocess  of  construction,  for  a stretch  of  2,000  ft., 

there  is  a fall  of  3.2  ft.  Now,  with  these  falls,  what  do  you  say 


191 


as  to  the  capability  of  that  river  being  navigated  in  its  present 
state,  from  the  mouth  to  Lockport,  for  tlie  purpose  of  useful  com- 
merce I A.  Well,  it  would  be  very  questionable  whether  it  would 
be  navigated  for  that  whole  distance.  If  I may  express  an  opin- 
ion, that  would  not  take  away  the  quality  of  the  stream  as  a navi- 
gable stream,  if  part  of  the  way  there  are  pools  that  are  readily 
navigable,  and  there  is  a terminal  point  beyond  the  end  of  the 
})ool  that  by  treatment  could  be  made  navigable — it  is  still  a navi- 
gable stream  for  the  whole  distance. 

I mean  the  Federal  Government  would  have  jurisdiction  over  it, 
particularly  l)ecause  it  would  be  necessary  to  control  that  up])er 
portion  to  make  sure  that  the  water  flowed  without  obstruction 
through  the  lower  portion.  It  seems  to  me  this  is  a question’  of 
fact,  as  well  as  one  of  law.  That  is,  it  would  readily  appear  that 
if  the  jurisdiction,  which  has  control  of  the  navigability,  did  not 
have  supervision  over  this  season,  from  which  the  water  means 

324  comes  to  furnish  the  normal  depth  l)elow,  the  jurisdiction 
would  be  futile.  You  presented  several  propositions  relat- 
ing to  different  portions  of  the  streams,  different  conditions  in  this 
different  reaches,  that  are  widely  different.  On  some  of  them  I 
would  say  that  it  is  difficult,  if  not  impossible,  for  a boat  to  go  up 
without  in  some  way  improving  the  stream,  and  on  others  not  so 
difficult.  It  would  not  be  so  difficult  to  go  down,  but  that  also  would 
be  difficult,  and  in  some  places  probably  impossible,  consistent 
with  safety. 

The  limit  of  slope  for  purposes  of  useful  navigation  would  de- 
pend on  two  or  three  things;  first,  the  depth  of  the  stream; 

325  second,  the  width;  third,  the  course  of  the  river,  that  is, 
whether  straight  or  crooked.  I have  not  the  exact  figures  in 

mind,  but  I think  on  a slope  as  much  as  8 or  10  feet,  boats  are 
drawn-up  stream  by  those  devices  which  I have  suggested, — some 
point  to  which  a rope  or  chain  can  be  attached  and  a drum  with 
power  on  the  boat.  Well,  the  Elba  is  one  river  in  which  the  above 
method  is  tried  as  much  as  any.  There  the  depth  at  low  water 
seasons  is  not  very  great,  I should  say  about  3 feet.  I don’t  think 
it  is  a fact  that  there  are  407  miles  of  chain  in  the  Elba  Eiver, 
and  that  those  chains  are  now  being  used  where  the  slope  is  as 
flat  as  1 foot  in  3,300  feet.  It  is  not  a very  difficult  task  to  go  up  a 


192 


Burton, — Cross-Exam. — Continued. 


slope  which  is  only  a foot  to  a mile.  I am  very  familiar  with  Ver- 
non Harcourt^s  book  on  the  ‘‘Rivers  and  Channels  of  Europe.” 
It  is  a very  good  book,  although  not  always  accurate.  I 

326  was  misled  by  it  in  an  address  made  before  the  Geographical 
Society  last  winter.  I made  an  error  by  relying  on  the  state- 
ments of  this  book  relating  to  the  size  of  the  river  basins 
of  the  world.  I have  not  the  exact  figures  in  mind,  but  there 

327  are  some  very  steep  slopes  in  the  Rhone  River.  I am  not  posi- 
tive as  to  the  slopes  of  those  European  rivers,  but  I am  quite 

])ositive  that  4 foot  slopes  can  be  used  for  navigable  purposes,  for 
open  water  navigation  treated  perhaps  by  lateral  dams  or  dikes. 
These  however,  increase  the  difficulty  unless  they  are  located  at  a 
place  just  at  the  point  where  the  flow  of  the  river  is  more  smooth 
without  so  much  descent.  As  to  the  slopes  of  the  southern  rivers, 
well,  take  part  of  the  middle  section  of  the  Tennessee,  that  is  2.75 
feet  in  the  mile.  The  fall  from  Knoxville  to  Chattanooga  is  on  the 
average  about  one  foot  to  the  mile,  though  in  some  places  it  is 
very  materially  more  than  that.  I should  think  the  maximum 
slope  where  there  is  a navigation  in  those  rivers,  would  not  be 
greater  than  4 feet.  Take  the  Allegheny — that  has  2.2  feet  over 
long  distance,  and  in  some  places  more  and  in  some  places  less,  of 
course  2 to  3 feet  to  the  mile.  In  the  upper  portion  of  the  Monon- 
gahela,  that  is,  that  portion  that  is  in  AVest  Virginia,  it  is 

328  about  2 feet.  That  is  the  average  descent  of  course.  There, 
as  in  the  other  case,  there  is  sometimes  more  and  sometimes 

less.  As  to  knowing  any  river  where  navigation  is  actually  carried 
on  and  where  the  slope  is  more  than  4 feet  to  the  mile,  why  for 
down  stream  navigation,  the  St.  Lawrence  at  the  rapids  must  be 
more  than  that.  I am  not  positive,  however,  as  to  the  figures.  In 
some  portions  of  the  Tennessee,  between  Chattanooga  and  River- 
ton, it  must  be  more  than  4 feet  at  different  stretches  of  water. 
Commerce  is  carried  on  up-stream  to  no  great  extent  in  the  St. 
Lawrence.  They  go  down  through  the  open  river  with  some  boats, 
and  go  up  through  a canal.  I think  there  are  records  that 
give  the  exact  slopes  there  of  those  European  rivers.  I do  not  re- 
call them,  however.  I have  not  studied  any  of  them. 

Interrogatory  72nd:  Assuming  that  in  the  Lesplaines  River, 

from  Lockport  to  its  mouth,  a distance  of  about  18  miles,  there  is 


193 


one  pool  of  water  about  5 1/2  miles  in  length,  and  another  pool 
about  3 miles  in  length,  making  altogether  about  9 1/2  miles  of 
pool,  and  that  the  remainder  of  the  river  between  Lockport  and  its 
mouth,  about  9 miles,  consists  of  stretches,  of  rapids,  of  slopes, 
that  I have  mentioned  here,  do  you  say  that  that  river,  in  its 

329  present  state,  without  improvement,  is  capable  of  being  used 
for  profitable  commerce?  A.  It  is  pretty  hard  to  answer  that 

question,  yes  or  no.  If  you  say  for  the  whole  stretch  of  the  river, 
I would  say  ‘^no.’^  If  you  say  for  those  portions,  I would  say 
“yes,”  and  would  add  that  the  navigating  of  those  portions  gives 
a character  to  the  whole. 

I should  take  it  it  would  be  impossible  to  run  a boat  from  one 
end  to  the  other  over  rapids  that  are  so  steep. 

Interrogatory  74th:  Particularly  in  view  of  the  fact  that  some 
of  these  rapids  to  which  I have  called  your  attention,  extend  2 or 
3 miles  in  length;  for  instance,  the  rapids  from  Jackson  street  to 
Brandon’s  road  is  a little  over  3 miles.  A.  The  rapids  are  3 miles 
in  length? 

Interrogatory  75th:  That  is,  in  the  first  5,000  feet,  the  descent 
is  9 feet,  then  comes  a stretch  of  2,000  feet  where  the  descent  is 
3.75  feet;  then  comes  another  stretch  where  the  descent  is 

330  5.5  feet  for  2,000  feet.  That  would  be  over  10  feet  per  mile — 
11  feet  per  mile.  And  then  comes  another  stretch  of  3,000  feet, 

where  the  descent  is  2 feet  for  the  3,000  feet.  A.  Well,  if  the 
stream  were  without  obstacles,  was  fairly  straight,  that  would  not 
do  away  with  the  possibility  of  going  through  it  with  boats.  The 
other  portions  that  you  mention  as  11  feet,  I should  think  would 
not  be  navigable  with  any  device  now  in  use. 

The  portion  6.9  feet  to  the  mile,  would  be  difficult,  if  not  impos- 
sible. As  to  8 feet  to  the  mile,  you  are  getting  down  there  I think 
to  the  limit,  of  course  there  is  very  rarely  a stream  where  for 
miles  the  descent  is  uniform.  You  take  it  where  it  is  8 feet  to  the 
mile,  probably  in  a portion  of  it  it  will  be  at  a rate  that  you  call 
it;  at  another  as  much  as  12,  and  in  another  probably  6.  Well, 
suppose  a stretch  of  a mile  or  1/2  mile  in  the  river,  that  is  prob- 
ably uniform  of  8 feet  to  the  mile;  to  carry  on  useful  commerce 
would  be  expensive,  but  if  there  is  a part  of  the  stream  which  above 


194 


Buvion, — Cross-Exam. — Continued. 


the  pool  could  be  readily  navigated,  that  would  not  in  my  opin- 

331  ion  take  away  the  navigability  of  the  stream.  I must  say  in 
this  connection  I had  not  considered  the  exact  feature,  the 

slope  up  which  and  down  which  boats  go.  It  would  be  rather  in- 
teresting to  look  up  those  figures,  because  the  conditions  are  so 
different  in  different  places.  I should  hesitate  to  venture  an  opin- 
ion as  to  whether  boats  could  be  taken  up  and  down  the  Desplaines 
River,  as  it  now  exists,  without  more  complete  details  as  to  the 
depth,  width  and  general  nature  of  the  channel.  I am  of  course 
limiting  my  answers  to  the  portions  which  you  describe,  in  which 
the  descent  is  so  sharp.  As  to  whether  the  Desplaines  River  has 
ever  in  fact  been  navigated,  I could  not  say  that  I had  any  infor* 
mation  that  is  accurate  that  it  has  been.  I had  always  understood, 
however,  it  had  been  used  for  purposes  of  navigation — some  old 
narrative  about  a portage  across  there  from  Lake  Michigan, 

332  connecting  with  the  Desplaines  and  going  down  it.  I was  not 
aware  there  had  been  as  many  as  nine  dams  in  that  stretch 

of  the  river  during  the  last  forty-five  or  fifty  years.  That  would 
seem  to  show  that  that  was  an  industrial  center  before  Chicago 
was. 

Interrogatory  83rd:  Would  you  not  say,  Mr.  Burton,  that  the 
fact  that  all  those  dams  were  constructed  in  the  river,  is  persua- 
sive evidence  that  the  stream  was  not  capable  of  navigation  for 
useful  commerce?  A.  No,  I would  not  decidedly.  I have 
known  instances  in  which  persons,  even  by  Acts  of  Congress  have 
managed  to  sneak  in  a dam  where  they  ought  to  be  barred  for 
doing  so.  I remember  one  instance  in  which  it  was  done  in  the 
Tennessee  River,  and  the  next  winter  the  people  who  were  advo- 
cating it,  wanted  it  repealed. 

333  As  to  having  any  of  the  facts  as  regards  the  condition  of 
the  river  in  its  natural  state,  I have  none,  except  superficial 

ideas  from  reading  reports,  and  I have  never  given  any  special  at- 
tention to  that  locality,  except  as  connected  with  the  proposed 
drainage  channel,  and  have  not  in  mind  the  course  of  the  stream 
between  its  mouth  and  Lockport,  except  as  I have  just  casually  ex- 
amined it  on  the  map. 


195 


534  William  Lokimer. 

Direct  Examination. 

My  name  is  William  Lorimer.  I am  forty-six  years  of  age.  I 
reside  at  Chicago,  Illinois.  My  occupation  is  that  of  manufacturer 
and  general  contractor.  I am  a member  of  Congress  and  reside 
in  Washington  during  the  sessions  of  Congress.  I am  a member 
of  the  Committee  on  Agriculture  and  Committee  on  Rivers  and 
Harbors.  I was  elected  in  1894,  and  was  out  one  term  of  two 
years.  The  remainder  of  the  time  I have  been  and  now  am  a 

335  member  of  Congress.  I was  assigned  to  the  Committee  on 
Rivers  and  Harbors  of  the  House  of  Representatives  in  De- 
cember, 1903,  I think.  This  is  the  third  Congress  of  two  years 
during  which  I have  been  a member  of  this  committee.  I 
have  during  my  service  on  this  committee  given  study  and  inves- 
tigation to  the  general  proposition  of  Rivers  and  Harbors,  and 
during  my  service  in  Congress,  I have  given  -study  to  the  water- 
way between  Chicago  and  New  Orleans.  That  waterway  would 
be  from  Lake  Michigan  through  the  Chicago  River  and  Sanitary 
District  Canal,  and  beyond  that,  any  course  that  might  be  adopted 
by  the  State  or  Federal  Government,  either  the  Desplaines  River 
or  the  Illinois  and  Michigan  Canal,  or  a canal  that  might  take  it 
down  to  the  south  side  of  the  Desplaines  River  by  the  Kankakee, 

and  then  through  the  Illinois  River  into  the  Mississippi,  and 

336  on  to  the  Gulf.  I am  acquainted  v/ith  the  Desplaines  River. 
I have  given  it  study  for  about  twelve  years.  I have  known  it 

for  thirty-eight  years. 

Interrogatory  12th:  State  whether  or  not,  Mr.  Lorimer,  the 

Desplaines  River  is  a navigable  stream. 

(Objected  to  as  incompetent,  irrelevant  and  immaterial,  and 
as  an  opinion  for  which  no  foundation  has  been  made.) 

A.  It  is  a navigable  stream. 

A navigable  stream  is  a river  that,  is  capable  of  bearing  boats, 
upon  which  can  be  transported  commerce,  deep  enough  and  wide 
enough,  with  water  enough.  As  to  what  minimum  depth  of  water 
in  the  channel  of  a river  affording  from  60  feet  in  width  to  a 

337  quarter  of  a mile  in  high  water,  boats  can  be  built  to  bear 
commerce  over  water  that  draw  2 feet  in  depth.  I know  that 


196 


Lorinier, — Cross-Examination, 


in  my  personal  experience.  From  the  study  and  investigation  that 
I have  had  of  the  navigable  waters  of  the  United  States,  in  con- 
nection with  my  official  duties,  I have  known  of  navigation  on  the 
Tennessee  Eiver,  parts  of  it  at  times  was  of  less  than  2 feet  of 
water.  The  fact  that  there  may  be  for  a stretch  in  the  river, 
rapids  or  stone  or  rock,  does  not  destroy  the  navigable  character 
of  the  stream.  Basing  my  opinion  on  my  experience  and  ab- 
sorption on  the  one  hand,  and  my  study  of  Eivers  and  Harbors, 
in  the  course  of  my  work  as  a member  of  the  Committee  on  Eivers 
and  Harbors  of  Congress,  the  fact  that  a portion  of  a river  con- 
tains rapids  or  boulders,  does  not  in  any  sense  destroy 
338  the  navigable  character  of  the  river.  If  a river  has  suf- 
ficient water  to  carry  boats  a part  of  the  year,  say  three  or 
four  months  only,  exclusive  of  the  time  that  the  river  may  be 
frozen  over,  that  state  of  affairs  does  not  destroy  the  navigable 
character  of  the  river. 


Cross-Examination. 

When  I stated  that  this  was  a navigable  stream,  I mean  that 
it  is  a navigable  stream  because  it  can  be  navigated  by  boats  that 
are  capable  of  carrying  the  commerce  of  the  country.  I know 
that  first  of  all,  because  I have  been  over  the  stream  during  my 
life  time  practically  all  the  way  from  its  mouth  to  the  Town 
339  of  Wheeling,  and  I know  that  between  the  Illinois  Eiver  and 
Lockport,  there  is  a minimum  depth  between  the  low  standard 
stages  of  the  river,  certified  to  by  the  engineers  that  made  the 
survey,  over  the  rapids  to  the  mouth  of  the  river,  of  not  less 
than  3 feet  of  water,  and  over  the  rapids  at  Treat’s  Island,  of 
not  less  than  2 feet  of  water,  and  that  only  for  a distance  of 
about  500  feet  between  those  two  rapids,  there  is  a depth  of  water 
all  the  way  from  4^  feet  to  15  feet.  Beyond  Treat’s  Island,  up  to 
and  through  Lake  Joliet,  there  is  a depth  anywhere  from  4 feet 
to  17  feet.  It  is  all  the  way  from  say  125  feet  to  1500  feet  wide. 
That  width  of  1500  feet  is  in  Lake  Joliet,  and  between  Treat’s 
Island  and  Lake  Joliet,  it  is  more  than  1500  feet  wide  in  some 
places.  The  nearest  point,  according  to  my  recollection,  is  round 
Treat’s  Island,  what  might  be  called  right  there  according  to  the 
position  you  are  viewing  the  river  from,  either  by  the  north  side 


of  the  river  or  the  west  side,  there  is  a big  considerable  turn 
right  there.  I haven’t  any  doubt  that  a boat  we  are  all  familiar 
with,  the  Illinois  Fish  Boat,  could  be  so  equipped  with  en- 

340  gines,  as  to  navigate  all  the  way  from  St.  Louis  to  Lake  Joliet. 
I got  the  information  as  to  the  depth  of  water  over  the  rapids, 

from  the  report  of  the  engineers,  the  one  making  the  survey  from 
Lockport  to  St.  Louis,  that  was  published  in  1905.  That  is  the 
only  survey  for  the  14  foot  waterway. 

I know  that  boats  without  any  extensive  expenditure  for  ma- 
chinery, can  navigate  the  river  from  the  rapids  at  Joliet  to  the 
mouth  of  the  Desplaines  Eiver.  Then  I am  quite  sure  that  a boat 
of  the  character  that  I just  mentioned,  the  Illinois  Fish  Boat,  can 
be  equipped  with  machinery  so  that  it  can  go  up  the  river.  I did 
not  ever  hear  of  a boat  of  that  character  going  up  or  down 
the  stream.  I did  not  ever  know  that  part  of  the  river,  of  any 
boats  being  used  for  commercial  purposes,  being  navigated  up 

341  or  down  the  river ; I have  known  of  them  being  navigated  for 
commercial  purposes  above  Joliet.  As  to  the  depth  of  water 

not  being  the  only  matter  to  be  considered  in  the  determining 
whether  boats  can  be  navigated,  of  course  if  a stream  was  too 
narrow,  that  would  control.  The  slope  could  be  so  much  at  Dres- 
den Heights  and  at  Treat’s  Island,  and  is  not  so  great  that 
boats  could  not  be  navigated.  I think  about  44  feet  is  the  slope 
from  Dresden  Heights  down  to  the  Illinois  Eiver.  As  to  suppos- 
ing the  slope  at  Dresden  Heights  to  be  1.6  feet  per  1,000  feet, 
or  8 feet  to  the  mile,  I have  gone  over  the  ground  there  in  the 
low  water  stages  of  the  Desplaines  Eiver,  and  there  is  no  doubt' 
in  my  mind  that  you  can  take  boats  up  the  Desplaines  from  Dres- 
den Heights.  Suppose  the  slope  to  be  8 feet  to  the  mile,  as  shown 
by  this  report  of  the  Engineers  of  the  United  States  Government, 
boats  for  the  purpose  of  profitable  navigation  could  be  run 

342  over  those  rapi-ds  by  cordelling,  without  any  doubt.  That  is, 
they  could  be  so  equipped  'that  they  could  be  built  up  conven- 
iently and  rapidly.  I have  never  heard  of  it  being  done,  but  I 
know  enough  about  machinery  to  know  that  they  could  be  equipped 
for  that  purpose  and  operate  profitably.  I have  never  run  a boat 
line,  but  from  what  I know  of  rail  rates  and  water  rates,  I have 
no  doubt  that  goods  could  be  transported  from  St.  Louis  to 


198 


Lo  rimer  ^ — Cross-Exam. — Continued. 


Joliet  by  water,  and  cordelling  over  those  rapids  that  we  are  dis- 
cussing, for  less  than  you  can  take  it  there  by  rail,  and  there- 
fore it  is  profitable.  As  to  how  you  would  get  over  the  dam  at 
Marseilles,  the  Illinois  Eiver  is  susceptible  of  improvement, 

343  so  you  could  build  a lock  there  and  carry  it  out  through  the 
lock.  The  Illinois  Eiver  is  under  improvement.  If  it  were 

improved  at  such  points  as  needed  improvement,  of  which  Mar- 
seilles is  one,  boats  might  be  run  up  the  river.  For  easy  naviga- 
tion, there  should  be  improvement  all  the  way  up  the  Illinois  and 
the  Desplaines  Elvers  to  Joliet.  Boats  could  not  profitably,  for  a 
commercial  purpose,  in  the  condition  of  things  as  they  now  ex- 
ist, without  any  improvement,  be  run  from  St.  Louis  to  Joliet. 
There  would  have  to  be  some  improvement  in  the  Illinois 

344  Eiver.  Well,  now  you  put  the  question  whether  or  not  it 
would  be  profitable,  and  I can  only  answer  that,  based  again 

on  the  statement  I made  a little  while  ago,  on  the  dif- 
ference between  the  railroad  and  the  water  rates.  If  the 
Illinois  Elver  were  improved,  so  as  to  make  it  possible  for  boats 
drawing  24  inches  of  water,  to  pass  through  the  river  into  the 
Desplaines  Elver,  I have  no  doubt  about  it.  There  is  not  any 
doubt  but  what  a boat  drawing  24  inches  of  water,  could  go  from 
the  mouth  of  the  Desplaines  Eiver  up  to  Joliet  now;  well,  to  the 
foot  of  the  rapids  at  Joliet,  that  is,  to  Brandon’s  Bridge,  that 
neighborhood.  As  to  a boat  drawing  24  inches  of  water  going  over 
the  rapids  at  the  mouth  of  the  river  at  Treat’s  Island,  the  proof 
of  that  is  the  depth  of  the  water,  3 feet.  Now,  if  it  is  ad- 
Illb  mitted  that  a boat  can  be  cordelled  over  the  rapids,  and  that 
I believe,  then  for  the  balance  of  the  way  there  is  plenty  of 
water.  There  is  8 to  15  feet  in  the  first  stretch,  and  4J  feet  to  17 
feet  in  the  second  stretch,  to  the  head  of  Lake  Joliet,  a distance 
of  6 miles.  In  other  words,  there  is  in  those  two  reaches,  a 
depth  of  from  44  feet  to  17  feet,  over  a stretch  of  about  9 miles  of 
water.  Now,  there  is  depth  enough  there  over  those  rapids,  for 
a boat  drawing  24  inches,  to  pass  over. 

I know  the  length  of  the  rapids  between  the  mouth  of  the  river 
and  Joliet;  I know  from  memory  and  not  exactly,  pretty  close.  I 
should  say  altogether — there  is  altogether  from  Joliet  to  Dres- 
don  Heights,  or  the  mouth  of  the  river,  I think  there  is  some- 


399 


where  in  the  neighborhood  of  4 or  5 miles.  I do  not  pretend  to 
be  accurate  as  to  the  exact  distance,  but  somewhere  in  that  neigli- 
borhood;  that  is,  from  the  foot  of  one  rapids  to  tlie  mouth  of  the 
Desplaines  Kiver.  I remember  what  the  conditions  of  the  river 
are  with  reference  to  the  rapids,  from  Lake  Joliet  to  Lock- 
346  port.  Well,  boats  could  go  up  there,  and  I believe  boats  could 
be  so  equipped  that  they  could  be  taken  up  there.  I do  not 
know  of  any  boats  now  on  any  of  the  rivers  that  are  so  equipped  as 
to  go  up  that  stream,  but  there  isn’t  any  doubt  in  my  mind  aboui 
being  able  to  go  up  to  Dam  No.  1.  They  could  not  get  through 
that  dam.  To  make  it  a first  class  navigable  stream,  there  must 
be  locks  and  dams,  and  my  opinion  is,  the  locks  and  dams  can 
be  constructed  without  any  difficulty  at  all,  and  when  I that,  I 
mean  to  say  I know  it  can  be  done.  As  to  the  state  of  the  river 
being  now  such  that  useful  commerce  can  be  carried  on,  commerce 
can  be  carried  on  from  the  foot  of  Treat’s  Island  to  Joliet,  no 
one  will  dispute  that.  You  could  build  a boat  that  could  go  from 
Treat’s  Island  up  to  the  head  of  Lake  Joliet,  that  could 
348  carry  1,000  tons  of  freight.  I do  not  say  whether  the  com- 
merce is  there,  and  do  not  know  whether  the  commerce  is 
there.  I know  that  it  is  capable  of  handling  the  commerce.  There 
is  commerce  between  Treat’s  Island  and  Lake  Joliet,  but  the  com- 
merce is  not  carried  on  on  the  river.  As  to  whether,  if  a line  of 
boats  were  constructed  between  these  two  points,  it  will  be  profit- 
able and  useful  to  the  community,  that  would  depend  altogether 
what  sort  of  commerce  it  is,  and  what  it  is  to  be  used  for. 

I can  tell  you  a little  experience  I have  had  myself.  I was  at 
one  time  doing  some  work  on  the  Desplaines  River,  and  I had  a 
cofferdam  I was  having  a good  deal  of  trouble  with.  I got  a load 
of  crushed  rock,  and  brought  it  down  the  Illinois  and  Michigan 
Canal,  to  a point  where  the  canal  crosses  the  Desplaines  River, 
cordelling  it  up  about  a mile.  The  reason  Ave  did  that  was  be- 
cause we  could  handle  the  rock  cheaper  that  way  than  any  method 
we  could  devise,  so  that  for  a distance  of  6 miles,  under  the 
348  same  conditions,  it  would  be  profitable.  It  was  profitable  to 
us,  and  that  is  why  we  did  it.  From  my  own  personal  knowl- 
edge of  the  river,  I would  say  that  the  river  was  capable  of  being 
used  for  commercial  purposes.  I know  that  you  can  use  the  Des- 


200  Lor  inter, — Cross-Exam. — Continued. 

plaines  Eiver  from  the  Joliet  & Eastern  R.  R.,  for  a boat  drawing 
9 feet  of  water  down  to  the  City  of  Joliet,  and  for  the  purposes 
of  transporting  stone  from  anywhere  along  up  there  in  the 
neighborhood  of  Lockport,  down  through  the  Drainage  Canal,  into 
the  Desplaines  River,  to  unload  at  Joliet.  There  is  no  doubt  of 
its  being  profitable  to  transport  stone  down  that  way.  The  work 
I was  doing  when  I used  that  stone,  was  lowering  the  bottom  of 
the  Desplaines  River  for  the  Sanitary  District. 

That  from  the  fact  that  there  are  several  pools  in  the  river, 
where  a boat  could  be  floated,  and  could  be  made  to  carry,  for  a 
short  distance,  produce  or  stone,  I say  that  the  river  is  capable 
now  of  being  navigated  for  the  purposes  of  commerce.  It  is  not 
necessary  that  a river  shall  be  navigable,  in  fact  in  all  its  length, 
to  be  a navigable  stream.  For  instance,  the  Potomac  River  is 
navigable  up  to  and  a little  beyond  the  City  of  Washington, 

349  and  there  is  a considerable  fall  about  ten  miles  out  from  here, 
but  the  Potomac  River  is  a navigable  river  beyond  that  point. 

And  the  Desj^laines  River,  connecting  with  the  Illinois  and  Mich- 
igan Canal,  which  is  a navigable  stream  of  the  United  States,  and 
capable  of  navigation  and  transporting  commerce  profitably,  and 
into  the  Illinois, — is  a stretch  of  navigable  waterway  of  the 
United  States  that  commerce  is  actually  transported  over;  so 
that  it  makes  part  of  tire  Desplaines  River  actually  navigable  and 
properly  so,  and  I consider  it  a navigable  stream  for  that  reason, 
although  in  parts  it  could  not  be  considered  navigable.  The  fact 
that  a part  of  the  Desplaines  River  is  used  by  the  Illinois  and 
Michigan  Canal,  and  is  navigable,  does  not  alone  make  the  whole 
river  navigable.  The  river  is  actually  navigable,  and  nobody  will 
controvert  this  statement.  Below  the  City  of  Joliet  and  Treat’s 
Island,  and  below  the  rapids  at  Treat’s  Island,  and  below  the 
rapids  at  Dresden  Heights,  it  is  actually  navigable  at  the  shoalest 
point  of  4 feet.  Then  it  is  actually  navigable  from  Dam  No.  1 
to  the  Drainage  Canal  below  Lockport;  and  that  is  a navigable 
waterway  declared  by  our  Legislature  when  a certain  quantity 
])assed  tiirough  it,  because  the  largest  ship  navigating  the 

350  Great  Lakes,  can  actually  navigate  it.  The  minimum  depth 
of  course  runs  down  to  3 feet  below  the  rapids.  To  the  foot 

of  the  rapids  below  Treat’s  Island,  there  is  actually  4 feet.  I can 


201 


only  say  that  the  report  made  on  the  14  foot  waterway,  made  from 
Lockport  to  St.  Louis,  show  that  there  is  no  point  between  the 
mouth  of  the  Desplaines  Eiver  and  the  foot  of  the  rapids  at 
Joliet,  where  the  water  in  the  low  standard  stages,  is  not  2 feet 
deep,  and  that  is  only  for  a distance  of  500  feet.  Over  the  rapids 
at  Dresden  Heights,  my  recollection  is  that  3 feet  is  the  lowest. 
As  to  the  date  when  the  river  was  gauged,  well,  it  was-gauged  for 
a considerable  length  of  time,  and  the  gauge  reports  are  con- 

351  tained  in  that  report  that  you  have  before  you.  The  report 
published  in  1905,  was  before  the  Sanitary  District  water 

was  turned  into  the  Desplaines  Eiver.  As  to  the  condition  before 
it  was  turned  in,  I have  never  made  investigation,  and  do  not  know 
a thing  about  it.  Before  this  report  was  made,  I had  no  infor- 
mation as  to  the  depth  of  any  part  of  it.  The  reach  above  Treat’s 
Island  to  the  foot  of  Lake  Joliet  could  have  been  navigated,  I am 
quite  sure,  prior  to  the  time  when  the  Sanitary  District  water 
was  turned  in.  After  taking  boats  up  from  the  mouth  of  the 
river  to  the  City  of  Joliet,  I do  not  know  what  the  depth  was 
there  in  the  low  stages  of  water,  and  for  that  reason,  cannot  ex- 
press an  opinion.  That  there  was  a stretch  of  the  river,  above 
Joliet,  where  large  boats  9^  feet  in  depth  could  navigate,  was 

352  because  of  the  improvement  in  the  river  there  by  the  Sanitary 
District.  I do  not  know  how  deep  the  water  was  before  the  tail- 

race  was  constructed,  or  the  quantity.  I think  I had  bettter  say 
that  from  the  time  the  canal  was  opened,  there  has  been  passing 
all  the  way  from  225,000  to  420,000  cubic  feet  per  second  when 
the  bear  trap  was  down.  Now,  part  of  it,  or  may  be  all  of  it, 
flowed  over  this  part  of  the  river  that  we  are  referring  to.  I do 
not  know  how  much,  and  I do  not  think  anybody  else  does.  I 
do  not  know  how  deep  it  was  for  that  reason.  It  is  possible  to 
take  the  water  coming  from  the  Sanitary  District  Channel,  the 
main  channel,  and  discharge  it  into  the  Illinois  Eiver,  below  the 
proposed  dam  of  the  Economy  Light  & Power  Company  at  Dres- 
den Heights,  without  discharging  the  water  into  the  Desplaines 
Eiver.  The  water  in  the  Sanitary  District  channel,  coming  from 
Lake  Michigan,  is  taken  through  the  channel  and  discharged  into 
the  Desplaines  Eiver,  by  authority  of  the  court,  of  the  Legislature 


202 


Lo  rimer  ^ — Cross-Exa  m. — Continued. 


of  Illinois,  and  by  permit  from  the  Secretary  of  War,  to  di- 

353  vert  it  from  Lake  Michigan.  Congress  might  stop  this  per- 
mit at  any  time. 

Interrogatory  71st:  The  stretch  of  water  in  Lake  Joliet,  that 

is  between  Brandon’s  Bridge  and  the  head  of  Treat’s  Island, 
would  not  be  affected  in  any  way  by  the  construction  of  the  pro- 
posed dam  of  the  Economy  Light  & Power  Company? 

(Objected  to  as  not  important  and  not  relevant;  overruled.) 

A.  To  be  truthful  about  it,  I could  not  say.  My  opinion  is 
from  what  I have  heard  about  it,  that  they  would  construct  above 
the  level  of  Lake  Joliet.  I do  not  know  about  it  as  a matter  of 
fact. 

The  proposed  dam  would  not  decrease  the  depth  of  water  in 
Lake  Joliet.  It  might  make  Lake  Joliet  wider,  I do  not  know 

354  about  that.  I do  not  know  the  exact  Hepth  of  water  prior 
to  the  time  when  the  Sanitary  District  Canal  began  its  dis- 
charge in  the  Desplaines  river.  I never  kneAV  until  this  report 
was  made.  From  observation,  I have  known  from  time  to  time 
what, — in  the  low  stages  of  water  now,  I know  that  there  is  water 
enough  at  certain  periods  of  the  year,  coming  from  the  natural 
watershed  of  the  Desplaines  Valley,  to  make  a considerable  flow 
of  water  over  those  rapids. 

Interrogatory  76th:  In  your  judgment,  Mr.  Lorimer,  would 

the  construction  of  the  proposed  dam  at  Dresden  Heights,  inter- 
fere in  any  way,  with  the  proposed  deep  waterway,  if  proper 
provision  for  locks  were  made  at  that  point? 

(Objected  to  as  not  being  cross-examination,  and  not  rele- 
vant to  the  matters  at  issue.) 

A.  Locks  could  be  built  there  to  pass  boats  through. 

CouxsEL  FOR  Complainant.  I will  ask  Mr.  Lorimer  to  state  any 
fact  in  connection  with  this  matter  about  which  you  have  not  been 
specifically  asked. 

A.  As  a member  of  the  Eivers  and  Harbors  Committee,  and 
on  account  of  the  work  that  I have  been  doing,  and  the 

355  searches  that  I have  made  for  information,  I have  come  to 
the  opinion  with  reference  to  waterways,  and  that  all  mem- 


203 


bers  of  the  committee  that  I have  known,  liave  tlionght  a water- 
way that  is  navigable  in  part  is  navigable  in  fact,  and  even  though 
it  may  be  interrupted  by  rapids  or  perpendicular  falls,  or  sand 
bars,  as  long  as  it  may  be  made  navigable,  it  is  a navigable  water- 
way of  the  United  States,  and  I know  that  a part  of  the  Des- 
plaines  Eiver,  from  the  end  of  the  Sanitary  District  Canal,  where 
they  have  a lock  that  they  can  lock  boats  through  down  into  it  now, 
is  navigable  for  boats  of  8 feet  of  draft,  and  it  is  navigable  for 
boats  that  can  carry  a considerable  commerce  through  the  Des- 
plaines  River,  into  the  Illinois  and  Michigan  Canal,  and  connect 
with  the  Illinois  River  at  La  Salle;  and  I know  that  it  can  be  so 
improved  as  to  connect  with  the  Illinois  River,  and  made  nav- 
igable for  boats  of  any  length — six  hundred  feet  long,  drawing 
24  feet  of  water,  capable  of  carrying  from  6,000  to  12,000  tons  of 
a cargo;  and  it  is  because  of  that  knowledge  and  information  of 
the  surroundings,  and  its  capabilities,  that  I make  the  statement 
that  it  is  a navigable  waterway  of  the  United  States,  and  because 
our  courts  have  so  decided — have  made  the  Illinois  and  Michigan 
Canal  a navigable  waterway  of  the  United  States,  and  a part  of 
it  is  the  Desplaines  River.  It  is  the  connecting  point  of  nav- 
356  igable  waterways  of  the  United  States.  I never  had  any 
doubt,  for  the  last  ten  years,  of  the  navigability  of  the  Des- 
plaines River. 

I think,  as  far  as  I know,  and  that  is  up  to  AYheeling,  I think 
there  is  watershed  enough  there  to  take  care  of  the  seepage,  and 
make  the  Desplaines  River  navigable  up  to  Wheeling.  AYe  call 
Wheeling  25  miles  northwest  of  Chicago — from  Milwaukee  ave- 
nue, Chicago.  It  is  in  Cook  County.  It  is  above  Chicago,  on  the 
Desplaines  River. 

Deposittox  of  C.  T.  Heydeckee. 

(Filed  March  23,  1908.) 

361  Notice  of  taking  of  depositions  to  Isham,  Lincoln  & Beale, 
that  on  Monday,  the  24th  day  of  February,  at  one  o^clock 
before  Roy  0.  Sampson,  No.  206  AYashington  street,  Waukegan, 
Lake  County,  Illinois,  to  begin  at  said  time  and  continue  from 
day  to  day  until  completed. 


204 


Said  complainant  deems  tlie  testimony  of  said  witness  nec- 

362  essary  in  said  cause.  Witness:  C.  T.  Heydecker.  Signed  by 
counsel  for  complainant.  Acknowledgment  of  receipt  of  no- 
tice by  Isbam,  Lincoln  & Beale. 

Stipulation  to  continue  taking  of  depositions  to  Marcli  2, 

363  1908.  Commissioners’  introduction.  That  said  C.  T.  Hey- 
decker, being  first  duly  sworn,  testified  as  follows : 

363  Cheistian  T.  Heydeckee. 

Direct  Examination. 

364  I live  in  Waukegan,  Lake  County.  Have  lived  in  the  county 
nearly  sixty-two  years,  ever  since  I was  born.  Will  be  sixty- 

365  two  in  September  next.  Was  born  in  Mill  Creek,  now  Wads- 
worth, Newport,  Lake  County,  Illinois,  a scant  mile  from  the 
Hesplaines  Kiver.  I lived  there  until  I was  twenty-one. 

366  The  river  flows  from  the  north  through  the  town.  I became 
familiar  during  those  early  years  with  the  physical  condition 

of  the  river  from  the  state  line  to  the  south  line  of  Lake  County, 
and  also  with  the  current  reputation  as  to  the  history  of  its  use. 
In  the  winter  time  I would  skate  down  it;  in  the  spring  and  sum- 
mer we  would  find  good  duck  shooting  and  fishing  in  it.  As  much 
as  half  a dozen  winters  I made  trips  on  the  river,  between  the 
ages  of  twelve  and  twenty-one,  and  about  the  same  number  in  tlie 
spring  and  in  the  summer  and  in  the  autumn.  From  the  state  line 
to  the  south  county  line  is  twenty-four  miles.  Lake  County 

367  is  the  northeastern  county  of  the  state.  It  joins  Cook  County 
on  the  south.  The  river  flows  through  Cook  County  below. 

Beginning  at  the  state  line  the  river  is  in  a bed  with  a consider- 
able bank  on  either  side,  running  about  six  miles,  then  it  strikes 
a place  where  it  spreads  out  more  into  the  prairie  again,  but 
there  is  a well  defined  channel  with  a bed,  but  not  such  a deep 
bed,  with  blutfs  on  the  sides  of  it,  for  about  six  miles.  In  the 
winter,  in  the  spring  or  in  high  water  time  it  would  overflow  out 
of  its  course,  over  its  banks;  then  it  would  go  down  for  about 
five  or  six  miles  again;  well,  two  or  three  miles  in  there  that 
would  have  a tendency  to  overflow;  then  it  strikes  what  is  known 
as  the  Gurnee  bridge,  or  what  is  called  the  old  0 ’Plain  bridge; 
it  used  to  be  called  the  0 ’Plain  instead  of  the  Hesplaines.  It  is 


also  spelled  Au  Plain.  Tlie  name  0 ’Plain  was  in  more  cur- 

368  rent  use  among  the  neighbors.  There  was  a little  cabin  in 
those  days  that  went  by  the  name  of  the  O’Plainhouse  here 

in  Lake  County  at  what  is  now  Gurnee.  It  is  the  same  river  that 
we  now  call  the  Desplaines. 

Then  it  runs  in  a deeper  channel  from  there  down  to  the 
county  line.  I think  about  a mile  or  a mile  and  a half  this  side  of 
the  county  line,  and  swerves  out  again  just  above  what  was  known 
in  the  early  days  as  the  Vincent  mill,  now  known  as  the  Struck- 
mann  mill.  In  some  places,  as  I say,  it  would  be  down  in  a deep 
gorge  and  in  other  places  it  would  not  be  so  deep,  and  the  east 
bank  of  it  nearly  all  the  way  through  was  heavily  timbered  with 
oak,  walnut  and  some  hickory  and  softer  woods.  It  has  been 
cut  otf  now.  In  the  north  part  the  timber  was  cut  into  cord  wood, 
much  of  it.  Some  of  it  was  taken  to  the  mills;  in  the  south 

369  part  it  was  taken  to  the  Struckmann  mill.  The  logs  ran  down 
in  strings  of  logs  about  five  or  six  miles.  There  was  no  oc- 
casion to  raft  them  because  the  earliest  I remember  it,  the  Struck- 
mann mill  was  in  there  with  a dam.  You  couldn’t  have  put  the 
logs  over  it  only  by  rolling  them.  There  was  a saw  mill  there 
and  they  floated  in  there  and  I have  seen  logs  in  the  dam  there 
above  the  mill,  in  the  mill  pond. 

There  would  be  places  where  those  banks  would  be  eight  or  ten 
feet  high.  Then  you  go  down  to  another  place  there  would  be 
deep  holes,  and  then  there  would  be  a shallow  place,  but  in  sum- 
mer time  the  banks  of  the  river  would  be  up  eight  to  ten  feet  above 
the  water  in  some  places  and  in  some  places  they  would  be 

370  down  so  that  you  could  ford  through.  During  the  spring 
months,  March,  April  and  May,  I think  the  water  ran  otf  along 

in  May  some  time ; it  would  go  down  in  June.  The  bed  of  the 
river  would  be  full  and  overflowing  on  the  flats. 

It  would  be  six  to  eight  or  ten  feet  of  water;  the  bank  would 
be  full  and  overflowing  the  blutf  in  many  places. 

In  the  months  of  September,  October  and  November  the  bed  of 
the  river  would  be  fairly  well  filled  during  that  time.  There 
wouldn’t  be  so  much  overflow  except  during  the  equinoctial 
storms ; that  would  be  about  the  middle  of  September.  I should 


206  Heydechery — Direct  Exam. — Continued. 

think  the  average  in  the  spring  months,  not  counting  the  deep 
holes,  would  he  from  two  and  a half  to  three  feet,  maybe  more, 
and  at  times  there  would  be  eight  and  ten  feet  when  the  freshet 
would  come  down.  In  the  three  fall  months  it  would  probably 
be  a little  less  than  that,  from  two  to  two  and  a half,  possibly 
three  feet. 

In  the  three  summer  months,  June,  July  and  August,  that 

371  would  go  down  more  and  probably  be  less  than  at  any  other 
time.  There  might  be  times  when  it  would  only  be  half  a 

foot.  There  would  be  places  where  the  gravel  and  sand  was  in 
where  you  could  get  across  without  any  water  at  all.  It  would 
be  narrowed  down  to  where  you  could  jump  across  in  some  of 
the  places.  That  was  in  the  shallow  places  that  they  used  to  call 
the  fording  places.  I heard  from  the  old  settlers  the  current  rep- 
utation as  to  the  early  years  of  the  river  previous  to  the  time 
when  I first  began  to  know  it.  I know  in  those  days  it  was  claimed 
by  some  of  the  old  settlers  that  they  had  come  up  the  river  when 
they  came  into  the  county  to  settle,  one  in  particular,  the  parents 
of  two  or  my  brothers-in-law.  I have  heard  him  tell  a number 
of  times  how  he  came  up  the  river  in  his  little  boat  or  canoe, 

372  whatever  they  called  it.  I think  they  called  them  canoes,  and 
he  came  and  brought  his  belongings  and  his  provisions  up 

there  and  then  went  down  the  river  trapping  clear  down  through 
into  the  Illinois  Eiver. 

I have  a whole  set  of  the  Session  Laws  from  1833  down,  barring 
a couple  of  sessions,  that  it  all. 

(Witness  produces  Session  Laws  of  1839  entitled  ‘^Laws  of  the 
State  of  Illinois  passed  by  the  Eleventh  General  Assembly  at  their 
session,  begun  and  held  at  Vandalia  on  the  3rd  of  December, 
1838.  Published  in  pursuance  of  law.  Vandalia.  William  Wal- 
ters, public  printer,  1839.’^) 

On  page  208  appears  an  Act  entitled  ‘Lin  Act  declaring  the 
Desplaines  Eiver  a navigable  stream.” 

Section  1 of  the  Act  is  offered  in  evidence. 

Q.  Eeferring  to  this  Act  and  to  the  phrase  referring  to  the 
river  “to  its  utmost  limit  within  this  State,”  can  you  tell 

373  where  that  point  is?  A.  I can.  I have  been  there  a good 
many  times,  on  the  state  line,  between  the  States  of  Illinois 


207 


and  Wisconsin.  At  the  state  line  it  was  nearly  all  timber  on  both 
sides.  The  bank  is  high.  Just  immediately  south  of  that  point, 
on  the  west  bank  it  must  be  twenty  feet  high.  The  gorge  is  prob- 
ably 100  feet  to  75  feet  wide  there. 

I have  known  this  section  of  the  Desplaines  River  a good  many 
years.  When  I was  connected  with  the  Secretary  of  State’s 

374  office  I ran  across  the  original  survey  of  the  state  line  and  I 
took  a copy  of  it,  so  far  as  it  directly  affected  Lake  County 

in  fixing  the  state  line.  I made  that  while  in  the  office  of  the  Sec- 
retary of  State  upward  of  twenty  years  ago. 

It  is  stipulated  that  the  original  record  of  the  Commissioners 
fixing  the  northern  boundary  line  of  the  State  of  Illinois  or  so 
much  of  it  as  may  be  needed  to  fix  the  northern  boundary 

375  at  the  point  where  the  Desplaines  crosses  the  same,  or  a copy 
thereof,  certified  by  the  official  custodian  thereof,  may  be  of- 
fered in  evidence  at  the  trial  without  further  proof. 

At  the  request  of  counsel  for  the  complainant  the  witness  pro- 
duces a book,  the  title  page  of  which  reads  as  follows : 

376  Illinois  in  1837 ; 

A Sketch 

Descriptive  of  the 

Situation,  Boundaries,  Face  of  the  Country, 

Prominent  Districts, 

Prairies,  Rivers,  Minerals,  Animals, 

Agricultural  Productions, 

Public  Lands,  Plans  of  Internal  Improvement, 
Manufactures,  &c. 

Of  The 

State  of  Illinois: 

Also 

Suggestions  to  Emigrants, 

Sketches  of  the  Counties,  Cities  and  Principal  Towns 
In  the  State: 

Together  with 

A Letter  on  the  Cultivation  of  the  Prairies, 

By  the  Hon.  H.  L.  Ellsworth. 


Philadelphia  : 

Published  by  S.  Augustus  Mitchell, 
And  by 

Grigg  & Elliott,  No.  9,  N.  Fourth  Street. 
1837. 


208  Heydecker, — Direct  Exam. — Continued. 

377  On  the  reverse  side  of  the  title  page  is  the  certificate  of 
copyright  and  the  imprint  of  the  printer,  reading  as  follows : 

378  ‘‘Entered  according  to  the  Act  of  Congress,  in  the  year 
1837,  by  S.  Augustus  Mitchell,  in  the  office  of  the  District 
Court  for  the  Eastern  District  of  Pennsylvania. 

Stereotyped  by  J.  Fagan, ‘Philadelphia.’’ 

On  the  outer  cover  of  pasteboard  appears  the  legend: 

379  “Illinois  in  1837:  With  a map.” 

I own  this  book  and  have  owned  it  twenty  or  twenty-five 

years. 

Counsel  for  complainant  offer  in  evidence  pages  as  follows: 

CouxsEL  FOK  Complainant.  I read  from  the  preface,  the  last 

two  paragraphs  on  page  YII. 

“The  bulk  of  the  information  hereafter  detailed  is  quite 
recent,  being  derived  in  part  from  the  lately  published  and 
valuable  Gazetteer  of  Illinois,  and  the  Emigrant’s  Guide  by 
the  Pev.  J.  M.  Peck;  also,  from  Flint’s  Geography  and  His- 
tory of  the  Western  States,  Beck’s  Gazetteer  of  Illinois  and 
Missouri,  Schoolcraft’s  Travels,  and  the  works  of  Darby, 
Hall,  Long,  &c.  The  work  contains,  likewise,  extracts  from 
different  correspondents,  and  from  various  gazettes  printed 
in  the  State,  some  of  them  only  a few  weeks  before  its  pub- 
lication; particularly  the  Peoria  Eegister  and  North-Western 
Gazetteer,  the  attention  bestowed  by  the  editor  of  which 

380  in  distributing  recent  geographical  and  local  information  cal- 
culated to  be  useful  to  emigrants,  renders  it  undoubtedly  the 
most  interesting  print  of  the  kind  in  the  state. 

The  accompanying  Map  of  Illinois  is,  for  its  scale,  prob- 
ably the  most  complete  yet  published;  it  contains,  it  is  be- 
lieved, all  the  United  States  surveys  available  at  this  time; 
the  whole  of  the  counties,  seventy  in  number,  organized  in 
the  state;  and  it  will  be  found,  on  examination,  to  corres- 
pond with  the  descriptive  part  of  the  book — a desideratum 
not  always  found  in  publications  of  this  kind.” 

Now,  on  page  28,  under  the  heading  “Eivers,”  I will  read  the 

first  paragraph: 

“It  is  only  necessary  to  look  on  the  map  of  this  great 
state,  to  see  what  astonishing  advantages  for  inland  naviga- 
tion nature  has  given  it.  On  its  northern  borders  it  has  for 
some  distance  the  waters  of  Lake  Michigan  and  the  various 
streams  that  empty  into  it;  and  by  this  vast  body  of  waters 
a communication  is  opened  with  the  northern  parts  of  Indi- 
ana and  Ohio,  with  New  York  and  Canada.  On  the  north- 
west frontier  it  has  Eock  Eiver,  a long  beautiful  and  boat- 
able  tributary  of  the  Mississippi.  On  the  whole  western 


209 


front  it  is  washed  by  the  Mississippi,  and  on  its  soutliern 
by  the  Ohio.  On  the  east  it  is  hounded  by  the  Wabash. 
Through  its  center  winds  in  one  direction  the  Illinois,  con- 
necting the  Mississippi  with  Lake  Michigan  by  the  Des- 
lolaines  and  by  the  Chicago  Rivers;  and  in  another  direction 
the  beautiful  Ka  ska  ski  a flows  through  the  state.  Besides 
these  there  are  great  numbers  of  boatable  streams  pene- 
trating the  state  in  every  direction.  Such  is  the  intersection 

381  of  Illinois  by  these  waters,  that  no  settlement  in  it  is  far  from 
a point  of  boatable  communication,  whether  with  Lake  Mich- 
igan, the  Mississippi,  the  Ohio  or  the  Illinois.” 

Now,  on  page  35,  beginning  with  ‘^The  principal  tributaries  of 
the  Illinois  River  are  the  Kankakee,  Desplaines,  Fox,”  etc.,  I will 
read  as  follows: 

^^The  principal  tributaries  of  the  Illinois  River  are  the  Kan- 
kakee, Desplaines,  Fox,  Spoon  and  Sangamon  Rivers.  These 
are  all  considerable  streams,  and  are,  after  the  Illinois,  Kas- 
kaskia  and  Rock  River,  the  most  important  in  the  state. 

The  Kankakee,  or  Tbeakiki,  is  the  eastern  head  branch  of 
the  Illinois.  It  rises  in  the  northeast  part  of  the  State  of 
Indiana,  two  or  three  miles  from  the  south  bend  of  St.  Joseph’s 
river,  from  whence  running  in  a westerly  and  northwesterly 
direction  through  the  northeastern  part  of  Illinois,  it  unites 
with  the  Desplaines  and  forms  the  Illinois,  forty  miles  above 
the  mouth  of  Fox  river.  The  Kankakee  has  a course  of  about 
150  miles,  and  is  upwards  of  200  yards  wide  at  its  mouth.  The 
prairie  county  through  which  it  passes  is  generally  of  good 
soil.  This  river  was  discovered  at  an  early  period  by  the 
French,  and  was  one  of  the  principal  routes  used  by  them  in 
passing  to  the  Mississippi.  Navigation  for  small  craft  can 
be  effected,  in  high  stages  of  the  water,  from  the  St.  Joseph’s 
river  into  the  Kanlcakee.  The  latter,  for  the  first  fifty  miles 
,of  its  course,  fiows  through  an  extensive  swami^.” 

And  the  first  paragraph  on  the  top  of  Page  36. 

^^The  Desplaines  river  is  the  northern  head  branch  of  the 
Illinois.  It  rises  in  Wisconsin  territory,  a few  miles  west  of 

382  the  town  of  Racine,  on  Lake  Michigan,  and  flowing  through 
the  north  part  of  the  state,  it  joins  the  Kankakee  at  the 
boundary  line  between  LaSalle  and  Will  Counties,  where  they 
form  the  Illinois  river.  The  Desplaines,  in  its  course  of  150 
miles,  runs  generally  over  a bed  of  limestone.  The  country 
along  its  borders  is  populating  rapidly,  notwithstanding  the 
apparent  deficiency  of  timber.  About  forty-two  miles  above 
the  mouth  of  this  stream  is  a swamp  connecting  it  with  the 
Chicago  river,  through  which  boats  of  some  burden  have  often 
been  navigated  into  Lake  Michigan.  This  route  was  used  by 


210 


Heyd  ecJc  e r, — D irect  Exam . — C on  tinned. 


traders  as  a medimii  of  communication  between  the  great 
lakes  and  tiie  ^lississippi,  from  the  first  discovery  of  the  coun- 
try by  Europeans; — the  circumstance  first  suggested  the  idea 
of  an  artificial  connection  by  means  of  a canal  at  this  point. 
In  the  bed  of  the  Desplaines,  about  forty  rods  above  its  junc- 
tion with  the  Kankakee  there  is  a fossil  tree,  of  a very  consid- 
erable size.  It  is  a species  of  phytolites,  and  is  embedded  in 
a horizontal  position  in  a stratum  of  newer  floetz  sandstone, 
of  a gray  colour  and  close  grained.  There  are  fifty-one  feet 
six  inches  of  the  trunk  visible.  It  is  eighteen  inches  in  diam- 
eter.” 

Counsel  for  Complainant.  The  above  book  contains  a map  of 
Illinois,  with  the  certificate  at  the  top,  ^‘Mitchell’s  Map  of  Illinois, 
Exhibiting  its  Internal  Improvements,  Counties,  Towns,  Roads,  &c. 
Philadelphia:  Published  by  S.  A.  Mitchell,  1838”.  It  represents 
the  Desplaines  River,  Mnd  Lake;  just  below  Mud  Lake  the  town  of 
Desplaines;  below  that  the  town  of  Keepotaw,  below  that  the  town 
of  Lockport,  below  that  the  town  of  Joliet,  below  that,  just 
383  opposite  the  month  of  the  Kankakee,  the  town  of  Dresden, 
and  in  the  point  of  land  made  by  the  confluence  of  the  Des- 
plaines and  the  Kankakee,  the  town  of  Kankakee.  I am  reading 
this  in  evidence,  and  with  the  verification  of  counsel  for  the  de- 
fendant, who  approves  of  the  reading  as  correct. 

Counsel  for  Defendant.  That  is  correct. 

Q.  Mr.  Heydecker,  yon  produce  another  volume,  the  title  page 
of  which  is  as  follows : 


211 


384  The 

Encyclopedia 

of 

GEOGRAPHY 
- Comprising  a 

Complete  Description  of  the  Earth 
Physical,  Statistical,  Civil  and  Political ; 
Exhibiting  its  Relation  .to  the  Heavenly  Bodies, 

Its  Physical  Structure, 

The  Natural  History  of  Each  Country, 

And  the  Industry,  Commerce,  Political  Institutions, 
And  Civil  and  Social  State 
of 

All  Nations. 


By  Hugh  Murray,  E.  R.  S.  E. 

Assisted  in 

Astronomy,  &c.  by  Prof.  Wallace  :Botany,  &c.  by  Professor 
Geology,  &c.  By  Prof.  Jameson,  :Hooker. 

:Zoology,  &c.  by  AY.  Swainson, 
:Esq. 


Illustrated  by  Eighty-two  Maps. 

And  about  Eleven  Hundred  other  Engravings  on  AYood, 
Representing  the  Most  Remarkable  Objects  of  Nature  and  Art 
In  every  region  of  the  Globe 
Together  with  a 
New  Map  of  the  United  States. 


Revised  with  Additions 
By  Thomas  G.  Bradford. 


In  Three  AMlumes. 
Vol.  III. 


Philadelphia, 

Blanchard  and  Lea 
1853. 

385  On  the  reverse  side  of  the  title  page  is  the  certificate  of 
copyright  and  the  imprint  of  the  printer  reading  as  follows : 

386  ‘^Entered  according  to  the  Act  of  Congress  in  the  year  eigh- 
teen hundred  and  thirty- six  by  Carey,  Lea  and  Blanchard, 

in  the  Clerk’s  office  of  the  District  Court  for  the  Eastern  District 
of  Pennsylvania. 

Stereotyped  by  J.  Fagan. 

Printed  by  T.  K.  and  P.  G.  Collins. 


212  Heydecher, — Direct  Exam. — Continued. 

387  Counsel  for  Complainant.  And  on  Page  V of  Volume  1 of 
said  Encyclopedia,  is  the  advertisement  of  the  American  Edi- 
tion, which  reads  as  follows : 

388  Advertisement  tO'  the  American  Edition. 

^‘The  object  and  plan  of  the  Encyclopedia  of  Geography 
have  been  very  fully  set  forth  in  the  Preface  of  the  English 
Edition,  and  the  names  of  the  editor  and  his  collaborators  are 
sufficient  vouchers  for  its  value.  It  is  due,  however,  to  the 
American  reader,  to  inform  him  in  what  respects  these  vol- 
umes differ  from  the  original.  The  whole  of  the  English  work 
is  here  given,  with  the  single  exception,  that  the  description  of 
Great  Britain,  which  occupied  more  than  one-third  of  the  Book 
devoted  to  Europe,  and  considerably  more  than  the  space 
given  to  the  whole  of  America,  has  been  somewhat  abridged; 
but,  it  is  believed,  without  the  omission  of  anything  of  im- 
portance. The  text  has  been  carefully  revised  and  corrected 
throughout,  and  in  most  cases  more  recent,  statistical  details 
have  been  substituted  for  those  of  the  original.  The  additions 
to  the  first  volumes  are  not  considerable  in  amount,  but  are 
generally  such  as  have  been  required  by  changes  in  our  knowl- 
edge or  in  the  conditions  of  things.  The  Book  relating  to 
America  has  been  enlarged  as  far  as  the  limits  of  the  work 
would  allow,  principally  by  the  addition  of  local  details;  the 
condition  of  the  new  American  states  is  too  unsettled  to  ren- 
der it  worth  while  to  fill  much  space  with  accounts  of  their 
political  relations,  which  might  be  entirelv  changed  before 
these  pages  met  the  eye  of  the  reader.  The  chapter  which 
treats  of  the  United  States  has  been  written  auew,  the  original 
being  extremely  imperfect  and  incorrect,  as  all  European 

389  treatises  on  the  subject  are.  Our  growth  is  so  rapid,  the  in- 
crease of  our  population,  wealth,  commerce,  manufactures  and 
other  industrial  resources  so  amazing,  the  creation  of  new 
towns,  cities,  nay,  states,  is  continually  making  such  a change 
in  the  face  of  things,  public  works  are  conceived,  planned  and 
executed  on  so  great  a scale  and  with  such  promptitude,  that 
it  is  not  at  all  surprising  that  a distant  writer  should  be  en- 
tirely baffled  in  his  attempts  to  describe  the  country  as  it  is. 
The  Zoological  section  alone  has  been  retained,  but  it  has  been 
much  enlarged,  chiefly  from  a later  work  of  Mr.  Swainson’s 
and  some  general  remarks  upon  the  shells  of  the  United  States 
have  been  added.  For  the  account  of  the  Geology  of  our  coun- 
try, the  reader  is  indebted  to  Prof.  Eogers,  of  the  University 
of  Pennsylvania.  The  Botanical  section  has  also  been  pre- 
pared by  a gentleman  of  high  reputation  in  the  scientific  world. 
The  Editor  is  painfully  sensible  of  the  imperfections  of  the 


''other  parts  of  this  Chapter,  but- lie  trusts  that  the  difficulties 
of  the  subject  will  obtain  for  him  the  indulgence  of  the  reader. 

Philadelphia,  October  1st,  183G.” 

390  Counsel  fok  Complainant.  Similarly  as  this  is  the  jiropert}’ 
of  the  witness,  and  is  a rare  book  which  we  ought  not  to  ask* 

the  witness  to  part  with,  I shall  offer  and  read  in  evidence  begin- 
ning with  the  first  paragraph  under  the  heading,  "3.  State  of 
Illinois’',  on  page  562,  and  continuing  to  the  end  of  the  same  para- 
graph on  page  563. 

Counsel  for  Defendant.  I shall  object  to  it  on  the  ground  that 
it  i§  incompetent,  irrelevant  and  immaterial. 

(Killing  on  said  objection  by  trial  court.  Overruled.) 

(Said  ruling  appears  on  Transcript  page  2188.) 

Counsel  for  Complainant:  I will  read  as  follows: 

"The  rich  and  highly  favoured  tract  of  country  extends 
from  37  degrees  to  42  degrees  30  minutes  N.  lat.,  and  from  87 
degrees  to  91  degrees  30  minutes  W.  Ion.  Its  extreme  length 
is  380  miles;  its  breadth  in  the  North  is  about  140  miles,  but  it 
extends  to  220  miles  in  the  center,  whence  it  contracts  toward 
the  South  to  a narrow  point.  The  land  area  is  55,000  .square 
miles.  Illinois  has  Wisconsin  Territory  on  the  North,  Lake 
Michigan,  Indiana  and  Kentucky  on  the  East  and  Missouri 
and  Wisconsin  on  the  west;  it  has  a lake  coast  of  about  60 
miles;  the  Mississippi  forms  the  western  boundary  through  a 
distance  of  550  miles;  the  Ohio  is  its  southern  boundary 
through  140  miles,  and  on  the  east  it  has  the  Wabash  for  150 
miles.  The  interior  is  penetrated  by  noble  rivers  affording  ex- 
tensive advantages  for  inland  navigation.  The  little  Vermil- 
lion, Embarras  and  little  Wabash  are  the  principal  tributaries 
of  the  Wabash  from  Illinois.  The  Illinois,  the  principal  river 
of  the  State,  is  formed  in  the  northeastern  part  of  the  junc- 
tion of  the  Kankakee  and  the  Desplaines,  and  flows,  by  a 
southerly  course  of  300  miles,  to  the  Mississippi.  For  the  dis- 

391  tance  of  nearly  50  miles  in  the  upper  part  of  its  course,  there 
are  obstructions  to  its  navigation  in  a low  stage  of  water,  and 
the  rapids  above  the  mouth  of  the  Vermillion  River  can  be 
passed  only  in  times  of  flood.  Below  this  steamboats  of  mod- 
erate burthen  find  no  impediment  through  a distance  of  260 
miles.  'The  current  through  the  distance  last  mentioned  is 
exceedingly  gentle,  often  quite  imperceptible ; indeed  this  part 
of  the  river  may  with  much  propriety  be  denominated  an  ex- 
tended pool  of  stagnant  water.’  (Long’s  Expedition  to  the  St. 
Peter’s  river.)  The  Illinois  has  been  well  described  as  a nat- 
ural canal,  flowing  through  natural  meadows.  In  high  floods 


214 


Hey  decker, — C ross-E  xamination . 


^^the  Illinois  overflows  its  banks,  and  the  Mississippi,  in  a high 
stage  of  water,  backs  np  the  river  to  a distance  of  seventy 
miles  from  its  month.  In  some  places  it  expands  to  such  a 
Avidth  as  to  receive  the  name  of  Lake;  such  an  expansion  is 
Lake  Peoria,  about  twenty  miles  in  length.  The  Kankakee 
arises  in  Indiana  near  the  St.  Joseph’s,  and  boats  pass  in  the 
wet  season  from  the  channel  of  one  rKer  to  that  of  the  other. 
The  Desplaines  rises  in  MTsconsin,  and  runs  for  some  distance 
jDarallel  to  the  shore  of  the  Lake  Michigan,  and  not  more  than 
ten  miles  from  the  lake,  with  which  there  is  a natural  navigable 
communication,  through  which  loaded  boats  often  pass  during 
the  spring  floods.  The  Fox  Kiver  is  a large  stream  which  rises 
in  MTsconsin,  but  there  are  rapids  a few  miles  from  its  mouth. 
The  Vermillion  is  a fine  mill  stream ; the  Spoon  Eiver  and  the 
Sangamon  are  navigable  streams.  The  Eock  Eiver  is  a large 
tributary  of  the  Mississippi,  rising  in  MTsconsin;  it  is  naA^- 
igable  for  some  distance,  but  in  low  water  the  na\dgation  is 
impeded  by  seA^eral  rapids  not  far  from  its  mouth.  The  Kas- 

392  kaskia  rises  near  the  centre  of  the  State  and  reaches  the  Mis- 
sissippi in  a southwesterly  course  of  about  400  miles ; it  passes 
through  a fine  country  and  is  naAugable  for  some  distance.” 

TI  eyd  eck  e i • C ross-E  xa  min  at  ion. 

The  only  dam  on  the  Desplaines  EiA^er  in  Lake  County  is  the  one 
I spoke  of  at  the  Vincent  or  Struckmann  mill.  That  was  tlieiv 
at  my  earliest  recollection.  It  stretched  clear  across  the  channel 
and  caused  the  water  to  floAV  back,  but  in  high  water  the  water 
would  floAV  back  for  half  a mile  east  of  it  and  around  the  dam 
and  mill  pond. 

The  width  of  the  water  from  water’s  edge  to  water’s  edge 

393  at  the  State  line  would  be  probably  75  to  100  feet.  Further 
down  it  got  up  to  150  feet.  At  high  water  times  it  would 

be  half  a mile  wide,  and  at  dryer  times,  at  midsummer,  it  would 
narrow  down  from  that.  The  average  depth  during  the  winter 
months,  judging  of  the  stream  that  we  used  to  skate  on,  was  from 
two  and  a half  to  three  feet.  It  would  be  iced  oA^er  that  much. 
There  are  not  any  rapids  or  riffles  in  the  riA^er  through  Lake 
County.  I think  in  some  of  the  places  they  say  the  current  is  as 
slow  as  three  miles  an  hour.  Some  of  it  was  more  rapid  than 
that.  There  was  nothing  that  you  would  call  rapids  of  any  kind 
There  were  fording  places  where  in  the  summer  there  would 
be  aboA^e  it  a great  big  hole  where  the  gravel  and  sand  was  washed 


out,  and  a little  above  would  be  a bend  in  the  river,  and  we 
used  to  call  them  in  the  summer  time  a swimming  hole.  There 

394  would  be  almost  no  water  running.  During  those  seasons 
there  would  be  times  when  you  couldn’t  float  anything  on  it  at 

places. 

That  would  not  be  so  the  greater  part  of  the  summer  months. 
It  would  be  maybe  a couple  of  weeks  in  August,  or  maybe  a part 
of  August  when  the  dry  time  would  come. 

Over  those  shallow  fording  places  there  would  be  times  when 
there  would  be  from  6 inches  to  2 inches  of  water,  and  sometimes 
I have  seen  some  of  the  fording  places  diy.  I have  seen  the 
logs  floated  down  to  this  mill.  I have  seen  them  in  the  dam 
above  the  mill.  They  would  probably  come  from  anywheres  in  the 
Libertyville  woods  or  the  Deerfield  woods  or  the  Vernon  woods, 
probably  five  or  six  miles  above  the  dam.  The  people  who 

395  did  have  them  sawed  them  into  posts  and  fence  boards  down 
there.  I have  seen  them  in  the  mill  pond  and  in  the  river. 

I never  saw  logs  hauled  there  to  the  mill  pond  by  teams.  I 
wouldn’t  be  there  that  season  when  they  would  be  hauling  logs, 
but  there  probably  was.  I couldn’t  say  whether  there  were  500 
feet  or  5,000  feet  of  logs  floated  down  there.  I think  there  was 
more  than  500  all  right.  Lemuel  Short  told  me  he  came  up  the 
river  in  a canoe,  and  the  woman  we  used  to  call  old  mother  Miller, 
the  wife  of  Jacob  Miller,  who  died  in  California.  I knew  them 
personally.  Mrs.  Miller  would  tell  of  her  experience  coming  from 
Virginia  and  being  in  Fort  Dearborn  during  the  Black  Hawk  War. 
They  came  out  in  1834.  I knew  Mr.  Short  personally.  Two  of  my 
sisters  married  two  of  his  boys.  They  told  us  about  coming 

396  up  the  river  from  Chicago  in  canoes.  Short  came  up  from 
Grundy  County.  He  died  down  near  Coal  City.  He  came  in 

1835.  Another  uncle,  Emory,  came  here  from  ’35  to  ’37.  Mrs. 
Miller  came  up  here  in  1834.  I heard  them  tell  it  several  different 
times  and  it  would  be  told  in  different  language  every  time.  I have 
heard  Short  tell  about  his  coming  up,  that  he  started  from  down  in 
Grundy  County  where  he  had  a large  amount  of  land  near  Coal 
City.  He  bought  that  and  afterwards  married  down  there.  He 
came  up  before  the  land  was  surveyed  in  Lake  County, — that 
would  be  in  1839 — and  located  some  land  up  there,  took  it  from 


216 


Heydeclxer, — Re-direct  Examination. 


the  Government,  and  that  when  he  came  np  he  brought  up  all 
of  his  belongings,  his  clothing,  some  provisions,  his  guns  and  dogs 
and  tent  with  him  up  the  river.  He  called  it  ''coming  from  down 
the  river  down  in  Grundy  County.'’  I don’t  remember  of  his 
naming  any  place  it  was.  They  had  a home — farm,  down  there 
and  he  had  up  here  about  400  acres  of  land  that  they  located 

397  on.  I don’t  know  anything  about  there  being  seven  or  eight 
dams  in  the  Hesplaines  Eiver  at  that  time;  I was  never  down 

there  at  that  time.  I did  not  hear  him  tell  of  coming  over  any 
dams.  There  wasn’t  any  dams  there  when  he  came  up,  that  is, 
I never  heard  him  tell  of  coming  over  any.  I have  heard  of  trappers 
tell  of  coming  through  the  dams.  I have  heard  him  say  it  was 
difficult  to  go  up  through  part  of  it  on  account  of  rocks.  I don’t 
remember  hearing  him  say  how  he  got  around  any  dams.  He 
didn’t  say  that  he  carried  the  boat  most  of  the  way,  because  if  he 
did  he  wouldn’t  say  that  he  came  up  in  the  boat.  He  died  about 
ten  years  ago  in  Coal  City  Mrs.  Miller  died  since  I went  away 
from  the  farm — she  must  be  dead  twenty  or  twenty-five  years. 
They  came  here,  as  she  tells  it,  they  came  out  from  Chicago, 
up  the  Hesplaines  Eiver,  and  he  built  the  first  mill  on  Mill  Creek. 
The  creek  ran  out  jusfm  little  below  Wadsworth.  The  Millers 
built  the  first  mill  in  this  territory,  before  the  Vincent  mill,  some- 
times called  the  Kennicut  mill.  Mrs.  Miller  said  she  came  up 
from  some  point  west  of  Chicago;  of  course  I was  not  old 

398  enough  to  go  up  there  very  early  myself;  the  neighbors  used 
to  tell  about  the  folks  coming  up  the  river  who  came  in 

here  and  settled  on  a farm  adjoining  father ; father  took  our  farm 
from  the  Government  and  they  settled,  they  came  up  in  1836  or  ’37. 
That  was  James  Emory. 


Re-direct  Examination. 

I understood  from*  their  description  that  these  two  families. 
Short  and  Miller,  came  into  the  country  for  their  permanent  es- 
tablishment here  by  boat  on  the  Hesplaines  Eiver,  and  they  went 
back'  down  the  river  trapping  several  seasons  after  that,  came 
down  in  the  fall  and  went  back  in  the  spring.  Emory  didn’t 
bring  his  household  property  that  way  the  first  time.  He  stayed 


one  winter  and  then  he  went  hack  to  New  York  State  wliere 

399  he  came  from  and  got  his  wife  and  they  came  through  that 
time  in  a prairie  schooner. 

lie-cross  Exa  m in  at  ion. 

I don’t  think  they  had  any  wagons  at  the  time  that  Mr.  Short 
came  up  the  river.  I don’t  think  he  had  any  wagon.  He  got 
property  down  there  after  he  bought  up  here.  He  got  a lot 
of  canal  lands. 

All  I can  tell  you  is  what  the  folks  tell.  Whether  he  could 
have  done  it  or  did  do  it  I don’t  know.  I wouldn’t  name 

400  any  place.  I have  no  recollection  of  his  ever  saying  Morris 
or  Joliet  or  any  place,  but  from  down  there  he  came  up  the 

river.  It  may  be  that  he  came  up  from  some  point  in  Cook 
County.  It  may  be  that  he  got  on  at  Wadsworth  and  went  six 
miles  further  up  the  river.  I don’t  know.  It  is  my  impression,  left 
on  my  mind  as  an  old  story  of  the  neighborhood. 

405  Depositions  of  Wm.  L.  Sackett  et  al. 

(Filed  April  20,  1908.) 

Notice  of  taking  of  depositions.  Venue:  Caption  of  cause. 

Notice  addressed  to  defendant’s  counsel,  that  on  Monday, 
March  30,  1908,  at  10  o’clock  A.  M.,  before  Charles  L.  Binns,  a 
notary  public,  at  No.  916  Monadnock  Block,  Chicago  Illinois.  Tes- 
timony of  witnesses  named  will  be  taken.  Taking  of  said  deposi- 
tions to  be  continued  from  day  to  day  until  completed,  complain- 
ant deems  the  testimony  of  said  witnesses  necessary  in  said 

406  cause.  Witnesses’  names,  W.  L.  Sackett,  and  other  witnesses. 
Signed  by  complainant’s  solicitor.  Acknowledgment  of  re- 

407  ceipts  by  Isham,  Lincoln  & Beale  and  Frank  H.  Scott.  Here 
follows  index  of  said  witnesses. 

408  Commissioners’  introduction.  Depositions  of  William  L. 
Sackett,  John  M.  Snyder,  Leon  McDonald,  Wm.  Hillebrand, 

Wm.  Whigman,  Clarence  Palmer,  John  M.  Sweeney,  Eobert  A. 
Orr,  Geo.  B.  Fox,  Benezette  Williams,  Wm.  Kramer,  and  James 
0.  Heyworth. 

Said  witnesses  being  first  duly  sworn,  testified  as  follows : 


218 


William  L.  Sackett, 

-1-09  a witness  for  comiiiainant,  testified  as  follows: 

Direct  Examiuafiou . 

410  Live  at  Morris,  Illinois,  am  one  of  the  Canal  Commission- 
ers of  the  State  of  Illinois,  became  a member  of  that  Board 
in  June,  1902,  and  have  held  the  position  continuously  since.  Am 
and  have  been  treasurer  of  the  Board  ever  since  I was  a member 
of  it. 

I do  not  know  Harold  F.  Griswold  or  Harold  T.  Griswold,  but 
he  has  transacted  business  with  the  Canal  Commissioners  for 
leases,  contracts  and  so  forth  by  his  attorney,  Charles  A.  Munroe. 

I first  learned  that  Air.  Griswold  was  desirous  of  securing  a 
III  lease  of  canal  lands  in  the  spring  or  summer  of  1904.  The 
way  the  negotiations  began  was,  I think,  Mr.  Munroe  was 
present  at  a meeting  of  the  board  and  in  conversation  with  some 
of  the  canal  officials  when  I arrived  to  attend  the  meeting.  AVhen 
I say  Board  I mean  the  Canal  Commissioners  of  Illinois.  My 
I’ecollection  is  that  that  meeting  was  held  in  the  general  offices  at 
Lockport.  At  that  time  I think  he  wanted  to  make  a lease  for  the 
use  of  what  we  call  the  towpath  site  of  the  canal  for  the  purpose 
of  flowing  water  along  side  of  it.  Oh,  I think,  at  this  time  there 
was  no  discussion  of  anything  in  and  about  Joliet.  -I  think  it  was 
entirely  below  Channahon,  just  below  the  mouth  of  the  Du- 

412  Page  liiver  near  the  Kankakee. 

I think  I had  seen  Air.  Alunroe  some  few  months  before 
that,  or  possibly  a year  or  a little  more  before  that.  That  was, 
as  I remember  it,  in  one  of  the  meetings  of  the  Board  of  Canal 
Commissioners  within  a few  months  after  I became  a member, 
with  reference  to  the  proposition  of  a lease  of  some  of  the  prop- 
erty which  the  Commissioners  had  in  their  jurisdiction  and  con- 
trol. That  was  in  the  vicinity  of  Joliet. 

413  At  that  first  meeting  our  negotiations  had  to  do  with  the 
leasing  of  certain  rights  along  the  canal,  as  I recall,  I think 

located  within  the  limits  of  the  City  of  Joliet,  which  would  be 
necessary  in  the  event  of  a development  of  water  power  near 
there,  and  a part  of  the  proposition,  as  I recall,  was  the  estab- 
lishment of  a mill  adjacent  to  the  canal  which  would,  if  the  scheme 


219 


as  outlined  was  carried  out,  mean  l)usiness  over  and  upon  the 
canal,  and  the  canal  was  to  be  connected  with  the  river  or  the 
waterway  by  a lock  for  the  purpose  of  locking  boats  through  and 
the  use  of  the  canal.  . 

I think  Mr.  Munroe  was  interested  as  a party  himself  and  in 
connection  with  a Mr.  Gaylord.  I think,  strictly  speaking,  the  site 
they  wanted  would  be  to  the  southwest  of  the  center  of  Joliet. 
I think  that  was  in  1903,  I cannot  tell  the  exact  time. 

414  I think  a couple  of  contracts  were  executed  with  him  at 
that  time  tentatively.  The  completion  or  rights  were  not  to 

be  given  until  certain  payments,  or  an  appraisal  of  the  value  of 
the  rights  at  issue  were  determined,  and  the  matter  was  never 
carried  through  to  completion.  No  appraisal  was  made  and  the 
rights  were  not  transferred.  Contracts  were  signed  intimating 
the  terms  upon  which  the  completion  of  the  proposition  would 
go  through.  I think  copies  of  those  contracts  are  in  the  records 
and  files  of  the  Canal  Commissioners.  They  are  in  the  custody 
of  Mr.  Snyder,  acting  secretary,  and  I understand  he  is  to  be 
here. 

Q.  You  will  see  to  it  that  he  does  produce  copies?  A.  I have 
requested  that  he  be  here.  I am  not  very  familiar  with  the  street 
(South  street).  It  is  within  a half  mile,  isn’t  it,  or  something  like 
that,  isn’t  that  right,  Mr.  Munroe? 

Mr.  Munroe.  South  street  is  the  south  limits  of  the  City  of 
Joliet.  We  propose  to  build  a dam  at  the  mouth — at  the  head  of 
Lake  Joliet  and  the  Canal  Commissioners  control  the  west  side 
of  the  Desplaines  Eiver  from  South  street  to  dam  number  one, 
also  rights  in  the  upper  basin. 

415  The  "Witness.  How  far  from  South  street  was  the  pro- 
posed location  of  the  dam  in  South  street? 

Mr.  Munroe.  A mile  and  a half  southwest  of  South  street. 

Counsel  eor  Complainant.  That  is  along  the  river  to  the  south- 
west of  South  street,  or  to  the  west  of  South  street. 

Mr.  Munroe.  We  owned  property  from  the  head  of  Lake 
Joliet  to  South  street  at  that  time. 

Counsel  ^or  Complainant.  It  would  be  down  stream  from  the 
head  of  Lake  Joliet? 


220  Sackett, — Direct  Exam. — Continued. 

Mr.  Munroe.  Xo,  it  was  up-stream  from  the  head  of  Lake 
Joliet. 

Counsel  for  Complainant.  Are  you  able  to  state,  Mr.  Sackett, 
just  where  this  proposed  mill  and  locks  were  fo  be  which  you  have 
referred  to  in  your  former  testimony — in  the  testimony  you  have 
just  been  giving? 

Counsel  for  defendant  asked  that  objections  be  considered  made 
to  all  cpiestions  pertaining  to  negotiations  in  1902  or  1903.  As- 
sented to 'by  counsel  for  complainant. 

416  A.  My  response  would  be  that  in  the  absence  of  the  contract 
passed  upon  at  that  time,  that  I cannot  give  a specific  an- 
swer, and  I would  suggest  that  as  to  the  details  you  ask  Mr.  Mc- 
Donald, who  passed  upon  the  details  and  the  physical  condi- 
tions, and  is  much  more  familiar  with  them  than  I am.  Those  doc- 
uments that  were  executed  were  simply  contingent  upon  the  later 
execution  of  further  leases,  dependent  upon  which  a valuation, 
or  rather  an  amount  to  be  paid  for  the  use  of  the  property,  and 
we  had  never — in  the  absence  of  anything  of  that  kind  being  done 
we  had  never  as  an  official  body  considered  the  documents  issued 
as  having  any  right  or  effect.  I don’t  know  whether  the  Board 

had  advised  Mr.  Munroe  to  that  effect  or  not. 

417  After  the  execution  of  these  documents  the  subject  of  a 
lease  or  other  rights  near  the  mouth  of  the  Desplaines  Eiver 

was  presented  to  the  Canal  Commissioners  by  Mr.  Munroe  in 
something  like  a year.  It  must  have  been  nearly  a year  and  a 
half,  sometime  in  the  spring  of  1903  or  in  the  spring  of  1904. 

Dresden  Heights  is  a designated  point  about  at  the  junction 
of  the  Desplaines  and  Kankakee  Eivers  on  the  north  side  of  the 
Illinois  Eiver,  about  ten  miles  east  of  Morris.  The  location  of 
the  proposed  dam  of  the  Economy  Light  & Power  Company  is  sit- 
uated, is  colloquially  referred  to  as  Dresden  Heights,  and  it  would 
be  just  about  on  the  north  side  of  the  Illinois  Eiver  where  the 
Kankakee  and  Desplaines  come  in  together  and  form  the  Illi- 
nois. 

418  I should  think  it  was  along  in  February  or  March,  1904, 
that  Mr.  Munroe  or  Mr.  Griswold  came  before  our  Board  of 

Canal  Commissioners  with  a proposition  to  acquire  a lease  or  a 


221 


right  from  the  Board  of  Canal  Commissioners’  property  ad- 
jacent to  the  Desplaines  Eiver  in  that  vicinity.  I think  Mr.  Mun- 
roe  was  alone.  I think  his  proposition  was  merely  a discussion 
as  to  whether  the  leases  desired  could  be  made,  whether  the  Canal 
Commissioners  felt  that  proper  consideration  of  canal  operation 
would  permit  the  consideration  of  the  matter  at  all. 

Q.  Did  he  describe,  outline,  and  state  in  a general  way  what 
it  was  that  he  wanted! 

(Objection  by  counsel  for  defendant,  and  asks  that  all  ques- 
tions pertaining  to  these  negotiations  be  considered  as  ob- 
4-19  jected  to.  This  was  assented  to  by  counsel  for  complainant.) 

A.  I think  that  he  discussed  the  proposition  of  desiring 
in  the  event  of  the  construction  of  a dam,  banking  water  along 
certain  portions  of  the  tow-path  bank  of  the  canal,  and  of  flow- 
ing in  a certain  strip  of  land  adjacent  to  the  tow-path  at  one  point. 
Well,  it  may  be  that  the  erection  of  a dam  was  mentioned.  Whether 
the  specific  location  of  any  of  the  details  were  mentioned  I 

420  do  not  recall.  My  recollection  is  that  it  was  a new  proposi- 
tion to  everybody  and  was  merely  a matter  of  discussion  as 

to  whether  it  could  be  considered  at  all,  and  that  it  was  taken 
under  advisement  for  the  purpose  of  ascertaining  what  the  propo- 
sition meant.  I think  the  matter  was  simply  one  of  general  dis- 
cussion, indefinite  and  somewhat  vague  in  form  and  detail.  The 
proposition  was  whether  it  involved  matters  which  we  could  act 
upon  or  not,  whether  we  had  the  right  to  act  upon  them  or  not. 

I think  Mr.  Munroe  was  present  at  the  next  meeting  of  the 
Board.  The  custom  of  the  board  was  to  hold  regular  monthly 
meetings  and  special  meetings  at  the  call  of  the  president,  if 
anything  comes  up  that  seems  to  require  quicker  considera- 

421  tion.  It  would  be  impossible  for  me  to  recall  with  any  pre- 
ciseness what  occurred  at  that  or  any  subsequent  meetings. 

The  matter  was  under  discussion  at  numerous  meetings,  covering 
a period  of  several  months  or  weeks.  I think  that  Mr.  Munroe 
was  present  at  both  of  the  meetings.  If  I am  not  mistaken,  how- 
ever, the  matter  had  reached  such  a form  at  the  subsequent  meet- 
ings that  a committee  at  that  time  was  appointed  for  the  pur- 
pose of  going  over  the  situation  on  behalf  of  the  Canal  Commis- 
.sioners,  and  making  a report  to  the  Board  as  to  precisely  what 


222  SacheAt, — Direct  Exam. — Continued. 

the  matter  under  consideration  involved.  I think  Mr.  W.  E. 
Newton,  who  was  then  secretary  of  the  Board  of  Canal  Commis- 
sitners,  and  Mr.  Leon  McDonald,  superintendent,  were  desig- 
nated to  go  over  the  matter  and  report  upon  it. 

My  recollection  is  that  the  proposition  of  Mr.  Munroe  was  a 
lease,  a lease  of  certain  lands  and  a lease  of  the  right  of  water 
flowing  along  the  tow-path  for  a certain  distance. 

Yes,  I think  the  proposition  of  attaching  the  dam  to  the 

422  tow-path  had  been  discussed.  As  to  the  distance  the  water-* 
was  to  be  backed  up  or  flowed  up,  I think  the  term  Chan- 

nahon  was  used  to  designate,  possibly,  the  particular  distance,  al- 
though as  I understood  then  and  still  understand,  the  rights  did 
not  give  the  use  of  the  entire  distance,  that  is,  he  would  not  use 
the  entire  distance,  although  he  would  use  parts  of  it.  I mean 
flow  back  to  the  Village  of  Channahon  from  the  mouth  of  the 
river. 

Q.  Keferring  to  the  outline  map  of  Will  County  which  occu- 
pies page  15  of  Ogle  & Company’s  plat  book  of  Will  County, 
you  may  state  whether  or  not  that  page  15  in  a general  way  gives 
a correct  representation  of  the  location  of  Desplaines  Eiver  as  it 
passes  through  Will  County  from  the  extreme  northeast  into  Du- 
Page  Township,  through  DuPage  Township,  through  Lockport 
Township  and  Joliet  Township,  Troy  Township  and  Channahon 
Township  down  to  the  point  where  it  passes  into  Grundy  County? 
A.  Yes,  I think  it  does. 

Q.  You  see  on  this  page  15  a pencil  indication  of  the  contin- 
uation of  the  Desplaines  Eiver  and  the  Kankakee  Eiver  to 

423  a point  of  union  just  over  the  line  into  Grundy  County.  Now, 
that  represents  the  Desplaines  Eiver  in  passing  through  Chan- 

nalion  Township,  will  go  up  stream  from  the  bottom,  go  through 
Section  31,  and  just  touches  cornerwise  Section  30  and  32  and 
then  passes  through  Section  29,  20,  and  21,  touches  16  and  22,  goes 
into  15  and  so  on  upwards?  A.  That  is  the  river  you  are  speak- 
ing of? 

Q.  Yes,  that  is  the  river  I am  describing,  and  the  canal  on 
the  other  hand  is  represented  by — A.  The  river  runs  away 
from  the  canal  some  distance,  I think. 


Q.  Now,  turning  to  page  25  of  the  same  ])lat  l)ook,  the  canal 
is  represented  as  touching  the  river,  beginning  with  Section  31, 
all  the  way  through  31  and  up  through  the  southeast  corner  of  30, 
and  then  in  Section  29  of  the  river  and  the  canal  separate,  and 
the  tract  of  land  lies  between  them  which  has  the  name  of  Peter 
Conroy,  with  the  figures  146.32  which  I am  informed  refer  to  the 
acreage  of  the  tract  which  runs  between  the  river  and  the  canal, 
and  the  canal  passes  on  up  directly  through  the  Village  of  Chan- 
nahon  in  Section  17  and  up  Into  Section  8,  where  it  is  labeled 
‘^Wide  water.”  More  strictly  s])eaking,  this  large  inaj)  of  Chan- 
nahon  Township,  occupying  the  whole  of  page  25,  represents  tlie 
canal  and  the  river  as  making  a loo]) ; tliey  come  into  Section 

424  31  running  southwest  and  near  the  center  of  Section  31,  they 
turn  and  run  northwest  from  about  the  center  of  the  section, 

and  as  the  two  streams  run  northwest  there  is  apparently  an 
island  or  small  tract  of  land  between  the  river  on  the  south  and 
the  canal  on  the  north,  and  then  from  the  head  of  that  island 
there  is  a heavy  black  line  apparently  dividing  the  two.  Now, 
with  reference  to  that  map,  Mr.  Sackett,  you  may  state  how  far 
up  the  canal  it  was  that  Mr.  Munroe  ])i*oposed  to  acquire  from 
the  Commissioners  the  right  to  flood  the  bank  of  the  canal?  A. 
My  recollection  without  the  contract  referred  to  was  that  the 
flowage  was  through  this  Section  31  and  a part  of  30,  that  is,  this 
corner  of  30  (indicating  on  plat). 

That  would  be  on  the  southeast  corner,  and  there  would  be 
points  further  up  the  river  towards  Channahon  where  it  would 
touch. 

Yes,  up  the  canal  where  it  would  touch,  but  not  a continuous 
flow,  althougli  I would  no]t  be  certain  now  that  the  proposition 
did  not  contemplate  the  purchase  of  this  tract,  the  Conroy  tract, 
which  might  overflow,  but  I hardly  think  so.  M"ell,  I would 

425  not  assume  to  say  that  anything  was  said  about  Section  29,  or 
how  far  up  the  river  the  flowage  would  be.  I don’t  remember 

whether  anything  was  said  at  that  time  about  the  proposition  other 
than  by  the  Committee  as  to  what  influence  the  Canal  Com- 
missioners might  have.  He  was  not  proposing  to  build  a dam  in 
the  canal.  The  dam  was  to  be  in  the  Desplaines  Eiver.  I don’t 
know  as  he  stated  at  the  mouth  of  the  river  or  the  precise  location 


224  Sackett, — Direct  Exam. — Continued. 

of  tlie  dam.  Tt  was  developed  in  the  course  of  the  negotiations  to 
be  at  substantially  the  point  where  the  work  has  now  been  begun 
on  a dam  by  the  Economy  Light  & Power  Company  within  the 
last  four  or  five  months.  The  wmrk  is  progressing  down  there 
at  the  mouth  of  the  river  by  putting  in  a coffer-dam,  and  the  par- 
tial erection  of  a dam  there. 

I think  it  is  at  a point  covered  by  the  leases  made.  I have 

426  already  seen  the  large  bine  print  map  marked,  ‘^Sanitary 
District  of  Chicago,  map  showing  parts  of  Sections  31,  32, 

Town.  34  North,  Eange  9,  the  Third  P.  M.,  Will  County,  Illinois, 
Chicago,  February,  1905,  scale  one  inch  for  each  one  hundred  feet.” 
I have  seen  that  map  before.  It  was  on  exhibition  at  the  Com- 
mtitee  Eoom  when  I appeared  before  the  Legislatwe  Committee 
of  the  Illinois  General  Assembly  last  December. 

I see  on  that  map  the  proposed  dam  represented  by  a reddish 
brown  strip  labeled  ^‘Proposed  dam  crossing  the  Desplaines  Eiver 
at  its  month.” 

The  broad  green  strip  which  is  shown  on  this  tract  some  five 
or  six  inches  wide  and  a yard  long  or  thereabouts  I think 

427  rejDresents  the  so-called  16-acre  tract  of  land,  which  at  the  time 
of  these  negotiations  was  the  property  of  the  Canal  Commis- 
sioners. There  is  a tow-path  house  in  the  vicinity  where  it  is 
labeled  in  red  ip^on  that  map,  ^‘Building  to  be  raised.” 

I have  been  at  the  point  referred  to  on  the  map  by  the  word 
aqueduct”.  That  is  where  the  Kankakee  feeder  was  brought 
across  the  Desplaines  Eiver  so  as  to  discharge  into  the  canal 
several  years  ago.  The  aqueduct  was  connected  in  the  usual  way 
with  the  so-called  feeder,  which  was  in  effect  a canal  excavated,  of 
course,  through  that  16-acre  tract  up  to  and  attached  to  the 

428  canal.  The  canal  with  its  bank  extending  across  the  16-acre 
tract  is  still  there  in  place  to  be  seen.  The  piers  of  the  aque- 
duct itself  are  there,  but  the  aqueduct  is  gone.  The  narrow  green 
strip  of  the  map  extending  from  the  county  line  north  and  west 
and  down  the  Desplaines  Eiver  on  the  one  side,  the  canal  on  the 
other,  to  the  mouth  of  the  Desplaines  Eiver  represents  the  tow- 
path  bank  of  the  canal. 

I don’t  understand  that  map  to  the  west  represents  what  was 
actually  leased,  although  perhaps  it  does.  I am  not  sure  about  it. 


I thought  the  lease  was  practically  to  the  point  of  the  dam,  that  it 
went  from  there  up  stream.  Going  up  stream  above  this  16-acre 
tract  then  w'e  have  the  lake,  but  the  green  strip  with  the  river 

429  on  one  side  and  the  canal  on  the  other  is  the  tow-path.  It  con  • 
tinues  all  the  way  through  the  16-acre  tract. 

Q.  Is  that  the  tow-path  which  it  was  proposed  to  overflow  oy 
these  negotiations?  A.  Not  overflow,  Mr.  Starr,  but  to  flow  upon. 
Flow  upon  and  up  against,  not  overflow,  although  there  are  many 
seasons  of  the  year  when  it  not  only — the  water  in  the  river  only 
would  flow  up  against  and  along  the  tow-path,  but  in  some  points 
actually  overflow  into  the  canal.  There  are  some  points  along 
the  tow-path  where  the  river  at  times  overflow  the  tow-path  and 
into  the  canal.  There  is  one  point  where  it  overflows  the  entire 
bank  into  the  canal. 

My  understanding  is  that  the  lease  gives  the  right  to  flow  water 
up  against  the  tow-path,  not  over  it. 

430  The  Committee,  consisting  of  Mr.  Newton  and  Mr.  McDon- 
ald, I think,  made  a report  orally.  I think  I was  present.  I 

think  the  substance  of  the  report  is  set  forth  in  the  preamble  of 
the  contract.  I refer,  I think,  to  the  so-called  flowage  contract 
dated  September  2,  1904,  between  Harold  F.  Griswold  and  the 
Canal  Commissioners  relative  to  the  attaching  of  the  dam  to  the 
tow-path  and  the  flowing  of  certain  lands.  The  special  right  and 
pirvilege  which  Mr.  Munroe  was  seeking  on  behalf  of  Mr.  Gris- 
wold in  the  making  of  this  negotiation — I cannot  recall  distinctly 
now  what  he  said  he  wanted. 

431  The  matters  under  consideration  that  the  Canal  Commis- 
sioners had  to  do  with  were  simply  the  matter  of  the  right 

to  flow  water  along  this  canal  bank  and  over  the  so-called  16-acre 
tract,  as  I recall  the  matter,  and  to  attach  the  dam  to  the  tow-path 
at  the  site  where  it  was  to  be  erected;  I mean  to  the  tow-path 
bank. 

The  tow-path  bank  is  all  that  is  between  the  river  and  the 
canal  at  that  point.  The  north  bank  is  called  the  berm  bank  of 
the  canal.  Of  course  there  are  places  where  there  is  property  be- 
tween the  tow-path  and  the  river,  but  the  tow-path  is  on  the 


'22G  Sackeit  ,~I)i  red  Exam. — Continued. 

]'iver  side  of  the  canal  all  the  way  through  this  part.  Well, 

432  possibly  the  tow-path  is  in  some  places  more  than  90  feet  wide 
and  other  places  considerably  less  than  90  feet,  though  the 

toe  of  the  bank  comes  in  both  cases  to  being  veiy  close  to  90  feet, 
because  it  is  an  artificial  bank  constructed  through  there.  In  the 
immediate  vicinity  of  the  dam  it  is  an  artificial  bank. 

When  the  report  was  made  by  the  committee  that  is  contained 
in  the  preamble  of  the  fiowage  contract  I think  the  Canal  Com- 
missioners assigned  no  reason  why  the  contract  should  not  be 
entered  into.  I think  a draft  of  the  proposed  contract  as 

433  outlined  by  Mr.  Munroe  was  turned  over  to  our  attorney,  Mr. 
Walker,  to  look  into  the  legal  status  of  the  matter. 

By  action  of  the  Board,  I do  not  think  that  any  engineer  had 
been  employed  to  investigate  this  situation  and  the  effect  of  the 
proposition.  I understood  that  the  members  of  the  Board  had 
consulted  with  an  engineer  relative  to  the  matter  and  we  depended 
very  largely,  too,  upon  the  knowledge  of  Mr.  McDonald  relative 
to  matters  of  that  sort,  and  upon  Mr.  Keough’s  knowledge  of 
those  matters.  Mr.  Keough  had  been  connected  with  the  canal 
for  over  forty  years  and  was  acquainted  with  all  of  the  physical 
conditions.  He  died  last  January,  this  year,  1908. 

Q.  You  have  spoken  of  the  proposition  being  one  to  confer 
the  right  to  flow  water  along  the  canal  bank  and  to  attach  the  dam 
structure  to  the  tow-path  bank,  and  also  of  flowing  these  16  acres 
of  land.  Was  there  anything  proposed,  as  you  understood  it,  to 
tbe  Board  other  than  that! 

A.  Well,  there  was  a discussion,  I think,  as  to  whether  or  not 
the  Canal  Commissioners  had  any  right  in  the  river  or  controlled 
the  river  with  reference  to  putting  in  a dam,  with  reference  to 
giving  authority  to  put  in  a dam. 

434  Q.  MBiat  was  said  on  that  subject  by  Mr.  Munroe  to  the 
Board  or  the  Board  or  the  members  of  the  Board  to  Mr. 

Munroe!  A.  Well,  without  stating  the  proposition  except  gen- 
erally, as  already  stated,  I think  the  matter  of  whether  the  Canal 
Commissioners  controlled  the  river  or  not,  was  discussed,  I think 
the  Canal  Commissioners  expressed  the  opinion  they  did  not  have 
any  control  of  the  Desplaines  Biver  at  that  point  or  at  any  point 


227 


except  tlirougli  Joliet  where  it  had  been  part  of  tlie  canal.  I think 
that  was  Mr.  MMlker’s  conclusion  after  investigating  the  matter. 

Q.  Did  you  state  that  to  Mr.  Munroe?  A.  Yes  sir,  I think 
those  matters  were  discussed  with  Mr.  Munroe  and  I think  that 
that  belief  on  the  part  of  the  Canal  Commissioners  was  stated. 

Q.  In  all  these  negotiations  Mr.  Munroe  stated  that  he  appeared 
as  the  attorney  for  Mr.  Griswold!  A.  Yes,  I think  that  Mr.  Mun- 
roe appeared  merely  as  the  attorney  for  Mr.  Griswold,  I don’t  re- 
call that  he  ever  mentioned  haAung  any  other  interest  in  the  matter 
at  all. 

Eeferring  to  the  document  dated  September  2,  1901,  being 

435  copy  of  Exhibit  A attached  to  the  hill,  and  directing  attention 
to  the  preamble,  here  it  says  in  the  preamble  (this  by  Mr. 

Starr) : ^A¥hereas  said  party  of  the  second  part — that  is  Gris- 

wold— claims  to  be  a riparian  owner  along  certain  streams  of 
water  called  the  Desplaines  Kiver  and  the  Illinois  Eiver  in  the 
Counties  of  Grundy  and  Will,  State  of  Illinois,  and  as  such  riparian 
owner  is  about  to  improve  said  river  by  the  construction  of  a dam 
and  other  works  across  the  mouth  of  said  river  in  the  County 
of  Grund}^  and  State  of  Illinois,  with  a crest  of  such  height  that 
the  pool  formed  thereby  wi)l  be  on  a level  with  the  waters  of 
Lake  Joliet  (a  portion  of  said  Desplaines  Eiver  in  M^ill  County, 
Illinois)  and  is  about  to  improve  said  Illinois  Eiver  by  deepening 
the  channel  of  said  river  in  Section  25,  Township  34  North,  Eange 
8 East  of  the  Third  P.  M.”  That  part  of  the  preamble,  stating 
the  claim  of  Griswold  and  the  proposal  by  him  to  erect  a dam 
and  deepen  the  Illinois  would  come  entirely  from  Mr.  Griswold 
or  his  attorney,  his  attorney  Mr.  Munroe,  would  it  not!  A.  We 
understood  that  they  had  purchased  the  property  as  stated  and 
were  the  owmers  of  it. 

Q.  And  that  they  were  proposing  to  put  a dam  across  the 
Desplaines  Eiver  at  that  point  and  to  deepen  the  Illinois  Eiver 
down  below  the  dam!  A.  I do  not  want  to  be  understood  as  try- 
ing to  state  about  the  location  of  this  dam  as  the  result  and 

436  understanding  of  some  of  these  preliminary  conferences,  be- 
cause while  the  official  location  is  indicated  in  this  contract 

with  some  definiteness,  I am  not  prepared  to  say  that  in  the  pre- 


228 


Sackett, — Direct  Exam. — Continued. 


liminary  discussion  tllat  location  was  definitely  understood  by  my- 
self, or  perhaps  the  other  members  of  the  Board.  So  far  as  the 
claim  about  the  ownership  of  the  property,  that  was  understood 
from  the  outset.  I mean  I don’t  recall  now  specifically  what 

437  may  have  been  said  about  the  particular  or  definite  location  of 
the  dam.  Before  we  got  through  the  location  was  made.  I 

don’t  recall  that  the  Canal  Commissioners  ever  assumed  to  have 
any  rights  on  the  river  at  this  point  or  any  right  to  give  anyone 
else  any  right. 

Q.  Was  the  Desplaines  Biver  under  the  Canal  Commissioners’ 
control?  A.  No,  the  Canal  Commissioners  owned  the  16-acre  tract 
but  I want  to  say  that  I did  not  understand  at  the  time  of  these 
negotiations  that  they  fronted  upon  the  river.  The  riparian  owner- 
ship, as  expressed  in  the  contract,  so  far  as  my  understanding 
went  at  that  time,  applied  merely  to  where  the  tow-path  branch  or 
the  90-foot  strip  was  between  the  canal  and  the  river. 

Q.  What  claim  did  your  Board  or  any  member  of  it  make  to. 
him  of  any  right  to  control  or  to  confer  upon  him  the  privilege 
of  deepening  the  Illinois  Biver?  A.  I don’t  think  the  Board  as- 
sumed that  they  had  any  power  to  give  anyone  the  right  to  do 
anything  in  the  river,  so  far  as  the  river  itself  is  concerned. 

438  Q.  Did  you  have  any  such  right,  did  you  understand?  A. 
I don’t  think  we  did.  I don’t  so  understand. 

Q.  Did  you  explain  to  him  that  you  did  not  have  any  such  right  ? 
A.  I don’t  know  whether  I,  as  a member  of  the  Board,  or  whether 
any  member  of  the  Board,  attempted  to  specifically  give  him  that 
information  in  detail.  I think  that  it  came  about  through  Mr. 
Walker  stating  as  a legal  proposition  that  he  did  not  believe 
that  the  Canal  Commissioners  had  any  right  to  convey  or  to  lease 
to  anyone,  so  far  as  the  river  itself  was  concerned. 

Q.  Either  the  Illinois  or  the  Desplaines?  A.  I think  that  is 
the  situation. 

Q.  I direct  your  attention  to  the  second  whereas  here,  Mr. 
Sackett,  in  this  Exhibit  A:  ‘AVhereas,  the  State  of  Illinois  is 
riparian  owner  at  different  points  on  the  Desplaines  and  Illinois 
Bivers  within  the  territory  covered  by  this  contract,  as  well  as 
the  owner  of  the  hereinafter  described  parcels  of  land  under  the 


control  of  the  Canal  Commissioners,  which  are  not  connected 
with  the  water  power  upon  the  Illinois  and  Michigan  Canal,  which 
said  riparian  rights  and  said  land  have  never  produced  a revenue, 
and  said  land  is  now  productive  of  no  revenue,  swampy,  unfit 
for^  cultivation,  and  partly  covered  with  water,  and  said  lands 
are  so  situated  that  the  riparian  rights  appurtenant  there- 

439  to  cannot  be  made  available  by  tlie  state  to  create  water 
power.”  Now,  with  reference  to  that,  what  were  the  riparian 

rights  which  the  State  or  the  Canal  Commissioners  did  have  in 
the  property  described  in  this  instrument?  The  property  describ- 
ed in  the  instrument  is  described  fully  in  clauses  one  and  two  of 
the  contract?  A.  Well,  this  second  whereas  of  the  contract,  to 
the  best  of  my  recollection  in  substance  is  the  report  made  to  the 
Commissioners  by  Mr.  McDonald  and  Mr.  Newton,  and  the  riparian 
rights  referred  to,  as  I understood  them  at  that  time,  had  reference 
to  the  tow-path  bank  and  the  90-foot  stdp  wherever  the  bank  or 
the  strip  was  adjacent  to  the  river,  and  undoubtedly  this  16-acre 
tract  of  land  which  was  included  in  the  lease;  but  at  that  time, 
speaking  of  my  own  knowledge  of  the  matter,  I did  not  under- 
stand that  this  16-acre  tract  of  land  was  located  upon  the  river 
bank.  I,  of  course,  since  have  discovered  that  it  was.  I sup- 
posed that — of  course  I understood  that  the  land  was  to  be  over- 
flowed, but  I supposed  that  there  was  intervening  property  be- 
tween this  and  the  river. 

Q.  Then,  as  to  this  clause  that  said  lands  are  so  situated  that 
the  riparian  rights  appurtenant  thereto,  cannot  be  made  avail- 
ble  by  the  state  to  create  water  power,  if  you  at  that  time 
supposed  that  this  contract  did  not  touch  the  river,  then  you  would 
have  no  information  at  all  on  the  subject  of  its  availability 

440  to  create  water  power  ? A.  Oh  yes,  I would  have  this  in- 
formation, that  none  of  the  property  which  we  had  along  there 

could  be  made  available  by  us  to  create  any  water  power,  first,  be- 
cause we  had  no  funds  with  which  to  create  water  power,  and 
second,  even  if  the  State  desired  to  create  water  power  it  would 
be  necessary  to  purchase  property  other  than  that  we  had  con- 
trol of  in  order  to  make  any  power  available. 

Then  this  property  described  in  the  preamble  could  not  be 
made  available  by  the  State  to  create  water  power  without  the  use 


230 


S a c k ett , — D irect  Exam. — Continued. 


of  funds  in  developing  it,  and  the  Stafe  would  have  to  purchase 
considerable  other  property.  This  property,  in  and  of  itself,  with- 
out ^very  material  expense,  could  not  have  been  made  available 
for  any  purpose  or  used,  as  far  as  the  State  was  concerned. 
So  far  as  this  16-acre  tract  was  concerned,  I think  it  was  absolutely 
physically  impossible  to  attach  a dam  in  any  shape,  manner  or 
141  form,  even  though  they  had  provided  to  develop  power.  This 
phrase,  ^^It  could  not  be  made  available,”  etc.,  as  I under- 
stand it,  could  not  be  made  available  for  the  two  reasons  I 
have  mentioned,  and  so  far  fis  I know  there  was  no  erection  of  a 
dam  which  would  be  on  or  touch  this  tract.  I make  a distinction 
as  to  the  tract  as  against  the  tow-path  bank  at  other  points. 

Well,  this  16-acre  tract  is  low  land,  and  the  erection  of  the  dam 
would  flow  water  over  it  in  low  water  stages,  and  in  ordinary  or 
high  water  stages  overflow  it  anyway  without  any  dam. 

442  Counsel  for  .Complainant.  Now,  I direct  3"our  attention  to 
the  third  ^Svhereas”  of  the  document,  Mr.  Sackett: 

Whereas,  said  party  of  the  second  part  is  desirous  of  ob- 
taining the  right  to  use,  overflow  and  damage  (in  such  man- 
ner as  will  not  interfere  with  navigation  on  the  Illinois  and 
Michigan  Canal)  so  much  of  the  said  property  as  may  be 
necessary  in  the  construction  of  said  dam  and  other  works  in 
the  improvement  of  said  Desplaines  River;  therefore,  in  con- 
sideration of  the  premises  and  the  sum  of  twenty-two  hundred 
dollars  in  hand  paid  by  said  party  of  the  second  part,  the  re- 
ceipt whereof  is  hereby  acknowledged,  it  is  agreed  as  fol- 
lows 

what  was  said  by  the  Commissioners  to  Mr.  Monroe  and  by  Mr. 
Munroe  to  the  Commissioners  in  respect  to  that  statement,  that  he 
desired  the  right  to  use  overflow  and  damage  so  much  of  the  prop- 
erty as  may  be  necessary  in  the  construction  of  the  dam!  IVhat 
damage  did  that  refer  to!  A.  I don’t  know  that  the  use  of  the 
word  dam  there  has  any  essential  meaning  there  beyond  the  mere 
overflow  of  this  tract  of  property  by  water. 

443  It  refers  to  such  damage  as  would  be  caused  by  the  over- 
flow. AYhen  this  dam  is  constructed  this  16-acre  tract  would 

be  overflowed  all  the  time,  if  not  it  would  be  under  water  one  month, 
two  months,  three  months  or  five  months  of  the  year. 

The  wide  water  of  the  Desplaines  River  is  called  Lake  Joliet, 


as  shown  on  page  15  of  the  Will  County  plat  l)ook.  It  is  some 
eight  or  nine  miles  above  the  county  line. 

444  I am  unable  to  recall  what  specific  figuring  was  involved  in 
reaching  the  consideration  of  $2,200.  I think  that  the  circum- 
stances at  the  time  prompted  the  Commissioners  to  believe  that  the 
sum  was  adequate  for  what  was  to  be  used. 

Q.  I direct  your  attention  to  clause  first  of  the  contract,  of  tlie 
contracting  clauses,  which  is  as  follows: 

First:  That  said  party  of  the  first  part  consents  that  said 
party  of  the  second  part  shall  have  the  right  and  authority 
in  so  improving  the  Desplaines  Eiver,  to  construct  a dam  and 
other  works  across  the  Desplaines  or  Illinois  Eiver  at  a ])oint 
near  the  confluence  of  the  Desplaines  and  Kankakee  Eivers 
in  the  County  of  Grundy  and  State  of  Illinois,  with  a crest  at 
an  elevation  of  not  to  exceed  minus  seventy-three  and  two- 
tenths  (73.2),  Chicago  citv  datum,  but  in  no  event  shall  the 
back  water  caused  by  said  dam  recede  beyond  the  northerly 

445  limits  of  ‘Lake  Joliet’  (said  ‘Lake  Joliet’  being  a wide  por- 
tion of  the  Desplaines  Eiver  about  six  miles  in  length  and  ly- 
ing south  of  the  City  of  Joliet  in  the  County  of  Will  and  State 
of  Illinois)  ; and  further  consents  that  said  party  of  the  sec- 
ond part  may  excavate  in  and  deepen  the  channel  of  the  Illi- 
nois Eiver  in  Section  25,  Township  34,  Eange  8 East  of  the 
Third  P.  M.” 

Did  you  understand  you  were  conferring  the  right  to  dam  the 
river  upon  Mr.  Griswold  in  voting  for  that  contract,  Mr.  Sack- 
ettl  ; 

A.  5Vell,  as  I have  previously  said,  the  Canal  Commissioners 
did  not  understand  that  they  had  any  right  of  control  over  the 
river.  I think  I can  explain  why  this  provision  was  inserted,  or  in 
so  far  as  the  right  to  attach  the  clam  to  the  tow-path  bank,  to  give 
us  authority  to  designate  what  should  be  done,  that  having  valu- 
able rights  through  the  City  of  Joliet  which  might  be  used  by  the 
Sanitary  District  in  conjunction  with  the  state  or  the  state  in  con- 
junction with  the  Sanitary  District,  that  the  limitations  as  to 
where  the  raise  of  w^ater  should  extend  was  fixed  so  as  not  to 
interfere  with  the  possible  development  there  in  the  City 

446  of  Joliet  where  the  state  did  have  rights.  I don’t  think  that 
any  of  the  Canal  Commissioners  assumed  to  have  any  control, 

however,  over  the  river  or  what  should  be  done  in  the  river,  but 


232  Sackett, — Direct  Exam. — Continued. 

merely  to  give  the  right  of  attachment,  that  they  set  the  limit— 
the  extent  or  limit  to  which  water  should  be  backed  up. 

Q.  I am  directing  your  attention  to  the  first  part  of  this  clause 
one.  You  have  explained  how  that  affects  the  north  end  limit  of 
the  flowage.  Now,  directing  your  attention  to  the  first  half  of  it, 
‘^that  the  party  of  the  second  part  shall  have  the  right  and  author- 
ity in  so  improving  the  Desplaines  Eiver  to  construct  a dam  and 
other  works  across  the  Desplaines  or  Illinois  Eiver  at  a point  near 
the  confluence,”  and  so  forth.  IVhat  was  said  by  you  or  other 
members  of  your  board,  or  the  attorney  or  representative  of  your 
])oard  at  the  meeting  where  this  was  taken  up  with  Mr.  Munroe,  to 
him,  and  by  him  to  you  on  the  subject  of  your  authority  and  power 
to  confer  on  him  authority  to  dam  the  river?  A.  So  far  as  the 
river  itself  was  concerned,  I think  that  the  Canal  Commissioners 
understood  and  were  so  advised  that  they  had  no  right  and  au- 
thority. 

Q.  Did  you  so  tell  him?  A.  I think  the  matter  was  discussed 
with  Mr.  Munroe,  possibly  in  our  presence — probably  in  our  pres- 
ence. 

4-1-7  Q.  Is  that  your  best  recollection?  A.  Yes,  sir,  his  doubt  of 
our  having  any  right  or  authority  to  assert — to  give  any  right 
or  have  any  control  over  the  river ; but  I think  Mr.  Munroe  desired 
to  have  these  matters  set  forth,  and  my  recollection  is  that  Mr. 
IValker’s  position  to  us  was  that  if  we  did  not  have  any  right  or 
authority  we  were  not  doing  anyone  any  harm  by  relinquishing 
anything  that  we  did  not  have. 

Q.  IVhat  did  Mr.  Monroe  say  to  that?  A.  I don’t  know  that  I 
am  prepared  to  say  that,  other  than  that  he  would  like  to  have  it 
in  there.  I don’t  know  but  he  ignored  the  contention  raised  by  us 
that — I think  my  understanding  of  the  proposition  was  a good 
deal  on  the  basis  that  if  some  fellow  came  to  me  and  said  he  would 
give  me  five  hundred  dollars  for  my  interest  in  the  Masonic 
Temple  that  I would  simply  say  all  right,  I will  take  the  money 
and  you  can  have  any  interest  I have  got. 

Q.  lYas  some  such  illustration  as  that  used  in  the  talk  with  Mr. 
l\[unroe?  A.  No,  I don’t  know  that  an  illustration  of  that  sort 
was  used,  but  I used  it  merely  to  show  the  idea.  I think  Mr.  Walk- 


er’s  contention  was  that  we  had  nothing  to  give,  and  if  Mr.  Munroe 
wanted  to  pay  for  something  that  we  had  nothing  to  give,  there 
was  no  harm  done. 

I am  unable  to  state  how  the  heiglit  of  the  dam  was 

448  fixed.  I j^resmne  that  that  is  some  suggestion  emanating  from 
the  knowledge  of  Mr.  McDonald  of  the  situation.  I did  not 

understand  that  the  Canal  Commissioners  have  any  control  over 
Lake  Joliet. 

Q.  Now,  take  the  second  clause  there  in  that  contract,  the  sec- 
ond granting  clause : 

‘‘Second,  that  said  i)arty  of  tlie  second  ]uirt  shall  have  the 
right  and  authority  to  flow  the  90-foot  reserve  stri])  of  the  Illi- 
nois and  Michigan  Canal  in  Sections  25  and  30,  Township  34 
North,  Eange  8,  Grundv  Countv,  Illinois,  and  in  Sections  31, 
30,  29  and  20,  Township  34,  Eange  9,  AVill  County,  Illinois,  u]) 
to  the  canal  bank;  also  so  much  of  the  north  fraction  of  Sec- 

449  tion  31,  Township  34  North,  Eange,  9 East  of  the  Third  P.  M. 
as  lies  south  of  the  90-foot  reserve  strip  along  the  tow-path 
side  of  the  Illinois  and  Michigan  Canal,  where  the  same  may 
be  overflowed  by  reason  of  the  construction  of  said  dam  and 
other  works,  with  the  crest  hereinbefore  specified,  together 
v/ith  the  right  to  flow  the  water  u])  against  the  tow-path  bank 
of  the  Illinois  and  Michigan  Canal,  in  said  sections,  provided 
the  tow-path  shall  be  protected  and  preserved  as  hereinafter 
provided.” 

AVith  reference  to  that,  Mr.  Sackett,  we  have  the  expression  used 
there  repeatedly,  the  90-foot  strip  and  the  90-foot  reserve  strip. 
I would  like  to  have  you  explain  that  phrase  to  us.  Just  tell  us 
what  that  means.  A.  Well,  through  the  odd  sections  along  the 
canal,  there  is  a 90-foot  reserve  strip  on  either  side  of  the  canal. 
As  the  canal  was  laid  out,  it  was  supposed  to  have  been  60  feet  in 
width  with  a 90-foot  strip  on  either  side,  making  the  total  width 
for  canal  purposes  240  feet. 

450  The  odd  numbered  sections  of  land  were  reserved  as  canal 
lands,  and  in  those  sections  the  90-foot  reserve  strip  pro- 
visions have  remained  operative.  In  even  sections  they  have  what 
was  necessary  to  support  the  canal,  without  reference  to  its  width. 
That  according  to  the  decision  in  W erling  vs:  Ingersoll,  181  U.  S., 

page  131. 


234 


Sackett, — Direct  Exam. — Continued. 


451  Q.  Xow,  in  clause  tliiiTl,  Mr.  Sackett,  there  are  provisions 
which  read  as  follows : 

Third:  That  said  part}-  of  the  second  part  shall  have  the 
right  to  excavate  in  and  remove  so  much  of  the  Kankakee 
feeder  (an  abandoned  feed  of  the  Illinois  and  Michigan  Canal) 
lying  north  of  the  Desplaines  Eiver  and  south  of  the  90-foot 
strip  in  Section  31,  Township  34  North,  Eange  9 of  AVili 
County,  Illinois,  as  may  be  necessary  to  discharge  the  waters 
of  the  Desplaines  Eiver  through  said  Section  31  in  a proper 
manner,  and  shall  also  have  the  privilege  of  removing  an  old 
aqueduct  and  piers  in  said  section.” 

Directing  your  attention  to  this  provision,  to  remove  so  much 
of  the  banks  of  the  feeder  as  lie  north  of  the  Desplaines  Eiver, 
and  directing  your  attention  to  the  location  of  the  Kankakee  feeder 
upon  the  large  blue  print,  the  portion  there  referred  to  as  author- 
ized to  l)e  removed,  is  that  part  of  the  feeder  which  crosses  this 
lb-acre  tract  and  consisted  of  an  elevated  embankment  wdiich  con- 
tinued the  feeder  from  the  north  end  of  the  aqueduct  across  the  16- 
acre  tract  to  the  canal,  is  that  right!  A.  Yes,  sir. 

Q.  It  says,  ^KVs  may  be  necessary  to  discharge  the  waters  of 
the  Desplaines  Eiver  through  said  Section  31  in  a proper 

452  manner.  5Vhat  was  said  between  Mr.  Monroe  and  the  Com- 
missioners as  to  wdiat  was  meant  by  a proper  manner!  A.  I 

would  be  unable  to  recall  now  what  was  the  discussion  on  that 
point. 

I think  the  removal  of  those  feeder  banks,  as  I have  described, 
and  the  overflowing  of  that  16-acre  tract  by  the  construction  of  a 
dam  at  the  height  proposed  would  render  it  impossible  to  ever 
use  the  feeder  again  as  conveying  water  through  the  Kankakee 
Eiver  into  the  Illinois  and  Michigan  Canal. 

Q.  The  fourth  clause  of  the  contract  provides  as  follows: 

‘‘Fourth,  that  said  party  of  the  second  part  shall  have  the 
right  to  erect,  attach,  repair  and  maintain  said  dam  and  other 
works  or  structure  up  against  the  tow-path  bank  of  the  Illinois 
and  Michigan  Canal  in  Section  25,  Township  34,  North,  Eange 
8,  East  of  the  Third  P.  M.,  Grundy  County,  Illinois,  but  not 
so  as  to  interfere  in  any  manner  with  the  use  of  said  tow-path 
• in  connection  with  said  canal.” 

You  may  state  whether  it  was  pointed  out  and  fixed  any 


453  more  definitely  than  it  is  fixed  by  this  language  just  where 
that  point  of  connection  was  to  be  made?  A.  So  far  as  T 

know,  I should  say  that  it  was  not. 

Q.  Then  follows  clause  five,  giving  the  right  to  divert  from  the 
Desplaines  into  the  Kankakee  Eiver  a certain  stream  of  water 
called  the  Kankakee  cut-off,  carry  it  through,  over  and  across  the 
Kankakee  feeder,  and  the  90-foot  strip  on  each  side  of  the  feeder 
in  Section  5,  Township  33  North,  Eange  9,  East  of  the'  Third  P. 
M.,  and  the  said  party  of  the  second  part  is  granted  the  right  to 
construct  on  the  bank  of  said  feeder  controlling  gates  for  flood  pro- 
tection from  said  Kankakee  Eiver.  In  that  clause,  Mr.  Sackett, 
there  are  two  streams  with  the  work  Kankakee’^  in  them — three 
streams  referred  to.  One  is  the  Kankakee  Eiver  itself,  another  is 
the  Kankakee  feeder  and  another  is  the  Kankakee  cut-off.  The 
Kankakee  feeder  and  the  Kankakee  cut-off  are  not  the  same  thing! 
A.  I don’t  understand  that  they  are. 

Q.  On  this  large  blue  print  once  more  you  have  already  indi- 
cated the  Kankakee  feeder  where  tlie  words  appear,  partly  in 
Grund}^  County,  and  crossing  the  Grundy  County  line  and  the 
river  to  the  canal.  Now,  over  towards  the  right  hand  in  here  you 
observe  a dotted  line  which  is  labeled  the  south  section  line  of  Sec- 
tion 29,  34,  9,  north  section  line  of  Section  32,  34,  9.  Just  below 
that  there  is  a representation  of  a stream  emptying  into  the 

454  Desplaines  Eiver,  which  is  labeled  the  Kankakee  cut-off.  Is 
that  the  stream  which  is  referred  to  in  this  clause  hve  as  the 

Kankakee  cut-off?  A.  I presume  that  it  is,  but  so  long  as  I have 
been  connected  with  the  canal,  or  had  any  knowledge  of  it,  those 
matters  have  not  come  to  my  attention,  for  the  reason  that  they 
have  not  been  in  use,  and  I do  not  feel  prepared  to  discuss  them  in 
detail. 

The  Kankakee  feeder  was  itself  a canal  to  bring  water  from 
the  Kankakee  Eiver  across  the  Desplaines  Eiver  into  the  Illinois 
and  Michigan  Canal.  It  is  fed  from  the  Kankakee  Eiver  by  means 
of  a dam.  The  Kankakee  cut-off  was  a stream  by  which  water 
from  the  Kankakee  ran  across  into  the  Desplaines  at  that  point. 

"With  reference  to  what  the  works  were  which  are  provided  by 
the  clause,  I will  refer  you  to  Mr.  McDonald  to  make  the  explana- 


236 


Sacliett, — Direct  Exam. — Continued. 


tion  of  wliat  the  understanding  on  the  part  of  the 

455  Commissioners  was,  for  the  reason  that  he  evidently  saw  the 
purpose  of  this  clause  and  understands  it  from  an  engineer- 
ing standpoint  which  I do  not. 

Q.  I direct  your  attention,  Mr.  Sackett,  to  clause  six: 

Sixth:  It  shall  he  the  duty  of  said  party  of  the  second 

l^art,  subject  to  the  direction  of  the  Canal  Commissioners  or 
their  officer  or  agent  as  hereinafter  indicated  to  raise  the  tow- 
path  or  bank  of  the  Illinois  Michigan  Canal  from  its  present 
height  not  less  than  two  feet  to  any  additional  height  that  may 
be  necessary  to  prevent  overflow,  and  to  perjDetually  thereafter 
maintain  the  same  in  good  condition.  The  raising  of  said  tow- 
path  shall  extend  from  a point  in  said  Grundy  County,  where 
the  dam  or  other  structure  of  said  party  of  the  second  part 
intercepts  the  said  tow-path  bank,  to  lock  number  seven  in 
section  seventeen,  township  34  north,  range  9 east  of  the  third 
P.  M.  and  when  raised,  the  width  of  the  top  of  the  tow-path 
bank  shall  conform  to  the  width  of  the  tow-path  as  it  exists 
at  the  present  time.’^ 

Section  seventeen  referred  to  in  this  clause  is  the  one  in  which 
the  village  of  Channahon  j)rincipally  is  situated?  A.  Yes,  sir. 

The  lock  is  the  lock  by  which  the  canal  is  carried  through 

456  the  Du  Page  Eiver,  then  the  raising  of  the  tow-path  should 
extend  from  the  location  of  the  dam  up  to  this  point  where  this 

lock  is  just  over  the  line  into  17,  as  shown  on  page  25  of  the  plat 
book  before  us.  They  have  raised  the  tow-path  in  the  vicinity 
of  the  location  of  the  dam  and  a short  distance  east  of  there,  and 
have  riprapped  the  bank.  That  was  done  during  the  months  of 
September,  October  and  November  of  1907,  I think. 

457  It  is  stipulated  that  the  plat  book  of  Will  County  by  Ogle 
& Company,  1893,  and  the  Sanitary  District  of  Chicago  map, 
showing  parts  of  sections  31  and  32,  T.  34  N.,  E.  9 E.  third 
P.  M.  by  the  witness  in  his  evidence,  may  remain  in  the  hands 
of  counsel  for  complainant  and  be  produced  at  the  hearing 
without  being  attached  to  the  deposition. 

458  Q.  I direct  your  attention,  Mr.  Sackett,  to  the  eighth  para- 
graph of  the  contract.  Exhibit  A : 

‘^Eighth : Permission  is  hereby  given  said  party  of  the  sec- 

ond part  to  use  so  much  of  the  gravel  or  other  material  lying 
along  the  said  Illinois  and  Michigan  Canal,  the  property  of  the 
State  of  Illinois,  as  may  be  necessary  to  raise  said  tow-path 
bank  of  said  Illinois  and  Michigan  Canal;  such  material,  how- 


ever,  to  be  taken  out  from  places  indicated  or  approved  by  the 
general  superintendent  of  the  canal,  or  other  officer  or  agent 
designated  by  the  Canal  Commissioners,  or  other  officers  in 
charge.  ’ ’ 

Do  you  know,  Mr.  Sackett,  whether  the  gravel  and  other  mate- 
rial that  is  there  referred  to  has  been  made  use  of  in  such  modifica- 
tion of  the  tow-path  bank  as  you  referred  to  this  morning?  A. 

My  impression  is  that  there  is  very  little  gravel  or  ma- 

459  terial  upon  the  canal  property  there  or  any  portion  of  the  90- 
foot  strip  that  could  be  made  available. 

Then  throughout  the  90-foot  strip  there  would  not  be  any  spare 
material  that  could  be  taken  up  and  moved  with  safety.  The  piers 
were  there  the  last  I knew  anything  about  it. 

460  Q.  TTow,  take  the  ninth  clause,  that : 

^‘Said  party  of  the  second  part  is  hereby  authorized  to  en- 
ter upon  the  lands  or  premises  of  the  State  of  Illinois,  part 
and  parcel  of  the  Illinois  and  Michigan  Canal,  and  to  enter 
upon  said  canal  itself  in  a manner  and  to  the  extent  that  shall 
be  necessary  to  raise  and  maintain  the  tow-path  as  above 
provided,  and  to  attach  and  build  said  dam  or  other  works 
onto  said  tow-path  bank  as  herein  provided,  and  to  repair, 
maintain  or  renew  the  same  as  shall  become  necessary  to 
the  preservation  thereof.’’ 

Was  that  provision  drawn  by  you,  Mr.  Sackett?  Did  you  per- 
sonally have  to  do  with  the  drawing  of  that?  A.  Ho,  sir. 

Q.  In  the  elevation  of  the  tow-path  as  you  have  referred  to,  pro- 
vision, I suppose,  has  been  made  in  that  work  that  has  already  been 
done  for  broadening  the  base  of  it  to  take  care  of  the  increased 
height,  has  there  or  has  there  not?  A.  Well,  this  provision  is  un- 
doubtedly the  recommendation  of  Superintendent  McDonald,  and  I 
presume  contemplates  the  broadening  of  the  tow-path  bank,  nec- 
essarily would  have  to  be  widened  out. 

Q.  And  this  clause  was  put  in  to  cover  and  authorize  that?  A. 
Yes,  sir ; I think  so. 

Q.  Take  the  tenth  clause,  which  is  to  raise  the  buildings  and 

461  garden  of  the  tow-path  house-keeper,  has  that  been  done?  A. 

It  had  not  been  done  the  last  that  I knew  of  the  situation. 

Q.  You  have  not  got  around  to  that  yet?  A.  No,  sir. 


238 


Sackett, — Direct  Exam. — Continued. 


Q.  Clause  eleven  provides  in  substance  that  all  the  work  here- 
inbefore provided  for  or  which  shall  affect  the  canal  property  or 
interests  shall  be  done  under  the  supervision  of  and  to  the  satis- 
faction of  the  Canal  Commissioners  or  their  duly  authorized  agent 
or  agents,  and  not  otherwise.  Was  there  any  other  provision  to 
secure  the  accomplishment  of  that  result  by  way  of  a bond  or 
otherwise,  Mr.  Sackett?  A.  I don’t  think  any  bond  was  required 
under  this  agreement.  The  Canal  Commissioners,  I think,  took 
the  position  that  unless  the  work  was  done  to  their  satisfaction 
they  could  abrogate  the  entire  agreement  at  any  time  for  protec- 
tion to  themselves. 

Q.  The  twelfth  provides  for  payment  of  the  cost  of  inspect- 
ing the  vmrk.  Yvhat  is  the  cost  of  inspecting  the  work,  how  does 
that  arise,  or  how  would  it  arise?  A.  The  Canal  Commissioners 
will  have  a man  upon  the  ground  to  inspect  this  work  for  them,  and 
bills  are  to  be  rendered  against  the  people  representing  the  inter- 
ests of  Griswold,  and  those  bills  are  to  be  paid  by  them. 

Q.  To  what  extent  has  that  been  done  in  so  much  of  the 

462  work  as  has  gone  on  up  to  this  time?  A.  Up  to  the  time 
of  the  death  of  Mr.  Keough  he  had  charge  of  this  matter,  and 

what  work  was  done,  so  far  as  the  canal  interests  were  concerned, 
was  under  his  direction.  Whether  or  not  any  bills  have  been 
paid  or  any  been  presented  I am  not  in  a position  to  say  at  this 
time. 

The  work  was  stopped  by  injunction  on  the  31st  of  December. 
That  was  before  he  died.  No  work  has  been  done  since  that  I 
am  aware  of.  No  canal  inspector  called  there,  none  appointed. 
The  inspection  that  is  provided  for  by  section  12  is  the  same  thing 
as  the  supervision  that  is  referred  to  in  clause  eleven.  If  Mr. 
Keough  ever  made  any  report  he  would  make  it  to  Mr.  McDon- 

463  aid.  I have  never  seen  any  report  or  certificate  of  inspection 
or  anything  of  that  kind. 

No  claims  for  damages  have  been  brought  against  the  state  up 
to  this  date.  On  the  same  day  that  this  flowage  contract  was 

464  made  there  was  a lease  made  from  the  Canal  Commissioners 
to  Harold  F.  Griswold.  I think  the  fiowage  contract  had  been 

under  discussion  and  practically  agreed  upon  up  to  the  time  of 
the  introduction  of  this  lease.  The  lease  was  second,  or  prac- 


tically  at  the  same  meeting,  but  it  came  in  after  the  tlowage  con- 
tract had  been  debated,  considered  and  practically  decided  on. 
My  recollection  is  that  this  lease  came  as  a result  of  discussion  rela- 
tive to  the  rights  recited  in  the  river,  and  the  discussion  came  as 
a result  of  that.  I refer,  as  I referred  to  it  this  morning,  either 
the  president  of  the  Board  or  the  attorney  for  the  Board  saying 
to  Mr.  Munroe  that  we  did  not  consider  we  had  any  right  or  juris- 
diction to  give  in  the  river.  I think  Mr.  Munroe ’s  position  was 
that  if  we  were  correct  in  the  assumption  that  we  had  no  rights  in 
the  river  that  it  would  do  no  harm  for  us  to  allow  them  to  be 
465  set  forth,  and  i)erhaps  might  do  them  some  good.  I think  he 
stated  that  in  substance;  something  of  that  sort  was  stated. 

This  lease  came  as  a sort  of  secondary  consideration  of  the  flow- 
age  rights  as  discussed,  and  to  make  more  definite  and  certain 
what  there  was  to  be  covered,  and  I think  to  make  more  certain 
the  duration  of  time  and  the  compliance  with  the  statutes.  In 
other  words,  I think  that  Mr.  Munroe  had  come  to  the  conclusion 
that  there  was  a question  about  the  flowage  right  contract,  so- 
called,  and  to  make  it  definite,  certain  and  legal  that  the  matter 
should  be  covered  by  the  lease  which  was  prepared,  I think,  pre- 
sented and  considered  at  the  same  meeting  and  executed,  that  the 
flowage  contract  was  executed.  With  reference  to  the  time,  I had  in 
mind  the  proposition  of  the  duration  authorized  by  statute  Vvfliich 
the  Canal  Commissioners  could  make  a lease  for,  namely,  20  years. 
Mr.  Munroe ’s  conclusion  was  made  known  to  me  by  what  he  said. 
I am  making  my  statement  from  recollection  of  the  discussion 
as  it  arose  and  what  he  said  when  he  stated  his  position.  He  then 
asked  for  the  lease  in  addition  to  the  flowage  contract. 

Q.  And  of  course — I observe  there  is  no  time  limit  in  the  flow- 
age  contract,  except  that  here  and  there  it  says,  ^‘Perpetually  and 
at  all  times.’’  A.  I don’t  think  there  was  any  idea  on  the  part 
of  the  Canal  Commissioners  to  give  any  grants  of  leases  for  a 
longer  period  than  twenty  years.  All  of  the  Commissioners  un- 
derstood that  the  statute  provided  a twenty  year  term. 

(Mr.  Porter,  counsel  for  defendant,  objected  and  moved  to 
exclude  all  the  testimony  offered  by  the  witness  during  the 
afternoon  session.  Agreed  that  it  may  be  understood  that 
467  Mr.  Porter  objects  to  all  these  questions  in  regard  to  the  mak- 


240 


Sackett,— Direct  Exam . — C on  tin  iie  d . 


ing  of  this  contract  with  the  interpretation  of  the  contract, 
either  by  himself  or  the  Canal  Commissioners  or  anyone  else.) 

I think  both  contracts  were  prepared  and  voted  for  substantially 
at  the  same  time.  The  pole  lease  or  contract,  I think,  was 

468  executed  at  the  same  time,  I don’t  think  it  came  up  for  discus- 
sion until  the  day  of  the  final  meeting  when  all  the  instruments 

were  executed,  but  they  were  all  carried  through  at  the  same  time. 
That  would  be  a continuous  transaction. 

469  Of  course  it  was  the  fiowage  contract  that  had  occasioned 
the  consideration  of  and  discussion  of  the  matters  to  be  cov- 
ered. This  lease,  I take  it,  covers  substantially,  and  exactly  I 
think,  the  premises  covered  in  the  fiowage  contract,  except  it  elimi- 
nates all  references  to  the  construction  of  dam  and  work  in  the 
river.  The  agreement,  sometimes  called  the  pole  line  lease,  bear- 
ing date  September  2nd,  1904,  was  executed  at  the  same  meeting. 
I think  this  lease  was  prepared  before  the  execution  of  the  othei', 
and  they  were  all  executed,  I think,  at  the  same  time  and  at  the 
same  meeting.  The  discussion  of  this,  if  I am  not  mistaken,  the 
came  up  during  the  time  of  the  meeting,  the  proposition  arising 
as  to  the  necessity  of  transferring  this  power  somewhere  and 
this  right  being  desired.  I do  not  think  this  came  up  for  discus- 
sion prior  to  the  time  of  the  final  meeting  when  the  instru- 

470  ments  were  all  executed,  but  they  were  all  carried  through  at 
the  same  time. 

The  Canal  Commissioners  have  a line  that  they  have  been  us- 
ing for  the  operation  of  the  pumps  at  Bridgeport,  obtaining  power 
from  the  Economy  Light  & Power  Company  at  Joliet.  We  do  not 
own  the  line,  but  it  was  put  up  for  our  convenience  under  a con- 
tract for  the  operation  of  the  Bridgeport  pumping  plant.  It  was 
put  up  by  some  pumping  company,  which  I believe  was  under 
the  direction  of,  or  associated  with  the  Economy  Light  & Power 
Company.  This  line  from  Joliet  to  Bridgeport  was  put  in  some 
years  ago,  long  before  the  lease  to  Griswold  of  September  2,  1904 
(and  which  has  passed  by  assignment  to  the  Economy  Light  & 
Power  Company)  was  heard  of  or  discussed,  so  there  is  nothing  to 
that  as  far  as  the  Canal  is  concerned,  except  for  operating  the 
Bridgeport  pumps  by  electric  power.  It  was  put  up  for  the  use 


241 


of  Economy  Light  & Power  Company  under  this  contract,  but 

473  that  was  some  years  before  this  other  matter  came  up.  As 
far  my  understanding  of  this  matter  goes,  the  pole  line  put  in 

between  Joliet  and  Bridgeport  is  solely  for  the  use  of  the  Canal 
Commissioners  in  the  operation  of  the  Bridgeport  pumps,  and  is 
not  for  commercial  or  general  use  at  all.  Directing  my  attention 
to  the  large  blue  print.  Sanitary  District  of  Chicago  Map,  just 
northeast  of  the  county  line,  where  the  feeder  crosses  the 

474  line,  the  feeder  and  the  90-foot  strip  along  the  side  is  repre- 
sented by  a strip  on  each  side  of  the  feeder  that  is  colored 

green.  This  lease,  which  specifies  that  it  is  ‘Do  have  and  to  have 
and  to  hold,  subject  to  a contract  dated  September  2,  1904,  to  said 
Harold  T.  Griswold,  atfecting  said  premises,^’  relates  to  this  flow- 
age  contract.  Exhibit  A. 

As  to  the  length  of  time  that  the  right  contained  in  the  flowage 
contract  was  to  run,  I don’t  know  as  I can  answer  that,  beyond  the 
statement  that  the  agreement  as  finally  determined,  especially  the 
agreement  made  co-incident  with  the  flowage  rjght  and  ref  err  ring 
to  it,  is  for  a period  of  20  years.  That  was  all  that  the  Canal 
Commissioners  had  in  view. 

475  I am  not  positive  as  to  exactly  what  the  discussion  on  that 
particular  point  may  have  been.  I am  confident  that  in  the 

discussion  of  the  legal  status  of  the  matter,  that  Mr.  Walker  made 
the  statement  that  we  had  no  authority  to  make  any  lease  of  canal 
property  for  a period  exceeding  20  years,  and  I believe  it  was 
stated  in  the  presence  of  all  parties.  It  was  a little  difficult  for 
me  to  distinguish  these  conferences  of  course.  The  Commission- 
ers and  Mr.  Walker  had  conferences  when  Mr.  Munroe  was  not 
present,  and  then  again  Mr.  Munroe  was  present  when  we  dis- 
cussed these  matters.  Relating  to  what  was  said  in  reference  to 
the  provision  in  this  lease  for  an  option  for  first  right  in  the 
lessee  to  re-lease  and  acquire  for  a new  term  of  20  years  the 

476  same  property,  my  recollection  is  that  Mr.  Walker  suggested 
the  desirability  of  that  provision,  and  the  necessity  of  it  un- 
der the  provision  of  the  statute ; that  the  term  should  he  expressed, 
and  most  canal  leases  provide  for  a cancellation  upon  notice,  and 
I think  that  feature  was  discussed;  that  if  any  work  of  this  sort, 
if  there  was  cancellation  provided  upon  30  or  60  days’  notice, 


242 


Sackett, — Direct  Exam. — Continued. 


that  it  would  hamper  this  proposition.  By  this  proposition  I 
mean  the  plan  that  Griswold  and  his  assigns  had  in  view,  and 

477  that  it  is  therefore  made  in  the  form  that  it  is,  leaving  the 
right  to  the  state,  through  the  Canal  Commissioners,  to  deter- 
mine whether  the  lease  should  extend  beyond  the  period  of  20 
years,  and  if  it  did,  then  upon  what  terms  the  future  rental  and 
value  of  the  property  should  be  determined.  These  negotiations 
were  begun  before  June  11,  1904,  being  date  of  a recommendation 
by  the  Canal  Commissioners  to  Governor  Yates.  At  the  time  I 
made  that  recommendation  to  Governor  Yates  that  that  sale 
should  be  made,  the  question  of  sale,  as  well  as  the  question  of  a 
flowage  contract  and  lease  were  being  talked  over  and  considered. 

I think  Mr.  Munroe  suggested  the  desirability  of  a sale  of  this  so- 
called  16-acre  tract,  In  preference  to  a lease  if  the  same  could  be 
made.  Of"  course  that  recommendation  left  the  consideration  of 

Hie  lease  applying  to  the  depth  of  the  bank  aside  from  the  16- 

478  acre  tract.  I received  from  Governor  Yates  an  approval  to 
the  sale  under  date  of  the  13th  of  June. 

The  matter  of  the  sale  was  handled  by  the  president  and  super- 
intendent. They  had  consulted  engineers  and  other  parties  rela- 
tive to  some  of  the  features  of  the  matter,  and  my  understanding 
was  that  after  the  proposition  of  the  sale  had  become  known 
through  the  advertising  required  by  law,  there  were  other  parties 
who  went  to  them  with  the  suggestion  that  they  would  like  to  see 
this  property  and  might  want  to  buy  it.  For  that  reason  when 
the  time  of  the  sale  of  the  property  came,  the  president  of  the 

479  Board  had  the  sale  postponed,  so  that  these  parties  might 
visit  the  ])roperty  and  see  whether  or  not  it  was  of  value  to 

them  and  whether  or  not  they  desired  to  make  any  bids  upon  it. 
I think  the  parties  did  visit  the  property,  but  reported  to  President 
Snively  that  they  had  no  use  for  it,  it  being  valueless  to  them  for 
any  purpose  they  could  put  it  to,  and  the  conclusion  was  then 
reached  that  perhaps  it  would  be  better  to  withdraw  the  tract 
from  sale  entirely  and  to  make  the  lease  that  Mr.  Munroe  had 
suggested  in  the  first  place.  ^Ir.  C.  E.  Snively  is  the  president 
of  the  Board,  and  the  source  of  my  information,  as  to  what  he 
reported  to  them.  I do  not  recall  whether  he  mentioned  the 
names  of  the  other  ])arties  at  that  time  or  not,  further  than 


243 


tlie  fact  that  Mr.  J.  W.  Arnold  of  Lockport  either  was  one  of  the 
parties  who  desired  to  look  over  the  property,  or  represented  some- 
one who  desired  to  look  over  the  property.  He  is  a man  who 
has  done  some  work  in  the  real  estate  busines,  and  I nn- 

480  derstand  he  makes  that  his  business.  He  was  formerly  a 
United  States  marshal  here.  The  result  was  that  after  having 

obtained  the  approval  for  the  sale,  I advertised  for  the  sale,  and 
then  the  sale  was  called  off,  and  it  was  subsequent  to  the  sale 
being  called  oft'  that  the  flowage  contract  and  the  20-year  lease 
and  the  pole  line  lease  was  made  on  the  2nd  of  September, 

481  1904.  The  property  was  to  be  sold  on  the  2nd  day  of  Aug- 
ust,  1904,  and  either  upon  that  date,  or  a day  or  two  before 

that,  notice  was  given  to  abandon  the  sale  at  that  time.  I do 
not  know  whether  a meeting  of  the  Commissioners  was  held  on  the 
day  and  place  advertised  for  the  sale  or  not.  I would  have  to 
look  at  the  record  before  I could  state  whether  the  meeting  was 
held  at  that  time  or  not.  If  a meeting  was  held  upon  that  day, 
I attended  it.  Subsequent  to  that  time  I gave  a notice  of  rec- 
ommendation to  the  Governor,  under  date  of  November  1st,  1904, 
again  recommending  it  for  sale.  That  was  after  the  flowage,  con- 
tract, the  lease  and  the  pole-line  lease  had  been  executed.  Those 
that  I have  been  testifying  about  are  the  ones  that  I referred  to 
in  this  recommendation,  wherein  I recommended  that  this  property 
be  sold  subject  to  the  right  of  flowage  and  lease  to  Harold  T. 
Griswold.  Shortly  after  that  I received  the  approval  of  the  sale  by 
Governor  Yates,  after  the  date  of  November  2nd,  1904. 

482  And  thereupon  it  was  advertised  for  sale  to  take  place  on 
file  6th  of  December,  1904.  I think  the  sale  took  place  on 

that  date;  I was  not  present.  After  that,  on  the  6th  of  January, 
1905,  I made  this  deed  to  Mr.  Griswold,  which  is  Exhibit  J of  the 
bill.  This  provision  subject,  however,  to  the  terms,  conditions 
and  provisions  of  the  flowage  contract  and  lease  made  with  said 
Harold  F.  Griswold  and  bearing  date  September  2nd,  A.  D.  1904, 
which  terms,  conditions  and  provisions  still  remain  in  full  force 
and  shall  be  fully  kept  and  performed”  referred  to  the  flowage 
contract  and  lease  of  September  2nd,  1904.  As  to  how  the  phrase 
Y which  shall  be  fully  kept  and  performed”  came  to  be  inserted 

483  in  that  deed,  the  matter  was  turned  over  to  Mr.  Walker 
to  prepare  and  I presume  that  he  had,  in  mind  additional  pro- 


244 


Sackett, — Direct  Exam, — Continued. 


tection  so  far  as  tlie  rights  of  the  state  were  concerned.  The 
original  contract,  which  is  known  and  described  as  the  Kankakee 
feeder  lease,  was  entered  into  on  the  8th  of  August,  190f\.  I could 
not  say  whether  there  was  any  advertising  or  anything  of  that 
kind  preceded  the  execution  of  that  document.  As  to  how  this’ 
contract  came  to  be  executed,  Mr.  Munroe  had  been  to  the  com* 
missioners  for  some  time  prior  to  its  execution,  after  the  execu- 
tion of  the  other  leases,  indicating  a desire  to  have  this  lease,  and  I 
am  not  positive  as  to  what  course  was  pursued  without  referring 
to  the  record,  hut  my  present  recollection  is  that  the  matter  was 
referred  either  to  Mr.  Walker  or  to  Mr.  Walker  and  Mr.  McDonald 
for  the  purpose  of  investigating  and  reporting  a conclusion 

484  upon  the  matter,  and  it  was  determined  that  we  had  little,  if 
any,  interest  in  the  premises  that  we  could  maintain,  and 

finally  determined  that  the  lease  should  he  made  on  the  terms  ex- 
pressed. 

Q.  This  recites  in  the  preamble:-  ^AVhereas  said  parly  of 
the  second  part  has  made  application  to  the  Canal  Commissioners 
of  the  State  of  Illinois  to  lease  the  right  of  the  state  to  divert 
the  waters  of  the  Kankakee  Eiver  into  the  Kankakee  feeder  and 
discharge  the  same  into  the  Desplaines  Eiver,  and  also  the  right 
of  the  state  to  reconstruct  the  dam,  the  property  of  the  State 
of  Illinois,  across  the  Kankakee  Eiver,  locating  it,  and  the  right 
of  the  state  to  repair  the  hank  of  the  said  Kankakee  feeder  and 
to  construct  at  each  end  of  said  feeder  suitable  gates  for  con- 
trolling the  discharge  and  the  said  water  to  said  feeder.’^  Had 
Mr.  Griswold  or  Mr.  Munroe  for  Mr.  Griswold  been  presenting  an 
application  of  that  kind  to  the  Commissioners  prior  to  the  execu- 
tion of  this  lease!  A.  Well,  I think  this  refers  back  to  the  lease 
of  September  2nd,  1904,  and  some  of  the  provisions  incorporated 
therein. 

I think  this  lease  was  to  cover  another  possible  construction 

485  which  they  desired.  As  to  Mr.  Griswold,  no  leases  or  con- 
tracts have  been  made  by  Mr.  Munroe  other  than  those  con- 

486  cerning  which  I have  now  testified.  I think  Mr.  Munroe  se- 
cured a lease  of  a portion  or  a part  of  the  Kankakee  feeder 

proper  described  in  this  lease,  for  himself,  a few  months  prior 
to  this,  but  I am  not  certain  as  to  what  it  was  without  the  lease. 


245 


It  simply  involved  part  of  this  property  that  is  described  in  this 
lease  according  to  my  recollection.  This  Kankakee  feeder  led 
from  the  Kankakee  Kiver  across  these  sections  and  across  the 
Desplaines  Eiver  to  the  Illinois  & Michigan  Canal. 

A good  many  years  ago,  there  was  a dam  across  the  Kankakee 
Eiver  just  below  the  point  where  the  feeder  connected  with  the 
Kankakee.  There  was  no  dam  in  existence  at  the  time  that  this 
instrument  was  made.  This  dam  is  the  one  that  was  carried  out 
and  had  not  been  replaced.  The  dam  and  the  feeder  had  been 
abandoned  twenty  years  before  the  decision  of  the  court  in  Burke 
against  the  Board,  that  is  they  had  gone  out  of  use.  They 

487  had  never  been  in  use  from  before  the  time  I entered  upon 
the  duties  at  my  office.  I think  they  were  abandoned  about 

1870  or  72.  My  information  came  from  either  Mr.  McDonald 
or  Mr.  Snively.  I am  not  positive  about  the  year  1872,  but  I was 
under  the  impression  that  it  was  somewhere  about  that  time. 

(Counsel  for  complainant  moved  to  purge  the  testimony  of  tlie 
statement  of  the  witness  on  that  subject.) 

The  condition  existing  at  the  time  the  contract  Exhibit  C was 
written  so  far  as  the  dam  was  concerned  was  that  there  was  no 
dam  there  as  far  as  I know.  Nothing  has  been  done  by  Mr. 

488  Griswold,  or  his  assigns,  in  the  way  of  making  any  of  the 
changes  or  works  that  are  described  in  the  above  instrument. 

Q.  I direct  your  attention  to  the  provision  just  before  the 
attestation  clause  of  this  instrument:  ^Mt  is  herein  further  stip- 
ulated and  agreed  that  the  Canal  Commissioners  hereby  expressly 
reserve  the  right  to  cancel  this  lease  and  recover  possession  of 
the  land,  property  and  rights  above  demised  and  referred  to  when- 
ever in  the  judgment  of  the  Canal  Commissioners  or  other  lawful 
officers  of  the  state  at  such  time,  having  charge  of  the  canal  prop- 
erty, shall  deem  the  interest  of  the  state  require  it  to  place  and 
use  said  property  for  said  purposes.’’  You  may  state  Mr.  Sackett 
how  that  was  that  that  clause  came  to  be  inserted  A.  I think 
that  clause  has  reference  to  the  future  use  of  the  feeder  if  re- 
quired. 

The  commissioners  wanted  to  be  in  a position  to  resume  the 
use  of  the  feeder  at  any  time  that  they  might  desire  and  I think 


246 


Sachett, — Direct  Exam. — Continued. 


there  was  some  doubt  expressed  as  to  any  authority  to  grant 

489  its  use.  I think  the  view  was  taken  that  it  was  a part  of 
the  canal.  It  was  a feeder  to  the  canal,  and  at  one  time  was 

used  by  boats  plying  the  canal.  They  would  go  up  the  canal  and 
then  ply  through  the  feeder  into  the  Kankakee  Kiver. 

Q.  What  was  the  meaning  of  the  phrase  used  here,  Mr.  Sackett : 
^‘The  right  of  the  state  is  under  the  control  of  the  Canal 
Commissioners,  to-wit:  such  right  as  is  now  under  the  Canal 
Commissioners  to  divert  the  waters  of  the  Kankakee  Eiver  into 
the  Kankakee  feeder  and  discharge  the  same  into  the  Desplaines 
River  — I will  modify  that — you  may  state  what  discussions  there 
were  between  the  board  and  Mr.  Munroe  which  led  to  the  use  of 
that  clause!  A.  My  recollection  is  that  a legal  opinion  had 
been  advanced  by  Mr.  AValker  that  the  length  of  time  that  the 
feeder  had  been  abandoned  made  questionable  any  rights  of  the 
Canal  Commissioners  therein  as  a matter  of  fact  I think  it  was 
stated  by  Mr.  McDonald  or  other  persons  who  had  knowledge  of 
the  matter  that  there  had  been  farmers  or  squatters  who  had  taken 
possession  of  the  property  right  up  to  the  feeder  bank  or  even 
across  in  some  places.  I am  not  positive  that  that  is  a fact,  that 
is  my  impression,  however. 

490  I do  not  recall  whether  Mr.  Walker  advanced  the  infor- 
mation to  the  board  that  the  restrictions  in  the  law  against 

the  right  of  the  Canal  Commissioners  to  make  leases  of  the 
canal  itself  applied  to  making  leases  to  the  feeder  and  that  he 
doubted  the  authority  to  make  a lease  of  the  feeder,  or  not.  1 
think  I can  say  as  a general  proposition  I believe  that  is  Mr.  Wal- 
ker’s opinion.  It  may  have  been  presented  in  connection  with 
this  matter.  In  connection  with  this  discussion  he  probably  ad- 
vanced the  proposition  that  the  feeder  stood  on  the  same  basis 
as  the  canal. 

I think  the  designation,  such  rights  as  the  Canal  Commissioners 
might  have,  is  used  frequently  in  this  lease,  and  I think  the  term 
is  used  for  the  purpose  of  showing  a doubt  on  the  part  of  the 
commissioners  of  the  right  to  part  with  it.  The  Board  took  the 

491  position  that  the  squatters  had  acquired  rights  against  the 
state  only  in  so  far  as  the  matter  had  been  determined  in  the 

Worling  case. 


247 


492  C ross-Examin  a f i on . 

Mr.  Walker,  to  wliom  I referred,  is  the  atttrney  for  the  Canal 
Commissioners.  I think  he  has  been  the  attorney  since  1901.  I 
advised  with  him  in  making  all  these  contracts,  so  far  as  the  legal 
propositions  were  concerned.  He  lives  at  Rock  Island. 

The  Mr.  McDonald,  to  whom  I have  referred,  is  the  superin- 
tendent of  the  canal.  I think  he  has  been  so  since  1897.  He  was 
the  one  man  connected  with  the  Canal  Board  that  had  full  detailed 
information  of  the  physical  conditions  of  all  the  property  of 

493  the  Canal  Board.  We  depended  upon  him  for  information 
in  the  engineering  line. 

Q.  Referring  to  this  lease  of  August,  1905,  relating  to  the 
Kankakee  feeder,  didn’t  you  have  any  information  at  the  time  it 
was  made  that  the  deed — the  original  deed  of  the  land  on  which 
the  feeder  was  constructed,  contained  a provision  that  the  land 
should  revert  to  the  holders  in  case  the  feeder  was  ever  abandoned 
by  the  state? 

(Objection  on  the  ground  that  the  question  is  irrelevant,  in- 
competent and  immaterial  and  as  not  cross-examination,  and 
as  not  calling  for  and  procuring  the  best  evidence;  calling  for 
the  contents  of  documents  and  statements  about  documents. 
It  was  stipulated  that  this  objection  might  stand  to  all  ques- 
tions of  that  character.) 

A.  I do  not  now  recall  whether  that  proposition  came  up  or 
not.  If  it  did,  Mr.  McDonald  would  have  presented  it,  and  he 
would  be  able  to  tell  better  than  I can. 

494  Since  the  matter  has  been  mentitned,  I think  I had  heard 
of  the  fact  of  its  existing  along  the  feeder.  I was  under  the 

impression  that  the  feeder  was  abandoned  by  the  Canal  Commis- 
sioners about  1892. 

I could  not  tell  whether  the  Chicago  & Alton  Railroad  Com- 
pany and  the"  Atchison,  Topeka  & Santa  Fe  Railroad  Company 
have  built  a solid  embankment  across  that  feeder  because  I have 
never  been  upon  the  ground  where  they  are  located.  I know  the 
railroad  crossed  the  feeder  but  how  I do  not  know. 

I had  information  that  farmers  or  squatters  had  possession 
of  some  parts  of  the  lands  along  the  feeder.  As  to  the  detail  of 


248 


S a cTc  e 1 1, — C ross-Excim . — C ontiinied. 


fences  and  cultivation,  etc.,  I was  not  familiar  and  am  not  now. 
I know  only  in  a general  way  wh}^  tlie  feeder  was  abandoned 

495  by  the  Canal  Commissioners;  tlie  pnmpa  were  established 
at  Bridgeport  by  the  City  of  Chicago  for  the  purpose  of 

sending  a greater  volume  of  water  down  the  canal.  I think  all  the 
feeders  at  the  east  part  of  the  canal  were  abandoned,  Sag  or  Blue 
Island  feeders,  this  feeder  and  the  Kankakee  feeder.  The  Com- 
missioners adopted  that  other  method  of  getting  water  into  the 
canal  and  abandoned  the  feeders.  I am  not  sufficiently  acquainted 
with  the  physical  position  to  attempt  to  tell  whether  there  is  any- 
thing in  any  of  the  leases  referred  to  in  my  direct  examination 
which  would  prevent  the  state  or  the  Canal  Commissioners  from 
using  that  feeder  for  the  purposes  of  a canal  or  for  the  original 
purpose  for  which  it  was  constructed.  I can  see  this  prop- 

496  osition  that  if  the  relative  level  of  the  water  in  that  work  pro- 
posed here  were  maintained  within  a reasonable  height  of 

the  top  of  the  canal  bank  it  would  be  very  easy  to  plac'e  a lock 
therein,  and  lock  the  water  through  as  it  was  originally  conveyed. 
Whether  the  plans  were  such  that  that  is  feasible  of  course  I am 
not  prepared  to  say. 

497  The  16-acre  tract  that  I have  mentioned  is  the  tract  of  land 
that  was  finally  conveyed  by  the  Canal  Commissioners  to  Gris- 
wold by  deed  of  January  6,  1905.  My  understanding  was  that  the 
physical  conditions  along  the  16-acre  tract  were  such  that  it  was  not 
feasible  either  to  attach  a dam  or  construct  a dam  at  that  point 
or  any  point  along  there. 

The  old  piers  on  the  Kankakee  feeder  were  still  in  the  river  the 
last  time  I was  there.  I think  they  were  constructed  of  stone.  If 
I recollect  rightly,  there  are  three  piers  in  the  river;  from  the 
distance  where  I was  I should  think  they  are  twelve  to  six- 

498  teen  feet  apart.  I am  only  giving  my  recollection  on  the  bank. 
I don’t  know  how  high  the  piers  were  originally  above  water 

at  the  ordinary  stage  nor  do  I know  when  they  were  built  the  first 
time. 

At  the  time  these  leases  to  Griswold,  this  flowage  contract  and 
lease  to  Griswold,  were  made  September  2,  1904,  I would  not  be 
positive  whether  any  question  was  raised  by  the  Canal  Commis- 


sioners  as  to  the  right  of  riparian  owners  of  the  land  to  build 

499  a dam  across  the  river  or  not.  I don’t  think  the  exact  loca- 
tion of  the  dam  was  mentioned  up  to  the  actual  execution  of 

the  leases.  There  was  more  discussion  about  wanting  the  lease 
for  the  purpose 'of  the  overflow  than  of  anything  else,  except  the 
one  proposition  of  attaching  the  connection  of  the  dam  at  some 
point,  which  I don’t  think  was  very  clearly  designated  until  the 
actual  lease  was  drawn.  I think  in  the  discussion  of  the  question 
of  whether  the  Canal  Commissioners  had  any  right  in  the  river  to 
convey  the  proposition  of  a riparian  owner  owning  the  bed  of  the 
river  may  have  been  discussed,  but  I am  not  positive  there  was 
any  discussion  in  connection  with  any  ownership  so  far  as  the 
Canal  Commissioners  were  concerned.  The  question  whether  the 
riparian  owners  had  the  right  to  build  the  dam  across  the  river, 
provided,  of  course,  that  they  overflowed  only  their  own  lands 

500  or  the  lands  which  they  controlled,  may  have  been  discussed 
incidentally,  but  I don’t  think  that  that  was  a matter  that  was 

open  for  us  to  consider  particularly,  and  I don’t  believe  it  was 
discussed  with  the  idea  that  it  changed  the  situation  so  far  as 
that  was  concerned. 

Speaking  of  that  part  of  the  towpath  bank  from  the  proposed 
location  of  the  dam  up  to  the  16-acre  tract,  which  is  an  artiflcial 
bank,  I would  say  that  the  work  that  would  be  done  there  would 
be  of  considerable  benefit  in  strengthening  the  towpath.  I might 
state  merely  this,  that  in  all  portions  of  the  canal  where  we  have 
an  artificial  bank  such  as  existed  there,  the  liability  of  its  going 
out  is  always  present.  The  crawfish  and  sometimes  muskrats 
burrow  through  the  bank,  and  if  that  is  not  protected  in  its  first 
stages  it  is  very  apt  to  carry  out  that  section  of  the  bank.  It  is 
500  always  an  expensive  proposition  to  restore  the  bank.  I think 
A 1 it  was  considered  at  the  time  the  flowage  contract  was  made 
that  the  work  would  be  of  benefit  to  the  use  and  operation  of 
the  canal  by  relieving  the  strain  to  that  bank,  and  as  to  whether 
it  was  also  considered  that  this  work  would  relieve  the  state  of 
the  expense  of  keeping  up  two  or  three  miles  of  towpath,  I would 
not  say  as  to  that  precise  distance ; that  we  understood  that  from 
whatever  length  it  did  apply  it  would  be  a relief  of  care  and  main- 
tenance. I believe  the  contract  provides  that  Griswold  should  main- 


250 


tain  the  towpath  to  file  extent  that  the  towpath  was  raised  by 
the  work.  I do  not  understand  that  these  contracts  interfere  in 
any  way  with  the  operation  of  the  canal. 

500  Re-direct  Examination. 

A 2 My  home  is  in  Morris,  Illinois.  I have  lived  there  about 
seventeen  years.  I am  publishing  at  this  time  a newspaper 
called  the  Morris  Herald.  I have  been  doing  so  continuously 
throughout  these  seventeen  years;  that  is  my  regular  profession  or 
business. 

Re-cross  Examination. 

500  I never  heard  of  the  State  of  Illinois  undertaking  to  de- 
A 3 velop  a deep  water  way  from  the  Desplaines  River  until  Oc- 
tober, 1907.  I never  heard  until  the  legislative  action  subse- 
quent to  October,  1907,  that  the  State  of  Illinois  ever  claimed  the 
ownership  of  the  bed  of  the  Desplaines  River  in  Section  25,  where 
the  dam  is  being  built,  or  claimed  that  it  had  the  right  to  go  into 
the  water  power  business  there. 

It  was  stipulated  and  agreed  that  the  signature  and  subscribing 
oath  of  this  witness  taken  under  this  notice  be  waived. 

500  John  M.  Snyder, 

A 4 a witness  for  complainant,  testified  as  follows : 

Direct  Exa mination . 

My  name  is  John  M.  Snyder.  My  age  is  sixty-five  years. 
I am  a Collector  and  Acting  Secretary  of  the  Board  of  Commis- 
sioners of  the  Illinois  & Michigan  Canal.  My  home  is  in  Canton,  Ills. 
Recently  I have  been  connected  with  the  Illinois  & Michigan  Canal 
about  five  years.  I was  connected  with  it  some  years  ago  at  Cop- 
peras Creek.  I was  in  the  employ  of.  the  Canal  Commission- 
500  ers  between  five  and  six  years  commencing  about  1887.  After 
A 5 that  I was  collector  at  Chicago  for  about  a year.  In  July,  1903, 
I went  to  the  canal  at  Lockport  and  assumed  duties  there  as 
Collector  and  Acting.  Secretary,  and  have  been  continuously  in  the 
employ  of  the  Canal  Commissioners  up  to  the  present  time.  The 
duties  of  the  collector  are  to  collect  the  tolls,  and  as  assistant  sec- 
retary his  duties  are  to  have  charge  of  the  records  in  the  office. 


to  keep  a record  of  the  meeting  of  the  Commissioners  and  other 
clerical  duties.  I have  been  Acting  Secretary  of  the  Canal 
500  Commissioners  since  1903.  The  records  are  in  my  personal 
A 6 custoidy,  and  have  been  since  July,  1903.  During  my  term  as  as- 
sistant secretary,  Mr.  W.  D.  Newton  was  the  actual  secretary; 
after  his  retirement  from  the  board  about  a year  ago  iMr.  Chas. 
Deere  was  appointed  and  was  elected  Secretary;  since  he  died, 
Mr.  Sackett  has  been  acting  secretary  pro  tern,  the  Commission 
not  having  a third  member.  The  writing  of  the  records  and  the 
keeping  of  the  volume  has  been  deputed  to  me  by  all  of  these 
gentlemen  in  turn  since  1903.  I have  done  the  actual  work,  gener- 
ally. I attend  the  meeting  of  the  Commissioners  when  they  are 
held  at  Lockport,  and  take  the  minutes  of  the  meeting  as  they 
500  occur.  I make  notes  of  the  proceedings  and  then  write  them 
A 7 in  the  records  afterwards.  There  are  meetings  held  at  Chica- 
go or  Springfield  or  elsewhere.  T make  it  a practice  to  go 
around  and  attend  the  meetings  at  such  points.  I attend  the  regular 
meetings.  They  have  quite  a number  of  special  meetings  that  I 
have  not  attended.  The  regular  meetings  occur  at  the  general 
office  at  Lockport  in  MTll  County.  We  sometimes  have  meetings  at 
Springfield.  If  I am  not  present,  the  minutes  will  be  prepared  l)y 
some  member  of  the  board  or  Supt.  McDonald. 

I identify  the  certificate  and  my  signature  as  Acting  Secre- 
tary to  the  documents  marked  ^‘Exhibits  D,  E.  F.  G,  H & 
500  I made  that  certificate  on  the  18th  of  December,  1907. 
A 8 That  is  the  seal  of  the  Canal  Commissioners  (document  being- 
shown  to  witness).  The  certificate  applies  to  all  of  the  docu- 
ments embraced  in  my  statement. 

Counsel  for  complainant  offered  in  evidence  Exhibits  D.  E.  F, 
G,  H & I of  the  bill.  Trans.,  pp.  62  to  73  inc.  Abst.,  pin  40  to 
46,  inc. 

I donT  know  when  Mr.  Chas.  H.  Deere  died.  I think  the  record 
would  show.  I don’t  know  whether  it  is  written  up  or  not. 

Mr.  Chas.  H.  Deere  of  Moline  was  the  last  regularly  elected 
500  Secretary  of  the  Canal  Commissioners  prior  to  December, 
A 9 1907.  The  system  of  the  Canal  Commissioners  is  to  prepare 
vouchers  and  pay  rolls  for  all  expenditures  during  the  previ- 


252 


Snyder, — Direct  Exam. — Continued. 


ous  montlis,  made  up  by  the  Canal  Commissioners  and  its  offi- 
cers, and  Mr.  SacketCs  duty  as  secretary  pro  tern  has  been  io 
sign  and  approve  those  pay  rolls  and  vouchers.  He  lives  at  Mor- 
ris. He  did  not  stay  at  the  general  offices  at  Lockport.  I make 
my  business  office  there  and  have  during  all  the  years  that  I have 
spoken  of,  from  1903  to  this  time.  I have  had  the  actual  custody 
of  the  documents  and  seal  of  the  canal  office  during  these  years 
and  to  this  time,  December  18,  1907.  The  volume  I have  before 
me,  which  is  labelled  on  the  back  ‘^Eecords  and  Proceedings, 
500  Canal  Commissioners,  State  of  Illinois,’^  is  ‘‘No.  6,’’  No.  6 
AlO  being  on  the  flyleaf.  The  volume  is  records  of  the  proceed- 
ings of  the  Board  of  Canal  Commissioners  of  the  State  of 
Illinois  from  September  11,  1903,  up  to  the  present  time.  This  is 
the  original  and  official  record.  The  larger  portion  of  the  min- 
utes which  are  recorded  here,  are  in  my  own  handwriting;  some 
later  were  written  by  the  clerk  in  the  office.  All  prior  to  April, 
1906,  or  23rior  to  May,  1906,  are  in  my  handwriting.  Pages  36,  37 
and  38  of  this  record  under  the  heading  “Proceedings  June  4’’  are 
in  my  own  writing. 

Counsel  for  complainant  then  offered  in  evidence  the  extract 
from  page  41  of  this  record,  being  the  proceedings  of  August  4, 
1904. 

The  offer  of  the  minutes  of  August  4th,  is  as  follows : 

500  “Proceedings  August  4,  1904,  Lockport,  Illinois,  August 
All  4th,  1904.  The  Board  of  Canal  Commissioners  met  in  regular 

session  at  9 o’clock  A.  M.  Present,  Commissioners  C.  E. 
Snively,  W.  E.  Newton  and  W.  L.  Sackett,  Superintendent  Mc- 
donald  and  Collector  and  Acting  Secretary  Snyder  were  also 
joresent. 

***** 

The  General  Supenntendent  reported  that  the  land  sale  set 
for  the  second  of  August  had  been  indefinitely  postponed  in 
accordance  with  instructions  to  that  end  received  from  Presi- 
dent Snively;  circumstances  having  arisen  which  seemed  to 
make  such  action  necessary.” 

Exhibit  D,  a recommendation  by  the  Canal  Commissioners  to 
the  Governor,  was  communicated  to  the  Governor  in  the  form  of 
a letter.  The  approval  of  the  Governor,  of  which  Exhibit  E is  a 
copy,  received  by  the  Commissioners  and  communicated  by  the 


253 


Governor,  is  in  tlie  form  of  a certificate  by  the  Governor.  The 
500  original  of  that  was  received  at  the  canal  office  and  kept  there 
A12  on  file.  This  is  a copy  of  it.  The  recommendation  Exhibit 
D is  a letter,  of  which  an  impression  is  taken  and  copied  in 
the  book.  I keep  and  file  them,  sometimes  a typewritten  copy,  or 
carbon  copy,  but  the  copies  are  all  kept.  I keep  a file  of  such  com- 
munications to  the  Governor  and  the  original  of  his  replies.  These 
constitute  my  record  of  such  communications.  These  exhibits,  the 
certificates  of  which  I have  just  identified,  are  copies  of  these  files. 

500  At  the  time  I had  no  knowledge  as  to  why  the  postponement 
A13  referred  to  in  the  minutes  just  read  was  made,  but  subse- 
quently I learned  through  Mr.  Snively,  I think,  and  ]Mr.  John 
W.  Arnold  of  Lockport  that  certain  parties — Mr.  Arnold  and 
500  other  parties  desired  an  opportunity  to  examine  that  property, 
Aldwith  a view  of  making  a bid  to  purchase  the  same,  and  this 
postponement  was  on  account  of  the  application  of  Mr.  Arnold 
and  other  real  estate  people  of  Chicago.  I never  learned  the  names 
of  the  other  people. 

Eeferring  to  Exhibit  F,  the  advertisement  there  appended,  ad- 
vertising that  certain  ‘^property  wdll  be  sold  to  the  highest  and  best 
bidder  for  cash,  at  the  canal  office  in  Lockport,  County  of  AYill  and 
State  of  Illinois,  on  the  2nd  day  of  August,  1904,  at  10  o’clock  in  the 
morning,’’  such  sale  never  occurred.  On  the  2nd  of  August,  1904, 
at  10  o’clock  in  the  morning,  1 did  not  go  out  and  announce  that  the 
sale  was  indefinitely  postponed,  nor  did  anyone  else  that  I 
500  know  of.  I don’t  think  that  anything  whatever  was  done  at 
A15  10  o’clock  in  the  morning,  2nd  of  August,  1904,  at  the  canal 
office,  in  respect  to  such  a sale. 

Counsel  for  complainant  then  offered  in  evidence  the  whole  of 
the  minutes  of  the  meeting  of  September  1st  and  2nd,  1904,  which 
is  set  forth  on  pages  42,  43,  44,  45,  46,  47,  48,  49,  50  and  51  of  the 
record,  embracing  among  other  things  the  record  of  Exhibit  A to 
the  bill.  Exhibit  B to  the  bill,  and  Exhibit  K to  the  bill. 


254 


Snyder, — Direct  Exam.  — Continued. 


‘^Proceedings  September  1 k 2,  1904. 

The  Board  of  Canal  Commissioners  met  in  regular  session 
at  the  Hotel  Majestic  at  8:00  o’clock  a.  m. 

Present:  Commissioners  C.  E.  Snively,  lY.  E.  Xewton  and 
IV.  L.  (Sackett,  Superintendent  McDonald,  Attorney  C.  L. 
IValker  and  Collector  and  Acting  Secretary  Snyder  were  also 
present. 

President  Snively  in  the  chair. 

AY.  E.  Xewton,  Secretary.  • 

The  minutes  of  the  last  meeting  were  read  and  approved. 

The  payrolls  and  vouchers  for  the  month  of  Auguist,  1904, 
were  audited  and  ordered  paid  as  follows : 

Payrolls  158264 

Vouchers  167993 


Total  326254 

The  Board  then  continued  the  regular  session  until  the  morn- 
ing of  September  2,  1904. 


500  Chicago,  Ills.,  Sept.  2,  1904. 

.\16  Commissioners  continued  regular  session  of  the  Board  all 
members  being  present. 

It  was  moved  and  unanimously  carried  that  the  property 
described  as  (newspaper  clipping) 

Sale  of  Canal  Lands. 

Ohice  of  the  Illinois  k Michigan  Canal,  Lockport,  Illinois, 
June  15,  1904. 

Pursuant  to  the  statute  of  the  State  of  Illinois,  the  interest 
. of  the  State  of  Illinois  in  the  following  described  parcels  or 
tracts  of  land,  will  be  sold  at  public  auction  to  the  highest  and 
best  bidder  for  cash  at  the  canal  office  in  Lockport,  County  of 
lYill  and  State  of  Illinois,  on  the  second  (2nd)  day  of  August, 
1904,  at  ten  o’clock  in  the  morning,  in  full  conformity  with  ‘an 
act  to  amend  section  eight  (8)  of  “an  act  to  revise  the  law  in 
relation  to  the  Illinois  and  Michigan  Canal  and  the  improve- 
ment of  the  Illinois  and  Little  AYabash  Eivers”,  approved 
iMarch  27,  1874,  in  force  July  1,  1874,  as  amended  by  an  act  of 
June  19,  1891,  in  force  July  1,  1891’,  approved  April  21,  1899. 
in  force  July  1,  1899 ; situated  in  the  County  of  Will  and  State 
of  Illinois,  to-wit: 

A tract  or  parcel  of  land  in  Section  thirty-one  (31)  Town- 
ship thirty-four  (34)  Xorth,  of  Eange  nine  (9)  East  of  the 
Third  (3rd)  Principal  Meridian,  which  lies  north  of  the  center 
500  of  the  Des  Plaines  Eiver  and  south  of  the  ninety  foot  reserve 
A17  line  of  the  Illinois  k Michigan  Canal,  in  the  County  of  AYill 
and  State  of  Illinois. 


255 


The  Canal  Commissioners  reserve  tlie  riglit  to  reject  any 
and  all  bids.  C.  11.  Skively, 

President. 

AV.  K.  Xewtox, 

Secretarif. 

AY.  L.  Sackett, 

Treasurer. 

The  Canal  Commissioners  of  the  State  of  Illinois. 

June  16-23  and  30,  ’04. 

heretofore  advertised  for  sale  on  the  second  day  of  August, 
1904,  be  recalled  from  sale  for  the  reason  that  it  appears  that 
the  property  can  be  more  advantageously  leased  at  a greater 
revenue  than  can  at  ])resent  be  realized  from  the  sale. 

It  was  therefore  moved  and  unanimously  carried  that  lease 
be  entered  into  with  Harold  F.  Griswold,  of  Evanston,  Illi- 
nois, of  the  above  described  ])i*operty  for  a period  of  twenty 
years,  and  for  flowage  and  pole  rights  at  a total  rental  for  the 
period  for  the  sum  of  $3,700.00  cash  in  hand,  previous  deposit 
of  $350.00  as  a guarantee  bid  on  said  property  to  be  returned 
to  said  Griswald. 

Said  leases  are  as  follows: 

500  (Here  follow  land  lease.  Complainant’s  p]xhibit  B,  flowage 
A18  lease.  Complainant’s  Exhibit  A,  and  pole  line  lease.  Complain- 
ant’s Exhibit  K.) 

The  following  resolution  was  i)resented  and  unanimously 
adopted. 

Eesolved,  that  we  deem  it  wise  and  expedient  that  the  case 
of  the  Canal  Commissioners  and  others  vs.  The  Pittsburg, 
Ft.  AYayne  and  Chicago  Eailway  Company  et  al.,  brought  in 
the  Circuit  Court  of  the  -United  States  in  Cook  County,  Illi- 
nois, by  E.  H.  Ylorris  and  other  attorneys.  General  Number 
27251,  in  Chancery,  be  dismissed  as  far  as  the  Canal  Com- 
missioners are  concerned,  and  Ylr.  Morris  or  any  other  at- 
torney who  claims  to  represent  said  Commissioners  in  said 
suit  is  hereby  requested  to  dismiss  said  suit  as  to  said  Canal 
Commissioners  without  delay,  and  the  Secretary  of  this  Board 
is  hereby  instructed  to  notify  Mr.  Alorris  of  the  adoption  of 
this  resolution. 

• There  being  no  further  business  the  Board  adjourned  to 
meet  at  the  call  of  the  President.” 

500  That  meeting  was  held  in  Chicago  at  the  Hotel  Alajestic  at 
A19  8 o’clock  in  the  morning.  Ylr.  Harold  Griswold  was  not  there. 
I think  Ylr.  Ylunroe  was  present.  I was  there  at  that  meeting. 
I have  seen  Air.  Harold  F.  Griswold.  The  first  time  I saw 
500  him  was  over  at  the  legislative  committee  of  the  Illinois  & 
A20AIichigan  Canal  in  December,  1907,  at  the  Great  Northern 
Hotel.  He  was  summoned  before  the  legislative  committee  and 


256 


Snyder, — Direct  Exam. — Continued. 


testified.  Mr.  Harold  F.  Griswold  never  appeared  at  any  of  tlie 
meetings  of  the  Commissioners  when  I was  present. 

Counsel  for  complainant  then  offered  in  evidence  the  minutes  of 
the  proceedings  of  October  31,  1904,  as  follows 

‘^Proceedings  October  31,  1904. 

Majestic  Hotel,  Chicago,  Illinois, 
October  31st,  1904. 

The  Board  of  Canal  Commissioners  met  in  regular  session 
at  10  o’clock  A.  M. 

Present:  Commissioners  C.  E.  Snively,  W.  R.  Newton  and 
L.  Sackett,  Attorney  AAalker,  General  Superintendent  Mc- 
Donald and  Collector  and  Acting  Secretary  Snyder  were  also 
present. 

President  Snively  in  the  chair,  ~W.  R.  Newton,  Secretary. 

* # * * * 

Upon  petition  of  Mr.  Charles  A.  Munroe,  who  guaranteed 
the  expense  of  advertising,  etc.,  the  Commissioners  by  unani- 
mous consent  decided  to  advertise,  after  securing  the  consent 
and  approval  of  the  Governor,  for  sale  the  following 
500  described  lands  as  follows:  That  part  of  Section  thirty-one, 
A 21  Township  thirty-four  North,  Range  nine  East  of  the  Third 
P.  M.,  Will  County,  Illinois,  lying  southwest  and  southeast  of 
the  Illinois  & Michigan  Canal  and  northeast  and  northwest 
of  the  Desplaines  River  (excepting  and  reserving  the  ninety 
foot  strip  of  the  Illinois  & Michigan  Canal)  subject  to  the  right 
of  fiowage  and  lease  of  Harold  Griswold.” 

Counsel  for  complainant  offered  in  evidence  the  minutes  of  pages 
59,  60  and  61,  meeting  of  January  5,  1905,  the  following: 

“Proceedings  January  5,  1905. 

Lockport,  Illinois,  January  5,  1905. 

The  Board  of  Canal  Commissioners  met  in  regular  session 
at  2 :00  o ’clock  p.  m. 

Present:  Commissioners  AY.  L.  Sackett  and  AA^.  R.  Newton, 
General  Superintendent  McDonald,  Attorney  C.  L.  AATilker  and 
Acting  Secretary  and  Collector  John  AI.  Snyder  were  also 
jiresent. 

In  the  absence  of  Commissioner  C.  E.  Snively,  President, 
owing  to  serious  illness.  Commissioner  Sackett  was  elected 

President  pro  tern.  W.  R.  Newton,  Secretary. 

^{:  * * * * * 

The  following  resolution  was  adopted.  Resolved,  that  the 
])roposcd  lease  ot*  tliat  ])Oition  of  lUe  Kankakee  feeder  la  Sedion 
9-33-9  to  Charles  A.  Alunroe  for  20  years  at  $75.00  per  year  be 
approved,  and  the  President  and  Secretary  instructed  to  exe- 
500  cute  such  lease. 


^‘The  following  resolution  was  adopted: 

Kesolved  that  the  sale  of  the  following  land  to- wit  (news- 
paper clipping)  : 

That  part  of  Section  thirty-one  (31),  Township  thirty-four 
(34)  North,  Eange  nine  (9)  East  of  the  Third  (3rd)  P.  M., 
Will  County,  Illinois,  lying  southwest  and  southeast  of  the 
Illinois  and  Michigan  Canal  and  northeast  and  northwest  of 
the  Desplaines  Biver  (excepting  and  reserving  the  ninety-foot 
strip  of  the  Illinois  & Michigan  Canal, 

On  December  6th,  1904,  to  Harold  F.  Griswold  for  $500.00 
be  and  the  same  is  hereby  approved,  and  the  President  or 
President  pro  tern,  and  Secretary  be  duly  instructed  to  execute 
deed  therefor  subject  to  the  Griswold  contract  and  lease,  the 
$500.00  having  been  paid. 

The  following  is  the  approval  of  Governor  and  the  advertise- 
ment authorizing  said  sale. 

Office  of  the  Caxal  Commissioneks, 

Lockport,  Ills.,  November  I,  1904. 

To  the  Honorable  Richard  Yates, 

Governor  of  the  State  of  Illinois, 

Springfield,  Illinois. 

Dear  Sir  : — 

The  undersigned  Canal  Commissioners  recommend  that  the 
500  interest  of  the  State  of  Illinois  in  and  to  the  parcel  or  tract  of 
A 23  land  hereinafter  specifically  described,  being  part  of  the  Canal 
lands  of  the  State  of  Illinois  other  than  those  connected  with 
water  power  upon  said  Canal  and  the  ninety  foot  strip  along 
the  canal:  That  part  of  Section  thirty-one  (31),  Township 

thirty-four  (34)  North,  Eange  nine  (9)  East  of  the  Third  (3rd) 
P.  M.,  Will  County,  Illinois,  lying  southwest  and  southeast  of 
the  Illinois  & Michigan  Canal  and  northeast  and  northwest 
of  the  Desplaines  Elver  (excepting  and  reserving  the  ninety 
foot  strip  of  the  Illinois  and  Michigan  Canal)  subject  to  the 
right  of  flowage  and  lease  of  Harold  F.  Griswold, 

Should  be  sold,  and  in  our  judgment  the  interests  of  the 
State  will  be  promoted  thereby;  and 

The  Canal  Commissioners  request  the  approval  of  your  Ex- 
cellency to  the  sale  thereof  at  public  auction  to  the  highest 
- and  best  bidder  for  cash  at  the  Canal  Office  in  Lockport,  Illi- 
nois, on  the  6th  day  of  December,  1904,  at  ten  o’clock  in  the 
morning,  thirty  (30)  days  previous  notice  of  said  sale  being 
first  given  in  some  newspaper  published  in  the  County  of  Will 
where  such  parcel  or  tract  of  land  is  situated. 

C.  E.  Snively, 

President. 

W.  E.  Newton, 

Secretary. 

W.  L.  Sackett, 

Treasurer. 

The  Canal  Commission  of  the  State  of  Illinois. 


258 


Snyder, — Direct  Exam. — Continued. 


500  “I  hereby  api^rove  of  the  sale  of  the  parcel  or  tract  of  land 
A2-1-  described  in  the  foregoing  report  of  The  Canal  Commissioners 
at  public  auction  to  the  highest  and  best  bidder  for  cash  at  the 
Canal  Office  at  Lockport,  Coimty  of  Will  and  State  of  Illinois, 
on  the  6th  day  of  December  1904,  at  ten  o ’clock  in  the  morning, 
thirty  (30)  days  previous  notice  of  said  sale  being  first  given 
by  the  Canal  Commissioners  in  some  newspaper  published  in 
the  County  of  Will  where  such  parcel  or  tract  of  land  is  sit- 
uated. 

pone  at  Springfield  this  2nd  day  of  Xovember,  1904. 

(Signed)  Eichaed  Yates, 
Governor  of  the  State  of  Illinois. 

The  following  is  a copy  of  the  advertisement  (newspaper 
clipping)  : 

Office  of  the  Illinois  & Michigan  Canal 
Lockport,  Ills.,  Xovember  3rd,  1904.  ' 

Pursuant  to  the  statute  of  the  State  of  Illinois,  the  interest 
of  the  State  of  Illinois  in  the  following  described  parcel  or 
tract  of  land  will  be  sold  at  a public  auction  to  the  highest 
and  best  bidder  for  cash  at  the  Canal  Office  in  Lockport, 
County  of  Will  and  State  of  Illinois,  on  the  6th  day  of  De- 
cember, at  ten  o’clock  in  the  morning,  in  full  conformity  with 
‘an  act  to  amend  Section  eight  (8)  of  “an  act  to  revise  the 
500  law  in  relation  to  the  Illinois  & Michigan  Canal  and  for  im- 
A25provement  of  the  Illinois  and  Little  Wabash  Rivers,  approved 
March  27,  1874,  in  force  July  1,  1874,  as  amended  by  an  act 
of  June  19,  1891,  .in  force  July  1,  189p”  approved  April  21, 
1899,  in  force  July  1,  1899;  Situated  in  the  County  of  MTll  and 
State  of  Illinois,  to-wit:  That  part  of  Section  Thirty-one 

(31),  Township  thirty-four  (34)  Xorth,  Range  Xine  (9)  East 
of  the  Third  (3rd)  P.  M.  Will  County,  Illinois,  lying  south- 
west and  southeast  of  the  Illinois  and  Michigan  Canal  and 
northeast  and  northwest  of  the  Des  Plaines  River  (excepting 
and  reserving  the  ninety-foot  strip  of  the  Illinois  & Michi- 
gan Canal)  subject  to  the  right  of  flowage  and  lease  of  Har- 
old F.  Griswold. 

The  Canal  Commissioners  reserve  the  right  to  reject  any 
and  all  bids.  * C.  E.  Sxively, 

President. 

W.  R.  Xewtox, 

Secretary. 

W.  L.  Sackett, 

Treasurer. 

Xov.  3-10- ’04.” 

500  It  is  stipulated  and  agreed  by  counsel  for  both  parties  that 
A26  here  follow  in  the  record  the  recommendation  by  the  Com- 
missioners to  the  Governor  under  date  of  Xovember  1st,  1904, 


which  is  Exhibit  G to  the  bill,  the  approval  of  the  Governor  there- 
to, which  is  Exhibit  H to  the  bill,  the  advertisement  which  is  set 
out  in  the  bill  as  Exhibit  I and  copied  in  the  certificate  of  publica- 
tion, Exhibit  I,  and  that  the  same  need  not  be  repeated  here. 

As  to  the  provision  in  the  minutes  of  January,  1905,  which 
directs  that  a lease  to  Charles  A.  Munroe  for  twenty  years,  of 
that  portion  of  the  Kankakee  feeder  in  Section  9,  33,  9,  be  exe- 
cuted, I have  a copy  of  that  lease.  The  document  which  is  now 
shown  me  was  prepared  by  me  and  is  a copy  of  that  lease. 

Counsel  for  complainant  offered  this  document  in  evidence,  and 
it  was  marked  for  identification,  Complainant’s  Exhibit  1. 
500  I conducted  a sale  at  the  Canal  office  in  Lockport  on  the 
A27  1st  day  of  December,  1904,  at  10  o’clock  in  the  morning.  To 
the  best  of  my  recollection,  Mr.  Munroe,  a gentleman  that  I 
did  not  recognize,  and  Mr.  Kehoe  possibly,  and  the  employees  of 
the  office  were  present.  I offered  it  for  sale  and  struck  it  off 
and  declared  it  sold.  Mr.  Snively,  the  President  of  the  Board, 
was  not  there,  nor  was  Mr.  Newton,  nor  Mr.  Sackett.  No  member 
of  the  Canal  Commission  was  present.  I don’t  think  Mr.  Walker, 
the  attorney  for  the  Board,  was  there.  I don’t  think  anyone 
500  except  Mr.  Munroe  bid.  I was  instructed  I think,  in  the  ab- 
A28  sence  of  the  Commissioners  or  the  attorney,  by  the  Superin- 
tendent, to  conduct  the  sale,  and  did  so  in  pursuance  of  those 
instructions.  My  recollection  is  that  it  was  a general  understand- 
ing that  Mr.  Walker  should  come  down  and  conduct  the  sale,  but 
at  the  last  moment  he  could  not  be  present.  I think  Superin- 
tendent McDonald  was  compelled  to  be  in  Chicago  on  that  day, 
is  my  recollection  of  it.  I don’t  Imow  whether  he  was  up  the  day 
before  or  that  morning  early.  He  called  up  Mr.  Walker  and  com- 
municated with  him  by  ’phone.  I think  Mr.  McDonald  called 
Mr.  Walker  up ; I am  not  positive  about  that.  He  called  him  up 
on  the  long  distance  ’phone  to  Eock  Island.  I don’t  remember 
that  any  particular  statement  was  made,  only  regrets  that  Mr. 

Walker  could  not  be  present  to  conduct  the  sale  on  account  of 
500  himself  being  compelled  to  be  away,  something  of  that  kind. 
A29  My  own  instructions  were  received  from  Mr.  McDonald ; I 
was  instructed  to  conduct  the  sale  by  Mr.  McDonald.  After 
I had  assumed  to  conduct  the  sale  pursuant  to  those  instructions 


260 


Snyde r, — Di rect  Exam . — C o ntinued. 


from  Supt.  McDonald,  a deed  was  made  by  the  Commissioners  to 
somebody.  Mr.  Mnnroe  was  i^resent  at  that  sale  and  he  made 
the  bid;  I think  he  bid  in  the  name  of  Mr.  Griswold.  It  was 
made,  executed  and  delivered. a short  time  after.  The  deed  re- 
ferred to  in  the  minutes  on  page  60  was  in  fact  made.  This 
500  document.  Exhibit  J,  is  a copy  of  that  deed.  A duplicate  of 
A30  it  was  made  and  kept  on  file  in  the  office  of  the  Canal  Com- 
missioners. 

A copy  was  made  by  a stenographer.  I know  personally  it  is 
a correct  copy.  I compared  it  personally.  Referring  to  the  min- 
utes of  September,  1904,  where  the  land  lease,  the  flowage  lease 
and  the  pole  line  lease  are  recorded  in  the  minutes  and  direction 
made  that  such  contracts  be  entered  into,  contracts  were  in  fact 
made,  executed  and  delivered  as  there  directed.  Duplicates  of 
them  were  kept  on  file  in  my  office,  the  office  of  the  Commissioners. 
This  document  marked  ‘‘Flowage  Rights”  is  a correct  copy  of 
the  flowage  contract  there  authorized. 

Counsel  for  Complainant  then  offered  said  document  in  evi- 
dence. Transcript  page  74,  abstract  page  46. 

A document  marked  “Griswold  Land  Lease,  ex.  B.  Rec. 
500  p.  43,”  is  a copy  of  the  land  lease  that  was  so  entered 
A31  into.  (Trans.,  p.  51;  Abst.,  p.  34.) 

Counsel  for  Complainant  then  offered  said  document  in 
evidence. 

The  document  marked  Exhibit  K,  a certified  copy  of  the  pole 
line  lease,  September  2,  1904,  is  a copy  of  the  pole  line  lease  that 
was  then  made  in  pursuance  of  that  meeting. 

Counsel  for  complainant  then  offered  said  document  in  evi- 
dence. Transcript  page  76,  abstract  page  47. 

The  signature  to  the  certificate  at  the  end  of  said  document 
marked  for  identfication  Complainant’s  Exhibit  2,  is  my  handwrit- 
ing. This  document  is  a certified  copy  of  a memorandum  agreement 
between  the  Canal  Commissioners  and  the  Economy  Light  & 
Power  Company,  dated  December  5,  1901,  relative  to  a line  of 
poles,  and  authority  to  maintain  a line  of  poles  along  the  tow- 
path  bank  of  the  Illinois  & Michigan  Canal,  between  the  Economy 


2f)l 


Light  & Power  Co.’s  plant  in  Joliet,  and  Ashland  avenue  in 
500  the  City  of  Chicago,  Cook  County.  We  have  the  original 
A32  contract  at  our  office,  and  this  which  I have  produced  and  is 
marked  Exhibit  2,  is  a copy  of  the  original.  I think  that  line 
of  poles  is  in  existence  under  the  conditions  of  the  contract. 

Counsel  for  complainant  offered  in  evidence  contract  as  Ex- 
hibit 2. 

I was  personally  present  at  those  meetings  in  August  and  Sep- 
tember, 1904,  when  Mr.  Munroe  came  in  and  asked  for  this  gen- 
eral flowage  contract.  I don’t  remember  of  the  Commissioner 
telling  him  that  the}^  did  not  have  any  right  to  confer  on 
500  him  the  power  or  right  to  maintain  a dam  in  the  Desplaines 
ASS  River.  The  only  recollection  I have,  I think  Attorney 
Walker  suggested  that  if  we  did  not  have  any  power,  there 
was  no  harm  to  sign  the  lease,  something  to  that  effect,  but  I 
did  not  hear  the  conversation,  I think.  I appeared  at  the 
legislative  committee  investigation  at  the  Great  Northern  Hotel 
in  December,  1905,  and  testified.  I don’t  think  I was  present  at 
the  May  meetings  in  1904,  when  Mr.  Munroe  came  in  and  dis- 
cussed the  subject  of  the  flowage  contract.  I was  present  at  some 
of  the  meetings  when  this  subject  was  discussed.  I was  present 
at  a meeting  of  June  29,  1904,  at  the  meeting  of  August  4, 
500  1904,  at  the  meeting  of  September  1st  and  2nd,  1904.  At  the 
AS4  legislative  investigation  of  December  19,  1907,  I testified  as 
follows : 

heard  part  of  the  discussion.  I will  not  be  sure  that 
I heard  all  of  it.  I don’t  remember  Mr.  Munroe  saying  that 
he  wished  to  obtain  a permit  to  dam  the  Desplaines.  I re- 
member the  commissioners  telling  him  they  had  no  right  to 
give  him  such  a permit,  I remember  that.  I think  that  was 
500  at  the  meeting  when  he  presented  his  application  that  was 
AS5  finally  granted.  I think  Mr.  Snively  told  him  that  the  com- 
missioners had  not  any  rights  to  confer  any  power  to  dam 
the  Desplaines,  and  my  recollection  is  that  Mr.  Snively  and 
Mr.  Sackett  both  objected  to  the  conditions  in  that  contract. 
My  recollection  of  it  is  that  Attorney  Walker  suggested  that 
if  those  conditions  were  not  good,  that  they  would  not  harm 
the  state  by  signing  those  leases;  I did  not  pay  particular 
attention  to  the  discussion  at  that  time,  but  that  is  my  recol- 
lection of  it.” 

My  recollection  now  agrees  with  my  recollection  then.  The 


262 


Snyder y — Direct  Exa m. — Continued. 


vacancy  caused  by  the  death  of  Mr.  C.  H.  Deere  has  never  been 
filled.  The  Board  at  this  time  consists  of  Mr.  Clarence  E.  Snively 
and  Win.  L.  Sackett.  The  minutes  are  not  entered  up,  and  after 
the  following  meeting  they  are  supposed  to  be  approved  by 
500  the  commissioners.  I first  prepare  them  in  manuscript.  I 
A36  don’t  every  time  read  at  one  meeting  of  the  board,  this  manu- 
script of  the  minutes  of  the  preceding  meeting.  The  custom 
is  to  read  them.  If  no  objection  is  made,  the  minutes  are  con- 
sidered approved.  I then  proceed  to  keep  them  in  the  record. 
That  was  the  case  in  regard  to  these  minufes  of  June,  August, 
September,  October  and  December  of  1904.  If  there  had  been 
any  reason  assigned  other  or  more  specific  than  that  which  is  set 
out  in  the  minutes  of  the  meeting,  for  the  postponement  of  this 
sale  I w^ould  have  set  that  out.  What  I have  set  out  covers  what 
was  announced  and  assigned  as  the  ground  of  postponement.  Mr. 
Munroe  was  present  at  the  meeting  of  September  1st  and  2nd, 
1904,  when  these  three  contracts  were  voted.  I think  he  was 
present  on  both  days.  I was  present  at  the  meeting  of  April 
500  5,  1905.  That  meeting  was  held  at  the  Leland  Hotel  in 
A37  Springfield.  These  minutes  were  kept  by  me. 

Counsel  for  complainant  thereupon  offered  in  evidence  from 
the  minutes  of  that  meeting,  the  following  portions : 

^‘Leland  Hotel, 
Spriitgfield,  Ills., 

April  5,  1905. 

The  Board  of  Canal  Commissioners  met  at  the  Leland 
Hotel  at  10  o’clock  a.  m. 

Present:  Commissioners  Snively,  Hewton  and  Sackett.  At- 
torney Walker,  General  Supt.  McDonald  and  Collector  & 

Acting  Secretary  John  M.  Snyder  were  also  present. 

^ ^ ^ ^ ^ ^ 

Mr.  Charles  A.  Munroe  was  present,  and  submitted  propo- 
sition for  additional  lease  of  water  power  on  the  Desplaines 
Biver.  After  discussion  the  matter  was  referred  to  General 
Supt.  McDonald  and  Attorney  Walker  for  investigation  and 
legal  opinion.” 

****** 

500  I think  the  minutes  just  read  referred  to  the  Kankakee 
A38  feeder  lease.  I am  not  familiar  enough  with  the  circum- 
stances to  recall  it.  The  minutes  of  the  special  meeting  of 
April  12,  1905,  appearing  on  page  69  of  the  record,  are  in  my 


handwriting.  I was  present  at  that  meeting.  These  minutes  re- 
fer to  the  occurrences  on  that  date. 

Counsel  for  complainant  thereupon  offered  in  evidence  a por- 
tion of  these  minutes,  as  follows: 

‘ ‘ Peoceedings  Special  Meeting,  Apeil  12,  1905. 

Majestic  Hotel, 
Chicago,  April  12,  1905 

The  Board  of  Canal  Commissioners  met  at  special  session 
at  2 o’clock  p.  M. 

Present:  Commissioners  Snively,  Newton  and  Sackett. 

There  were  also  present  General  Supt.  McDonald,  Attorney 
Walker  and  Collector  and  Assistant  Secretary  Snyder. 

500  Mr.  Charles  Munroe  was  present,  and  offered  a proposi- 
A39  tion  for  Harold  P.  Griswold,  for  an  additional  lease  in  con- 
nection with  the  Kankakee  feeder,  after  discussion  the  whole 
subject  was  again  referred  to  Supt.  McDonald  and  Attorney 
Walker  for  investigation  and  report.” 
****** 

500  The  Charles  Munroe  referred  to  is  the  same  Charles  Mun- 
A40  roe  who  has  frequently  been  referred  to  in  these  minutes.  The 
minutes  which  appear  on  pages  74  and  75,  setting  forth  the 
proceedings  of  the  meeting  of  August  8,  1905,  are  in  my  hand- 
writing. I was  present  on  that  occasion. 

Counsel  for  complainant  thereupon  offered  in  evidence  the  fol- 
lowing portion  of  those  minutes : 

‘^Peoceedings,  August,  1905. 

Lockpoet,  Ills.,  August  8,  1905. 

The  Board  of  Canal  Commissioners  met  in  regular  session 
at  10  0 ’clock  A.  M. 

Present:  Commissioners  Snively,  Newton  and  Sackett. 

Gen’l.  Supt.  McDonald,  Attorney  AValker  and  Collector  & 

Acting  Secretary  Snyder  were  also  present. 
****** 

500  The  following  resolution  offered  by  Commissioner  Sackett, 
A41  seconded  by  Commissioner  Newton,  was  adopted. 

Besolved,  that  the  lease  to  Harold  F.  Griswold  of  this  date, 
to  certain  rights  relating  to  the  water  in  the  Kankakee  River 
and  to  the  Kankakee  feeder,  the  reconstruction  of  the  dam 
across  the  Kankakee  River  in  Section  Nine  (9)  Township 
Thirty-three  (33)  North  Range  Nine  (9)  East  of  the  Third 
(3rd)  P.  M.,  the  repair  of  the  bank  of  said  feeder,  and  the 
placing*  of  gates  thereoon,  at  a consideration  of  $150.00  per 
annum,  for  the  term  of  twenty  years,  be  approved,  and  the 
President  and  Secretary  authorized  to  execute  the  same.” 

The  lease  to  Griswold  just  referred  to  was  in  fact  executed. 


264 


S n yd  er, — Cross-Exa  m in  at  ion. 


It  is  stipulated  and  agreed  by  counsel  for  both  parties  that 
the  lease  Exhibit  C,  a certified  copy  of  which  has  already  been- 
introduced  in  evidence,  is  the  lease  there  referred  to. 

Before  I became  one  of  the  force  of  the  Illinois  Canal  Com- 
missioners, I was  in  the  lumber  business  for  some  years  in  Can- 
ton; after  that  I was  connected  with  the  state  insurance  depart- 
ment for  some  time  under  Governor  Tanner,  and  a short  time 
500  under  Governor  Yates’  administration.  I was  one  of  the 
A42  U.  S.  volunteers  during  the  war  from  ’61  to  ’65.  I was  not 
trained  as  an  engineer  or  as  a navigator.  My  business  was 
general  mercantile  business. 

C ross-Examination. 

It  has  not  been  the  custom  of  the  Canal  Commissioners  to  sign 
the  minutes.  I don’t  think  they  were  ever  signed  since  the  Canal 
Commissioners  took  possession  from  the  trustees.  I am  not 
positive  about  that,  but  it  has  not  been  the  custom  for  years  for 
officers  to  sign  the  minutes.  It  has  been  my  custom  to  write  the 
word  ‘^president”  and  the  word  ‘‘secretary”  at  the  end  of  each 
of  the  minutes,  but  when  I learned  the  Commissioners  were 
not  accustomed  to  sign  them,  I followed  the  precedent.  No 
500  one  was  present  to  bid  at  the  proposed  sale  of  the  so-called 
A43  16-acre  tract,  which  was  advertised  for  10  o’clock  a.  m.  on 
August  2,  1904.  I think  the  proposition  of  Mr.  Munroe  men- 
tioned in  the  minutes  of  April  5,  1905,  for  additional  lease  of  water- 
power on  the  Desplaines  River,  referred  to  his  proposition  for  lease 
which  was  afterwards  consummated  under  date  of  August  8,  1905. 
Then  the  statement  in  these  minutes  that  it  was  a proposition 
for  additional  lease  of  water  power,  is  not  absolutely  correct.  I 
suppose  the  statement  was  made  that  they  wanted  additional 
privileges,  in  connection  wfith  Mr.  Munroe ’s  water  power  project 
down  below  there  and  they  naturally  assumed  that  it  was  for 
500  water  power.  I have  in  the  canal  office  in  Lockport  many 
A44  printed  and  written  documents,  relating  to  canal  matters  and 
relating  to  reports  that  were  made  to  the  trustees  or  Com- 
missioners having  in  charge  the  Illinois  & Michigan  Canal, 
and  containing  reports  of  surveyors  and  engineers,  and  reports 
made  to  the  governor  and  legislature,  etc.;  I can  u])on  the  hearing 


2G5 


of  this  case  bring  to  court  such  of  these  printed  documents  and 
papers  as  may  be  requested  to  be  brought  as  liaving  a bearing  on 
this  litigation. 

500  Leon  McDonald^ 

a witness  called  on  behalf  of  complainant,  testified  as  fol- 
A45  lows : 

D i reef  Exam  i u at  to  a. 

My  name  is  Leon  McDonald.  T live  at  Lockpoid,  Ills.  I 
have  lived  there,  with  a few  years  break  at  different  times,  all 
my  life.  I am  superintendent  of  the  Illinois  & Michigan  Canal. 
I have  no  other,  what  might  be  termed  active  business  at  present. 
I have  other  business  interests  there.  I have  been  engaged  in 
the  newspaper  business  the  greater  portion  of  my  life.  I ceased 
to  carry  on  a newspaper  at  the  time  of  my  appointment  as  gen- 
eral superintendent  of  the  Illinois  & Michigan ’Canal.  That  oc- 
curred in  the  month  of  February,  1897.  I have  been  continuously 
canal  superintendent  from  that  time  to  this.  Before  that  I was 
in  the  newspaper  business  for  more  than  fifteen  years.  That 
500  was  the  business  I had  taken  up  early  in  life  and  made  my 
A46  calling.  That  occupied  my  time  and  attention  up  to  the  time 
I became  a Canal  Commissioner,  and  that  has  occupied  my 
time  and  attention  since  then.  I had  no  employment  with  the 
Canal  Commissioners  prior  to  becoming  superintendent  in  1897. 
I had  never  worked  on  any  other  canal  before  I went  to  work  on 
this  one,  nor  had  I had  any  training  in  hydraulic  engineering  or 
navigation  or  canal  construction  or  operation.  I am  thoroughly 
familiar  with  the  Illinois  Kiver  at  Dresden  Heights  in  Grundy 
County  around  the  confluence  of  the  Kankakee  and  Desplaines 
Eivers.  I have  seen  the  premises  referred  to  in  Exhibit  A,  i.  e., 
the  mouth  of  the  Desplaines  Kiver,  two  or  three  times  dur- 
500  ing  the  last  six  months.  I think  I was  last  there  in  Novem- 
A47  her.  At  that  time  there  was  a force  of  men  at  work  under 
the  contractors  of  the  Economy  Light  & Power  Co.,  erect- 
ing cofferdams  and  other  works  on  the  Desplaines  River.  I 
know  a man  by  the  name  of  Haworth  slightly.  It  was  my  under- 
standing that  he  was  there  as  the  contractor  for  the  Economy 
Light  & Power  Co.  in  charge  of  that  work.  I cannot  remember 
exactly  when  the  work  under  the  Haworth  contract,  or  by  any- 


266  McDonald, — Direct  Exam. — Continued. 

one  else  on  behalf  of  the  Economy  Light  & Power  Co.,  began  at 
this  point  for  the  erection  of  this  dam,  but  I think  that  I was 
notified  by  the  Economy  Light  & Power  Co.  that  the^^  were  ready 
to  begin  work,  and  consequently  were  ready  for  our  representa- 
tive or  inspector,  my  recollection  is,  about  the  15th  of  August. 
I believe  this  notice  was  in  writing.  To  the  best  of  my  recollec- 
tion it  was  addressed  to  me  as  superintendent.  I have  not  that 
notice  with  me.  I think  I can  find  it ; it  should  be  in  my  files. 
500  I will  produce  it  and  bring  it  if  you  wish.  When  I received 
A48  the  notice  I sent  William  Kehoe  down  there.  He  is  now 
dead.  He  died  January  1,  1908.  The  work  down  there  had 
stopped  just  about  that  time.  There  had  been  some  high  water 
there  that  interfered,  before  December  3,  1907,  so  that  there  had 
not  been  much  work  done  for  some  time  previous  to  that.  I have 
not  appointed  any  inspector  since  the  death  of  Mr.  Kehoe,  and 
have  not  myself  been  down  there  since  that  day.  I am  not  fa- 
miliar with  the  plans  of  the  Economy  Light  & Power  Co.  Mr. 
Kehoe  had  been  at  work  on  the  canal  under  me  all  the  time  that 
I was  there.  He  was  already  in  the  employ  of  the  Canal 
500  Commissioners  when  I became  superintendent.  When  I be- 
A49  came  superintendent  he  became  subject  to  my  orders  and  re- 
mained so  up  to  the  day  of  his  death.  As  to  the  proposed 
deepening  of  the  Illinois  Diver,  which  is  said  to  be  in  Section 
25,  Townshi|)  36,  Kange  8,  East  of  the  Third  P.  M.  and  which 
will  be,  at  least  the  east  end  of  it,  would  be  in  Grrundy  County 
and  then  run  westward,  is  a matter  that  would  not  be  under  my 
jurisdiction  as  superintendent  of  the  Canal  Commissioners.  I 
think  I have  before  stated  I don’t  pretend  to  be  an  expert  at 
riparian  rights.  I believe  the  state  has  some  riparian  rights 
there ; whether  it  would  affect  the  deepening  or  not,  I v ould  not 
want  to  say  positively;  I don’t  know.  I have  never  exercised 
any  jurisdiction  over  the  Illinois  Eiver,  as  such,  in  reference  to 
the  deepening  or  shallowing  of  it  at  that  point  or  anywhere  in 
that  vicinity.  But  farther  down  south  there  are  the  two  river 
locks,  and  we  have  jurisdiction  over  a thousand  feet  above  and 
below,  and  during  the  first  year  of  my  superintendency,  we 
500  removed  some  bars  from  the  Illinois  Kiver  in  the  vicinity  of 
A50  Peoria.  The  relations  of  the  canal  and  the  river  are  such 
that  I have  jurisdiction  over  certain  limited  portions  of  the 


267 


Illinois  Eiver:  We  have  jurisdiction  of  the  Illinois  Eiver 

under  a provision  of  the  Act  of  1874,  as  amended  by  the  Act  of 
1891,  in  reference  to  the  Illinois  & Michigan  Canal.  The  Canal 
Commissioners  acted  under  a judicial  resolution  of  the  Gen- 
500  eral  Assembly.  They  had  done  work  at  other  points  on  the 
A51  Illinois  Eiver,  and  at  one  time,  following  the  precedent,  they 
undertook  to  keep  the  channel  of  the  Illinois  Eiver  free  of 
sand  bars  at  different  points,  hut  subsequently  abandoned  that, 
being  informed  that  they  had  no  })ower.  The  clause  in  the  Act 

of  1874  was  further  amended  in  the  Act  of , and  was  further 

amended  by  the  Act  of  , which  was  passed  while  I was  in 

office.  My  jurisdiction  of  the  Illinois  Eiver  has  all  risen  from 
some  special  legislative  act  or  resolution,  of  the  kind  to  which 
I have  referred.  The  Desplaines  Eiver  empties  into  the  channel 
constructed  for  canal  purposes  in  the  north  part  of  the  City  of 
Joliet.  That  channel  formerly,  or  at  the  time  it  was  constructed, 
terminated  at  Jetferson  street  in  the  City  of  Joliet. 

500  Throughout  that  extent  of  the  river,  the  Canal  Commis- 
A52  sioners  have  always  believed  that  they  exercised  full  author- 
ity, and  they  have  always  believed  that  they  had  valuable 
rights  in  the  Desplaines  Eiver  at  other  points  as  riparian  owners. 
There  has  also  been  some  question,  which  I believe  has  never  been 
adjudged,  as  to  their  ownership  in  certain  canal  sections ; that  is, 
the  odd  sections  north  of  the  city  of  Joliet.  These  questions  have 
been  raised  by  canal  officers,  but  never  submitted  to  a court  for  ad- 
justment. These  questions  refer  to  the  ownership  of  the  bed  of  a 
river  in  those  sections.  I have  endeavored  to  state  the  jurisdic- 
tion which  the  Commissioners  and  which  I,  as  Superintendent  for 
them,  have  had  occasion  to  exercise  and  have  exercised  over  the 
Desplaines  Eiver  in  fact.  But  possibly  I was  not  clear.  I said 
north  of  the  City  of  Joliet.  I meant  that  by  saying  over  the  Des- 
plaines Eiver  in  the  odd  section,  without  reference  to  that  par- 
ticular locality;  that  is,  to  go  wherever  the  Desplaines  Eiver  ran 
through  an  odd  section  of  land. 

At  the  place  where  they  came  together,  there  is  the  area  that 
500  is  called  the  upper  basin.  We  have  maps  I believe  which 
A53  would  show  just  the  extent  and  location  of  the  upper  basin, 
in  relation  to  the  canal  and  river  to  each  other  at  that  point. 


268  McDonald Direct  Exam. — Continued. 

There  have  been  no  maps  showing  the  present  condition  made  by 
the  canal  authorities.  I have  used,  and  relied  on,  and  accepted 
as  correct,  the  maps  made  by  the  Sanitary  District  of  Chicago, 
showing  its  present  condition.  I donT  know  at  what  time  the 
maps  of  the  Canal  Commissioners  were  made,  but  we  have  what 
we  call  plat  books,  which  take  up  every  section  of  the  land  the  full 
length  of  the  canal,  giving  a page  to  each  section,  and  giving  a 
pretty  good  idea  of  the  topography  in  the  section  as  related  to  the 
canal.  That  shows  the  upper  basin  as  it  was  at  the  time  of  the 
making  of  the  map.  I have  never  been  able  to  find  any  date 
500  in  these  plat  books  that  would  be  reliable.  This  plat  book  is 
A54  kept  in  our  vault.  We  have  no  draughtsmen  in  our  employ, 
but  it  would  not  be  a difficult  matter  for  a man  to  come  to  our 
office  and  make  a copy  of  a page  of  the  plat  book,  showing  the  lo- 
cality in  Sections  25  and  36,  Township  31  North,  Range  8 East, 
of  the  Third  P.  M.  in  Grundy  County,  which  is  the  site  of  that 
dam.  That  book  is  kept  at  Lockport  and  is  in  the  physical  cus- 
tody of  Colonel  Snyder,  as  acting  secretary  of  the  Board.  He  has 
the  actual  custody  of  all  the  records,  files,  maps,  plats,  seals  and 
office  archives  of  the  Board  of  Canal  Commissioners.  The  Board 
at  this  time  has  no  secretary,  but  a secretary  pro  tern.  The  secre- 
tary pro  tern  signs  the  vouchers  for  the  state ; the  chief  clerk 
500  makes  them  out.  I should  say  that  the  channel  in  the  vicinity 
A55  of  the  upper  basin  was  the  result  of  the  carrying  out  of  the 
plans  of  the  Sanitary  District  of  Chicago,  to  get  rid  of  the 
water  that  they  had  brought  from  the  city,  as  modified  by  the 
decree,  of  the  Will  County  court,  of  1898.  After  the  decree  was 
entered  in  the  year  1898,  the  Sanitary  District  went  ahead  ana 
made  the  changes  in  their  plans  to  conform  to  that  decree.  There 
are  one  or  two  questions  that  we  still  believe  they  are  somewhat 
delinquent  in.  Substantially  and  broadly  speaking,  the  requirements 
of  the  matter  were  meant  to  be  carried  out  by  the  Sanitary  Dis- 
trict during  the  year  or  so  or  years  following,  and  the  pres- 
500  ent  physical  condition  was  established  at  that  time. 

A 56  This  Dam  No.  1 that  has  been  frequently  referred  to,  is 
the  dam  which  in  a way  creates  the  upper  basin. 

When  I first  undertook  the  duties  of  canal  superintendent,  it 
was  pretty  generally  understood  among  the  employees  of  the 


2G9 


canal,  wlio  liad  been  there  longer  than  myself,  or  prior  to  my  com- 
ing, that  the  state  owned,  in  connection  with  the  canal,  a strip  90 
feet  in  width  on  each  side  thereof  throughout  its  whole  length. 
We  were  bothered  by  people  living  in  the  vicinity  of  the  canal 
and  perhaps  owning  property,  undertaking  to  extend  their  fences 
or  boundary  lines,  so  as  to  include  portions  of  this  90-foot  strip, 
and  the  etfort  was  finally  undertaken  seriously  to  prevent  such 
encroachment.  A party  living  west  of  the  City  of  Ottawa  on  sev- 
eral occasions  had  rebuilt  the  fence  between  his  property  and  the 
canal  property,  and  each  time  had  built  it  a little  closer  to  the 
canal,  finally  placing  it  about  17  feet  from  the  canal.  After  con- 
sulting with  the  Commissioners  and  acting  under  their  authority, 
I directed  the  foreman  in  charge  of  that  section  of  the  canal,  to 
take  a gang  of  men  and  tear  the  fence  down.  He  did  so  and  the 
other  fellow  built  it  up  again  as  soon  as  our  men  were  gone.  This 
operation  was  repeated  several  times,  and  it  was  leading  to 
500  bad  blood  and  considerable  hard  feeling  in  that  section,  and 
A57  accomplished  no  good.  For  this  reason  it  was  finally  deter- 
mined that  the  matter  should  be  submitted  to  the  court  for  de- 
cision, and  it  was  so  submitted.  That  case  is  what  was  known  as 
the  Ingersoll  case,  Werling  v.  Ingersoll,  181  U.  S.,  p.  131.  Sub- 
sequent to  the  decision  of  the  court  in  this  case,  it  has  not  been 
the  policy  of  the  canal  authorities  to  undertake  to  enforce  their 
jurisdiction  in  even  sections  generally.  It  has  been  my  under- 
standing, however,  of  this  decision,  without  ever  having  studied 
it  carefully,  that  the  question  of  ownership  under  it,  was  largely 
to  be  decided  by  local  conditions.  That  is,  the  state  took  title  in 
the  even  sections,  the  same  as  a private  individual  would  take 
title,  and  what  they  had  used  for  actual  canal  purposes,  had  oc- 
cupied, either  in  process  of  construction  or  in  the  operation  of 
the  canal,  without  conflicting  with  anyone  for  a period  of  more 
than  twenty  years  they  had  title  to.  The  place  wdiere  the  Des- 
plaines  Eiver  and  the  Illinois  & Michigan  Canal  are  coincident 
with  each  other,  is  distant  many  miles  from  the  site  of  that  dam  at 
Dresden  Heights. 

500  I know  Mr.  Charles  A.  Munroe  and  Mr.  Eobert  Gaylord.  I 
A 59  first  knew  Mr.  Gaylord  as  a boy.  After  he  had  arrived  at  the 
age  of  seven  or  nine  years  he  moved  from  the  town  where 


270  McDonald, — Direct  Exam. — Continued. 

I lived,  and  I did  not  see  liim  then  for  quite  a number  of  years. 
Then  the  first  time  I saw  him,  the  first  time  I recollect  of  having 
seen  him  after  he  left,  with  possibly  one  exception  on  the  streets 
of  Chicago,  was  when  he  came  to  my  office  at  Lockport,  I should 
say  somewhere  in  the  early  part  of  1902.  I wouldn’t  he  positive 
whether  the  first  time  I saw  him  he  was  alone  or  whether  some- 
body was  with  him.  I saw  him  two  or  three  times  about  that  time. 
On  one  of  those  occasions  when  he  came  to  the  office  in  Lockport 
in  1902,  he  had  someone  with  him.  He  was  accompanied  on 
500  one  of  those  occasions  by  Mr.  C.  A.  Munroe.  To  my  knowl- 
A60  edge  I had  not  met  Mr.  Munroe  before  that.  My  recollection 
is  that  Mr.  Gaylord  introduced  Mr.  Munroe  to  me.  They  were 
bringing  some  sort  of  a proposition  to  the  Canal  Commissioners  at 
that  lime,  for  obtaining  the  water  power.  The  location  at  which 
they  were  then  preparing  to  develop  water  power,  was  just  south 
of  the  city  limits  of  Joliet.  The  South  Street  proposition  is  used 
more  particularly  to  imply  the  Sanitary  District  proposition  they 
had  there  at  one  time.  It  is  sometimes  called  the  Hickory  Creek 
power.  The  negotiations  we  began  in  the  summer  of  1905,  at 
which  Mr.  Gaylord  and  Mr.  Munroe  were  present,  resulted  in  a 
tentative  contract.  The  instrument  now  shown  me,  and  which 
purports  to  be  a contract  dated  the  31st  of  October,  1905,  be- 
500  tween  the  Canal  Commissioners  and  Eobert  Gaylord,  is  the 
A61  tentative  conditional  contract  to  which  I have  referred.  The 
main  contract  is  not  here,  but  here  is  the  contract  which  pro- 
vides that  the  other  contract  does  not  go  into  effect  until  com- 
pensation is  paid.  There  was  a certain  other  contract  executed 
at  the  same  time  as  this,  which  provided  more  in  detail  for  the 
power. 

Said  document  was  thereupon  marked  Exhibit  3 and  offered  in  • 
evidence. 

I should  judge  that  the  document  now  shown  me,  marked  Ex- 
hibit 4,  and  which  purports  to  be  a contract  dated  the  3rd  day 
of  October,  1902,  between  the  Canal  Commissioners  and  Eobert 
Gaylord,  is  a copy  of  the  contract  referred  to  in  the  conditional 
agreement  complainant’s  Exhibit  3.  I have  made  no  nersonal  com- 
parison of  either  this  or  the  other  one,  but  judging  from  the  fact 


271 


that  it  was  certified  by  Mr.  Snyder,  and  there  are  certain  familiar 
terms  in  it  and  conditions,  I judge  it  is  the  same. 

500  Complainant  then  offered  said  document  in  evidence. 

A62  This  contains  the  provision  that  the  party  of  the  second 
part,  Caylord,  covenants  with  the  Commissioners,  that  he  will 
not  raise  the  water  in  the  river  or  cause  it  to  be  raised,  up  to  or 
on  the  Channahon  level,  until  he  has  agreed  with  the  party  of  the 
first  part  as  to  the  amount  of  compensation,  for  the  right  to  flow 
the  water  on  the  canal  banks  of  the  river,  etc.  That  agreement 
upon  the  amount  of  compensation  was  never  reached,  still  less 
500  has  it  ever  been  paid.  No  development  or  work  under  these 
A63  contracts  of  October  3,  1905,  has  ever  been  done  that  has  af- 
fected the  Canal  Commissioners.  The  subject  of  the  amount 
of  the  compensation  was  discussed.  The  discussion  did  not  reach 
an  agreement.  As  to  when  I first  heard  from  Mr.  Munroe  in  refer- 
ence to  the  subject  of  flowing,  leasing  or  acquiring  the  16-acre 
tract,  down  near  the  mouth  of  the  Desplaines  Eiver,  by  means 
of  the  dam  crossing  the  Desplaines  at  its  mouth.  I would  not 
like  to  try  to  fix  the  date  any  nearer  than  to  say  that  to  the  best 
of  my  recollection,  it  was  in  the  spring  of  1904.  I don’t  recollect 
where  that  came  up.  I presume  that  Mr.  Munroe  came  to  see 
500  me  at  the  canal  office  and  it  was  talked  over  there,  but  I would 
A64not  say  positively.  I don’t  think  I met  him  any  time  except 
in  the  canal  office  the  first  few  times  we  met.  In  the  spring  of 
1904  Mr.  Munroe  came  to  the  canal  office  with  the  tentative  propo- 
sition concerning  the  flowing  of  the  16-acre  tract,  and  the  possible 
leasing  or  buying  of  a 16-acre  tract,  by  means  of  a dam  at  the 
mouth  of  the  Desplaines,  and  there  was  a verbal  discussion  of  the 
outlook.  As.  a result  of  those  discussions,  I went  with  Mr.  Mun- 
roe to  examine  the  property  known  as  the  16-acre  tract,  and  situ- 
ated at  the  mouth  of  the  Desplaines  Eiver.  I examined  with 
500  Mr.  Munroe  all  the  property  lying  adjacent  to  the  canal,  in- 
A65  volved  in  the  contract  under  discussion,  except  the  feeder.  To 
the  best  of  my  recollection,  that  was  some  time  in  June,  1904. 
Mr.  Munroe  and  I got  a buggy  and  drove  down  there  and  drove 
around  over  and  got  out,  and  walked  around  the  16-acre  tract,  and 
walked  up  and  down  the  banks  of  the  river  and  looked  the 


272  McDonald, — Direct  Exam. — Continued. 

500  ground  over  and  got  into  the  buggy  and  came  back  again.  I 
A66  took  perhaps  two  hours  or  such  a matter  to  drive  down  the 
and  the  same  to  drive  back.  I was  fairly  famiilar  with  the 
locality  before  we  went  down.  It  took  the  whole  of  the  day  that 
I was  at  work  on  that  matter.  I cannot  say  as  to  our  conversa- 
tion on  that  trip,  except  that  in  all  likelihood  I was  discussing  the 
project  of  Mr.  Munroe  or  he  with  me,  outlining  in  a general  way 
what  it  was  proposed  to  do.  That  is  my  best  recollection  of  a gen- 
eral conversation,  substantially  the  conversation  as  it  dealt  with 
this  project  in  whatever  phase  it  came  up  as  we  went  along  over 
the  ground.  We  had  discussed  the  element  of  the  proposal,  where 
lie  was  proposing  to  put  a dam  on  the  Desplaines  Eiver  at  the 
mouth,  and  I presume  we  discussed  it  on  this  occasion.  We  must 
have  discussed  the  attaching  of  that  dam  to  the  canal  bank,  so  as 
to  use  the  canal  bank  as  a retaining  wall  or  wing  dam  of  the  pool 
to  be  formed,  and  overflow  the  16-acre  tract  which  lies  from 
500  one-third  to  one-half  a mile  or  more  up  stream  from  that  dam. 
A67  After  this  trip  was  made,  Mr.  Munroe  came  before  the  board 
with  a proposition  to  acquire  these  rights,  and  attach  the  dam 
to  the  bank  and  overflow  this  land,  and  use  the  bank  of  the  canal 
as  a retaining  wall  or  wing  dam.  Pardon  me — I donT  think  he 
ever  called  that  a wing  dam.  The  phrase  used  I guess  was  the 
right  to  flow  or  back  water  up  against  the  canal  bank,  but  I pre- 
sume it  is  correct  to  call  it,  using  the  canal  bank  as  a retaining 
wall.  I understood  he  was  asking  to  obtain  a contract  with  the 
Commissioners  which  would  give  him  the  right  to  do  these  things. 
In  the  course  of  the  discussion,  when  he  came  forward  in  the  Board 
meeting  with  the  proposition  to  dam  the  Desplaines  and  to  back 
the  water  up  in  tlie  Desplaines  Eiver,  to  attach  the  dam  to  the 
canal  bank  and  flow  the  ninety-foot  strip  along  the  canal,  and  to 
flow  the  water  up  against  the  towpath  bank  of  the  canal,  and 
500  to  overflow  the  16  acres,  it  was  mentioned  by  at  least  one  and 
A 68  probably  more  than  one  of  the  Commissioners  or  their  attor- 
ney, that  the  commissioners  had  no  power  to  confer  a right 
to  do  those  things,  but  it  was  finally  understood,  as  I recollect  it, 
that  the  language  to  be  inserted  in  the  contract,  was  to  be  in  the 
nature  of  a consent  on  the  part  of  the  state  authorities,  so  far  as 
any  of  the  state  rights  in  their  charge  might  be  affected  by  the 
proposed  work.  As  I recollect  it,  Mr.  Munroe  said  that  if  the 


Commissioners  had  nothing’  to  give  away,  that  tlie  insertion  of  what 
he  asked  for  in  the  contract  would  no!  cost  tliem  anything,  or 
something  of  that  kind.  I am  not  exactly  clear  as  to  that  con- 
versation, hut  something  of  that  kind  on  his  part  went  to  sliow 
that  there  need  be  no  hesitancy  on  their  parf  to  insert  such  lan- 
guage in  the  contract.  I discussed  the  matter  with  our  attorney, 
and  I will  not  be  positive  as  to  whether  I discussed  it  directly  with 
IMr  Munroe  or  not.  IMy  impression  is  that  Mr.  AValker  and 
500  Mr.  Munroe  and  myself  talked  it  over  together.  I think  after 
A 09  that  matter  had  been  discussed  among  ourselves  and  perhaps 
with  Mr.  Afunroe,  it  was  left  to  the  attorney  to  fix  the  language 
of  the  contract  covering  the  ground  as  proposed. 

I testified  before  the  legislative  committee  at  the  Great  North- 
ern Hotel  last  November  or  December.  I there  testified — I felt  as 
though  I had  told  him  that  we  had  not  the  right  and  that  that  was 
not  enough,  and  that  as  a matter  of  fact  I perhaps  exceeded  my  au- 
thority in  doing  that,  but  I remember  doing  it. 

Aly  recollection  now  agrees  with  my  recollection  then  on  that.  I 
think  that  is  what  I have  just  said  right  along  that  line.  I 
500  did  not  vary  from  that  at  all.  I think  the  matter  was  gone  over. 
A 70  I think  the  general  subject  of  making  the  necessary  contracts, 
leases,  deeds,  instruments  and  agreements  in  securing  these 
rights,  came  up  at  every  meeting  of  the  Commissioners,  and  ques- 
tions were  frequently  referred  to  me  for  investigation,  and  to  Air. 
Walker  for  consideration. 

At  one  of  the  first  meetings  at  which  it  came  up.  Air.  Newton 
and  myself  were  instructed  by  the  Board  to  do  down  and  make 
a further  examination  and  then  come  back  and  make  a report ; we 
did  that.  My  trip  with  Air.  Newton  was  made  by  a carriage  from 
Joliet  in  the  same  way  as  the  trip  with  Air.  Alunroe,  and  took 
substantially  the  same  amount  of  time.  I took  him  all  over  the 
ground  that  Mr.  Alunroe  had  taken  me  over  and  pointed  out  all  the 
different  points  to  him  as  Air.  Alunroe  had  pointed  them  out 
500  to  me  and  as  I knew  them  myself.  Our  report  was  oral.  The 
A71  substance  of  our  report  was  to  the  effect  that  the  ground  had 
never  been  productive  of  any  revenue  whatsoever  for  the 
state,  and  that  there  seemed  to  be  no  immediate  prospect  of  any 
productiveness  on  the  part  of  it,  outside  of  such  a proposition  as 


274 


M cBon  a Id, — I)i  red  Exa  m . — C o n tin  tied. 


might  be  made  by  Mr.  Munroe  and  going  into  the  location  and 
nature  of  the  territory  involved.  And  in  that  report  I think  in 
snbstance  I recommended  that  the  transaction  be  made.  That  is, 
conferring  upon  Mr.  Munroe  and  his  assigns  what  he  was  then 
seeking.  I was  down  there  over  that  work  in  November,  1907.  A 
very  considerable  force  of  men  were  then  at  work  putting  in  a cof- 
ferdam, substantially  at  the  location  indicated  on  the  large  blue 
print,  by  the  red  marking  and  legend  ‘‘proposed  power  dam,’’ 
here  labelled  ‘ ‘ Sanitary  District  of  Chicago,  map  showing  parts  of 
Sections  31  and  32,  Township  34  N.,  R.  9 E.,  of  the  3rd  P.  M.,  Will 
County,  Ills.” 

500  I have  met  Mr.  Woerman,  the  engineer  of  the  Economy 
A72  Light  k Power  Co.,  but  I would  not  be  positive  I could  recog- 
nize him  if  I saw  him.  I didn’t  see  him,  to  know  him,  to  recog- 
nize him  by  name  while  I was  down  there  in  November.  I did  not 
learn  from  Mr.  Heyworth  how  many  men  he  had  at  work  there  at 
that  time.  I did  not  get  a statement  of  his  forces  from  him.  I had 
occasion  to  ask  Mr.  Keough,  our  inspector,  at  a time  prior  to  that. 

There  had  been  some  talk  as  to  undue  and  unseemly  haste  being 
used  in  advancing  the  work  down  there,  and  I had  heard  it 
500  stated  at  Springfield  by  members  of  the  Legislature  and  others, 
A73  that  they  were  using  three  shifts  of  men  and  using  electric 
lights  to  work  by,  etc.,  and  I was  considerably  surprised  by 
such  statements;  so  immediately  upon  my  return  home  on  seeing 
Mr.  Keough,  I asked  him  in  regard  to  the  matter.  He  said  there 
were  not  any  three  shifts,  there  was  only  one  shift  at  work,  and 
I afterwards  made  inquiry  as  to  the  number  of  men  on  the  pay 
roll,  and  he  told  me  that  the  heaviest  pay  roll  they  had,  as  I recall 
it,  up  to  that  time,  was  140,  or  thereabouts,  men,  and  that  the  men 
were  continuaully  going  and  coming,  that  the  number  of  those 
varied  sometimes  being  more  and  sometimes  less.  I said  that  was 
prior  to  my  visit  in  November,  1907.  It  might  have  been  the  same 
month,  I could  not  say  as  to  that^  it  was  just  about  the  same  time. 
No  other  member  of  the  committee  was  with  me  on  the  occasion 
when  Mr.  Newton  and  I went.  I think  Mr.  Newton  was  the  only 
Commissioner  I took  down. 

There  was  water  power  being  developed  on  the  canal  property 


under  lease  or  contract  or  arrangement  with  the  Canal  Com- 
500  missioners,  at  the  time  when  the  arrangements  were  going  on 
A74  in  the  summer  of  1904.  Such  generation  or  operation  was 
going  on  at  Lockport  by  Norton  & Co.,  the  water  being  drawn 
from  the  canal  basin,  a portion  of  the  summit  level  of  the  Illinois  & 
Michigan  Canal,  and  being  discharged  into  a race  lying  in  the  Des- 
plaines  Eiver,  at  Jackson  street  in  the  City  of  Joliet  by  the  Electric 
Light  & Power  Co.,  the  water  being  impounded  from  what  is  known 
as  the  upper  basin,  arriving  at  that  point  from  the  Illinois  & Michi- 
gan Canal  and  the  Desplaines  Eiver  and  the  channel  of  the  Sanitary 
District  of  Chicago,  and  being  discharged  into  a tail  race  leading 
into  the  channel  below  the  dam,  and  a small  portion  through  a tun- 
nel leading  into  the  Channahon  level  of  the  Illinois  & Michigan 
Canal ; on  the  Channahon  level  near  McDonough  street  in  the  City 
of  Joliet  where  the  Great  Western,  I think  it  is.  Cereal  Co.,  the 
water  being  drawn  from  that  level  through  wheels  established  on 
the  berm  side  of  the  canal,  being  discharged  through  a tunnel 
under  the  canal  into  the  common  channel  of  the  Sanitary  District 
of  Chicago  and  the  Desplaines  Eiver.  The  Sanitary  District 
500  claims,  I believe,  that  the  Desplaines  Eiver,  about  from  the 
A 75  point  of  discharge  by  the  Sanitary  District  of  Chicago  into  the 
river  and  down  throughout  the  course  of  the  Desplaines  Eiver, 
is  a part  of  their  channel  there,  and  that  claim  is  not  conceded  by 
everybody. 

At  Ottawa,  LaSalle  County,  by  the  Illinois  Light  & Traction  Co., 
the  water  being  drawn  from  the  main  channel  and  the  Illinois  & 
Michigan  Canal,  into  what  is  known  as  the  side  cut  canal,  thence 
into  what  is  known  as  the  hydraulic  basin,  then  through  the  wheel 
of  the  Traction  Co.,  into  a tail  race  leading  into  the  Illinois  Eiver. 

The  mouth  of  the  Kankakee  feeder  has  been  closed  on  what  I 
consider  good  authority;  in  fact  the  man  who  said  he  closed  up 
and  was  at  that  time  on  the  canal,  has  fixed  it  as  being  closed  on 
April  3rd,  1888.  That  man  was  Charles  A.  Dimick,  and  he  is  my 
assistant  and  still  at  work  under  me.  When  I first  entered  my 
500  duties  as  superintendent,  he  was  at  work  under  me.  He  has 
A76not  been  an  employee  of  the  Board  continuously,  but  on  and 
otf  during  the  entire  time.  The  feeder,  the  mouth  of  the  feeder, 
of  course  was  at  the  junction  of  the  feeder  with  the  canal,  and 


276 


McDonald, — Direct  Exam. — Continued. 


it  crossed  the  tow-path  at  that  point,  and  it  was  bridged  for  the 
nse  of  teams ; the  bridge  was  removed  and  the  tow-path  made  con- 
tinuous by  filling  it  up  with  dirt.  That  was  done  in  1888.  1 asked 
Mr.  Dimick  and  he  said  there  had  been  water  in  the  feeder  the 
previous  year  up  to  the  close  of  navigation,  but  he  was  not  prepared 
to  say  how  much  reliance  they  had  been  placing  upon  that  for  some 
time  prior  to  that,  as  a feeder.  I think  perhaps — he  is  a man  who 
keeps  copious  notes  of  his  work  and  he  might  perhaps  chase  that 
subject  down  if  it  was  material.  I will  ask  him  what  time  the  feeder 
was  abandoned,  the  nse  of  it  was  abandoned,  for  drawing  water  to 
the  canal. 

500  Q.  Mr.  McDonald,  we  asked  if  yon  could  bring  the  letter  to 
A77  which  yon  refer,  which  yon  received  from  the<Economy  Light  & 
Power  Co.  Have  yon  that  here?  A.  I made  search  for  it 
when  I went  back,  but  in  some  way  or  other  my  letters  have  been 
mixed.  I think  it  was  when  that  investigating  committee  called  for 
letters. 

Q.  Last  November  or  December?  A.  Yes,  sir.  I found  my 
reply  to  that  letter,  but  I could  not  find  the  original  of  the  notifica- 
tion itself.  But  my  reply,  I have  brought  a copy  here. 

Q.  This  paper  which  you  now  produce  as  your  reply,  was  sent 
to  Mr.  Charles  A.  Mnnroe  of  the  Economy  Light  & Power  Co., 
Joliet,  111.,  on  the  day  of  its  date,  August  10,  1907?  A.  Yes,  sir. 

That  was  within  a very  few  days  after  I received  the  letter  of 
notification  to  which  I refer,  I presume  within  two  or  three 
500  days.  I cannot  state  how  long  after  the  sending  of  this  reply, 
A78  dated  August  10,  1907,  the  work  of  the  Economy  Light  & 
Power  Co.  began  on  the  ground  down  there,  but  I think  I sent 
l\rr.  Keongh  down  there  to  take  charge  of  the  inspection  about  the 
middle  of  the  month  on  the  15th.  There  had  been  some  work  done 
by  the  Economy  Light  & Power  Co.  prior  to  that  time.  Just  how 
much  I do  not  know,  or  just  when  it  began  I do  not  know.  It  was 
prior  to  the  10th.  I sent  Mr.  Keongh  to  act  as  inspector  promptly 
u]3on  receiving  that  notification,  as  it  affected  the  canal  interest.  I 
mean  by  that  answer  that  there  might  have  been  some  work  done 
by  the  Economy  Light  & Power  Co.  or  their  contractors  prior  to 
this  time,  but  that  it  would  have  no  effect  or  bearing  upon  the 


interest  of  the  State  as  represented  by  the  Canal  Coininission- 
500  ers.  Such  for  instance,  as  building  lodges  for  their  men  in  the 
A79  transportation  and  installation  of  supplies,  something  of  the 
kind,  and  material. 

Q But  you  understood  from  Mr.  Keough,  and  from  the  notifica- 
tion you  received,  that  actual  work  on  the  river  was  about  to  l)egin 
when  you  received  that  notice  and  sent  this  reply?  A.  Practically 
that,  but  I would  qualify  it  by  stating  again,  as  it  affected  the  canal 
interests. 

Thereupon  complainant  offered  in  evidence  the  reply  referred  to, 
which  reply  was  marked  Complainant’s  Exhibit  5. 

This  is  not  my  file  copy,  but  a copy  of  the  file  copy,  which  I made 
this  morning.  The  regular  file  copy  is  a part  of  the  record  at  my 
office,  and  that  is  kept  in  the  regular  course  of  business.  I had  my 
stenographer  prepare  this  yesterday  from  the  file  co])y,  and  it  is 
a true  copy. 

Q.  You  were  asked,  Mr.  McDonald,  if  you  could  bring  a memo- 
randum or  statement  from  your  records,  of  what  water  power  was 
in  use  and  operation  on  the  canal  property,  under  lease  or  ar- 
rangement with  the  Canal  Commissioners  at  the  time,  the  sum- 
500  mer  and  fall  of  1904,  when  negotiations,  contracts  and  leases 
ASOwith  Harold  F.  Griswold,  through  Mr.  McDonald,  were  made! 
A.  Yes,  sir. 

Q.  What  was  the  power  so  in  use! 

(Objected  to  as  immaterial,  irrelevant  and  incompetent.) 

A.  At  the  time  you  ask  me,  the  water  power  contract  for  Lock- 
port  provided  for  an  adjustment  of  rentals,  on  a basis  of  $10,000 
per  annum  for  27,000  cubic  feet  of  water  per  minute,  the  amount 
being  furnished  being  variable. 

Q.  Who  was  the  purchaser!  A.  That  is  already  in  the  testi- 
mony, Mr.  Starr — Norton  & Co.  The  water  wms  used  under  a 
head  of  approximately  18  feet.  This  would  be  between  $10  and  $11 
per  horse  power  (nominal).  The  power  at  Jackson  street,  Joliet, 
is  less,  on  a basis  of  $10,457  per  annum,  for  a 300,000  foot  flow  per 
minute,  the  amount  available  for  power  purposes  at  that  point 
.being  variable.  The  available  head  at  the  Jackson  street  dam  is  a 
matter  of  some  controversy.  It  has  been  the  understanding  of  the 


278 


McDonald, — Direct  Exam, — Continued. 


canal  authorities  that  that  head,  after  the  work  of  the  Sanitary 
District  was  completed,  would  be  about  11  feet.  The  lessees 
500  of  the  water  at  that  point  contend  that  the  head  is  considerably 
A81  less  than  that.  On  the  basis  of  the  understanding  of  the  canal 
authorities,  the  price  per  horse  power  nominal,  would  be  about 
$1.70  per  horse  power.  The  power  on  the  Channahon  level  is  under 
two  leases ; one  provides  for  200  horse  power  actual  at  $10.00  per 
horse  power,  the  other  provides  for  62.41  H.  P.  at  $12.00.  The 
power  at  Ottawa  at  that  time  was  estimated  at  200  horse  power 
actual,  for  which  the  concern  was  paying  at  the  rate  of  $12.00  per 
horse  power.  I think  that  covers  the  proposition.  The  amount 
of  water  actually  passing  through  the  wheels,  and  producing  power 
at  the  plant  of  Norton  & Co.,  I have  already  stated,  was  variable 
in  amount.  The  rental  there  fixed  is  based  upon  27,000  cubic  feet 
per  minute. 

Q.  You  may  give  us  your  best  information  as  to  whether  that 
amount  is  actually  in  transit  through  the  wheels  there. 

(Objected  to  as  incompetent,  irrelevant  and  immaterial.) 

A.  It  sometimes  exceeded  that  amount,  and  sometimes  was 
less  than  that  amount.  The  rental  you  understand,  Mr.  Starr, 
varied  in  accordance  with  the  amount  furnished,  as  recorded 
500  by  our  wheels  and  records  at  Bridgeport. 

A82  That  figure  represents  the  amount  which  the  lessee  con- 
sidered the  desirable  amount  for  him  to  use,  and  which  he 
would  wish  to  have  furnished  to  him.  I could  not  tell  you  what 
portion  of  the  time  the  amount  passing  through  there  equals  or 
exceeds  this  quantity.  The  quantity  delivered  at  Jackson  street 
quoted  for  300,000  feet  per  minute,  sometimes  exceeds  and  some- 
times is  less  than  that  amount.  I could  not  state  as  to  how  much 
of  the  time  it  equals  or  exceeds  that  average.  We  have  the  record, 
but  I cannot  give  the  figures.  During  the  past  year  the  Economy 
Light  & Power  Co.  was  the  lessee  of  this  Jackson  street  power. 

500  Q.  For  what  amount  did  they  actually  pay  last  year?- 
A83  (Objected  to  as  irrelevant,  incompetent  and  immaterial.)  , 

A.  As  my  recollection  serves  me,  $285,000. 

After  the  water  passes  through  those  wheels  at  the  Jackson  street 
]fiant,  the  greater  portion  of  it  passes  into  the  continued  channeP 


279 


of  the  Sanitary  District  water,  and  the  water  from  tlie  Desplaines 
Diver,  and  a smaller  portion  is  drawn  into  the  Illinois  & Michigan 
Canal.  The  water  is  taken  from  what  is  known  as  the  upper  basin 
in  Joliet,  and  into  this  upper  basin  are  emptied  the  combined 
500  water  supplies  of  the  Illinois  & Michigan  Canal,  the  Sanitary 
A84  District  channel,  and  the  Desplaines  Diver.  And  then  the 
Illinois  & Michigan  Canal  is  taken  out  of  that  basin  again,  and 
otherwise  the  water  goes  on  down  through  the  Desplaines  river. 
It  would  be  impossible  to  tell  exactly  how  much  water  the  Illinois 
& Michigan  Canal  takes  out  of  the  upper  basin  in  feet  or  inches,  or 
other  quantity  measurement.  I have  had  occasion  to  make  meas- 
urements in  a rough  way,  by  means  of  floats,  of  the  amount  of 
water  passing  through  the  canal  below  this  dam,  and  my  recollec- 
tion of  the  result  of  those  measurements,  was  at  that  time,  which 
by  the  way  was  just  about  a year  ago  from  the  present  time,  there 
was  between  22  and  24  feet  passing  through  the  canal,  or  being 
drawn  from  that  basin  per  minute.  The  canal  waters  coming  out 
of  the  upper  basin,  the  amount  thereof  is  a variable  quantity.  On 
the  last  of  March  or  the  first  of  April,  1903,  I cannot  tell  you  with- 
out consulting  the  records,  what  the  general  stage  of  the  water  in 
the  river  was,  whether  it  was  high  or  low. 

Cross-Examination. 

500  The  plant  of  the  Economy  Light  & Power  Co.  at  Dam  No.  1, 
A85  the  present  power  plant,  was  constructed- — I was  going  to 
say  that  my  recollection  in  regard  to  that  matter,  was  that  it 
was  completed  as  regards  wheel  pits,  installation  of  wheels  and 
superstructure;  that  is,  buildings  containing  the  same,  some  time 
in  the  year  1900,  but  I cannot  tell  you  when. 

Q.  Isn’t  it  a fact,  that  under  the  contract,  whereby  the  lease 
of  the  power  was  renewed,  and  improvements  placed  there  by  the 
Economy  Light  & Power  Co.,  and  which  you  think  was  completed 
in  1900,  except  the  machinery,  becomes  the  property  of  the  state, 
at  the  termination  of  the  lease  in  1916,  without  any  obligation  on 
the  part  of  the  state  to  pay  any  compensation  therefor?  A.  To 
answer  that  question  explicitly  and  so  that  there  shall  be  no  mis- 
understanding, I think  I should  explain  that  a portion  of  the 
500  real  estate,  upon  which  the  Economy  Light  & Power  Co.’s 
A86  plant  is  located,  is  the  property  of  the  state,  and  another  por- 


280 


M cDonal  d, — C ross-Exam . — C o 1 1 ti  nued. 


tion,  tlie  fee,  is  in  tlie  Economy  Light  & Power  Co.  So  far  as 
the  state’s  ownership  of  the  real  estate  is  concerned,  any  improve- 
jiients  which  have  been  made  upon  that  real  estate,  and  which 
would  be  considered  as  pertaining  to  the  real  estate,  would  pass 
into  the  possession  and  become  the  property  of  the  state. 

That  is  my  understanding  of  what  the  contract  provides.  Fur- 
thermore, if  you  want  it,  I can  explain  a little  further. 

Q.  Doesn’t  it  also  provide  that  the  power  house  to  be  built 
there,  shall  become  the  property  of  the  state,  at  the  expiration 
of  the  lease?  A.  I think  that  is  so  considered  by  ourselves,  by 
reas-on  of  the  fact  that  we  consider  that  that  has  become  a fixed 
part  of  the  property — part  of  the  real  estate  attached  to  the  real 
estate,  and  I may,  in  order  to  be  more  explicit  and  give  a more 
clear  understanding  of  the  situation,  also  mention  the  fact,  that 
at  about  the  time  that  we  have  under  discussion,  a further  contract 
was  entered  into,  which  perhaps  might  be  called  a contract  of  sale 
on  the  part  of  the  Economy  Light  & Power  Co.,  which  company 
agrees  in  this  contract,  to  sell  to  the  state,  at  the  expiration 
500  of  their  present  lease,  all  of  the  property  involved  in  the  de- 
AST  velopment  of  the  water  power  at  this  point,  at  a price,  which 
is  agreed  upon  in  the  contract,  with  I think  5 per  cent,  interest 
added. 

A portion  of  the  power  house  is  located  on  the  Economy  Light  & 
Power  Co.’s  grounds.  To  make  this  clear,  it  is  a fact  that  sub- 
stantially the  entire  power  house  or  works,  built  there  by  the  com- 
pany, are  appurtenant  to  the  state’s  land,  and  by  the  contract  be- 
come the  property  of  the  state,  at  the  end  of  the  lease,  without 
compensation,  and  that  whatever  property  is  there,  which  is  not 
appurtenant  to  the  state’s  land,  is  agreed  to  be  sold  to  the  state  at 
that  time,  at  a certain  price  fixed  in  the  contract,  with  interest.  I 
cannot  remember  the  price  fixed.  I would  not  undertake  to 
500  say.  I would  not  undertake  to  say  what  it  cost  the  Economy 
A 88  Light  & Power  Co.  to  put  in  the  power  house  and  works  there, 
which  by  the  terms  of  the  contract,  are  to  become  the  property 
of  the  state  at  the  termination  of  the  lease,  without  compensation ; 
as  I remember  the  terms  of  the  contract,  I should  tliink  that  it  was 
in  excess  of  one-half  million  dollars. 


281 


Q.  Mr.  McDonald,  did  the  canal  authorities  ever  assert  any 
claim  to  ownership,  over  the  bed  of  the  stream  of  the  Desplaines 
Eiver,  in  the  odd  numbered  sections  in  Grundy  County,  Illinois, 
or  Will  County,  Illinois,  or  any  other  county  in  Illinois? 

(Objected  to  as  not  the  best  evidence.) 

A.  In  Grundy  County,  I think  not;  in  AVill  County,  at  some 
points. 

Q.  Were  there  ever  any  official  documents  or  official  acts 
500  going  to  make  up  that  assertion?  A.  As  I think  I have  previ- 
A89  ously  testified,  where  the  Desplaines  Eiver  and  the  artificial 
channel  of  the  canal  are  coincident,  the  assertion  of  authority 
has  been  frequent. 

Q.  I am  not  speaking  of  authority  now,  Mr.  McDonald,  but 
the  assertion  of  the  claim  of  title  to  the  land  in  the  bed  of  the  river? 

Counsel  for  Complainant:  Same  objection. 

A.  The  assertion  of  the  title  has  always  been  made  the  same 
in  this  connection. 

That  is,  it  has  alwaj^s  been  made  to  the  bed  of  the  river,  in  that 
part  of  the  river  which  is  coincident  with  the  canal,  and  is  knowui 
as  the  upper  basin. 

Q.  Has  there  ever  been  any  assertion  by  the  Canal  Commis- 
sioners, of  any  claim  of  title  to  the  bed  of  the  river,  at  any  other 
points  ? 

Counsel  for  Complainant:  It  is  understood  that  tlie  objection 

that  the  answers  of  the  witness  are  not  the  best  evidence  on  the  sub- 
ject, goes  to  all  subsequent  questions. 

Counsel  for  Defendant:  That  is  understood. 

A.  So  far  as  tlie  ownership  of  riparian  rights  might  affect  the 
})roperty  in  the  bed  of  the  river,  and  I do  not  know  that  it  affects 
it  at  all,  it  has  been  asserted  and  it  has  been  discussed,  as  I have 
previously  stated  in  this  examination,  but  not  asserted  in  legal 
form  in  regard  to  certain  odd  sections,  north  of  the  City  of  Joliet, 
or  between  the  City  of  Joliet  and  the  City  of  Chicago. 

500  Q.  There  never  has  been  any  assertion  that  you  know  of 
A90  ever  made  by  the  Canal  Commissioners  of  a claim  of  title  to 
the  bed  of  the  Desplaines  Eiver  south  of  Joliet,  or  below 


-82  McDonald , — C ross-Exam. — Continued. 

Joliet,  except  as  asserted  in  connection  with,  as  part  of  the  riparian 
rights  of  the  lands  held  hy  the  state.  A.  Xo,  sir;  I think  not. 

Q.  Prior  to  the  meeting  of  the  Legislature  of  the  State  of 
Illinois,  in  October,  1907,  did  yon  ever  hear  that  any  of  the  officials 
of  the  state  ever  asserted  any  such  claim?  A.  Let  me  understand 
the  question  clearly — as  to  the  bed  of  the  Desplaines  Eiver  south 
of  Joliet,  is  that  it? 

Q.  Just  below  Joliet,  not  connected  with  the  riparian  rights 
incident  to  lands  belonging  to  the  state?  A.  No,  sir.  I never 
have. 

Recurring  again  to  the  contract  made  between  the  Economy  Light 
& Power  Company  and  the  Canal  Commissioners,  with  reference 
to  the  plant  installed  by  the  company  at  Jackson  street,  the  prop- 
erty which  tlie  contract  provides  that  the  state  will  have  to  pur- 
chase, is  such  property  as  was  deemed  necessary  at  the  time  of 
500  the  making  of  the  contract  for  property  and  adequate  develop- 
A91ment  of  the  water  power  possibly,  at  that  point.  The  price 
which  is  mentioned  in  the  contract  is  something  like  $20,000 
to  $25,000,  is  my  recollection  of  it.  And  I may  say  further  that 
my  recollection  of  that  ^proposition  is  that  the  price  fixed  at  the 
time  was  practically  the  price  which  was  paid  by  the  Economy 
Light  & Power  Co.  themselves  in  the  original  acquirement  of  the 
property;  so  that  under  that  contract,  the  state,  at  the  expiration 
of  the  lease,  will  be  entitled  to  all  the  property  and  plant  installed 
by  the  Economy  Company  at  Jackson  street,  npon  the  payment  of 
a sum  ranging  from  $20,000  to  $25,000,  with  the  exception  of  such 
property  as  might  be  deemed  personal  property,  and  which  could 
1)6  removed,  such  as  office  furniture  and  such  machinery  as  would 
go  out  without  destruction  of  the  permanent  works. 

500  I stated  that  I have  lived  ever  since  I was  a boy,  at  Lockport. 
A 92  I was  absent  only  when  I went  away  to  school,  but  that  is  prac- 
tically all.  I have  lived  in  Lockport  about  38  years. 

Q.  Did  you  ever  know  of  any  navigation,  for  commercial  pur- 
poses, being  conducted  upon  the  Desplaines  River  between  its  mouth 
and  Lockport? 

(Objected  to  on  the  ground  that  this  is  a subject  which  was 


not  inquired  into  on  direct,  and  therefore  it  is  not  proper  cross- 
examination.) 

A.  No,  sir. 

I did  not  ever  hear  of  any  boats  used  for  commercial  puiq^oses, 
such  as  carrying  produce  or  passengers,  plying  up  or  down  that 
river  at  those -points  during  the  time  of  my  residence. 

The  contract  which  the  Canal  Commissioners  made  with  Gay- 
lord, both  original  contract  and  supplemental  contract,  were 
abandoned  and  nothing  has  ever  been  done  under  either  of 
500  them.  If  I am  not  mistaken  I think  there  was  definite  action 
A93  taken  on  the  part  of  the  Canal  Commissioners  cancelling  those 
contracts.  At  the  time  the  Canal  Commissioners  had  nego- 
tiations with  Mr.  Monroe  over  the  making  of  the  contracts  and 
lease  and  deeds  which  are  involved  in  this  suit,  I think  Mr.  Mon- 
roe fully  explained  to  me,  or  to  the  members  of  the  Board,  what 
the  water  power  project  was.  I know  that  I had  a very  full 
idea  of  what  he  proposed  to  do,  and  I have  no  doubt  that  it  was 
acquired,  in  the  main,  from  Mr.  Monroe  himself.  However,  some 
of  it  was  probably  picked  up  by  myself  from  newspaper  reports. 
It  was  a matter  of  common  report.  So  that  I knew  he  was  seek- 
ing to  acquire  these  lands,  in  connection  with  other  lands  that  he 
had  acquired,  or  expected  to  acquire,  for  the  purpose  of  develop- 
ing water  power  somewhere  in  the  neighborhood  of  the  mouth 
of  the  river,  and  build  large,  expensive  dams  and  works  there. 
500  My  recollection  is  that  he  informed  me  at  that  time  that  he 
A94  could  not  secure  this  contract  and  purchase  this  property  at 
a reasonable  figure  ; that  he  would  abandon  the  proposition 
of  erecting  a dam  at  or  near  the  confluence  of  the  Desplaines  and 
Kankakee  Eivers,  and  also  that  in  that  event  he  had  in  contempla- 
tion the  development  of  a waterway  at  this  other  point.  The 
matter  was  not  gone  into  in  detail.  The  other  point  does  not 
mean  Hickcory  Creek  or  South  street. 

I never  undertook  to  locate  the  point  properly,  because  there 
never  was  any  reason  for  me  to  do  so,  but  I know  that  Mr.  Mon- 
roe referred  to  that  proposition,  and  in  a very  general  way,  de- 
scribed it  to  me,  but  I never  had  any  occasion  to  go  there.  He 
told  me,  I remember,  that  if  power  was  developed  at  that  point 


284 


McDonald , — Cross-Exam. — Continued. 


that  he  would  not  come  in  contact  with  the  rights  or 
500  property  of  the  state,  and  consequently  I never  dreamed  it 
A95  was  my  duty  to  look  into  the  matter,  and  never  did. 

Q.  But  you  and  the  Canal  Board  understood  that  per- 
fectly, that  is  if  Mr.  Monroe  could  not  get  these  contracts  he  was 
seeking,  he  was  expecting  to  build  a plant  up  stream  from  the 
16-acre  tract  a short  distance.  A.  Well,  I think,  Mr.  Porter,  that 
your  question  perhaps  places  a little  undue  emphasis  on  that 
point.  We  understood,  at  least  I did,  and  I think  tlfe  Canal  Com- 
missioners did,  that  if  he  could  not  secure  these  rights  from  the 
state,  he  would  abandon  the  proposition  of  developing  water  power 
at  that  point. 

I mean  at  Dresden  Heights,  and  I understood,  in  a more  gen- 
earl  way,  that  he  had  another  proposition  further  to  the  north, 
which  he  might  develop,  which  he  had  not  told  us  about,  and  I 
understood  that  as  to  this  other  proposition  at  another  point,  the 
state  had  no  lands  which  would  be  affected.  That  was  our  as- 
surance from  Mr.  Monroe,  although  we  never  had  occasion  to  in- 
vestigate the  matter. 

500  Our  infoimation,  which  was  from  Mr,  Monroe,  from  com- 
A96mon  report  and  from  newspaper  reports,  was  to  the  effect 
that  he  had  secured  for  himself  and  his  associates  either  the 
fee  or  options  upon  a great  many  acres  of  land  which  would  be 
involved  in  this  water  power  developing  proposition.  I under- 
stood that  he  had  secured  practically  all  the  lands  on  each  side 
of  the  river  above  the  point  where  the  dam  was  to  be,  that  he 
thought  would  be  overflowed  or  affected  by  the  dam. 

Q.  Deferring  to  the  clause  of  the  fiowage  contract,  by 
which  the  Canal  Commissioners  and  the  state  consent  to  the  erec- 
tion of  a dam  as  therein  mentioned,  isn’t  it  a fact  that  this  clause 
was  put  in  the  contract  merely  for  the  purpose  of  giving  such 
consent,  so  far  as  the  construction  of  any  such  dam  might  pos- 
sibly affect  any  property  or  lands  owned  by  the  state! 

(Objected  to  on  the  ground  that  it  is  not  the  best  evidence, 
500  and  on  the  ground  that  the  question  assumes  to  state,  and 
A97  does  not  actually  state  any  clause  in  the  contract,  and  that 
the  answer  of  the  witness  as  to  the  question  is  incompetent, 
and  specifically  on  the  ground  that  it  assumes  a clause  of 
consent  by  the  Canal  Commissioners  and  the  state.) 


A.  My  understanding  of  the  intent  of  siicli  clause,  or  clauses, 
was  that  it  was  merely  to  express  the  consent  of  tlie  Canal  Com- 
missioners to  such  work  as  was  contemplated  therein,  so  far  as 
the  interests  of  the  state,  committed  to  their  keeping  might  he 
affected. 

Q.  It  was  not  intended,  was  it  ^fr.  INtcDonald,  to  he  an  asser- 
tion of  any  right  of  the  state  to  the  ownership  of  the  bed  of  the 
Desplaines  River  at  a point  where  the  state  had  any  riparian 
rights? 

(Same  objection.) 

A.  No  sir,  it  was  not.  As  I think  I have  testified  here  before 
in  this  hearing,  there  was  a distinct  and  decided  feeling  on 
the  part  of  the  Canal  Commissioners  that  they  had  not  such  au- 
thority to  exercise;  that  is,  any  exclusive  authority,  I will 
500  put  it  that  way.  All  these  water  powers  which  I have  s])eci- 
A98  tied  are  situated  on  the  Canal.  The  power  is  produced  in  each 
one  of  them  by  means  of  the  water  in  the  Canal,  under  the 
control  of  the 'Canal  Commissioners.  I have  had  considerable  to 
do  with  questions  of  water  power,  engineering  and  hydraulic  en- 
gineering, but  I would  not,  at  the  present  time,  claim  to  be  an 
expert,  by  any  means,  on  such  a proposition,  and  where  any  mat- 
ter of  vital  importance  is  involved,  I would  seek  to  support  any 
opinion  that  I might  have,  with  engineering-expert  opinion. 

At  the  time  that  this  flowage  contract  and  lease  were  made,  in 
September,  1904,  I had  never  heard  of  any  project  being  agi- 
tated or  proposed  by  anybody,  by  wdiicli  the  state  should  build 
a deep  waterway,  using  the  Desplaines  River  for  that  pur- 
500  pose.  I first  heard  there  was  contemplation  on  the  part  of 
A99  the  state  to  construct  a deep  waterway,  using  the  Desplaines 
for  that  purpose,  in  1907,  during  a session  of  the  legislature 
that  met  in  January,  1907.  My  recollection  is  that  I heard  noth- 
ing of  it  until  October,  1907,  but  it  may  have  come  to  me  before 
that  time.  It  would  not  have  been  possible,  in  my  judgment,  for 
the  state  or  the  canal,  to  have  utilized  this  property  which  is 
covered  by  this  flowage  contract,  lease  and  deed,  for  the  purpose 
of  developing  the  wmter  power.  Along  the  whole  length  of  this 


286 


M cDona  Id, — C ross-Exa  m . — C out  inue  d . 


16-acre  tract,  the  Desplaines  Elver  has  very  little,  if  any,  fall. 
There  must  be  some,  but  it  is  very  little. 

500  It  is  a fact  that  in  order  for  the  state  to  develop  water 
AlOO  power  in  the  Desplaines  Eiver  at  or  near  the  point  where 

the  16-acre  tract  lies,  it  will  be  necessary  to  acquire  some 
1600  or  1700  acres  of  land  above  that  point  which  would  be  over- 
flowed or  affected  by  the  construction  of  the  dam. 

Q.  Isn’t  it  a fact  that  the  state  did  not  own  any  property 
across  the  Desplaines  Eiver  opposite  the  16-acre  tract,  and  that 
part  of  the  90-foot  strip  covered  by  this  flowage  contract,  lease 
and  deed 

(Counsel  for  Complainant.  All  of  the  objections  that  have 
heretofore  been  made,  and  to  any  and  all  the  questions,  are  re- 
newed and  especially  applicable  to  that  question.  I think  it  is  not 
necessary  to  repeat  them.  I understand  that  applies  to  all  these 
questions. 

Counsel  for  Defendant.  It  is  understood  that  all  the  ques- 
tions asked  are  subject  to  the  same  objections  as  have  heretofore 
been  made.) 

Question  read  by  the  reporter. 

(Question  continued),  except  the  property  known  as  the  Kanka- 
kee feeder.  A.  It  is  a fact,  in  speaking  of  what  is  known  as  the 
Kankakee  feeder,  it  should  be  understood  that  the  canal  authori- 
ties claim  a 90-foot  strip  on  one  side  thereof,  in  addition  to  the 
feeder  itself,  and  that  the  same  has  been  platted. 

501  Isn’t  it  a fact  that  the  flowage  contract  and  lease  made  in 
September,  1904,  and  executed  in  January,  1905,  were  not  in- 
tended, on  the  part  of  the  Canal  Commissioners,  to  confer  any 
rights  which  would  in  any  way  interfere  with  the  uses  and  opera- 
tion of  the  Canal!  A.  That  is  true.  Mr.  Porter,  may  I make  a 
short  statement! 

Q.  Yes  sir.  A.  It  is  made  of  my  own  motion.  In  connection 
with  the  questions  which  you  asked  me  in  regard  to  possible  de- 
velopment of  water  power,  in  order  to  make  perfectly  clear,  or  at 
least  more  clear,  the  position  of  the  Canal  Commissioners  and 
their  agents,  in  regard  to  this  discussion,  I desire  to  say  that 
the  law,  as  we  were  able  to  comprehend  it,  so  far  as  it  gave  au- 


287 


tliority  to  the  Canal  Commissioners,  or  made  possible  for  them 
the  development  of  water  power,  or  the  utilization  of  water  for 
power  purposes,  in  no  way  made  it  possible  for  them  to  utilize 
any  of  these  lands  or  property,  for  the  development  of  power  by 
the  state  in  this  locality.  I think  that  explanation  is  due  to  the 
Canal  Commissioners  to  be  made,  and  if  there  is  no  objection,  I 
would  like  to  make  it. 

(Counsel  for  Complainant)  There  is  no  objection  to  the  wit- 
ness making  that  statement.  The  objections  to  its  value  as  evi- 
dence, which  is  an  entirely  different  thing  from  the  witness  mak- 
ing the  statement,  are  not  waived  by  silence.) 

502  I and  the  Board  understood  that  we  had  no  rights  further 
than  the  leasing  of  the  raw  water,  so-called.  The  flowage 

contract,  in  substance,  stated  that  none  of  the  work  mentioned 
therein  was  to  be  done  except  under  the  supervision  and  approval 
of  the  Board  of  Canal  Commissioners,  and  that  no  work  should 
be  done  that  would  interfere  with  the  proper  use  and  operation 
of  the  Canal. 

I have  been  over  portions  of  the  Kankakee  feeder.  I do  not 
know  that  I ever  made  a continuous  trip  over  the  Kankakee 

503  feeder  from  its  source  to  its  mouth.  I have  seen  it  at  the 
point  where  the  Chicago  & Alton  and  Atchison,  Topeka  & 

Santa  Fe  cross  it.  I think  there  are  culverts  there;  culverts 
under  the  embankment,  but  I would  not  swear  to  that.  These 
culverts  are  not,  by  any  means,  of  sufficient  capacity  to  answer 
the  original  purpose  of  the  feeder.  I should  say  that  the  em- 
bankment built  by  the  railroads  is  a complete  obstruction  now 
to  any  use  of  the  feeder  for  the  purpose  of  the  Canal,  and  yet, 
again,  to  be  thoroughly  explicit  on  this  proposition,  the  Canal 
Commissioners  have  reserved  the  right  to  have  this  embankment 
removed,  in  case  the  feeder  is  desired  for  canal  purposes.  I am 
• familiar  with  the  contracts  made  with  Griswold  giving  him 

504  certain  rights  in  connection  with  the  feeder.  I would  not 
wish  to  state  positively  whether,  if  the  work  contemplated  by 

those  contracts  was  carried  out  by  Griswold,  or  by  his  assigns, 
it  would  have  been  practicable  for  the  Canal  Commissioners  to 
use  that  feeder  for  running  water  from  the  Kankakee  River  into 
the  Illinois  and  Michigan  Canal,  at  comparatively  small  expense. 


288 


McDonald, — Cross-Exam. — Continued. 


Because  I have  never  made  any  particular  effort  to  famliiarize 
myself  with  the  plans  as  noted  for  the  feeder,  and  speaking  as 
an  officer  of  the  Canal,  I would  say  that  we  have  relied  on  a 
clause  in  that  lease,  which  provides  for  cancellation,  in  case  there 
is  any  interference  with  the  interests  of  the  Canal  or  of  the 
state,  in  any  work  carried  out  there.  I understand  that  the  lease 
of  the  feeder  gives  the  right  to  the  Commissioners  at  any  time 
to  cancel  it,  whenever  they  wish  to  use  the  feeder  for  canal  pur- 
poses, or  whenever  it  is  to  he  sold,  if  they  wish  to  sell  it  at  any 
time.  If  they  ever  wish  to  use  it  for  canal  purposes,  it  could 
be  so  used,  notwithstanding  the  completion  of  the  work  by  Gris- 
wold and  his  associates,  contemplated  in  that  contract,  but  we 
had  a further  clause,  as  I said  before,  by  an  option  of  cancella- 
tion, in  case  the  work  did  interfere  with  Canal  interests. 

505  At  present  I can  hardly  conceive  a condition  arising  where 
it  would  seem  desirable  to  utilize  what  is  known  as  the  Kan- 
kakee feeder,  as  a feeder  of  water  to  the  Canal.  However,  if  such 
a condition  would  arise,  this  work  might  interfere  with  such  use. 
As  for  purposes  of  navigation,  I do  not  think  this  Avork  would 
necessarily  interfere  at  all  with  the  use  of  the  Kankakee  feeder; 

for  purposes  of  navigation  on  the  feeder. 

506  If  navigation  is  to  be  maintained  on  the  Hesplaines  Elver, 
it  is  impossible  to  make  a continuous  structure  of  an  aque- 
duct at  this  point,  because  it  would  interfere  with  naAugation. 
That  would  be  so  whether  the  work  was  done  or  not  as  far  as 
navigation  is  concerned.  Unless  there  is  a pool  formed  there, 
lioweA^er,  there  can  be  no  navigation,  at  least  that  is  my  opinion. 
If  the  state  so  improves  the  river  that  navigation  is  on  the  river, 
makes  it  navigable,  there  could  be  no  aqueduct  built  there. 

(Objected  to  on  the  grounds  heretofore  shown.) 

507  If  the  river  at  this  point  were  improA^ed  so  as  to  create 
navigation  along  where  the  feeder  used  to  cross  the  rUer 

the  feeder  could  not  be  used  across  the  river  there  Avithout  ob- 
structing naAugation  on  the  Hesplaines  Eiver. 

If  the  dam  were  built  as  contemplated  by  the  flowage  contract, 
and  there  Avas  no  naAugation  on  the  river  to  be  obstructed,  as 
to  the  practicability  of  reconstructing  tlie  old  aqueduct  across  the 
rUer  at  the  same  point  where  it  Avas,  Avithout  a careful  investiga- 


289 


tion  of  the  matter  I would  not  care  to  reply  ]:>ositively.  But, 

508  as  I remember,  in  a general  way  the  extreme  height  of  the 
pool  would  not  come  up  onto  the  a(|ueduct  to  a sufficient 

height  to  render  this  restoration  impracticable  so  that  with  that 
in  view  the  construction  of  the  work  would  not  interfere  in  any 
way  with  the  future  use  by  the  state  of  the  Kankakee  feeder  should 
it  desire  to  use  it,  but  it  would  require  the  construction  of  the 
old  aqueduct  across  and  into  the  canal.  The  expense  of  such  ob- 
struction would  be  no  more  than  would  be  the  expense  of  recon- 
structing the  feeder  at  the  present  time,  with  tlie  exception  pos- 
sibly of  one  point  of  pier  construction.  If  it  were  necessary  to  re- 
build the  piers,  it  would  be  more  expense,  of  course,  to  put  them  in 
under  water. 

It  would  be  quite  possible  and  practicable  to  use  the  feeder 
if  the  Canal  Commissioners  ever  wushed  to  do  it,  notwithstanding 
the  construction  of  the  work  contemplated  by  the  proposed  con- 
tracting, and  the  only  question  would  be  the  question  of  ex- 

509  pense  of  reconstruction.  The  only  difference  worth  consider- 
ing I think  would  be  the  difference  in  the  cost  of  the  pier 

construction,  pier  and  abutments.  It  would  involve  not  a tre- 
mendous sum,  the  extra  expense  might  be  $7,000. 

Re-direct  Examination. 

I am  not  able  to  give  you  in  figures  the  height  of  the  bottom 
of  the  aqueduct  as  it  used  to  be  as  it  crossed  the  Desplaines 

510  River,  which  carried  the  feeder.  I did  not  ever  measure  it. 
I have  had  these  figures,  Mr.  Starr,  in  detail.  I do  not  now 

carry  them  in  my  mind.  I have  figured  from  those  figures  in 
the  relations  of  the  extreme  height  of  the  water  and  the  ordinary 
water  in  the  pool,  the  water  level  in  the  canal,  and  by  having  a 
pretty  clear  idea  of  those  things  I am  enabled  to  form  a fairly 
good  and  general  idea  of  the  relation  of  the  aqueduct  to  those 
levels.  It  has  been  several  months  since  I have  gone  over  the 
figures. 

As  to  the  contracts  with  the  railroad  companies  that  had 
erected  embankments,  if  my  recollection  serves  me  right  they  are 
in  the  nature  of  permits,  which  would  be  on  file  in  the  office,  and 
I presume  they  are.  If  they  are  I can  furnish  them  to  you. 


290  McDonald, — Be-direct  Exam. — Continued. 

511  Q.  Will  you  have  them  looked  up  and  bring  them  here? 
A.  Mr.  Snyder  will  be  the  proper  one  to  bring  them  here, 

because  of  his  being  acting  secretary. 

Thereupon  it  was  agreed  that  Mr.  McDonald  send  up  by  Mr. 
Snyder  copies  of  the  permits  or  contracts,  with  a notation  of  his 
own  upon  them  identifying  them  with  his  testimony  they  will 
l)e  received  by  both  sides  as  a sufficient  connection  with  his  testi- 
mony of  the  documents  referred  to,  subject  to  the  objection  of 
their  competency,  irrelevancy  and  materiality. 

512  Thereupon  it  was  agreed  that  under  the  same  agreement 
the  witness  should  furnish  a copy  of  the  contract  referred 

to  in  his  testimony  as  the  contract  between  the  Canal  Commis- 
sioners and  the  Economy  Light  & Power  Company,  relative  to 
the  payment  of  compensation  for  the  work  erected  by  the 
Economy  Light  & Power  Company  and  by  the  state,  and  the 

513  witness  agreed  to  furnish  a copy  of  said  contract. 

I siDoke  of  a mill  being  erected  by  the  Economy  Light  & 
Power  Company  at  Jackson  street  just  otf  of  Dam  No.  1.  The 
power  for  that  plant  is  obtained  from  Dam  No.  1,  or  from 

514  the  pool  just  above  Dam  No.  1,  which  pool  is  also  known  as 
the  upper  basin.  The  channel  of  the  Sanitary  District  of 

Chicago  enters  this  upper  basin  a distance  above  Dam  No.  1 of 
between  one  quarter  and  a half  a mile.  Between  the  point  where 
the  channel  of  the  Sanitary  District  of  Chicago  first  enters  in  or 
merges  with  the  Desplaines  Eiver  and  the  mouth  of  tliG  Desplaines 
Kiver  there  stands  this  Dam  No.  1.  I would  not  wish  to  be 
understood  that  I am  attempting  to  fix  the  terminus  of  the  chan- 
nel of  the  Sanitary  District  of  Chicago.  That  is  a question  which 
is  liable  to  raise  a good  deal  of  trouble  in  the  future,  so  that  it 
would  be  better  to  put  it  this  way,  between  the  point  where  the 
waters  of  the  channel  and  those  of  the  Desplaines  River  enter 
this  basin  and  the  mouth  of  the  Desplaines  River,  there  occurs 
this  Dam  No.  1.  There  is  no  other  dam  in  the  Desplaines 

515  River  between  these  points,  to  my  knowledge.  That  was 
true  on  the  2nd  day  of  September,  1904,  that  there  was  no 

dam  between  these  points  where  those  waters  merge  with  the 
upper  basin  and  the  mouth  of  the  Desplaines  River.  Dam  No. 
1 was  the  only  dam  there  was  l)etween  Lockport  and  the  mouth 


291 


of  the  Desplaines  Eiver  or  ])etween  the  upper  basin  and  the  Des- 
plaines  Eiver. 

I spoke  of  there  having  been  definite  action  taken  cancelling  the 
contract  with  Gaylord.  Such  action  was  made  by  way  of  resolu- 
tion made  of  record  in  our  office. 

Q.  Can  you  send  the  copy  of  that  resolution  with  suitable 
reference  as  to  what  page  it  appears  at?  A.  Yes,  sir. 

Re-cross  Exam  i n at  ion. 

Q.  Mr.  McDonald,  the  construction  of  the  work  by  the  Economy 
Light  & Power  Company  pursuant  to  the  flowage  contract  would 
relieve  the  canal  bank  near  the  river  from  the  dangerous  grade 
which  now  exists  there,  would  it  not! 

516  (Objected  to  on  all  the  grounds  heretofore  stated,  and  fur- 
ther objected  to  on  the  ground  not  re-cross  examination.) 

A.  In  my  opinion  it  would. 

To  that  extent,  that  work  would  be  a benefit  to  the  canal.  It 
is  true  that  the  construction  of  this  work,  or  the  carrying  out  of 
this  flowage  contract,  would  save  considerable  expense  to  the 
state  in  keeping  up  two  or  three  miles  of  towpath. 

Q.  How  much  of  a saving  would  that  he  approximately? 

Counsel  for  Complainant.  Q.  Mr.  Porter,  is  it  understood 
that  the  objection  was  carried  forward  by  stipulation  to  your 
re-cross  as  well  as  to  your  former  examination? 

Counsel  for  Defendant.  Yes,  sir. 

A.  Possibly  save  several  hundred  dollars  per  annum. 

I am  familiar  with  the  situation  of  the  land  owned  by  the  state 
at  that  point. 

Q.  What  kind  of  land  is  this  16-acre  tract? 

(Objected  to  as  not  re-cross.) 

A.  Very  poor  land. 

Sometimes  several  times  a year  this  land  is  overflowed. 

517  The  state  does  not  derive  any  revenue  from  it  and  did  not 
until  this  contract  was  made. 

Q.  Do  you  consider  that  the  amount  of  money  paid  for  these 


flowage  rights,  and  lease,  and  deeds,  was  adequate  compensation 
for  the  rights  secured  at  the  time! 

Counsel  foe  Complainant.  Objected  to  on  all  the  grounds  here- 
tofore mentioned  and  no  qualifications. 

A.  I certainly  so  consider  it. 

The  land  was  of  no  value  worth  mentioning  for  agricultural 
purposes.  The  land  was  not  used  in  any  way  in  connection  with 
the  operation  of  the  canal  or  in  connection  with  any  water  power 
on  the  canal. 

Thereupon  it  was  stipulated  that  the  signatures  of  Mr.  Mc- 
Donald, Mr.  Snyder  and  Mr.  Sackett  were  waived. 

518  Thereupon  the  further  taking  of  said  depositions  was  ad- 
journed to  Thursday,  April  9,  1908,  at  2:30  o’clock  p.  m. 

J.  H.  Hillebrand, 

520  a witness  for  complainant,  testified  as  follows : 

Direct  Examination. 

My  name  is  J.  H.  Hillebrand.  I am  52  years  old.  My  resi- 
dence is  Chicago;  it  has  been  my  residence  for  about  32  years. 
I am  chief  draftsman  for  the  Sanitary  District  of  Chicago.  I 
have  been  employed  in  the  Sanitary  District  of  Chicago’s  offices 
in  one  way  or  another,  for  about  17^  years.  Before  I went  with 
the  Sanitary  District  of  Chicago,  I worked  as  civil  engineer, 
railroad  engineer  and  surveyor.  I have  been  a surveyor  and 

521  civil  engineer,  I guess  about  30  years.  To  state  in  a general 
way  some  of  my  duties  as  chief  draftsman  of  the  Sanitary  Dis- 
trict, I would  say  that  I take  charge  of  all  the  surveys,  plats  and 
maps,  the  men  employed  platting  the  surveys,  and  I verify  and 
examine  and  correct  the  plattings  and  mappings  of  the  surveys. 
That  work  is  all  done  under  the  supervision  and  direction  of  the 
chief  draftsman.  He  is  the  man  to  whom  the  Sanitary  District 
of  Chicago  looks  for  its  correct  maps,  plats  and  profiles.  I have 
field  the  position  of  chief  draftsman  for  about  13  years. 

The  map  and  profile  which  is  before  me,  which  the  reporter  has 
marked  for  identification  Hillebrand ’s  Exhibit  1,  is  a contour  map 
from  Chicago  to  Lake  Joliet,  giving  the  location  of  the  main  chan- 
nel of  the  Sanitary  District  or  Sanitary  Canal,  the  Desplaines 


River  and  the  Illinois  & Michigan  Canal,  and  also  a profile  of  the 
main  channel,  and  a profile  of  the  Desplaines  River.  Those  lie 
respectively,  in  three  bands  extending  lengthwise,  crossing 

522  the  map.  The  strip  marked  on  the  upper  portion  of  the  map 
and  extending  almost  all  flie  way  across  it  in  yellow,  is  the 

Illinois  & Michigan  Canal.  This  map  and  plat  was  made  under 
my  direction  and  supervision  while  in  the  employ  of  the  Sani- 
tary District  of  Chicago.  The  sources  from  which  the  informa- 
tion is  assembled,  which  is  here  portrayed,  were  from  surveys 
of  the  Sanitary  District.  It  shows  the  facts  and  matters  with 
which  it  appears  to  deal,  and  which  it  appears  to  portray  and 
represent,  as  correct  as  it  can  be  done  on  a small  scale. 

Another  mark  or  strip  extending  along  the  greater  portion  of 
the  upper  basin,  which  is  marked  in  red,  represents  the  main  chan- 
nel, of  the  Sanitary  District  of  Chicago. 

Another  band  also  extending  across  the  main  portion  of  the 
map  on  the  upper  part,  which  is  colored  green,  represents  the  Des- 
plaines River,  according  to  the  original  survey,  existing  before  we 
built  our  river  diversion.  On  the  east  end  of  it  the  part  labelled 
in  green  ‘AVest  fork  of  south  branch,”  and  again  south  branch 
Chicago  River,”  is  the  Chicago  River  and  its  branches. 

523  Between  the  parts  about  at  that  point  where  the  words 
Ogden  dam”  occurs  at  one  end  and  a considerable  distance 

to  the  right  from  that,  a narrow  strip  in  green  labelled  Ogden 
ditch,”  is  a ditch  that  had  been  in  existence  for  years,  and  which 
connects  the  overflow  waters  of  the  Desplaines  River  with  the 
Chicago  River. 

Along  the  map  at  intervals  connecting  parts  of  the  green  band 
labelled  ^‘Desplaines  River,”  a strip  put  in  in  black,  which  is 
labelled  in  one  place  “river  diversion,”  is  what  we  call  the  river 
diversion,  where  we  had  to  divert  the  river  from  its  original  bed. 
By  we,  I mean  the  Sanitary  District  of  Chicago.  I mean  the  work 
done  by  the  Sanitary  District  of  Chicago,  that  diverted  the  course 
of  the  Desplaines  River,  and  laid  out  a new  channel  for  it.  The 
Desplaines  River  now  runs  along  that  new  channel  partly  and 
partly  in  the  old  channel. 

524  When  we  built  a new  channel,  the  water  filled  the  new 
channel  entirely,  and  where  we  did  not  build  a new  channel, 

it  filled  the  old  channel,  all  of  the  water. 


294 


H illebra )i  cl, — D i reef  Exa  m . — Con  tin  ued. 


The  course  of  the  old  channel  and  the  several  river  diversions 
taking  the  place  of  the  old  channel  where  they  occur,  connect  to- 
gether and  make  a connected  water  course  and  stream  from  the’ 
one  end  of  what  is  shown  on  the  map  to  the  other,  and  whenever 
a new  channel  has  been  created  and  is  delineated  on  the  map,  the 
water  of  the  Desplaines  Eiver  runs  through  the  new  channel.  The 
various  labels  and  legends  and  written  matter  set  out  upon  the 
map  correctly  exiDlain  the  portions  to  which  they  are  at- 
tached. 

525  The  statement  made  in  the  letter  press  or  legend  of  the 
map  is  correct.  This  map  is  in  general  and  constant  use  by 

the  Sanitary  District  of  Chicago  in  ascertaining  distances  and  loca- 
tions of  different  parts  of  their  work.  5Ve  call  it  our  index  map. 
AVe  have  a vast  number  of  smaller  maps  in  greater  detail  of  sep- 
arate parts  of  the  work.  This  is  the  general  index  or  key  to 
our  set  of  maps. 

This  is  what  we  call  a blue  line  print.  5Ye  had  it  done  a 
couple  of  weeks  ago.  I had  a negative  and  from  the  negative  we 
had  it  made.  The  negative  was  taken  may  he  about  six  or  seven 
years  ago, — I am  not  positive.  It  was  done  under  my  direction, — 
long  before  any  matters  now  in  controversy  had  arisen. 

526  These  hands  in  red,  and  yellow,  and  green,  and  black  were 
originally  in  blue  lines,  hut  they  were  recently  colored  in. 

The  coloring  itself,  the  red,  the  green,  the  black,  and  the  yellow 
were  printed  in  by  men  yesterday,  and  I put  those  on  at  the  re- 
quest of  counsel  for  complainant  in  order  to  bring  out  with  greater 
distinctness  the  parts  so  colored. 

The  work  of  making  the  new  channel  by  the  river  diversion  was 
the  first  work  by  the  District,  and  some  of  it  began  in  1892  or 
1893.  I think  it  was  started  before  Mr.  Kandolph  had  charge,  but 
he  completed  the  work.  Bennezette  IVilliams  was  his  predecessor 
as  chief  engineer. 

As  to  the  contours  shown  on  this  blue  line  print  and  the 

527  location  of  rivers,  etc.,  the  survey  was  commenced  in  1890 
and  completed  in  1895,  and  the  location  of  the  main  chan- 
nel or  river  diversion  was  put  in  in  1898,  or  1897.  The  blue  line 
print,  which  has  the  large  main  label,  reading  ‘‘Sanitary  District 


of  Chicago  Map  and  Profiles  of  Sanitary  and  Ship  Canal  of  Chi- 
cago from  Chicago  to  Joliet,  Jan.  1898,”  shows  the  conditions 
that  existed  in  1898,  but  they  put  in  this  continuation  of  the  main 
channel  from  the  controlling  Avorks  at  or  near  Lockport  after- 
wards, down  to  the  upper  basin  of  the  Illinois  and  Michigan  Canal, 
as  shown  in  red.  The  u])per  basin  is  shown  on  this  map  in  yel- 
low, just  above  the  word  ” Joliet.”  Between  the  ])oint  just  to 

528  the  north  of  Lockport,  broadly  colored  in  black,  and  the  ])art 
showing  the  upper  basin  below  the  water  power  channel  of 

the  Sanitary  District,  has  been  put  in  since  January,  1898,  and  is 
indicated  in  red.  The  channel  for  the  waters  from  the  Deep  Pun, 
indicated  in  black,  lying  just  below  the  red  line  of  the  Sanitary 
District  channel,  the  black  line  beginning  at  the  section  line  just 
to  the  left  of  the  in  Lockport,  running  down  across  Section 

27  and  into  and  half  Avay  across  Section  3,  is  the  channel  of  the 
Deep  Run.  The  waters  of  the  Deep  Run  are  received  by  that  ar- 
tificial channel  and  conveyed  so  that  they  are  all  gathered  in  the 
Sanitary  District  channel  below  the  power  house.  Along  the  cen- 
tral portion  of  the  exhibit  runs  another  strip  which  has  in  the 
center  of  it  and  near  the  top  of  the  center  of  it,  the  words, 
”Main  Channel”  in  large  letters.  That  is  a profile  of  the 

529  main  channel  of  the  Sanitary  District  of  Chicago  showing 
the  grade  line  and  the  original  surface;  the  grade  line  is  the 

bottom;  the  red  line  extending  across  from  one  to  the  other  and 
labeled  Bottom  of  Channel”  represents  the  bottom  of  the  chan- 
nel as  it  was  actually  constructed;  and  the  various  squares  and 
delineations  which  appear  aboA^e  represent  the  surface  of  the 
ground  and  the  distance; — the  A^ertical  distances,  the  eleA^ations 
above  and  below  Chicago  datum. 

The  figures  which  appear  at  intervals  on  the  horizontal  line 
above  the  red  bottom  line,  indicate  distances  above  and  below 
Chicago  City  datum,  and  that  is  represented  by  the  line  made 
up  of  dashes  and  dots  extending  across  the  map,  labeled  Chicago 
City  Datum”;  and  the  original,  Chicago  City  Datum  is  low  water 
mark  of  Lake  Michigan  in  the  year  1847  and  is  579.63  feet  above 
the  mean  tide  at  New  York,  according  to  U.  S.  lake  'survey,  and 
578.56  feet  above  mean  tide  of  the  Gulf  of  Mexico,  Beloxi,  Miss- 


296 


lUllehrand , — Direct  Exam. — Contimied. 


issippi,  according  to  the  Miss.  River  Comm.,”  was  taken 

530  from  the  official  record  of  those  bodies,  respectively,  and  has 
been  verified  by  me  to  he  correct. 

This  central  hand  across  the  exhibit,  has  a number  of  divisions 
])y  vertical  lines, — one  at  the  extreme  right  end  being  marked  with 
a cipher,  and  then  going  along  100,  200,  300,  400,  and  500,  etc.,  at 
regular  intervals  out  to  1,500,  represents  the  distance  from  Chi- 
cago. 1,500  means  1,500,000  feet. 

The  part  of  the  legend  on  the  left-hand  of  the  general  label, 
says  ^^Map,” — that  refers  to  the  general  map,  constituting  the 
band,  and  the  exhibit  which  lies  across  the  top  of  the  exhibit, 
with  the  names  and  sections  upon  them. 

And  next  to  that  word  the  statement  appears  ^‘2  inches  equals 
one  mile.”  That  represents  the  scale  to  the  user  of  that  part  of 
the  map,  constituting  the  upper  third,  or  ‘‘Strip  No.  1”  of  the 
exhibit. 

Counsel  for  Complainant.  For  distinction  I mark  here,  as  I 
speak,  the  right  end  of  these  three  main  channels:  “Strip  No. 

531  1,”  “Strip  No.  2”  and  “Strip  No.  3.”  I said  “1,500,000  feet; 

I meant  instead  150,000  feet.  Strike  off  the  cipher. 

The  words  immediately  below  the  label  last  read,  “Contour 
intervals  5 ft.,”  means  the  distance,  or  elevation  between  each 
contour  is  5 feet.  That  refers  to  “Strip  No.  1.”  For  instance 
this  contour  (indicating)  is  40  feet  above  Chicago  datum,  indi- 
cated by  “40.”  (Witness  makes  the  letter  “A”  at  point  indi- 
cated.) That  is,  in  Section  25,  containing  the  word  “Terminal,” 
next  to  the  Chicago  Terminal  Railroad,  this  contour  is  plus  45. 
I point  to  another  line  in  Section  1,  and  passing  over  to  Section 
36,  which  I mark  “B,”  and  I see  that  is  marked  “45.”  The  in- 
terval between  these  two  is  5 feet,  which  means  there  is  a slope  be- 
tween these  two  lines  of  5 feet.  “40”  means  40  feet  above  Chicago 
datum,  and  “45”  45  feet  above  Chicago  datum. 

532  Small  figures  and  the  same  small  size  style  of  type,  which 
are  scattered  about  this  map  on  “Strip  No.  1”  represent  ele- 
vations above  Chicago  City  datum;  and  the  wandering  lines  upon 
which  the  small  figures  are  marked  represent  a continuous  line 
of  countiw  which  is  at  that  elevation;  and  when  you  see  a line 


V 


marked  40  you  can  follow  that  line  as  far  as  it  goes,  and  wher- 
ever it  goes  it  represents  that  the  country  at  that  wandering  line 
is  40  feet  above  Chicago  datum. 

The  map  is  divided  into  small  squares  in  ‘‘Strip  No.  1”  the 
squares  being  2 inches  square,  and  those  represent  the  Govern- 
ment sections.  The  Eange  lines  and  Township  lines  are  marked 
l)y  the  customary  surveyor’s  and  map  maker’s  abbreviations. 

Turning  to  “Strip  No.  2”  on  the  right  of  the  general  label  of 
the  exhibit,  the  words  “Profile  sale  Horizontal  1 inch  equals 
2,800  feet;  vertical  equals  G feet.”  That  legend  applied  to  “Strip 
No.  2,”  and  also  to  “Strip  No.  3,”  but  not  to  “Strip  No.  1.” 

533  I adopted  a scale  so  widely  different,  representing  2,800  feet 
horizontally  by  one  inch;  while  vertically  representing  only 

6 feet  by  an  inch,  in  order  to  bring  out  the  different  elevations 
of  the  surfaces.  To  show  the  differences  of  elevation,  we  had  to 
use  a much  smaller  scale  for  the  vertical  than  for  the  horizontal. 
If  we  used  the  same  scale  for  the  horizontal  as  for  the  vertical, 
the  surface  lines  would  practically  be  a straight  line.  These  va- 
riations, which  I seek  to  bring  out  l)y  the  profile,  would  be  so  in- 
significant as  to  disappear. 

These  sharp  points,  which  appear  at  intervals  along  the  top  of 
the  yellow-brown  portion  of  “Strip  No.  2,”  are  highways,  rail- 
ways and  levees. 

As  to  the  places  marked  “side  track”  under  the  word  “main” 
in  “Main  Channel,” — the  throwing  up  of  a ballast  road  bed  for 
the  side  track  in  this  case  gives  an  elevation  which  calls  for  such 
an  expression.  It  must  have  been  a spur  to  an  ice  house,  or 
something. 

534  These  parallel  horizontal  lines  running  across  “Strip  No. 
2,”  which  seem  to  be  about  one-sixth  of  an  inch  apart,  would 

represent  successively  the  height  of  one  foot  above  the  one  below 
it. 

Across  the  top  of  this  “Strip  No.  2,”  a row  of  letters  and  fig- 
ures at  intervals,  which  look  like  letters  printed  on  a little  flag, 
with  the  initialed  end.  The  extreme  right-hand  end  is  “0,” 
and  a few  inches  to  the  left,  over  the  “C.,  M.  & N.  K.  E.”  is  “N. 
0.”;  and  a little  further  to  the  left  “M.  N.,”  and  a little  further 


298 


H illeh rand Direct  Exam. — Continued. 


‘‘L.  M.,”  etc. — representing  the  contract  section.  For  instance 
the  place  where  ''L.  K.’’  appears,  as  a sort  of  double  flag  with  a 
circle  around  it,  is  the  ending  of  Section  L,  and  the  beginning  of 
Section  K. 

535  That  is,  this  work  when  let  out  by  contract  was  divided 
up  into  numerous  work  sections,  which  were  indicated  by 
letters  or  by  figures,  and  each  one  of  those  is  here  delineated,  so 
that  if  you  want  to  talk  about  something  happening  in  Section  L 
this  would  show  you  where  that  was  at  a glance.  That  has  noth- 
ing to  do  with  the  dimensions. 

Eight  under  the  point  where  5 and  4 in  those  section  numbers 
come  together,  I follow  a line  right  down  the  top  of  strip  num- 
l)er  two  to  the  bottom  of  strip  number  two  at  that  point,  ver- 
tically, and  I see  at  the  bottom  of  it  there  is  an  irregular  jagged 
line  with  cross  hatchets  showing  running  along  it,  and  there  seems 
to  1)^^  a dividing  line  between  some  yellow-brown  coloring  on  one 
side  of  it  and  some  blue-gray  coloring  on  the  other  side  of  it. 
That  is  the  glacial  drift  excavation.  The  glacial  drift  excava- 
tion is  represented  in  brown  and  the  late  excavation  is  represented 
in  gray,  then  this  cross  hatch  line  here  would  represent  the  top 
of  the  rock.  The  line  which  lays  along  irregularly  above  the 
530  yellow-brown  and  toward  the  left  hand  edge  of  strip  number 
two  above  the  gray  which  has  a small  fringe  of  yellow  at  the 
top  of  it  would  be  the  real  surface  of  the  ground. 

At  places  the  words  ^^The  Desplaines  Eiver,  of  course”  over 
some  blue  appears  then  the  yellow  will  come  up  above  the  line 
which  seems  to  be  the  water  elevation  and  then  blue  again.  For 
instance,  the  elevation  of  this  part  of  strip  number  two,  which 
is  colored  in  deep  blue  and  has  the  words  ^ Adesplaines  Eiver” 
above  it,  is  a point  there  where  the  main  channel  intersects  the 
Desplaines  Eiver,  the  original  bed  of  the  Desplaines  Eiver.  It 
is  in  Section  b on  strip  number  one.  I make  an  x and  at  the 
point  of  that  x which  occurs  in  the  Surveyor’s  Section  27,  the  red 
line  or  band,  which  I have  described  as  representing  the  Sani- 
tary District  channel,  lies  exactly  in  the  course  of  the  Desplaines 
Eiver  as  delineated  and  painted  in  the'  original,  there  being- 
green  on  both  sides  of  the  red  for  the  Sanitary  District  channel. 
Going  by  the  parallel  lines  which  represent  feet  above  datum. 


299 


the  surface  of  the  Despl nines  River  at  that  ])oint  is  repre- 

537  seated  as  about  seven  and  one-half  feet  above  Chicago  City 
datum.  The  water  in  the  main  channel  is  supposed  to  be 

often  up  to  Chicago  datum,  which  would  be  seven  and  one-half 
feet  lower  than  the  delineated  surface  of  the  Desplaines  River  at 
that  point. 

The  blue  at  the  east  end  of  stri])  number  two  represents  water 
in  Lake  Michigan.  The  water  in  the  Chicago  River  is  just  under 
tlie  word  ‘^Bridgeport,”  and  next  to  that  to  the  left  is  a small 
pocket  of  blue  labeled  “Slip  o})i)osite  Leavitt  street.”  That  blue 
represents  the  water  in  the  slip.  That  is  represented  as  being 
about  one  foot  above  Chicago  datum. 

538  Strip  number  three  labeled  “River  diversion”  is  a ])rofile 
of  the  Desplaines  River  and  river  diversion  from  Summit  to 

the  Wire  Mill’s  Dam  in  Lockport  is  now  called  16th  street  over 
here,  and  there  in  this  strip  number  three  is  a pocket  of  blue  la- 
beled “Desplaines  River,”  and  then  a bit  of  that  yellow-brown 
projecting  above  the  level  of  the  pocket  of  blue.  The  yellow- 
brown  represents  the  excavation,  that  it  material  to  be  excavated 
in  the  river  diversion. 

The  letters  upon  little  flags  or  target  on  stri])  number  one  des- 
ignate the  section  numbers  of  the  different  contracting  sections 
of  the  work  as  on  strip  number  two.  The  vertical  lines  dividing 
strip  number  two  and  strip  number  three  are  intended  to  be 
continuations  substantially  of  the  same  set  of  straight  lines, 

539  so  that  the  portion  between  the  straight  line  marked  700  and 
the  straight  line  marked  800  would  be  the  same  as  in  strip 

number  two  and  strip  number  one.  The  tabular  statement  of 
figures  which  appear  in  the  left  hand  corner  of  the  exhibit  repre- 
sents the  amount  of  earth  and  rock  excavated  and  work  under 
construction,  and  the  legend  below  “Further  work  contemplated 
but  not  contracted  for”  speaks  of  about  the  date  of  January, 
1898.  I am  not  sure  it  does,  it  may  be  a little  later  than  that. 
The  table  in  the  upper  left  hand  corner  gives  the  quantities 
and  the  table  in  the  lower  left  hand  corner  gives  the  amount 
and  value.  I mean  the  amount  in  dollars  and  cents  of  contract 
cost.  For  instance,  between  the  meridian  marked  1,000  on  strip 
number  three  and  the  meridian  which  is  not  marked,  but  which  is 


300  Hillehrand , — Direct  Exam. — Continued. 

ten  spaces  to  the  left  of  the  one  marked  1,500  so  as  to  become 
1,600,  the  Desplaines  Eiver,  the  level  of  which  is  represented  as 
seven  and  one-half  feet  above  datum,  that  1,000  is  repre- 

540  sented  at  twenty  feet  below  datum  at  1,600,  then  in  the  dis- 
tance between  the  meridian  1,000  and  the  meridian  1,600  would 

he  a fall  of  twenty-seven  feet  in  the  Desplaines  Eiver.  The  sur- 
face of  the  water  as  shown  here  would  he  the  actual  surface  at 
the  time  of  the  survey. 

While  going  from  the  extreme  right  hand  end  from  strip  num- 
ber three,  which  is  about  350,  to  the  meridian  1,000,  which  was 
the  starting  point  before  the  Desplaines  Eiver  appears  substan- 
tially level,  then  the  twenty-seven  and  one-half  feet  would  he  the 
total  fall  of  the  river  on  the  entire  district  represented  by  strip 
number  three.  The  jagged  mountain  peeks  showing  up  above  the 
surface  of  Exhibit  No.  3 are  similar  exaggerations  in  order  to 
bring  out  the  small  deviations  in  the  level  of  the  surface  by  means 
of  this  large  elongated  and  greatly  magnified  square,  and  on 

541  the  left  hand  lower  end  of  the  exhibit  is  a sort  of  continua- 
tion of  strip  number  two. 

On  strip  number  two  the  line  which  would  receive  the  number 
1,600  crosses  through  the  word  ‘‘Eiver”  to  the  left  hand  of  and 
below  Lockport,  apparently  the  water  there  is  represented  as 
being  about  thirty-two  and  one-half  feet  below  city  datum,  while 
on  strip  number  three  if  that  meridian  represents  the  same  thing 
it  is  only  represented  as  twenty  Teet  below  datum.  This  is  so 
because  at  the  time  there  was  a wire  mills  there,  the  river  di- 
version shows  the  conditions  with  the  wire  mills  in.  There  was 
a dam  at  Lockport  and  the  long  profile  of  strip  number  two  shows 
the  improved  conditions  of  the  river  so  that  while  it  represents 
the  same  place  it  represents  it  at  a different  time.  Strip  num- 
ber two  was  not  taken  on  the  same  line  as  strip  number  three. 
Strip  number  three  was  taken  along  the  line  of  the  main  chan- 
nel. This  road  is  not  exactly  opposite  Wire  Mill’s  Eoad  on  strip 
number  three. 

542  There  is  no  profile  of  the  present  condition.  Strip  num- 
ber two  represents  the  Desplaines  Eiver  at  meridian  1,600 

as  being  thirty-three  and  one-half  feet  below  datum  and  repre- 
sents the  level  of  the  water  to  be  just  west  of  meridian  1,800 


801 


where  the  word  ‘‘Adams  Dam’^  occurs  to  he  58.8  feet  below 
datum.  That  would  represent  a fall  between  those  two  points 
of  the  difference  of  between  33-J  and  58.8.  That  was  the  old  con- 
dition when  the  Adams  Dam  was  still  in  existence.  The  Adams 
Dam  was  taken  out  in  about  1899  by  the  Sanitary  District. 

I think  Mr.  E.  L.  Cooley  has  a profile  showing  the  elevations 
of  the  river  or  the  river  up  between  Lockport  and  Lake  Joliet 
as  it  now  is. 

543  Counsel  for  Complainant.  Well,  I will  leave  that  part 
for  the  present  and  ask  you  if  on  coming  again  you  can  bring 

a profile  which  does  show? 

A.  Yes,  sir. 

Thereupon  counsel  for  complainant  offered  Hillebrand^s  Ex- 
hibit No.  1.  in  evidence.  (Atlas  p.  3950;  Trans.,  p.  6569;  Abst., 
p.  1925.) 

(Objected  to  on  the  ground  that  it  is  irrelevant,  incompetent 
and  immaterial,  and  on  the  ground  that  it  was  made  from 
a survey  that  has  not  been  proved  to  be  correct  because 
no  sufficient  foundation  has  been  made  to  establish  the 
correctness  of  the  land.) 

The  Witness.  When  the  surveys  were  made,  which  are  here 
assembled,  we  had  two  surveyors  in  our  surveying  corps,  one  of 
the  first  was  Ericson,  the  City  Engineer,  and  Schrader,  the  West 
Park  Engineer.  They  worked  under  the  Chief  Engineer’s  di- 
rection. There  was  an  Assistant  Chief  Engineer  at  that  time, 

544  I think  T.  T.  Johnson  was  Assistant  Chief  Engineer,  and 
each  of  these  surveyors  had  a force  of  linemen  and  rodmen, 

extensionmen  and  observing  men.  Our  surveying  corps  would 
constitute  quite  a large  number  of  men  and  each  and  all  of  those 
men  enter  into  surveys  which  are  here  assembled  and  platted. 
Their  work  was  taken  in  the  regular  course  of  public  business  in 
the  performance  of  duty,  and  their  reports,  and  sometimes  draw- 
ings, and  their  books  were  turned  in  to  me,  and  this  map  consti- 
tutes an  assembling  exhibit  of  the  information  from  all  those 
sources  of  observation  by  all  those  men.  The  map  is  taken,  re- 
lied on,  and  used  by  the  Sanitary  District  of  Chicago  in  and  about 
its  own  business  in  connection  with  the  work  of  the  district. 


302 


545  Cross-Eammination. 

The  green  strip  leading  out  of  the  Chicago  Eiver  at  Bridge- 
port south  towards  the  Stock  Yards  is  the  south  fork  of  the  south 
branch  of  the  Chicago  Kiver.  , 

The  black  line  starting  otf  at  Ogden’s  Dam  and  the  Desplaines 
Eiver  and  running  south  to  the  end  of  contract  Section  2 is  the 
river  diversion.  It  represents  a channel  that  was  constructed  by 
the  Sanitary  District  for  the  purpose  of  diverting  into  it  the 
water  of  the  Desplaines  Eiver  while  they  were  building  the  main 
channel  of  the  district.  It  was  parallel  to  the  main  channel,  and 
that  river  diversion  ditch  or  strip  took  all  the  water  from  the 
Desplaines  Eiver  and  it  has  ever  since  flowed  there.  The  rea- 
son it  was  done  was  because  the  main  channel  was  running  partly 
through  the  old  bed,  the  natural  bed  of  the  stream,  and  they  could 
not  build  the  main  channel  through  the  natural  bed  of  the 

546  stream  without  taking  the  water  out  of  it.  The  distance 
between  Ogden’s  Dam,  the  head  of  that  river  diversion,  and 

contract  Section  2 is  approximately  seven  miles.  The  river  diver- 
sion channel  runs  down  to  a point  just  above  Eomeo  almost  contin- 
uously with  a few  slight  breaks  where  the  water  is  allowed  to  pass 
into  the  natural  bed  of  the  river  and  the  distance  of  the  whole 
length  of  that  river  diversion  strip  from  Ogden’s  Dam  to  Eomeo 
is  about  eighteen  miles. 

The  west  end  of  profile  strip  number  two  shows  a certain  fall 
in  the  Desplaines  Eiver  from  the  dam  at  Lockport  to  what  was 
known  as  the  Adams  Dam  in  Joliet,  and  that  profile  shows  the 
condition  of  the  Desplaines  Eiver  as  it  existed  before  the  work  was 
done  on  the  Sanitary  District  channel.  The  dam  at  Lockport 
is  not  shown  on  this  profile.  The  point  from  which  I started  the 
fall  of  the  river  is  about  opposite  here,  33,  and  the  Adams  Dam 
was  about  58,  that  is,  there  was  a fall  of  about  25.8  feet  in 

547  the  river  from  a point  in  I.ockport  to  the  point  where  the 
Adams  Dam  existed  in  Joliet.  The  distance  between  those  two 

])oints  is  about  four  miles. 

I said  that  the  old  Ogden  ditch  running  from  Ogden’s  Dam 
in  the  Desplaines  Eiver  to  the  Chicago  Eiver  was  a ditch  originally 
used  for  the  ])urpose  of  taking  the  overflow  waters  fi*om  the  Des- 


3o:j 

plaines  Eiver  and  emptying  them  in  tiie  Chicago  liiver,  and  that 
was  a ditch  dug  for  the  purpose  of  draining  that  territory  througli 
which  the  ditch  runs.  I do  not  know  the  exact  date  when  the  ditcli 
was  made.  It  was  started  at  the  time  of  Mayor  Wentworth, 
though,  I think.  It  is  sometimes  called  the  Ogden-Wentworth 
Ditch.  I guess  it  was  about  1845.  It  is  very  little  used  now.  \i 
is  used  occasionally  when  they  overflow  from  the  spillway,  the 
water  fills  there,  took  off  overflow  water  from  the  new  spillway 
built  by  the  district,  that  is,  the  overflow  water  fills  the  Ogden 

548  ditch. 

I refer  to  the  spillway  in  the  Desplaines  liiver  just  above 
the  old  Ogden’s  Dam.  It  ran  into  the  lake,  but  at  present  it  runs 
into  our  channel.  It  runs  out  along  the  length  of  the  Ogden  ditch 
up  to  a point  where  the  little  red  line  diverts  fi*om  the  Sanitary 
District  channel  to  the  west  fork  of  the  south  branch  and  there 
the  water  would  return  from  the  Ogden  ditch  and  the  south 
branch  into  the  drainage  channel. 

Counsel  for  Defendant.  Q.  You  don’t  know  personally  that 
the  surveys  from  which  this  map  was  made  are  correct?  A.  I 
don’t  personally  know,  but,  of  course,  I have  sufficient  checks  in 
the  office. 

That  is  the  means  by  which  the  accuracy  of  the  survey  is  verified 
and  determined.  I employed  those  on  that  map  and  found  it  cor- 
rect. 

549  All  of  the  water  of  the  Desplaines  Kiver  enters  the  Sani- 
tary District  channel  until  we  get  down  to  what  is  known 

as  the  Bear  Trap  Dam  in  Lockport  and  is  represented  here  by 
the  upper  end  of  a brown-black  strip,  and  from  that  point  down 
the  water  of  the  drainage  channel  commingles  when  the  Bear  Trap 
Dam  is  ox)ened,  and  when  the  Bear  Trap  Dam  is  closed  those 
waters  commingle  at  the  up]>er  end  of  the  upper  basin,  where 
the  yellow-brown  and  the  red  band  and  the  black  band  all  come 
together  in  the  platted  territory  of  Joliet. 

So  that  wherever  in  that  map  the  Desplaines  Biver  is  shown 
in  green  and  is  parallel  by  the  black  strip  representing  the  river 
diversion  the  green  strip  represents  the  old  bed  of  the  stream 
in  which  no  water  runs  now,  and  they  are  separated  l)y  the  canal 


304 


and  embankments,  wliicli  are  represented  in  various  ways  on 

550  all  three  of  the  strips.  As  I have  stated  that  the  scales  on 
strip  number  one  are  government  sections  the  top  of  the  map 

does  not  represent  the  north.  The  north  is  very  nearly  on  an 
angle  of  45  degrees  from  a vertical  line  from  the  top  to  the  bottom 
of  the  map.  That  is  so  done  in  order  that  by  placing  the  rivers 
diagonally  you  get  a longer  strip  of  them  on  the  plat. 

H ill  eh  ran  d, — l)i  reel  Exa  m . — C o ntin  ued. 

Q.  You  now  produce  at  my  request  another  map  which  the 
commissioners  marked  ^^Hillebrand’s  Exhibit  No.  2”.  Mr.  Hille- 
brand,  this  Hillebrand’s  Exhibit  No.  2 is  labeled  ‘^Sanitary  Dis- 
trict of  Chicago  map  of  Joliet  and  vicinity’’  with  other  legends. 
Was  that  map  made  by  you  in  the  like  manner  as  in  the  case 
of  Hillebrand’s  Exhibit  No.  1!  A.  Yes,  sir. 

I had  them  made  in  the  office  under  my  superintendence.  The 
words  ‘^Chicago,  111.,  December  22,  1896,  Thomas  F.  Perry,  Del.” 
mean  that  he  did  the  drafting.  He  was  a draftsman  working 

551  under  my  direction  as  Chief  Draftsman.  Below  that  a sep- 
arating line  and  then  again  below  that  the  legend  ^improve- 
ment made  whei*e  Sanitary  District  platted  March  19,  1907”.  The 
drafting  and  platting  of  the  improvements  made  by  the  Sani- 
tary District  were  also  made  and  platted  under  my  direction  and 
are  both  shown  on  this  map.  'March  19,  1907,  it  was  platted. 
The  portion  marked  ‘‘New  channel  of  Desplaines  River”,  also 
the  notation  “Main  channel  of  Sanitary  District  of  Chicago”,  the 
improvement  made  by  the  Sanitary  District  between  the  upper 
l)asin  and  McDonough  Street  and  the  levee  embankment  east  of 
the  Desplaines  River. 

The  part  which  1 have  pointed  out  on  the  map  as  being  improve- 
ment in  the  upper  basin,  as  well  as  that  showing  the  main  chan- 
nel of  the  Sanitary  District  of  Chicago  are  enclosed  in  the  red 
lines  extending  from  the  extreme  right  end  of  the  exhibit  down 
to  a point  shortly  to  the  right  of  McDonough  Street,  then 

552  at  a point  above  about  Jefferson  Street  there  begins  a double 
red  line,  embraces  a brown  streak  which  extends  from  the 

left  of  Jefferson  Street  and  past  ^IcDonough  Street  along  the 


:]or> 


margin  of  the  Desplaines  River  down  Hickory  (h*eek,  wliicli  is 
labeled  Levee  Embankment.’^ 

This  exhibit  substantially  re])resents  the  conditions  of  things 
at  points  indicated  as  they  exist  today,  as  they  have  existed  siiu'c 
some  time  prior  to  March  19,  1907.  At  the  words  ^Metferson 
Street”  is  a dotted  line  on  an  ark  labeled  ^^T)am  No.  2”.  That 
dam  has  been  removed. 

Also  near  where  the  lines  Wallace  Street  projects  across  the 
Hes|)laines  River  a little  line  marked  ^L\dams  Dam”.  That  has 
also  been  removed.  These  dams  were  removed  about  1898  and 
1899.  They  were  here  in  1896  when  the  work  was  originally  plat- 
ted, the  survey  was  made  in  1895  and  the  drawing  in  1896. 

553  Those  dams  existed  at  the  time  of  the  survey.  Between  1898  . 
and  March,  1907,  the  improvements  were  made  wliich  are 

delineated  within  the  red  lines. 

Then  there  is  at  this  time  only  one  dam  across  the  Desplaines 
River  from  above  the  up]:>er  basin  down  to  the  mouth  of  the  river 
and  that  is  Dam  No.  1,  which  is  the  property  of  the  State  of 
Illinois. 

Dam  No.  1 as  it  now  exists  was  reconstructed  by  the  Sanitary 
District  of  Chicago  under  agreement  with  the  Illinois  Canal  Com- 
missioners and  built  under  a consent  decree  in  a suit  between  those 
parties. 

In  the  upper  basin  just  above  Dam  No.  1 are  assembled  the 
waters  of  the  Desplaines,  the  waters  of  the  main  channel  of  the 
Sanitary  District  of  Chicago  and  the  waters  of  the  Illinois  & 
Michigan  Canal.  They  all  three  come  into  one  common  stream 
and  basin. 

This  map  is  drawn  on  a scale  of  400  feet  to  the  inch,  the 

554  top  of  the  map  is  not  north.  The  section  line  comes  there 
to  the  east  and  west.  This  is  the  east  and  west,  this  side  is 

north  and  south.  I call  your  attention  to  the  line  near  the 
right  hand  end  of  the  map.  That  line  runs  north  and  south  and 
the  line  running  at  right  angles  to  it  would  be  the  other  section 
line  running  east  and  west. 

The  waters  of  the  Desplaines  River  run  into  the  ^^New  channel 


306 


Jlillehrand, — Direct  Exam. — Continued. 


of  Desplaines  Eiver’’.  The  old  channel  is  indicated  on  the  map  in 
bine  marked  ‘‘Desplaines  Eiver.’’ 

Q.  Suppose,  Mr.  Hillebrand,  yon  indicate  at  the  extreme  right 
hand  end  of  this  exhibit  the  east  boundary  line  of  the  Desplaines 
Eiver  channel  as  it  was  before  the  Sanitary  District  channel  was 
constructed  and  before  the  new  channel  of  the  Desplaines  Eiver 
was  constructed.  You  put  a mark  a on  the  map  and  there  is  a 
firm  blue  line  passing  the  appex  of  the  a.  That  indicates  the  east 
boundary  of  the  river  channel?  A.  The  east  bank. 

555  Q.  The  east  bank  of  the  Desplaines?^  A.  Yes,  sir. 

Q.  Yow  similarly  mark  the  west  bank  of  the  Desplaines. 
(Witness  marks  as  instructed.) 

Q.  You  place  a mark  b and  adjoining  that  is  a double  line. 
There  are  some  lines  quite  close  together  lying  otf  to  the  right 
between  the  a and  the  b.  What  do  you  indicate  where  I mark  the 
c ? A.  More  or  less  of  a bayou  of  the  river. 

Q.  Now,  Mr.  Hillebrand,  between  the  a and  the  b are  a mul- 
titude of  small  figures  arranged  in  columns  and  some  of  them 
scattered  about.  I note  several  of  them  between  the  a and  the  b. 
There  is  a 40  on  the  line  which  you  marked  as  the  east  bank  and 
there  are  40.6  and  43.4,  43.7,  43.6.  On  the  east  bank  of  which 
is  marked  with  the  figure  40,  and  then  along  through  the  area  of 
these  channels  are  groups  of  columns  of  smaller  figures  ranging 
between  30  and  60  apparently  in  numbers.  What  do  those  little 
figures  represent?  • A.  Soundings  taken  in  the  river  by  indicat- 
ing the  level  below  Chicago  datum. 

I think  these  soundings  were  taken  under  the  direction  of  Mr. 
A.  C.  Schrader.  He  was  in  charge  of  the  survey  at  that  time  for 
the  Sanitai  y District  of  Chicago,  in  1895.  They  were  taken 

556  under  the  direction  of  Mr.  Schrader  by  surveyors  employed 
by  the  Sanitary  District  of  Chicago  as  a part  of  the  work 

of  the  Sanitary  District  in  reference  to  the  construction  of  this 
channel  down  here,  and  this  other  work.  It  was  taken  in  the 
regular  course  of  business  and  the  reports  of  these  soundings  were 
made  to  me  along  with  tlie  other  field  notes  and  data  of  the 
survey  for  the  purpose  of  platting,  and  they  were  checked  and 
verified  by  the  assistants  in  my  office  in  the  manner  I have 


307 


previously  described  and  found  to  be  correct,  and  then  were  plat- 
ted as  showing  tlie  soundings  of  tlie  stream. 

Counsel  fok  Defendant.  How  can  you  check  the  correctness  of 
soundings?  A.  We  can.  For  instance,  if  one  figure  of  something 
varies  a great  deal  from  the  rest,  we  could  send  for  a surv^eyor 
and  ask  him  the  reason.  We  had  the  experience,  and  haying 
some  profiles  of  the  river  we  get  an  idea  of  the  average  eleva- 
tion, and  if  the  surveyor’s  report  is  a great  deal  different  we 
ask  him  for  an  explanation. 

557  He  looks  over  his  notes  and  sometimes  a mistake  is  in  the 
book.  If  we  find  it  is  in  the  book  he  resounds  or  recovers 

Ills  work.  There  is  a report  sent  in  by  the  man  in  charge  and, 
of  course,  he  checks  his  work  and  turns  it  over  to  me. 

Counsel  for  Defendant.  And  that  is  all  the  checks  you  had? 
A.  Yes. 

When  they  come  to  do  the  work  here  of  excavating  the  chan- 
nel of  the  Sanitary  District  and  the  new  channel  through  the 
river  they  would  have  occasion  to  dig  into  the  area  and  in  other 
ways  apply  their  tools  and  instruments  to  the  very  space  where  the 
soundings  are  delineated  and  in  that  way  would  have  occasion  to 
verify  the  soundings. 

Q.  You  may  state  whether  or  not  that  was  actually  done? 
A.  I did  not  check  these. 

Q.  I did  not  ask  whether  you  did  it  hue  whether  that  was 
done  in  the  work?  A.  Yes,  sir. 

Q.  And  whether  the  quantities  of  material  naturally  disclosed 
any  inaccuracies  in  the  soundings?  A.  1 don’t  know  that 

558  this  plat  was  made  long  before  that  work  was  started.  This 
improvement  work  was  done  since  the  plat  was  made.  I did 

not  check  the  soundings,  I simply  showed  the  outlines.  The  sound- 
ings were  on  the  plat  before  the  new  work  was  done. 

I have  delineated  on  the  face  of  the  printed  plat  as  it  showed 
in  1896  the  work  that  has  been  done  since  1896  without  any  ref- 
erence to  the  sounding  figures.  I have  gone  right  over  the  face 
of  the  sounding  figures  with  the  outlines  showing  the  new  work. 

Those  outlines  showing  the  new  work  were  put  in  there  in  1907, 
so  that  here,  for  exatnple,  to  the  right  of  the  point  ^‘Main  chan- 


308  Hillehrand, — Direct  Exam. — Continued. 

nel’’  occur  and  a little  below  is  an  area  in  wliicli  are  a lot  of 
soundings  written  across  it,  wliicli  is  now  dry  land. 

559  Q.  But  as  conditions  existed  in  1896  it  represented  tlie 
bed  of  the  Desplaines  Eiver?  A.  Not  all  of  it. 

Q.  But  where  the  soundings  occur!  A.  Yes,  sir. 

That  is  wherever  there  is  a source  of  soundings  shown  on  the 
white  strip  between  the  main  channel  of  the  Sanitary  District 
of  Chicago  and  the  Illinois  & Michigan  Canal.  It  is  now  dry 
land,  but  in  1896  those  soundings  were  in  what  was  then  the 
bed  of  the  Desplaines  Eiver.  Below  Dam  No.  1 where  are  the 
words  ^^Lock  3”  is  a very  pale  blue  strip  going  to  the  left  labeled 
^ Illinois  & Michigan  Canal. The  Illinois  & Michigan  Canal 
separates  from  the  common  flood  of  the  Desplaines  and  the  Sani- 
tary District  of  Chicago  at  that  point,  that  is  at  Lock  No.  5 (in- 
stead of  Lock  No.  3).  The  lock  at  that  point  is  at  the  Jefferson 
Street  bridge.  The  figures  similar  to  the  soundings  written  on 
the  face  of  the  pale  blue  strip  called  the  canal,  a little  to  the 
left  of  Dam  No.  I,  and  also  again  to  the  left  below  Dam  No.  I in 
the  area  marked  lower  basin”  were  soundings  all  taken  back 
in  1895,  and  they  represented  conditions  of  the  bottom  of  the 
channel  at  that  time. 

560  In  the  area  between  the  red  lines  in  the  lower  basin  and 
in  the  area  colored  deep  blue  for  the  lower  basin  here  and 

there  are  apparent  boundary  lines  which  project  out  into  the 
area  on  each  side  show  the  old  bed  of  the  river,  islands,  etc.,  as 
it  was  before  the  improvements  were  made  to  which  I refer. 
That  was  the  bank  of  the  river  as  it  was  shortly  prior  to  De- 
cember 22,  1896,  and  the  red  lines  represent  the  margin  of  the 
river  as  it  is  today. 

Counsel  for  complainant  then  offered  in  evidence  Hillebrand’s 
Exhibit  No.  2.  (Atlas  p.  3951;  Trans.,  p.  6571;  Abst.,  p.  1926.) 

Objected  to  because  it  has  not  been  shown  to  be  accurate. 

The  IViTNEss.  The  Sanitary  District  of  Chicago  caused  this 
map  to  be  made  in  thue  regular  course  of  business  at  the  time  I 
have  heretofore  indicated  and  it  constitutes  a part  of  its  records 
upon  the  subjects  ipoon  which  I here  delineate  and  show,  and  the 
Sanitary  District  makes  regular  and  habitual  use  of  this  map 


309 


as  a correct  map  in  its  regular  course  of  business  in  dealing  with 
the  territory  here  shown,  and  I have  already  stated  that  it 

561  was  made  in  the  same  manner  and  from  the  same  kind  of  re^ 
ports  turned  in  to  me  by  surveyors  in  the  employ  of  the 

Sanitary  District,  as  I have  testified  to  in  regard  to  Exhibit  No.  1. 

The  large  blue  print  labeled  ^^Hillebrand’s  Exhibit  No.  3”  and 
which  has  in  white  letters  the  legend  ‘‘Sanitary  District  of  Chicago 
map  showing  ]oarts  of  Sections  31  and  32,  T.  34  N.,  K.  9,  E.  of  3rd 
P.  M.,  "Will  County,  Illinois,  Chicago,  Feb.  1905”,  with  other 
legends,  was  made  in  the  office  of  the  Sanitary  District  about  1904. 
The  label  “Chicago,  February,  1905,”  was  put  on  at  the  time  the 
drawings  were  made.  1904  was  the  date  when  the  suiwey  was 
made,  that  was  made  under  my  direction  and  supervision  as  chief 
draftsman  of  the  Sanitary  District  of  Chicago. 

The  same  conditions  prevailed  as  to  its  being  made  by  sur- 
veyors in  the  field  and  their  notes  being  written  in  and  assem- 
bled by  my  assistants  and  draftsmen  under  my  supervision,  which 
I have  detailed  more  at  length  under  Hillebrand’s  Exhibit 

562  No.  1 and  Hillebrand’s  Exhibit  No.  2. 

Q.  I see,  Mr.  Hillebrand,  that  this  blue  portion  appears 
to  be  placed  together,  several  different  pieces,  also  that  it  shows 
other  areas  besides  those  of  sections  31  and  32.  For  instance, 
at  the  left  hand  end  I see  the  label  “center  section  25”  in  a 
round  circle,  two  circles:  Tell  us  how  that  map  was  put  together 
and  how  it  was  made?  A.  The  maps  were  made  in  different 
sheets,  and  in  order  to  cover  a certain  territory  I would  have 
to  paste  those  sheets  together. 

In  my  records  I keep  them  in  separate  sheets  for  different 
pieces  of  territory,  that  is  would  paste  together  in  this  way  in 
order  to  make  a continuous  view  of  the  entire  exhibit.  What 
rs  represented  by  the  long  strip  that  appears  to  be  somewhat  less 
than  the  one  in  the  wide  painted  in  yellow  and  running  from 
the  left  hand  of  the  exhibit  along  the  right  hand  side  running 
down  along  the  stream  of  the  Illinois  Eiver  and  the  Desplaines 
River  and  bordering  on  the  opposite  side  of  the  Illinois  & Mich- 
igan Canal,  is  the  right  of  way  or  property  of  the  Illinois  & 
Michigan  Canal  Commissioners.  It  is  in  part  the  90-foot  strip 


310 


and  in  part  wider  than  that,  and  sometimes  it  goes  narrower, 

563  but  it  is  what  is  colloquially  referred  to  as  the  90-foot  strip. 
Beginning  at  the  left,  at  the  county  line,  Grundy  County,  being 

labeled  Grundy  County  on  the  left,  I see  that  the  yellow  strip 
or  coloring  is  spread  out  over  a wider  area  than  the  one-half 
inch,  and  that  that  continues  over  a little  to  the  right  of  the 
double  circle,  marked  ‘^Center  of  Section  31’’;  the  whole  being 
between  the  area  in  blue,  marked  ‘‘Illinois  and  Michigan  Canal” 
on  the  right,  as  you  go  down  stream,  and  the  Desplaines  Eiver. 
That  area  is  the  Canal  property  belonging  to  the  Illinois  and 
Michigan  Canal;  and  that  is  the  tract  that  is  colloquially  referred 
to  as  the  “16-acre  tract”,  which  was  the  subject  of  lease  and 
sale  by  the  Canal  Commissioners  to  Harold  F.  Griswold. 

This  plat  represents  the  Desplaines  Eiver  and  the  Kankakee 
Eiver,  and  the  point  of  their  confluence,  where  they  form  the 
Illinois,  and  for  a distance  down  the  Illinois  Eiver;  together  with 
the  location  of  the  Illinois  and  Michigan  Canal  adjoining  the 
Sanitary  District.  These  different  sheets  which  make  up  this 

564  exhibit  were  prepared  at  various  times  by  me  and  under  my 
direction  for  use  about  different  matters  of  business  of  the 

Sanitary  District  of  Chicago,  all  prior  to  the  date  of  “Chicago, 
Feb.  1905”,  printed  on  the  exhibit.  It  was  prepared  without 
any  reference  to  anything  that  is  occurring  now  in  this  litigation. 
I got  the  data  for  the  red  strip  crossing  the  Desplaines  Eiver 
near  the  mouth,  labeled  “Proposed  Power  Dam”,  and  extending 
along  the  line  labeled  “Proposed  Spill-way”;  and  the  other  mat- 
ters shoTvm  in  red,  which  are  shown  in  connection  with  the  de- 
lineation of  the  proposed  power  dam, — in  the  form  of  a blue 
print  from  Mr.  Eandolph,  blue  printing  that  dam.  That  was  the 
blue  print  which  Mr.  Eandolph  obtained  from  Mr.  Charles  A. 
Monroe,  which  was  signed  by  Mr.  M^oerman.  I received  the  lYoer- 
man  blue  i^rint  about  six  months  ago,  to  the  best  of  my  recollec- 
tion. That  then  has  been  added  to  this  map  since  the  time  when 
the  printing  was  done.  I assembled  these  different  sheets 

565  and  pasted  them  into  this  one  exhibit,  I guess  about  Xo- 
vember  of  last  year.  This  coloring  was  put  on  at  that  time. 

Then,  while  the  different  sheets  have  been  made  prior  to  1905,  the 
pasting  of  them  together  in  this  one  exhibit,  and  putting  on 


of  the  coloring  showing  the  16-acre  tract — the  strip  sometimes 
called  the  90-foot  strip — the  proposed  power  dam  and  the  proposed 
spill-way  were  colored  in  there  in  November,  3907 ; and  I have  no 
information  about  that  except  what  I got  from  Mr.  Monroe;  and 
I delineated  here  and  colored  in  the  yellow  on  each  side  of  the 
Kankakee  feeder,  a strip  for  the  right-of-way  across  the  area 
from  the  river  bank  to  the  county  line.  Their  right-of-way  goes 
beyond  the  county  line^  on  each  side  of  the  feeder.  I suggested 
by  that  short  strip  and  leave  it  to  lie  understood  the  rest  of  the 
way. 

These  little  figures  which  follow  the  waving  lines  on  the  blue 
print,  which  are  not  upon  the  river,  but  away  from  it,  rep- 

566  resent  land  elevations  below  Chicago  datum. 

Counsel  for  complainant  thereupon  offered  the  plat  in  evi- 
dence, viz.,  Hillebrand  Exhibit  3.  (Atlas  3943;  Trans.,  p.  6555; 
Abst.,  p.  1922.) 

Cross-Examination, 

Q.  You  don’t  personally  know  that  there  is  any  right-of-way 
along  the  Kankakee  feeder,  or  how  much?  A.  I think  I have 
seen  it  mentioned. 

Q.  You  don’t  know  anything  about  it,  do  you?  A.  No,  no,  no. 

This  strip  that  Mr.  Starr  has  referred  to  as  the  90-foot  strip” 
is  known  as  the  ‘^90-foot  strip.”  It  seldom  is  90  feet  wide; 

567  sometimes  it  is  80,  sometimes  it  is  100. 

Thereupon  it  was  stipulated  that  the  exhibits  be  retained  by 
counsel  for  the  party  offering  them,  and  to  be  produced  at  the 
trial. 

And  it  was  also  stipulated  that  the  signature  and  final  oath 
of  this  witness  be  waived. 

Thereupon  the  taking  of  said  deposition  was  adjourned  until 
Tuesday,  April  14,  10 :30  A.  M. 

568  William  Wiggam, 

a witness  on  behalf  of  the  defendant,  testified  as  follows : 
Direct  Examination. 

My  name  is  William  Wiggam.  I live  at  Libertyville  now, 

569  Lake  County,  Illinois.  I have  lived  there,  I think,  five  years 


last  October.  I have  lived  in  Lake  County  all  my  life,  except 
three  years  I was  in  Champaign  County.  I am  70  years  old  last 
Xovember.  Before  I lived  on  the  i3resent  place,  I lived  on  my 
farm  in  the  town  of  Vernon,  Lake  County. 

The  Desplaines  Biver  rims  right  through  the  whole  length  of 
the  farm,  from  north  to  south.  Except  three  years  I have  lived 
all  my  life  right  in  this  township.  I am  familiar  with  the  Des- 
plaines Eiver  in  that  vicinity.  I have  been  up  and  down  the  Des- 
plaines Kiver  in  that  vicinity  along  there.  I drove  once  with  a 
sleigh  load  of  brick  from  the  Desplaines  Eiver  to  within  one-half 
a mile  of  my  jDlace,  right  up  the  bed  of  the  river.  I have  been 
familiar  with  the  river  between  the  Desplaines  Eiver  and  my 
present  place.  I think  I am  somewhat.  I have  been  up  as 

570  far  as  Vincent’s  Mill,  about  one-half  a mile  north  of  my 
place; — not  my  iiresent  place, — I am  in  Libertywille,  you  un- 
derstand. I mean  north  of  my  old  farm.  T am  familiar  with 
the  Desplaines  Eiver  clear  to  Libertyville,  for  that  matter. 

I never  knew  of  any  boats  being  navigated  upon  that  river 
for  commercial  purposes.  As  far  as  I know  no  boats  were  ever 
navigated  for  commercial  purposes  on  the  river  during  the  time 
that  I lived  there*  There  might  be  such  a thing  as  going  in  the 
night,  but  I would  have  heard  of  it,  I think.  It  seems  ridiculous 
to  me  to  talk  about  a boat  going  there. 

Counsel  eoe  Complainant.  I enter  a motion  to  strike  out  the 
witness  on  the  subject  ^Biow  it  seemed”,  as  being  irrelevant,  as 
well  as  not  responsive,  incompetent  and  immaterial. 

Q.  Did  you  ever  see  any  boats  navigated  on  the  river  for 
commercial  purposes?  A.  Xo,  sir. 

571  Q.  "Would  it  be  possible  in  your  judgment  for  any  com- 
mercial navigation  to  take  place  on  that  portion  of  the  river 

that  you  are  familiar  with? 

(Objected  to  as  incompetent,  irrelevant  and  immaterial, 
and  as  calling  for  an  opinion  for  which  no  foundation  had 
been  laid.) 

A.  Xo,  sir,  I don’t  think  it  would. 

(,).  Why  not? 

(Same  objection.) 


313 

A.  On  account  of  the  river  not  l)eing  deep  enough, — not  water 
enough. 

The  present  condition  of  that  part  of  tlie  river  I am  familiar 
with  is  pretty  low  just  now. 

Q.  What  is  the  normal  depth  of  water  in  that  river  at  points 
you  are  familiar  with,  during  the  summer  season? 

(Same  objection.) 

A.  Well,  I should  say  it  would  be  all  the  way  from  15  inches 
up  to  3 feet,  except  the  deep  holes.  Of  course,  I know  there 

572  are  deep  holes,  that  are  10  feet  deep. 

Q.  I say,  the  normal  depth  of  water  during  the  summer 
season.  I don’t  mean  the  depth  of  Avater  during  the  periods  of 
freshets.  A.  No,  of  course  not. 

Q.  But  the  average  depth  when  thei'e  is  no  freshet,  or  what 
do  you  think  that  AAmuld  be?  A.  There  are  places  in  the  river 
that  would  not  be  more  than  15  inches  deep. 

There  A\muld  be  holes  AAdiere  it  would  be  deeper,  and  those  holes 
are  all  where  there  is  a bend  in  the  river,  AAdiere  the  Avater  has 
eaten  a hole  into  the  soft  bank  and  dug  it  deeper. 

Q.  Except  in  those  places,  the  average  dejith  of  water  during 
the  summer  season  Avoiild  be  about  15  inches?  A.  I Avould  think 
about  that. 

Counsel  for  Complainants.  The  same  objection. 

Witness.  T ncA^er  heard  of  any  navigation  being  carried  on 
that  river  for  commercial  purposes.  When  I was  a boy  there 

573  Avas  a dam  at  Vincent’s  Mill,- — that  is,  north  of  my  farm  in 
Lake  County.  The  first  recollectio  ntliat  1 ha\^e  got  of  re- 
membering anything  is  that  there  was  a dam  there.  It  Avas  maiir 
tained  up  to  16  or  18  years  ago. 

There  was  a flouring  mill  and  a saAAmnill.  They  got  the  logs 
to  saw  at  the  mill,  right  in  the  immediate  Aucinity  of  those  mills. 
The  logs  were  drawn  to  the  mill  by  . sawed  sleighs  in  the  winter 
time  and  in  the  spring.  These  mills  Avere  always  run  by  water, 
but  there  was  times  they  would  not  have  water  enough,  and  the 
grist  mill  Avas  run  by  steam.  And  that  grist  mill  was  erected 
by  this  man  I told  you  about,  Vincent.  But  there  are  tAVo  par- 


314 


ties  before  Vincent  that  owned  that  property  and  maintained  the 
dam.  The  first  man  that  bnilt  the  dam  was  Kenicott.  If  you 
know  anything  about  the  Kenicott ’s  in  Cook  County,  those 
574  were  the  people,  the  early  ones  that  erected  a dam  and  a 
saw-mill. 

The  Width  of  the  water  in  the  river  at  the  normal  state  during 
the  summer  season,  and  not  during  any  freshet  would  be  about, 
I would  say,  from  16  feet  up  to  70  or  80  feet.  At  places  the  river 
would  be  as  narrow  as  16  feet,  and  that  is  where  the  banks  were 
high,  and  then  in  dry  time  the  original  river  bed  would  be  there 
Avith  no  water  on  it.  Of  course,  when  there  is  a freshet,  then  it  is 
Avide  there  because  that  country  is  all  low  land  there.  Why,  I 
have  seen  that  river  over  a mile  wide,  during  freshets. 

Near  Vincent,  or  Desplaines,  the  whole  country  is  pretty  level, 
and  there  might  be  banks  there  10  or  12  feet  high,  or  something 
like  that,  for  a short  distance.  There  is  no  bank  to  that  river 
that  you  can  speak  of  that  holds  it  anywhere  within  bounds.  It  is 
either  one  side  or  the  other  that  it  can  spread  out. 

Q.  Would  it  be  possible  for  farmers  to  take  any  produce  down 
or  up  the  riAmr  by  means  of — A.  Not  in  dry  times. 

(Same  objection.) 

Q.  By  means  of  naAugation  in  boats?  A.  No,  sir. 

Cross-Examination. 

I neAmr  was  in  the  navigation  business.  I was  a farmer.  I 
never  did  anything  but  farm  in  my  life.  I never  owned  a boat. 
Well,  I owned  a little  scow  to  go  across  the  river.  That  was 
merely  for  pleasure,  riding  across  there,  riding  in  the  timber.  I 
think  the  dimensions  of  it  were  about  12  by  4 feet,  high  sides. 
576  It  would  carry  four  or  five  persons.  I guess  it  would  have 
more  than  Iavo  inches  of  gunwale  above  the  water  when  five 
people  were  in  it.  The  sides  were  a foot.  It  was  a scow,  the 
same  as  this  table,  with  the  sides  up  a foot  high.  Of  course,  it 
Avould  go  down  about  half,  I should  say,  with  five  persons  in  it. 
The  bottom  was  perfectly  flat,  the  same  as  this  table.  It  was 
beveled  at  the  end.  I didn’t  make  it  myself,  I helped  make  it. 
I got  a carpenter  to  make  it.  He  made  that  because  his  father 
Avorked,  when  he  Avas  a boy,  worked  at  these  mills  in  order  to— 


There  was  a dam  that  was  put  there  in  the  first  place,  put 

577  up  with  small  small  trees  and  brush.  That  is  what  you  calf 
a brush  and  gravel  dam.  There  used  to  be — with  a scow 

that  would  be  about  12  feet  square — they  used  to  draw  dirt  and 
put  into  the  dam,  because  they  could  not  get  through  with  the 
team  at  times  of  the  spring,  whenever  it  would  spring  a leak, 
or  anything.  Used  that  to  get  across  to  keep  the  dam  in  repair. 
Used  to  get  up  the  river  to  a good  bank  and  get  whatever  they 
used  for  stoppage  purposes  and  float  down  there  to  the  dam,  and 
then  dump  it  in  on  the  dam.  They  built  the  dam  at  one  of  the 
bends.  They  took  advantage  of  one  of  the  deep  spots  that  was 
made  at  the  bend.  The  bank  on  each  side  of  that  dam  was — 
a good  deal  of  that  had  to  be  made;  but  what  we  called  the 

578  south  side  of  the  dam,  that  had  a natural  bank,  that  we  never 
had  any  trouble  about  putting  anything  in  there.  That  would 

still  be  as  good  as  a retaining  wall;  but  on  the  other  side,  in  high 
water,  water  used  to  flow  all  around  the  building,  and  the  mill 
would  stand  right  out  in  a great  lake  of  water.  I should  say 
it  would  be  more  than  80  rods  to  get  to  the  mill  with  high  water, — ■ 
the  water  that  you  would  have  to  cross,  because  there  is  all  this 
land  west  of  the  mill,  where  the  river  at  the  high  water  time 
would  run  across  it.  The  dam  would  have  to  be  one-half  mile 
long  to  have  stopped  the  water  from  running  over.  All  that 
country  is  very  flat  there. 

579  I have  not  seen  the  water  when  it  would  run  over  the  dam 
20  feet  high;  if  it  was  over  the  dam  20  feet,  it  would  go  from 

a mile  to  five  miles  wide,  that  river.  Well,  I have  seen  times 
when  it  did  go  at  least  3 miles, — I have  seen  it  pretty  near  it. 

‘ 580  I live  right  where  I saw  the  river,  you  might  say.  My 
business  would  take  me  to  the  mill  any  way  one-half  a dozen 
times  in  the  year, — perhaps  more  than  that.  That  was  the  time 
we  used  to  raise  wheat  and  we  used  to  grind  our  wheat  there,  and 
I presume  I went  there  once  a month  right  straight  along.  That 
would  be  any  time  when  I had  wheat  I wanted  ground.  Of  couc^^e, 
in  those  days  we  didn’t  have  facilities  for  taking  care  of  many 
barrels  of  flour,  and  we  went  whenever  we  needed  to.  I don’t 
581  know  whether  there  was  a ferry  at  the  mouth  of  Mill  Creek 
I don’t  believe  I do  know  Mill  Creek.  I didn’t  know  a ferry 


316 


at  any  point.  I am  pretty  sure.  What  do  you  mean,  for  trans- 
porting passengers? 

Q.  No,  I mean,  they  used  a scow  at  each  side  of  the  river, 
two  or  three  times  as  large  as  the  scow,  which  you  kept  for  your 
own  use,  which  was  big  enough  so  that  a man  could  load  a wagon 
in  it  and  take  it  across  the  river.  A.  Then  that  would  he  away 
north  of  me. 

Q.  Yes.  A.  It  is  possible  that  there  migh.t  he,  that  is  before 
they  had  a bridge,  I don’t  remember  a thing  of  that. 

(The  foregoing  witness  was  examined  on  behalf  of  the  defend- 
ant at  this  point  by  agreement  of  the  parties  and  his  signature 
and  subscribing  oath  to  the  deposition  were  waived.) 

Clarence  H.  Palmer, 

582  a witness  for  coiu])lainant,  testified  as  follows: 

Di red  Exa ini n ation . 

My  name  is  Clarence  H.  Palmer.  My  age,  40;  my  business, 
manager  of  the  Kacine  Boat  Manufacturing  Company,  Chicago 
Branch; — that  is,  a manufacturing  branch  which  is  engaged  in 
the  manufacture  of  boats,  with  the  factory  at  Muskegon,  Mich- 
igan, and  one  of  the  general  distilbuting  offices  in  the  City  ol 
Chicago,  and  this  Chicago  branch  is  in  my  charge. 

I have  been  in  the  business  about  ten  years.  I never  was 
in  the  boat  business  until  I Avent  with  that  company,  as  a Imsi- 
ness.  Before  that  I was  in  other  lines. 

583  Q.  Mr.  Palmer,  are  you  able  to  tell  us  from  your  knowledge 
of  the  trade,  of  the  manufacture  and  use  of  boats;  when  the 

form  of  boat  which  is  called  the  '-'motor  boat”  first  began  to 
used  in  the  Middle  AYest, — meaning  thereby  the  states  between 
the  Allegheny  Mountains  and  the  Missouri  Eiver  ? A.  The 
term  "motor  boat”  has  been  a]^plied  within  the  last  four  years,  to 
what  were  tlien  just  launches. 

The  term  motor  boat  is  applied  to  a boat  that  is  huilt  for  speed 
]uore  than  comfort.  It  is  a boat  that  is  long  and  narrow,  and 
its  AAdiole  object  is  for  speed.  The  term  "motor  boat”  is  taken 
from  the  automobile,  and  is  only  about  four  or  five  years  old,  as 


:n7 

applied  to  ])oats,  l)iit  the  laimelies  have  been  in  existence  for 
two  or  three  years  prior  to  the  World’s  Fair  of  1898. 

That  is  entirely  a speed  boat,  the  same  as  a race-horse. 
The  launches  to  which  I referred  were  in  use  as 

584  freight  l)oats.  The  construction  of  a launch  generally  for 
freight  purposes  would  be  a boat,  say  about  25  feet  long,  by 

6 to  8 feet  beam,  built  heavy,  and  with  a gasoline  engine  of  from 
hve  horsepower  to  16, — varying  according  to  the  current  that 
they  wished  to  go  against  and  the  work  they  have  to  do;  and  those 
would  be  the  smallest, — from  that  on  up  to  larger  sizes, — up  to 
100  feet  long,  and  say,  from  17  to  20  feet  beam. 

To  find  the  tonnage  that  a boat  would  carry,  you  multiply  the 
length  of  the  boat  by  the  beam  and  by  the  de])th  of  the  hull, 
and  divide  by  95.  Take  a boat  100  feet  long  and  20  feet  wide,  and 
multiply  this  together,  that  gives  you  2,000,  de])th  2,  gives 

585  you  4,000,  divide  by  95  and  that  would  give  you  42  tons. 
A boat  of  those  dimensions  would  carry  that  load  in  addition 

to  carrying  its  own  machinery,  and  the  gasoline  by  which  it  is 
operated  and  its  crew. 

That  boat  would  be  a little  out  of  proportion.  A boat  of  that 
dimensions  would  be  more  than  2 feet  in  depth  of  hull. 

The  draft  of  the  boat  and  the  depth  of  the  hull  are  two  dif- 
ferent tilings.  The  draft  would  be  the  amount  of  the  boat  below 
the  water, — that  would  be  2 feet  below  the  water,  but  that  boat 
would  necessarily  be  from  4 to  6 feet  out  of  the  water,  so  that 
a boat  of  that  description  instead  of  being  2 feet  depth,  the  hull 
would  be  at  least  6 or  8 feet,  and  still  draw  2 feet  of  water 

586  and  travel  on  2 feet  of  water, — so  that  you  have  got  to  figure 
on  carrying  more  tonnage. 

What  is  considered  draft  is  from  the  lowest  point  of  the  boat, 
to  about  water  line,  where  the  water  comes  on  the  boat, — that 
is  the  draft  of  the  boat.  As  to  where  the  water  line  came  with 
reference  to  the  depth  of  the  boat  would  depend  upon  the  con- 
struction of  the  boat.  In  the  tunnel  boat, — the  propeller, — there 
is  a tunnel  built  up  into  the  hull.  It  is  more  like  the  cast  of 

587  your  hand  placed  like  that  (indicating),  making  a dome  to 
keep  the  propeller  in.  When  the  boat  is  stationary,  the  pro- 
peller is  half  out  of  the  water.  As  soon  as  the  propeller  is  started 


318 


Palmer, — Direct  Exam. — Continued. 


up  with  the  machinery,  it  lifts  the  water  and  fills  this  dome,  and . 
then  acts  the  same  as  if  the  screw  was  so  many  inches  under 
'water.  For  instance,  you  had  a 20  inch  screw  stationary,  the 
propeller  would  only  draw  10  inches  of  water,  but  as  soon  as  the 
motion  begins,  why  this  cavity  is  filled  with  water,  and  she  goes 
the  same  as  if  the  propeller  was  more  than  20  inches  under 
water. 

Those  are  a line  of  shallow  draft  boats,  and  they  were  first 
built  in  England  for  use  on  the  Eiver  Nile.  I don’t  know  as  I 
can  give  you  the  date  when  they  were  first  built.  It  was  prior  to 
the  World’s  Fair.  We  introduced  it  in  this  country,  I think 
somewhere  about  1898  or  1899, — I would  not  be  positive.  I am 
manufacturing  boats  of  that  type  now.  The  power  is  generated 
by  gasoline  engines. 

The  gasoline  engines  are  two  types:  the  2-cycle  and  4-cycle. 
The  smaller  engines  and  boats  used  are  generally  the  2-cycle 
type, — that  is,  up  to  about  10  or  15  horsepower.  The  difference 
between  the  two  engines  is:  the  2-cycle  has  an  explosion  at  every 
revolution  of  the  fly-wheel;  the  4-cycle  has  an  explosion  at  every 
other  revolution  of  the  fly-wheel.  The  effect  of  this  explosion  in 
the  matter  of  producing  power  is  that  the  explosion  is  a mix- 
ture of  gasoline  and  air;  that  is  supposed  to  be  1 of  the  gasoline 
to  8 of  air,  which  gives  the  best  mixture,  and  this  is  exploded 
in  the  cylinder  by  an  electric  spark.  That  is  generated  by  bat- 
teries,—generally  storage  batteries,  or  dry  batteries,  or  even 
djmamos  are  used  on  some.  This  forces  the  piston  down  and  the 
momentum  of  the  fly-wheel  impels  the  piston  to  the  top  of  the 
cylinder,  where  it  compresses  the  gas,  to  the  next  explosion;  and 
this  is  contined. 

These  freight  launches  and  boats  are  in  use  all  over  the 
589  country  on  rivers  and  lakes,  especially  on  the  smaller  rivers 
of  the  country  and  on  canals. 

Relative  to  the  manufacture  of  steam  vessels, — from  the  time 
that  the  freight  launches  came  in,  the  small  gasoline  boats  have 
had  the  greater  increase  in  use,  at  a ratio  of,  I should  say,  pretty 
near  100  to  1. 

In  this  manufacture  and  use  of  the  steam  vessels,  from  the 
time  it  began,  it  progressively  grew  larger,  and  the  use  of  the 


319 


steam  vessels  was  made  burdensome  in  the  United  States  by  liav- 
ing  steam  boiler  inspection,  and  a licensed  pilot  and  a licensed 
steam  engineer,  examined  under  the  rules  of  the  P'’ederal  Gov- 
ernment. These  burdens  do  not  apply  to  freight  boats,  below 
50  feet. 

The  burden  of  the  machinery  and  fuel  to  be  carried  in  the 
motor  freight  launch,  I don’t  think  takes  up  20  per  cent,  as 

590  much  room  as  steam.  There  would  be  a net  saving  of  80 
per  cent,  relatively  on  the  items  of  machinery  and  fuel  car- 
ried. 

From  my  acquaintance  with  the  business  and  the  use  of  boats 
with  the  coming  in  of  the  freight  launch  and  motor  boat,  there 
has  been  a decided  increase  in  the  amount  of  navigation  and  com- 
merce carried  on  the  internal  smaller  waters  and  streams. 

Gasoline  engines  have  been  adopted  by  a great  many  canal 
boats  through  the  country,  that  have  taken  out  steam;  and  also 
they  have  taken  out  steam  from  some  of  the  smaller  freight  boats 
and  installed  gasoline  on  the  rivers. 

The  steam  turbine  engine  is  a steam  engine,  which  itself  re- 
volves with  successive  discharge  of  steam  from  small  pipes, — the 
circular  motion  taking  the  place  of  the  reciprocating  forward  and 
back  motion.  The  turbine  itself  has  not  been  put  in  on  the  small 
launches. 

591  Q.  That  is  a matter  of  the  larger  craft,  as  far  as  you  are 
concerned?  A.  Yes,  sir. 

Cross-examination  waived. 

The  signature  and  subscribing  oath  of  the  foregoing  deposition 
were  waived  by  stipulation  of  the  parties  hereto. 


320 


John  M.  Sweeney, 

a witness  for  complainant,  testified  as  follows: 

Direct  Examina fion. 

592  My  name  is  John  M.  Sweeney.  I live  in  Chicago.  My 
business  is  mechanical  marine  engineering.  I am  interested 

in  the  Outing  Boat  Company’’  of  Chicago,  who  build  motor 
boats,  in  the  ^‘Howard  Ship  Building  Company”  at  Jefferson- 
ville, Indiana,  and  in  some  allied  properties  with  that  concern 
and  repair  plants  on  the  Ohio  Kiver.  I have  been  building  river 
boats  particularly  since  about  1876  or  ’78.  Our  steamboats  have 
been  used  generally  on  the  western  rivers  of  the  United  States, 
some  in  South  America,  some  in  Mexican  rivers,  but  generally 
on  the  western  waters;  the  waters  that  flow  into  the  Gulf  of 
Mexico,  as  they  are  classified.  I think  I have  built  several 

593  boats  that  have  gone  into  the  St.  John’s  Elver  in  Florida, 
and  some  in  the  Chattahooche  Elver,  which  flows  into  the 

Gulf  of  Mexico. 

I am  acquainted  with  the  type  of  boat  known  as  the  ^‘Naph- 
tha Launch.”  The  strictly  Naphtha  Launch,  according  to  my  best 
recollection  was  used  beginning  about  1880.  In  my  answer  I am 
distinguishing  between  the  Naphtha,  and  present  Gasoline  Launch. 
Generally  the  Naphtha  Launches  were  small  motors,  displaced  or 
substituted  for  steam  power,  or  was  used  in  boats  where  steam 
power  was  hardly  applicable.  The  naphtha  power  later  on  was 
improved  upon  by  the  Internal  Combustion  Motor.  The  Naph- 
tha is  not  an  Internal  Combustion  Motor,  and  practically  to- 
day has  displaced  that.  The  boats  for  quite  a while  on  the  lagoon 
in  Jackson  Park,  until  last  year,  were  Naphtha  Launches. 

594  Several  of  them  are  still,  although  they  are  now  beginning 
to  introduce  the  Internal  Combustion. 

The  Internal  Combustion  Motor  is  a motor  where  explosive  gas 
or  something  else  is  ignited  in  the  cylinder  itself.  The  motor 
that  is  used  is  generally  known  as  an  automobile  motor.  This 
type  of  boat  came  in  practically  seven  years  ago  from  this  time, 
I should  say.  I am  not  speaking  of  the  experimental  list.  I am 
speaking  of  the  time. 


I think  the  first  boat  of  that  kind  in  Chicago  was  exhibited  in 
the  Anditorium  around  on  Congress  street  in  1900  by  a Detroit 
firm — Bloomstrom. 

From  that  time  to  the  present  time,  the  Internal  Combustion 
Motor  has  multiplied  very  fast.  Within  that  eight-year  period, 
the  number  of  Internal  Combustion  Motor  boats  in  use,  on  the 
best  data  that  is  perhaps  available  or  obtainable,  reaches 

595  about  200,000.  There  are  about  200,000  of  them  now.  They 
are  used  for  all  purposes. 

The  inspection  law  draws  a line  between  boats  of  fifteen  tons 
or  under  that.  Boats  of  over  fifteen  tons  require  inspection  and 
licensed  officers;  boats  below  fifteen  tons  do  not,  unless  they  are 
used  for  purposes  of  hire  or  carrying  passengers  for  hire. 

The  old-fashioned  steam  boats  which  were  in  use  in  1880  re- 
quired a licensed  pilot  and  a licensed  engineer,  as  well  as  in- 
spection of  the  steam  boilers,  where  they  came  under  the  inspec- 
tion service.  The  test  which  brought  them  within  the  inspection 
service  was  ‘‘a  boat  propelled,  in  whole  or  in  part,  by  steam 
operated  on  navigable  waters  of  the  United  States.’^  Decently 
that  language  has  been  construed  to  mean  that  any  boat  pro- 
pelled by  motor  of  any  kind,  shall  be  construed  as  propelled  by 
steam.  My  impression  is  that  that  is  an  edict  of  the  Department. 
I do  not  think  it  is  in  the  form  of  a statute,  as  yet,  but  they  are 
trying  very  hard  to  get  it  there. 

Prior  to  the  making  of  this  ruling,  a motor  boat  did  not 

596  need  to  have  a licensed  engineer,  under  the  navigation  law, 
because  the  law  applied  to  those  boats  that  ^‘were  propelled 

in  whole  or  in  part  by  steam. The  boats  that  were  propelled  by 
internal  combustion  or  gasoline,  are  not  steam  vessels.  They  do 
not  use  steam  at  all. 

The  cost  of  inspection  itself  was  not  burdensome,  but  the  grow- 
ing requirements  of  the  Bureau  as  to  outfit  and  as  to  the  numerous 
life-saving  apparatus  and  life  boats,  as  applied  to  the  licensing 
for  instance,  to  a certain  extent  as  applied  to  boats  navigating 
shallow  streams,  has  been  a great  factor  in  diminishing  the  use 
of  steam  boats  in  those  streams.  These  burdens  have  not,  up  un- 


Siceeney, — Direct  Exam. — Continued. 


322 

til  tins  time,  been  applied  to  motor  boats  and  gasoline  craft. 
o97  I think  they  will  from  this  time  on,  perhaps. 

Web,  speaking  of  the  last  four  or  five  years,  which  is  the 
best  pulse  of  what  has  been  taking  place  on  the  Ohio  Eiver,  I 
should  say  roughly,  without  having  statistics,  but  simply  as  a mat- 
ter of  observation,  that  there  have  been  four  or  five,  some  small, 
gasoline  or  internal  combustion  boats  built  and  put  in  commis- 
sion, to  one  steam-driven  craft,  and  the  Ohio  Eiver  to-day  is  de- 
veloping an  awful  big  business  along  its  shores  by  the  use  of  gaso- 
line boats  towing  very  light  barges  that  can  be  left  at  one  spot  or 
another,  and  in  that  way  they  use  very  much  smaller  fuel  than  a 
steam  boat  could  use.  The  saving  in  the  motor  of  carrying  heavy 
machinery  and  fuel,  enables  these  motor  craft  to  operate  shallower 
waters,  and  they  are  lighter  boats  too,  generally,  lighter  draft 
boats. 

I have  never  built  any  boats  for  the  Chattahooche  that  were 
smaller  than  150  feet  by  about  26  or  28  feet  wide.  These  boats 
would  draw,  without  any  load  in  them,  about  20  or  22  inches.  Not 
evenly,  all  over,  because  a boat  of  that  type,  if  she  is  draw- 
ing 22  inches  at  her  stern,  she  would  probably  draw  18  inches 

598  forward.  A boat  of  that  kind,  where  you  are  carrying  cotton 
down  the  Chattahooche  Eiver  would  be  loaded  deep  in  the 

vessel,  so  if  the  bow,  was  very  much  deeper,  would  be  loaded  to 
about  five  feet.  A boat  of  that  character  would  carry  probably 
150  tons. 

To  describe  in  the  normal  construction  as  to  length  and  breadth 
and  depth  of  hull,  as  distinguished  from  the  draft  of  the  water,  a 
boat  carrying  50  tons,  independent  of  weight,  would  be  probably 
100  feet  long  by  20  feet  beam — I am  speaking  of  a steam  boat 
now — she  would  draw,  without  any  load  in  her  whatever,  about 
18  inches — from  12  to  18  inches,  depending  upon  how  much  pas- 
senger accommodation.  If  no  passenger  accommodation,  12  in- 
ches. It  would  be  possible  to  construct  that  boat  on  a 12-inch  draft, 
and  a boat  of  that  dimension  would  carry,  for  each  foot  of  dis- 
placement, 50  or  60  tons ; 50  tons,  any  way. 

599  I do  not  know  of  any  boats  as  large  as  100  by  20  feet,  gaso- 
line driven,  that  have  been  put  in  commission,  but  I was  on  a 


l)oat  the  otlier  day  which  was  85  feet  l(3ng  and  15  feet  wide,  that  was 
di-awing  light,  about  10  inches  at  the  deepest  end  of  it,  and  her 
average  displacement  was  probably  8 inches;  average  draft,  T 
mean.  That  boat  would  carry,  exclusive  of  her  own  weight,  about 
50  tons  to  the  foot;  I mean  30  tons  to  the  foot  of  displacement; 
to  the  foot  of  immersion ; each  foot  of  loading.  As  T say,  that  is 
only  approximate,  because  I have  used  60  pounds  as  the  weight 

600  of  a cubic  foot  of  water.  It  is  really  more  than  that.  If  the 
boat  is  85  by  15,  there  would  be  7,500  cubic  feet  of  displace- 
ment for  each  foot  of  immersion,  which  in  round  numl)ers  is  371 
tons,  call  it  35  tons.  That  boat  on  two  foot  of  water  would  carry 
30  tons;  more  than  that,  a little. I judge. 

With  the  incoming  of  these  internal  combustion  motors,  com- 
mercial navigation  upon  the  shallow  draft  stream  of  the  interior 
has  increased  undoubtedly,  particularly  if  pleasure  purposes  are 
included.  They  are  also  used  for  commercial  purposes.  I knov»^  that 
the  steam  boat  men  on  the  Ohio  River  are  kicking  a whole  lot  about 
them  getting  into  the  short  trade.  The  expense  of  operation,  as 
compared  with  steam  vessels  is  perhaps  less,  considering  the  adapt- 
ability, and  I doubt  very  much  whether  the  fuel  consum|)tion  itself 
is  less.  I think  the  fuel  consumption  is  in  favor  still  of  the  steam 
craft. 

601  The  installation  cost  on  a motor  boat,  in  small  sizes,  cannot 
be  compared  with  the  installation  cost  on  a steam  boat,  because 

a motor  boat  is  available  where  the  steam  would  not  be,  and  I think 
the  converse  of  that  proposition  is  true,  but  on  the  very  large  sizes 
the  steam  installation  is  the  only  a^aiilable  one.  It  is  the  middle 
field  in  vhich  you  c in  make  coiu[>arison  of  ilie  cost  of  installation. 
A motor  boat  could  be  installed  on  shallow  water,  where  it  would 
not  be  possible  to  install  a steam  vessel.  There  is  a formula  for 
computing  the  displacement  necessary  to  a given  load  on  a shallow 
draft  stream. 

Assuming  that  a cubic  foot  of  water  weighs  60  pounds,  as  the 
value  which  is  used  in  this  calculation  which  I made  here  a little 
bit  ago,  after  the  boat  had  furnished  its  own  buoyancy^ — provided 
for  its  own  buoyancy,  or  its  own  displacement,  each  cubic  foot  of 
water  that  was  displaced  further  by  further  immersion,  would 
mean  60  pounds  of  carrying  capacity.  If  the  cross-section  of  the 


324 


Siveeney, — Direct  Exam. — Continued. 


boat,  or  tlie  cubic  displacement  of  a boat  for  each  inch  or  each  foot 
is  krivAvn  in  cnoic  feet  and  cubic  inches,  it  is  a little  mathematical 
problem  to  work  that  ont.  If  yon  multiply  the  length  by  the 
breadth  and  then  by  the  depth  making  cubic  contents,  and  multiply 
it  by  60  pounds  for  each  cubic  foot,  it  gives  you  the  weight  of 

603  the  water  displaced  by  that  much  immersion.  That  causes 
that  much  additional  immersion;  or  to  find  the  reverse  propo- 
sition, the  amount  of  the  boat  displaced  would  give  you  the  weight 
of  the  boat  itself,  without  the  load. 

If  a boat  had  two  water  lines,  one  where  it  was  empty,  and  one 
near  where  it  was  higher,  where  it  was  loaded,  the  length  by  the 
breadth  multiplied  by  60  would  give  you  the  number  of  pounds  or 
load  that  would  be  represented  by  the  additional  foot  of  immer- 
sion. 

A tunnel-built  boat,  is  a term  that  is  applied  primarily  to  a boat 
designed  by  Thorneycroft  in  England,  for  the  purpose  of  applying 
a propeller  wheel,  so  that  it  would  not  extend  below  the  bottom  of 
the  boat.  It  was  first  done  for  some  of  the  very  shallow  draft 
boats  which  Thorneycroft  and  Yarrow,  and  other  English  firms, 
built  for  African  rivers,  such  as  the  Nile  and  Zambese.  Some  of 
these  boats,  which  were  called  ‘‘Mosquito”  ’*.oats  w'ore  as  light  as 
8 inches. 

604  They  would  carry  a great  deal  of  freight.  They  are  a very 
large,  wide  boat.  In  place  of  having  a proi^eller  wheel  extend 

below  the  bottom  of  the  boat,  it  would  set  up.  The  stern  of  a 
boat  built  with  a tunnel  in  it,  so  that  the  water  would  rise  as  the 
boat  went  along,  the  water  being  under  compression,  under  the 
bottom  of  the  boat,  would  rise  into  the  tunnel  compartment  and 
give  the  wheel  water  to  act  upon.  It  was  put  there  so  that  the 
boat  could  pass  over  places  without  injury  to  the  wdieel,  wdiere  she 
could  be  floated.  It  has  been  applied  for  use  on  shallow  streams. 

There  have  been  two  boats  of  that  character  built  for  the  Ohio 
Eiver.  One  is  owned  by  the  government,  towing  barges.  They 
are  Twin  Sister  boats.  The  other  boat  is  just  completed,  not  in 
commission  yet. 

605  In  case  of  the  tow  boat,  they  carry  no  load  except  their 
own  fuel,  but  they  are  loaded  to  the  capacity  of  the  river,  at 


325 


certain  times  at  least,  with  fuel  so  as  to  carry  the  maximum  of 
the  barges  which  they  tow. 

In  connection  with  the  Missouri  Eiver,  I have  just  completed 
designs  for  a couple  of  steam  boats  upon  the  Missouri  Eiver  to  be 
used  between  Kansas  City  and  St.  Louis.  The  estimate  of  the 
draft  of  these  vessels  will  not  exceed  22  inches  at  the  stern,  and 
18  inches  forward,  for  the  light  draft,  carrying  a displacement  of 
practically  500  tons.  The  boats  themselves  are  240  feet  long  and 
44  feet  wide,  and  the  boat  will  carry  on  her  maximum  load  draft, 
which  would  be  8 feet  forward  and  four  feet  aft,  1200  tons,  in 
addition  to  the  weight  of  the  boat  itself. 

606  C ross-Examination. 

The  tunnel  boats  in  use  in  the  United  States  other  than  govern- 
ment boats  to  which  I have  referred,  are  confined,  so  far  as  my 
knowledge  goes,  to  small  boats.  There  are  several  of  that  kind. 
There  have  been  in  the  last  four  or  five  years,  well  I do  not  know 
how  many,  but  I know  that  there  have  been  more  or  less  pleasure 
boats.  Perhaps  they  have  been  used,  to  some  extent,  commercially. 
The  government  boat,  that  is  the  tunnel  boat,  the  ‘‘Ramsey,”  of 
about  26  by  120.  The  other  boat  is  probably  28  or  30  by  150.  In 
the  ordinary  motor  boat  used  for  commercial  purposes,  the  pro- 
peller does  not  extend  below  the  bottom.  I will  have  to  explain 
that  answer,  because  the  boat  loaded  should  be  deep  at  the  head, 
and  in  the  flat  stern  boat,  particularly,  the  scheme  is  to 

607  (drawing  diagram)  that  being  the  water  line,  this  is  the  top 
of  the  boat.  Now,  assuming  that  the  bottom,  as  is  shown 

there,  is  parallel  with  the  top  of  the  water,  the  wheel  is  above  the 
bottom.  That  is  the  practice  of  the  company  I am  engineer  of 
in  building  motor  boats. 

Thereupon  it  was  stipulated  that  the  witness  might  furnish  a 
blue  print  which  would  contain  expressly  the  diagram  in  accurate 
form,  and  when  labelled  with  his  initials,  the  same  might  be  ad- 
mitted as  an  exhibit  in  connection  with  the  witnesses  testimony. 
Said  blue  print  was  received  in  evidence.  Atlas,  3946;  Transcript, 
p.  6561 ; Abstract,  p.  1924. 

608  Tbe  object  of  making  that  diagram  is  that  the  bow  of  tbe 
boat  goes  down  in  the  water  very  much  further  than  the  stern, 


326 


and  lliat  as  the  propeller  wheel  is  set  in  the  stern,  the  bottom 
of  it  Vv'onld  not  he  below  the  bottom  of  the  bow. 

I do  not  mean  to  say  that  all  boats  are  constructed  in  that  way, 
hut  that  is  the  favorite  construction  to-day,  in  what  is  known  as 
the  ‘‘Torpedo”  stern  boat.  That  is  the  construction  used  very 
largely  for  commercial  purposes.  It  is  the  change,  and  it  is  really 
the  recent  development  of  all  there  is  in  boat  construction,  tUat 
when  the  boat  is  being  propelled  the  stern  of  the  boat  does  not 
settle. 

The  wheel  is  always  immersed  to  its  full  depth  approximately, 
so  it  may  have  a little  greater  depth  than  that  when  the  stern 
is  loaded  under,  hut  the  loading  always  intensifies  that  forward 
movement  where  the  boat  is. 

609  Re-direct  Examination. 

It  is  pretty  hard  for  me  to  say  when  the  tunnel  construction 
came  in.  It  certainly  was  within  the  last  twenty-five  years.  We 
had  a congress  of  engineers  here  in  1893 — AVorld’s  Fair  year.  I 
remember  at  that  congress  there  was  a paper  on  the  tunnel  boat. 
All  the  engineers  were  not  conversant  with  it.  I remember  that 
the  paper  went  on  to  describe  an  experiment  that  had  been  made 
by  putting  a half  inch  by  three  inch  gas  pipe  in  the  tor)  of  the  tun- 
nel, and  I'unning  it  up  through  the  deck  of  the  boat  in  order  to  de- 
termine iiow  much  pressure  there  was  in  the  tunnel,  as  to  how  high 
the  water  rose  in  the  top.  I have  the  published  proceedings  of 
that  meeting,  hut  I could  not  put  my  finger  on  them. 

Egbert  E.  Ore, 

610  a witness  for  complainant,  testified  as  follows: 

Direct  Examination. 

My  name  is  Kobert  E.  Orr.  My  business  is  assistant  chief 
draftsman  in  the  employ  of  the  Sanitary  District  of  Chicago.  I 
have  occupied  that  position  since  August  4,  1906.  I have  been  m 
the  surveying  business  since  1880.  I am  a graduate  of  the  Uni- 
versity of  Illinois.  I have  tracings  here  and  part  of  the  records 
of  surveys  in  the  possession  of  the  Canal  Commissioners  of  the 
State  of  Illinois,  and  the  document  now  shown  me  marked  “Orr 


Exliil)it  No.  1,  April  14,”  which  appears  to  )}e  a ])hie  print,  is  a 
till  l)liie  print  of  tlie  index  ])age  of  jhat  book  No.  2 of  the  records 
of  the  Canal  Commissioners  office.  I found  it  in  the  records 
of  the  Sanitary  District  office.  1 took  it  down  and  had  the  survey 
attached,  which  appears  here,  hy  John  M.  Snyder,  acting  secretar> 
of  the  Canal  Commissioners  of  ‘the  State  of  Illinois.  It  is  a copy 
of  the  general  index  plat  showing  the  route  of  the  canal  and  the 
lofcition  of  the  Desplaines  Diver  and  its  trilmtaries  and  the  old 
novv^  nhondoned  towns  of  Kankakee,  Dii  Page,  Channahon,  Joliet, 
IjOck}jort,  and  along  and  touching  the  Des])laines  Diver  as  it  a])- 
]u?ars  in  the  original  record  of  the  survey  of  the  Canal  Commis- 
sioners. 

Thereu])on  the  coni})lainant  offered  said  index  jhat  in  evideiu'e. 
(Atlas  392:3;  Trans.,  (1511;  Abst.,  1917.) 

(Objected  fo  as  incom|)etent,  irrelevant  and  immaterial, 
and  no  sufficient  ])roof  of  its  correctness.)  . 

()12  Deferring  to  the  document  now  produced  marked  ^‘Orr  Ex- 
hibit  No.  2”  is  an  exact  tracing  of  the  index  ])age  of  })lat 
l)ook  No.  2 in  the  Canal  Commissioners  office  at  Lockport.  It  is  a 
duplicate  made  hy  the  blue  print  process  of  the  original. 

Orr  Exhibit  No.  2 when  connected  with  On*  Exhibit  No.  1 ex- 
hibits a complete  showing  of  the  survey  for  the  canal  from  the 
beginning  of  the  Illinois  & Michigan  Canal  at  Bridgeport  down 
to  and  beyond  the  end  of  the  canal  in  Township  34,  Dange  East, 
the  two  joined  together  where  the  section  lines  and  township  lines 
show  that  the  Desplaines  Diver  is  represented  as  a continuous 
stream.  I caused  that  to  be  prepared  and  certified  in  like  manner 
as  Exhibit  No.  1. 

613  It  represents  the  recorded  survey  in  the  custody  of  the 
Illinois  Canal  Commissioners  and  the  route  of  this  canal  as 
originally  constructed  with  the  old  towns  bordering  along  the  same, 
Keepotau,  Athens,  Desplaines,  Harmonville,  Summit  and  Bridge- 
port. Exhibits  Nos.  1 and  2 show  the  Desplaines  Diver  and  the 
canal  from  the  mouth  of  the  Desplaines  Diver  up  to  Summit  in 
Town  38,  Dange  12  East. 

The  continuous  white  line  beginning  on  Exhibit  No.  2 at  a point 


328 


Orr, — Direct  Exam. — Contimied. 


eallecl  Bridgeport  and  running  diagonally  southwest  to  Summit 
and  then  southwest  down  through  and  near  the  river,  and  then 
beginning  on  Exhibit  No.  1 in  Section  25,  Township  37,  Bange  11 
East,  and  running  west,  southwest,  then  southerly,  and  then  cross- 
ing the  river  in  Joliet  and  running  west  by  south  and  west  on  the 
north  side  of  the  river  through  Township  34  N.,  Eange  8 East, 
represents  the  Illinois  & Michigan  Canal. 

Thereupon  complainant  offered  said  Exhibit  No.  2 (Atlas  3923A; 
Trans.,  6513;  Abst.,  1918)  in  evidence. 

(Objected  to.  No  sufficient  foundation  laid  for  its  authen- 
ticity.) 

614  Orr  Exhibit  No.  3 is  a blue  print  copy  of  the  record  plat 
book  No.  1 showing  the  junction  of  the  Desplaines  liiver  with 

the  south  arm  of  Mud  Lake  in  Section  12,  Township  38,  Eange 
12  East.  It  is  a true  copy  of  the  original  record  in  the  possession 
of  the  Canal  Commissioners.  I have  seen  the  original  record 
myself,  compared  every  item  and  every  note. 

There  appears  to  be  a slight  jog  where  the  words  ‘Mutlet  of 
Mud  Lake”  appear  as  if  the  two  lines  which  embrace  the  words 
‘Cmtlet  of  Mud  Lake”  do  not  quite  correspond  with  the  words 
‘Csouth  arm  of  Mud  Lake.”  That  is  an  error  in  the  copying.  In 
its  copying  in  the  original  they  do  join. 

Orr  Exhibit  No.  4 shows  the  authorship  of  those  records  plat 
books  Nos.  1,  2 and  3 in  the  State  Canal  Commissioners  office. 

615  It  is  an  exact  copy  of  the  original.  I have  personally  com- 
pared it.  The  note  ‘‘This  piece  of  land  was  once  enclosed  by  a 

ditch  which  has  since  been  abandoned  and  is  now  a common,  June 
5,  1847,”  wdiicli  appears  on  the  foot  of  Orr  Exhibit  No.  4 em- 
braced in  a bracket,  is  an  exact  copy  of  the  corresponding  note  on 
the  original. 

Orr  Exhibit  No.  5 is  a copy  of  page  No.  7 plat  book  No.  1 of 
Clmal  survey  of  Section  15,  Township  37  N.,  Eange  11  East.  I 
have  personally  compared  that  with  the  original  and  it  is  a copy 
as  to  notations  and  everything.  On  the  left  of  said  exhibit  in  the 
notation  “N.  B.  full  lines  on  margin  of  river  were  run  by  N.  E. 
walls  in  1821  and  line  of  deeds  on  margin  of  river  on  N.  E.  & S.  IV. 
Bayou  is  the  meander  L.  of  the  survey  of  the  peninsular  of  1846, 


A.  J.  M.  by  order  of  Gov.  Sur.  Gen.”  The  initials  A.  J.  M.  are 

616  those  of  A.  J.  Mattliewson,  the  well  known  surveyor  of  the 
canal.  I personally  compared  all  of  these  Orr  Exhibits  wliich 

I have  produced  with  the  corresponding  originals  in  the  custody 
of  the  Canal  Commissioners  and  found  them  to  be  exact  copies. 

(Objected  to  on  the  grounds  already  specified.  Exhibits 
4 and  5 further  objected  to  on  the  ground  that  the  certificate  of 
John  M.  Snyder  that  appears  attached  thereto  is  incompetent 
evidence  and  ambiguous  and  uncertain.) 

Thereupon  counsel  for  complainant  explained  that  there  was 
a vacancy  in  the  office  of  the  Secretary  of  Commissioners  and  that 
John  M.  Snyder  was  the  acting  secretary  in  the  actual  custody  of 
the  records. 

Thereupon  complainant  offered  in  evidence  from  the  public 
volume  of  the  Keport  of  the  Canal  Commissioners  of  Illinois  to 
Governor  John  E.  Tanner,  December  1,  1900,  being  the  official 

print,  Springfield,  Illinois,  Phillips  Bros.,  State  Printers,  1901, 
the  paragraph  on  page  235  reading  as  follows : 

617  ‘^The  Matthewson  Survey  of  1847  & 1848  gave  the  width 
of  the  canal  and  the  lines  of  the  reserve  tlie  entire  length  of 
the  canal.” 


C voss-Exam.  i n a t i o n . 

I compared  all  the  figures  with  the  plats  in  the  office  of  the 
Canal  Commissioners  and  scaled  in  a great  many  places  to  test 
them  and  they  do  not  vary  in  time  more  than  a fiftieth  of  an 
inch  so  that  they  are  exact  copies  of  those  records  and  I have 
shown  the  authorship  of  them  in  that  affidavit,  also  in  this  re- 
port. 

The  signatures  and  subscribing  oaths  of  the  foregoing  wit- 
nesses to  their  respective  depositions  were  waived  by  the  stipu- 
lation of  the  parties  hereto. 

George  B.  Fox, 

a witness  for  complainant,  testified  as  follows : 

B i re ct  Exa min atio n. 

My  name  is  George  B.  Fox.  I live  at  Wyoming,  Ohio.  I am 
engaged  in  the  manufacture  of  paper.  Wyoming  is  located  in 


330 


Fox, — Dl red  Exa m . — Con t in u ed. 


the  County  of  Hamilton,  about  twelve  miles  north  of  the  Cit}^ 
of  Cincinnati.  The  name  of  the  business  concern  is  known  as 
the  Fox  Paper  Company.  The  mill  is  located  in  Lockland 

619  and  is  adjacent  to  the  Village  of  Wyoming,  through  which 
the  Miami  & Erie  Canal,  that  runs  from  the  Ohio  Eiver  to 

Lake  Erie,  runs.  We  make  use  in  our  business  of  this  canal  in 
the  transportation  of  raw  material  to  the  mills  and  of  the  finished 
product  from  the  mills.  There  are  four  of  our  mills  that  are 
located  on  the  banks  of  the  Miami  Canal.  The  canal  is  one  of 
the  principal  means  of  transportation  by  which  raw  materials 
are  brought  in  and  the  product  carried  out  from  the  mills.  I 
became  interested  in  these  mills  in  the  year  1868  and  have  con- 
tinued operating  them  ever  since,  then  continuously  since  1868 
I have  been  making  use  of  this  waterway  to  get  into  the  Ohio 
Eiver  for  transportation.  Steam  was  used  as  a method  of  oper- 
ating canal  boats  on  that  canal  on  perhaps  three  or  four  oc- 
casions by  other  parties  and  myself  since  that  time,  all  of 

620  which,  however,  proved  to  be  a failure.  .MTien  the  so-called 
electric  motor,  or  the  Miami  & Erie  Canal  Transportation 

Company  intended  to  engage  in  the  business  of  the  transporta- 
tion of  boats,  they  bought  up  all  of  the  boats  they  could  get 
hold  of  and  proceeded  to  lay  down  a track  under  a franchise 
obtained  from  the  state,  claiming  that  they  would  be  able  to 
o])erate  the  boats  by  motor  power  and  succeeded  in  getting  a 
track  laid  down  from  the  City  of  Cincinnati  to  Dayton  before 
they  undertook  to  do  any  business,  then  they  began  to  tow  boats 
with  this  method  and  in  a few  weeks  pronounced  it  a failure. 
That  was  by  means  of  a motor  running  on  a railroad  track  along- 
side of  the  canal.  It  was  an  ordinary  railroad  track  that  was 
made  very  heavy  and  strong,  as  heavy  as  any  railroad,  I guess, 
operated  in  Ohio. 

But  the  difficulties  in  the  transmission  of  the  power  and  the 
making  of  the  connection  and  the  friction  which  generate  and 
other  causes  rendered  it  impracticable.  They  themselves  ad- 
mitted that  it  was  a failure  for  several  causes.  In  the  construc- 
tion of  the  track  they  occupied  the  tow  path  which  rendered  it 
})ractically  impossible  to  use  horses  and  mules. 

I learned  of  a new  method  of  pro])ulsion,  sought  the  patentee 


and  arranged  witli  liiiii  for  the  use  of  liis  method  along  the 
d21  canal  from  Dayton  to  Cincinnati.  That  method  was  known 
as  the  Coen  System  of  Propulsion. 

(At  the  trial  of  said  cause,  counsel  for  complainant  ottered 
in  evidence  a certified  copy  of  the  United  States  Patent  Xo. 
733010  for  the  ])ro})ulsion  of  vessels,  l)eing  the  (^oen  patent  re- 
ferred to  by  said  witness  Fox. 

Objected  to  as  incompetent,  irrelevant  and  immaterial.  Ol)- 
jection  overruled,  and  said  docuiment  was  received  in  evidence. 
App.  II,  p.  3891  ; Trans.,  ]).  5800;  Ahst.,  ]).  1725.) 

An  opening  is  cut  into  the  bottom  of  the  l)oat  of  the  size,  we 
judge  30  inches  wide  and  about  22  feet  long.  Over  this  opening 
we  construct  a magazine  that  was  30  inches  in  the  center  and  30 
inches  wide.  From  the  high  ])oint  it  ])ioceeded  down  to  the  loot- 
tom  of  the  boat,  at  the  ends  it  is  a semi-cylinder  placed  at  an 
incline  at  the  bottom  of  the  looat,  in  the  center  of  whicli  cylin- 
der we  ])laced  a 28-inch  wall  with  three  flukes,  ordinary  pro- 
pulsion wall,  and  to  operate  it  had  a gasoline  engine  from  the 
outside  with  a shaft  running  through  the  shelf  with  the  ordinary 
modern  combustion  gasoline  motor.  I have  a ])hotograph  of 
the  first  vessel  that  was  operated  with  this  magazine  and  tunnel. 
The  picture  marked  ^‘Fox  Exhilut  No.  1”  is  such  ])hotograph. 
It  is  a photograph  of  the  internal  a])pearance  of  the  first  boat 
that  was  constructed  by  the  above  method.  This  semi-cyl in- 

622  drical  elevation  which  project  upwards  running  backwards 
from  the  lower  right  hand  corner  of  the  photograph  is  the 

magazine  in  which  the  wall  was  ])laced.  That  first  boat  was  con- 
structed and  built  in  the  summer  of  1903  or  ’4.  I have  been 
using  boats  of  that  type  in  the  transportation  of  the  raw  material 
in  and  of  the  finished  product  out  of  my  factory  from  that  time 
to  this.  The  boat  represented  in  Fox  Exhibit  X’o.  1 had  a ca- 
pacity of  from  50  to  60  tons.  The  horse  power  in  this  boat  was 
14  horse  power.  The  boat  light  and  without  a load  would  oper- 
ate on  about  10  inches  of  water  and  we  could  float  it  down  to 

623  four  feet  of  water  easily  if  we  had  the  water  in  the  canal,  but 
unfortunately  the  water  had  been  ])ermitted  during  the  time 

the  electric  motor  people  occupied  it  to  fill  up  with  mud,  so  that 
we  could  not  safely  load  it  to  exceed  two  and  one-half  feet  going 
up  stream,  pretty  nearly  three  feet  going  down  stream. 


Fox, — D i rect  Exa  m . — Con  t in  lie  cl. 


Counsel  for  Defendant.  I object  to  that  answer  and  move  to 
strike  it  ont  as  not  responsive  to  the  question  because  the  ques- 
tion was  ^^in  what  depth  of  water  would  the  boat  float’’  and  the 
witness  answered  what  the  draught  of  the  boat  was. 

Counsel  for  Complainant.  Well,  you  may  state  whether  or 
not  it  was  operated  in  the  respective  depth  of  water  which  you 
have  mentioned.  A.  Yes,  it  was. 

When  there  was  10  inches  of  water  in  the  canal  we  could  oper- 
ate the  boat.  The  draught  of  the  boat  when  it  is  not  loaded 

624  is  about  9 or  94  inches.  One  of  the  objects  of  the  magazine 
or  tunnel  in  the  bottom  of  the  boat  is  to  enable  the  pro- 
pelling wall  to  operate  without  making  a requirement  of  addi- 
tional depth  of  water  with  the  wall  itself.  Some  of  the  other 
objects  are  to  avoid  striking  a rock  or  boulder  or  a tow  line 
back  and  forth  in  the  shallow  water  of  the  canal,  and  if  the  wall 
is  about  to  hit  the  bank  or  strike  some  obstacle  and  the  wall  being 
up  in  the  magazine  is  far  from  any  object  of  that  kind,  and  we 
never  have  had  any  trouble  excepting  when  a timber  or  some- 
thing that  the  boat  would  fasten  that  would  be  held  in  the  ground 
and  would  fly  up.  The  magazine  would  not  keep  the  boat  from 
striking  the  obstructions  but  would  keep  the  wheel  from  striking 
obstructions. 

The  length  of  the  boat  represented  in  Fox  Exhibit  No.  1 

625  is  80  feet.  Those  we  built  later,  I think,  were  81  feet  and 
the  breadth  was  314  feet.  We  had  them  built  some  were 

three  some  were  four  feet  high,  the  hold,  and  others  were  44, 
and  I think  we  had  one  built  flve  feet  high.  These  boats  that 
were  built  five  feet  high  could  all  of  them  operate  on  10  inches 
of  water.  The  actual  displacement  of  them  was  9 or  94  inches. 
The  photograph  produced  marked  ^^Fox  Exhibit  No.  2”  is  the 
outside  appearance  of  said  first  boat. 

The  other  boats  in  appearance,  however,  are  practically  the 
same.  It  is  from  the  same  model  except  that  the  length  is  about 
a foot  longer.  I may  say  that  this  boat  was  one  that  I had 
built  in  Buffalo  about  twenty  years  prior  to  the  time  that  the 
method  of  propulsion  was  put  in  this  boat.  We  had  been 

626  operating  it  for  about  twenty  years  when  the  new  magazine 
propeller  was  put  in  in  1904.  The  boat  was  first  built  in 


O‘>o 

oo>) 

Buffalo  in  1884  and  the  type  was  that  of  boats  in  use  on  tlie 
Erie  Canal.  It  was  built  by  the  firm  of  the  name  of  George 
Notter  & Son,  who  are  builders  of  boats  on  the  Erie  Canal  but 
who  never  built  an  iron  boat  until  they  built  this  one.  This  boat 
is  an  iron  boat.  The  latter  boats  are  steel. 

At  the  time  I had  this  boat  built  one  of  our  manufacturers 

627  also  had  a boat  built,  and  about  the  time  that  we  adopted 
this  method  of  construction  the  parties  who  operated  the 

other  boat  had  used  it  pretty  roughly  and  thought  it  was  all  worn 
out  and  sold  it  for  old  scrap.  I bought  it  and  put  in  a new  bot- 
tom. I figured  that  it  was  about  as  good  as  new  and  then  put 
in  this  method  of  propulsion  in  this  boat,  and  after  operating 
it  two  years  I made  a contract  with  a concern  in  Cincinnati  for 
the  construction  of  six  more,  all  of  which  were  built  after  this 
model  and  completed,  arranged  for  propelling  it  in  the  same  way 
as  this.  During  the  past  summer  the  state  is  rebuilding  the  old 
lock  between  Dayton  and  Cincinnati  and  we  could  only  at  times 
operate  them  between  certain  points  when  we  could  get  the  water 
in  the  canal,  but  we  are  continuously  operating  these  eight  boats 
from  Dockland  to  Cincinnati.  This  Fox  Exhibit  Xo.  1 shows  the 
general  lines  of  the  boat  and  of  the  magazine  propeller  which  are 
common  to  all  of  the  eight  boats,  with  the  exception,  of  course, 
that  the  height  of  the  iron  works  here,  is  six  inches  to  a foot  greater 
or  less  than  in  others.  The  wooden  decks  are  all  the  same. 

628  The  capacity  of  the  boats  all  run  about  the  same.  They 
are  made  of  uniform  size  to  conform  with  the  construction 

of  the  locks,  the  width  and  length.  This  system  of  propulsion 
reduces  the  amount  of  trouble  not  from  rocks  particularly,  but 
from  the  canal  filling  up  with  formation  of  bars  and  silt  and  mud 
in  -the  bottom  of  the  canal. 

We  never  operated  by  propulsion  before.  They  were  all  pulled 
by  horses  before  that  and  had  trouble  at  that  and  that  trouble 
has  been  greatly  reduced  by  this  system. 

629  The  propeller  is  about. an  inch  above  the  level  of  the  bot- 
tom of  the  boat,  between  an  inch  and  a half  to  two  inches 

above  the  bottom  of  the  boat. 


Fox, — Direct  Exam. — Continued. 


00  \ 
fJO-r 

AVe  found  that  when  we  put  the  boat  in  the  dock  and  the  ma- 
chinery in  stall  that  when  the  water  came  into  the  dock  air  pre- 
vented the  opening  to  he  filled  with  water  so  that  it  was  a mass 
of  air  in  the  air  chamber  instead  of  water  and  the  wheel  turns 
around  without  even  striking  water.  The  advantage  of  the  sys- 
tem is  that  we  have  a little  air  pump  and  we  extract  air  from 
the  magazine,  pump  it  out  and  water  fills  up  in  a column  about 
six  or  eight  feet  high  which  the  inventor  claims  gives  us  a 

630  pressure  of  six  or  eight  feet  of  water  on  top  of  the  wheel. 
At  any  rate  we  had  the  wheel  submerged  and  the  force  to 

throw  the  boat  in  four  inches  of  water  we  could  have  an  eiglit 
foot  pressure  according  to  the  claims  of  the  inventor  and  I don’t 
see  why  his  claim  is  not  correct.  It  has  proven  a practicable  com- 
mercial method  of  o])erating  freight  boats  for  the  transportation 
of  freight  to  and  from  my  factory.  It  is  much  more  practicable 
than  the  mule  principle  and  much  more  desirable  to  operate.  AVe 
get  better  hands  to  work  them  and  if  a stream  comes  or  the  trip  is 
completed  that  boat  is  tied  up  and  we  have  not  a lot  of  tired  or 
sick  mules  to  take  care  of  or  towlines  to  buy,  and  it  ends. 

Since  the  operation  of  these  boats  the  railroad  people  have 

631  started  to  bump  up  against  us  pretty  strong  and  they  have 
since  that  time  made  a rate  of  $5.00  a car  into  the  city  when 

they  used  to  charge  about  $30.00.  AVe  ship  our  stuff  by  rail  at 
$5.00  a car  when  we  have  a carload,  but  when  we  have  less  than 
a carload  we  take  it  by  these  boats  for  perhaps  less  than  half 
of  what  they  would  charge  for  less  than  car  lots.  This  $5.00 
rate  has  taken  the  place  of  the  $30.00  rate,  which  was  in  force 
until  we  installed  this  system  of  internal  combustion  motor  boats, 
and  their  object  and  use  is  entirely  the  transportation  of  freight. 
"We  have  no  other  use  for  them  and  they  are  in  continuous  use. 

Thereupon  complainant  offered  separately  Fox  Exhibits  Xos. 

1 and  2 in  evidence  in  connection  with  the  testimony.  (Atlas  ])p. 
3)017-8;  Trans.,  p>]).  6563-5;  Abst.,  ]).  1921.) 

Cross-Examination. 

I said  these  boats  drew  nine  inches  of  Avater  Avith  no  loads  in 
them  and  that  they  could  operate  in  ten  inches  of  water  noAv 
AAdien  they  had  a load  such  as  Avould  make  them  ]n’ofitable  to 


G32  operate  for  commercial  pur})oses.  We  could  not  operate 
them  profitably  at  15  or  18  or  20  inches,  hut  I believe  that 
we  could  operate  them  profitably  in  two  feet  of  water  in  addi- 
tion to  the  nine  inches  draught.  We  have  a trade  that  we  could 
operate  them  profitably  at  less. 

Q.  AVhat  I am  trying  to  get  at,  Mr.  Fox,  is  how  much  water 
would  be  necessary  to  operate  these  particular  boats  profitably 
for  commercial  purposes  on  that  canal  1 A.  That  would  be  a 
very  difficult  matter  to  answer.  We  have  certain  trade  that  we 
could  operate  them  profitably  at  even  a trifle  less  than  that,  such 
as  what  is  known  as  wadding  and  padding,  where  we  get  a very 
high  rate  per  hundred,  in  other  words,  we  will  load  a boat 
633  down  to  50  tons  and  down  to  21  to  3 feet,  and  we  may  not 
perhaps  get  quite  so  much  for  a load  into  the  city  as  when 
we  load  it  with  the  wadding  and  padding  where  the  freight  rate 
is  from  three  to  four  times  more  per  hundred.  There  are  grades 
of  freight,  you  know,  that  you  get  more  for  and  groceries  again 
coming  up  are  of  a light  nature,  for  which  we  get  a low  rate. 

If  they  are  loaded  with  heavy  matters,  such  as  paper  or  starch 
or  soap  or  candles,  we  could  put  on  from  50  to  60  tons  if  we  have 
water  to  float  them  in.  The  water  re([uired  to  operate  the  boat 
depends  on  how  heavy  you  are  loaded,  T should  say,  about  three 
feet  of  water  with  a heavy  load.  That  is  not  in  addition  to  the 
9 inches  draught  and  we  could  load  a boat  full  of  light  material 
and  it  would  ])rohably  not  go  down  in  the  water  more  than  two 
feet  in  all. 

(At  the  conclusion  of  the  reading  of  said  deposition  in  the 
trial  court,  counsel  for  complainant  offered  in  evidence  a cer- 
tified copy  of  United  States  letters  patent  #733010,  for  -the 
Propulsion  of  Vessels,  being  the  Coen  ])atent  referred  to  by 
the  witness  Fox. 

Objected  to  as  incompetent,  irrelevant  and  immaterial. 
Puling  of  said  court  on  said  objection.  Objection  overruled. 

Said  document  received  in  evidence.  (For  copy  of  said  docu- 
ment,* see  Appendix  II,  page  3891;  Trans.,  p.  5860;  Abst.,  p. 
1725.) 

Said  ruling  on  said  objection  appears  Trans.,  p.  2599;  Abst., 
p.  870.) 


336 


Benezette  Williams, 

634  a witness  for  complainant,  testified  as  follows : 

Direct  Examination. 

My  name  is  Benezette  Williams.  My  business  is  in  Chicago. 
I reside  at  Western  Springs,  all  in  Cook  County.  My  age  is  63. 
My  business  is  that  of  engineering  and  contracting.  I have  been 
engaged  in  that  business  for  over  thirty  years,  thirty-five  years. 
I was  engaged  in  railroad  work  for  a short  time  in  my  early 
years,  and  was  then  engaged  with  the  City  of  Chicago  as  as- 
sistant sanitary  engineer,  superintendent  of  streets  and  city 
engineer.  I subsequently  have  done  a great  deal  of  hydraulic 
work  all  through  the  county  and  among  others.  I was  on  the 
commission  for  the  Chicago  Water  Supply  & Drainage  Com- 
mission along  about  1886,  previous  to  the  drafting  of  the 

635  Sanitary  District  law.  I was  subsequently  in  1892  identi- 
fied with  the  Sanitary  District  to  some  time  in  1895.  I was 

chief  engineer  of  the  Sanitary  District  for  a year  and  a half.  I 
have  been  identified  with  engineering  projects  and  during  a 
greater  part  of  the  time  with  hydraulic  engineering  for  over 
thirty  years.  I have  seen  the  site  of  the  Desplaines  Biver  near 
its  mouth,  where  the  defendant  is  proposing  to  build  a dam,  re- 
cently. I saw  that  Tuesday  of  this  week,  the  14th  day  of  April, 
1908.  I visited  that  at  the  request  of  Mr.  Starr. 

Q Mr.  MTlliams,  state  the  necessary  and  essential  facts  of 
the  canal. 

(Objected  to  as  irrelevant,  immaterial  and  incompetent.) 

A.  A canal,  properly  speaking,  is  an  artificial  channel 

636  for  conducting  water,  that  is,  if  it  is  a hydraulic  canal.  The 
component  parts  of  a canal  would  be  the  right  of  way,  the 

channel  out  where  there  was  an  excavation,  the  banking  and  silt 
where  it  is  necessary  to  fill  to  get  the  grades  of  the  canal.  If  it 
is  a canal  for  carrying  boats  water  is  an  essential  part  of  it. 
Take  the  Illinois  & Michigan  Canal  at  the  site  of  the  dam  that 
is  under  process  of  construction  by  the  defendant,  the  amount 
of  embankment  in  wudth,  that  is  essential  and  necessary  to  the 
preservation  of  that  canal,  is  a question  a little  difficult  to  an- 


Rwer  just  in  tliat  form.  The  pro})er  embankment  on  to]>  for 
G87  such  work  as  that  ouglit  to  be  12  or  15  feet.  Tliat  would  he 
the  proper  width.  The  main  force  of  the  question  as  to  be- 
ing a proper  embankment  depends  u])on  the  way  it  is  built  and 
the  material  of  which  it  is  built. 

On  the  outside  of  the  canal  it  ought  to  be  a slope,  which  would 
stand  as  against  the  ordinary  wear  of  the  weather  washing  of  rains 
and  floods.  Now  a railroad  embankment  you  understand  is  about 
one  and  one-half  to  one  of  good  material  and  a canal  embank- 
ment of  the  same  kind  of  material  would  stand  at  about  the  same 
kind  of  a slope  if  there  was  no  leaking  of  the  embankment  to  wet 
it  or  cause  it  to  slough.  Of  course,  if  it  is  built  out  of  masonry, 
you  can  build  it  very  nearly  vertical.  You  can  build  it  as  a re- 
taining wall.  It  dejiends  on  the  material  used. 

Q.  YTiat  you  have  described  then  is  the  outer  or  the  outer  tow- 
])ath  liank  of  the  canal  at  the  point  immediately  o])posite  where 
the  defendant  is  pro])osing  to  build  the  dam,  and  has  actually  com- 
menced it? 

(Objected  to  on  the  ground  that  the  witness  has  not  de- 
scribed the  bank  at  that  point  at  all.) 

G38  My  answer  if  you  will  allow  ]iie  to  state  was  the  general 
question. 

Q.  What  amount  of  slope,  in  your  judgment,  is  required 
for  an  earth  bank  on  the  outside  away  from  the  canal  at  the  site 
of  the  proposed  dam  being  built  by  the  defendant  under  the  con- 
ditions obtained  heretofore?  A.  I would  say  that  one  and  one- 
half  on  the  outside  originally  constructed  would  be  maintained 
fairly  well.  It  probably  was  built  that  way  and  it  has  perhaps  flat- 
tened out  some  by  wear,  wearing  down  and  depositing  ijear  the 
foot.  I did  not  measure  it.  It  appears  to  be  about  one  and  three- 
quarters  to  one.  The’  towpath  bank  varies  from  nothing,  I should 
say,  to  the  18  feet  above  the  ground  at  the  point  immediately  op- 
posite to  where  the  defendant  is  starting  to  build  a dam.  I could 
not  answer  so  certainly,  but  the  bank  above  the  dam  filling  up 
for  some  distance  runs  from  nothing  where  it  runs  into  an  occa- 
sional little  knoll  to  about  18  feet  I should  say.  Now,  whether  it  is 
18  feet  right  at  the  dam  or  not  I am  not  sure. 


338 


Williams, — Di reel  Exam. — Continued. 


639  I should  judge  it  was  less  than  that  at  the  site  of  the  dam, 
I would  not  he  sure  of  that.  That  has  all  been  changed.  They 

have  been  excavating  opposite  the  dam  site.  There  was  a great 
opening  or  cofferdam  in  there,  and  they  would  dump  material  all 
around  there  which  does  not  allow  one  to  he  quite  sure  of  the  or- 
iginal condition  right  at  the  dam  site.  It  is  above,  what  I have 
alluded  to,  where  the  bit  is  that  surrounds  that  cofferdam. 

The  land  lying  between  the  river  and  the  canal  immediately 
above  and  below  where  they  are  constructing  the  dam  is  a high 
“towpath  about  18  to  20  feet  high.  The  width  depends  entire- 

640  ly  upon  how  it  is  constructed.  The  original  bank  was  about 
12  feet  wide.  I don’t  think  it  was  about  12  feet  at  the  top. 

It  may  have  been  wider  than  that,  but  it  has  worn  away.  On 
top  at  least  it  is  over  12  feet.  Now  that  was  wide  enough  to  per- 
form the  function  it  was  called  on  to  perform  at  that  level.  Now 
that  bank  is  given  the  slopes  that  were  deemed  necessary  at  that 
time. 

Q.  Supi30se  you  started  at  the  bottom  of  the  canal  on  the  edge, 
at  the  side  next  to  the  towpath,  and  make  the  embankment  up  to 
the  toj)  of  the  towpath,  and  then  take  into  account  the  width  of 
the  top  of  the  towpath  and  then  the  slope  on  the  outside  of  that, — 
what  width  of  land  or  territory  is  essential  or  necessary  for 

641  the  preservation  of  the  canal,  when  it  is  made  of  earth  and 
dirt,  such  as  it  is  along  there?  A.  If  the  bank  was  18  feet 

high,  it  would  take  about  65  feet.  If  it  was  12  feet  wide  on  top, 
about  65  feet  for  the  base, — that  is,  based  upon  a slope  of  1 by 
V}  outside  and  2 inside. 

If  the  top  of  the  towpath  of  the  canal  was  raised  2 feet  further, 
it  would  add  about  7 feet  more;  if  it  were  raised  5 feet  above  this 
18-foot  bank,  maintaining  the  same  slope  and  same  material,  a 
width  of  18  feet  more  would  be  required.  That  would  be  83 
feet. 

642  If  instead  of  the  outside  of  this  bank  being  open  and  ex- 
posed to  the  air  as  it  now  is  and  has  been,  this  bank  was 

flooded  with  water  on  the  outside,  the  effect  of  that  water  upon 
this  towpath  would  be  that  the  towpath  would  not  maintain  the 
present  slope,  if  it  was  flooded  with  water.  The  fact  that  it  would 
not  maintain  the  slope  indicates  that  it  would  wear  away  at  the 


339 


top;  that  is,  it  would  narrow  the  top  and  flatten  out  at  the  bot- 
tom. The  flattening  of  this  bank  would,  of  course  be  deleteri- 
ous,, for  the  same  reason  that  I gave.  It  would  wear  at  the  top 
and  deposit  at  the  bottom,  flattening  the  slope  with  the  same 
amount  of  material  that  existed  there,  narrowing  up  to  the  top. 
That  would  be  what  would  take  place,  and  whether  it  would  cause 
sliding  in  the  bank  more  than  would  be  caused  by  wave  action  and 
movement  would  be  dependent  upon  the  character  of  the  ma- 

643  terial  out  of  which  it  is  made.  If  this  was  flooded  on  the 
outside  of  the  bank,  the  effect  of  the  wind  operating  on  the 

water  would  wear  it  away  at  the  water  level  and  below  the  water 
level  and  undermine  the  material  causing  it  to  slough  down  on 
the  side  of  that  bank. 

For  the  preservation  of  a bank  of  that  kind  it  is  not  absolutely 
necessary  that  it  be  put  on  the  bank  to  begin  with,  but  material 
enough  must  be  put  in  it  so  that  it  forms  its  own  berm.  It  would 
do  that ; that  would  be  the  tendency.  The  waves  caused  by  either 
the  wind  or  current,  or  both,  in  time  would  form  along  the  margin 
of  the  stream  what  is  called  a wave  berm,  and  washing  takes 
place  if  it  is  material  that  will  wash  at  all.  If  there  was  a 

644  bank  rising  immediately  at  the  water’s  edge,  it  would  wash 
the  material  and  break  it  on  the  bank,  until  it  did  form  a 

berm  there. 

The  process,  as  I could  make  out  from  the  indications  there, 
which  seem  pretty  clear,  is  that  they  take  the  material  as  it  comes 
from  their  pit,  included  in  their  cofferdam,  and  take  the  rock — 
the  blasted  rock — which  seems  to  be  soft,  sandy  rock  for  the  most 
part,  and  deposit  it  on  the  shoulder  of  the  present  bank,  on  each 
side  at  the  top  of  the  new  deposit  of  the  rock  being  level  with  the 
top  of  the  original  bank,  that  is,  the  canal  bank;  that  is,  widened 
out  to  3,  or  4,  or  5 feet,  varying  somewhat  according  to  whether 
the  bank  is  true  or  not,  giving  it  a steep  slope  until  it  disappears 
in  the  slope  of  the  present  bank ; that  is,  until  it  intersects  with  it ; 
that  slope  which  they  are  giving  it,  would  perhaps  be  1 to  1,  then 
that  forms  a widened  bank,  perhaps  20  feet  wide.  On  that  they 
built  up  apparently  intending  to  make  the  finished  bank  near  the 
width  of  the  present  canal  bank  on  top. 

Q.  If  I may  suggest,  your  answer  in  other  language  it  is  this 


:]40  Wiliams, — Direct  Exam.— Continued. 

that  the  top  part  of  the  hank  is  being  widened  without  widen- 

645  ing  the  bottom.  A.  Well,  that  is  the  way  I was  describing 
it;  I was  describing  how  they  were  doing  it;  and  now  the 

steeper  slope  being  done  of  this  top  material,  results  in  a failure 
for  any  material  to  reach  the  toe  of  the  original  slope.  It  is  build- 
ing a bank  on  top  a bank  with  a less  slope  on  top  of  an  old  bank 
with  a greater  slope,  making  a superincumbent  mass  there. 

I don’t  think  a bank  raised  in  that  manner  could  endure  or  be 
permanent.  The  quality  of  the  rock  that  is  being* used  for  the 
raising  of  that  bank  is  soft  rock.  It  is  dumped  in  promiscuously, 
just  as  it  comes  from  the  excavation.  I think  it  will  disintegrate 
by  the  weather.  It  would  be  a rapid  disintegration  for  rock,— 
not  for  earth  perhaps. 

They  are  widening  the  towpath  bank  on  the  inside  of  the  Illi- 
nois and  Michigan  Canal,  as  I described,  from  the  edge  of  the 
towpath  into  the  canal  prism.  Of  course  just  what  the  slope  is  be- 
low the  water,  I don’t  definitely  know,  but  they  are  giving  a great- 
er slope  to  it  than  the  original  slope  at  the  present  time.  The 

646  direct  effect  of  what  they  are  doing  then  on  the  canal  itself, 
— that  is  the  channel, — is  to  narrow  the  prism  of  the  canal, 

and  in  order  to  make  this  towpath  bank  stand  on  the  canal  site 
of  it — the  water  side  of  it — it  is  necessary  to  widen  it  there,  and 
thus  fill  up  the  canal  in  part,  if  they  follow  their  present  method. 

I saw  the  Kankakee  Feeder  while  I was  down  there  the  da> 
before  yesterday.  If  the  cresT  of  the  dam  that  is  being  constructed 
should  be  at  a height  of  4 feet  below  the  level  of  the  top  of  the 
water  in  the  canal,  as  the  canal  is  there  now, — the  feeder,  that 
is  the  aqueduct  as  it  was  originally  in  there,  if  it  were  in  place 
now,  would  be  submerged, — a portion  of  it  at  all  times,  and  prac- 
tically submerged;  the  water  would  rise  practically  at  the  top 
at  high  water.  It  would  not  be  possible  to  restore  that  feeder  so 
long  as  that  dam  remained,  with  the  flowage  existing. 

If  the  crest  of  the  dam  being  built  is  at  an  elevation  of  — 73.2, 
Chicago  datum,  and  the  bottom  floor  of  the  aqueduct  of  Kan- 

647  kakee  feeder  is  — 74,  Chicago  datum, — upon  that  hypothesis 
the  feeder  or  aqueduct  would  be  below  water,  and  could  not 

be  maintained  if  the  flow  was  according  to  these  figures.  I re- 
member a number  of  years  back,  where  the  water  of  the  Des- 


plaines  Biver  as  it  came  down,  near  to  the  Chicago  Biver,  went, 
which  way  it  was  discharged  prior  to  the  building  of  what  is 
known  as  the  Ogden  Ditch. 

What  yon  usually  term  the  Upi)er  Desplaines  Biver, — that  is  the 
Desplaines  Biver  from  the  sharp  bend  that  it  makes  near  Sum- 
mit below  Biverside,  in  the  normal  condition,  before  anything  was 
done  out  there,  discharged  both  ways  in  flood.  Whenever  the  river 
was  in  flood,  or  very  much  in  flood,  or  a comparitavely  small  flood, 
it  would  discharge  westward  through  the  bed  of  the  Desplaines 
Biver,  and  eastward  through  Mud  Lake  and  into  the  West  Fork 
of  the  South  Branch  of  the  Chicago  Biver;  at  low  water  in  the 
normal  condition  that  it  was  in,  it  would  discharge  only  west- 
ward through  the  Desplaines  Biver  channel.  The  lower  Des- 

648  plaines  Biver  channel,  southwest,  there  was  a ditch  cut  that 
modified  it,  that  modified  the  flow  of  the  river  by  what  is 

known  as  the  Ogden  and  Wentworth  Ditch.  It  was  the  exten- 
sion of  a comparatively  straight  line  of  the  West  Fork  of  the 
South  Branch  westward  and  finally  connecting  with  the  eastern 
arm  of  the  river  near  Summit ; cutting  so  that  it  turned  the 
water  of  the  Desplaines  Biver  at  all  stages  into  the  Chicago 
Biver.  After  that  was  done,  or  at  the  time  it  was  done,  it  had 
the  effect  of  nullifying  the  operation  of  the  Illinois  and  Michi- 
gan Canal,  which  in  the  early  ’70s,  I believe  it  was,  had  been 
deepened  for  the  purpose  of  changing  the  current  in  the  south 
branch  of  the  Chicago  Biver.  It  did  do  it  to  a certain  extent. 
This  water  being  drawn  off  of  the  Desplaines  Biver,  and 
discharged  into  the  south  branch  of  the  Chicago  Biver  stopped 
the  flow  according  to  the  various  stages,  stopped  it  entirely,  or 
partially,  or  reversed  it,  according  to  the  conditions  of  the  south 
branch  and  the  Chicago  Biver. 

649  So  the  City  of  Chicago  in  order  to  restore  the  original  con- 
dition, built  a dam  at  the  Desplaines  Biver,  cutting  the 

water  off  from  entering  the  Ogden  and  AVentworth  Ditch,  until 
it  had  reached  its  original  normal  height.  It  was  not  shut  off 
entirely,  it  was  shut  off  at  the  long  stages.  The  dam  was  con- 
structed under  my  supervision;  in  fact,  I planned  for  it, — super- 
vised its  construction  when  I was  assistant  city  engineer. 

In  reference  to  the  book  entitled  ^‘Fifteenth  Annual  Beport 


342 


^Yi Ilia  ms, — J) irect  Exam . — Coi i tinned. 


of  the  Board  of  Public  Works  for  the  City  of  Chicago,  1875;  pur- 
porting to  he  for  the  fiscal  year  ending  December  31,  1875;  and 
purporting  to  be  on  its  face,  as  of  date  March  1,  1876;  addressed 
to  the  City  Council  of  the  City  of  Chicago,” — I wilT  say  Ihat  I 
was  the  assistant  city  engineer  at  the  time  the  volume  was  made. 
I think  I assisted  the  city  engineer  in  his  report.  I don’t  know 
as  there  is  anything  in  here  of  my  own  wording. 

The  statement  on  page  17,  as  follows : 

'‘The  Kivek:  The  condition  of  the  river  during  the  last 

summer  was  a source  of  great  annoyance  to  the  public.  Sev- 
eral causes  have  operated  more  than  formerly  to  make  the 
main  stream  and  its  branch  difficult  to  keep  in  good  condi- 
tion. Among  these  are  the  increased  sewerage  of  the  city, 
which  is  carried  to  the  river,  and  the  quantity  of  water 
emptied  into  the  canal  by  the  Ogden  and  Wentworth  Ditch 
from  the  Desplaines  Biver.  A dam  is  being  constructed  at 
the  entrance  to  this  ditch,  by  which  it  is  believed  that  the 
city  will  be  so  able  to  control  the  fiow  from  the  Desplaines 
into  the  river  as  to  secure  a larger  discharge  from  the  river 
hereafter.  Thus  and  by  means  of  the  Fullerton  Avenue  con- 
duit, it  is  hoped  that  the  river  can  be  kept  unoffensive  to 
health,” — 

states  the  condition  of  the  river  at  that  time  that  the  work  was 
being  done,  at  the  time  I was  assistant  city  engineer. 

651  Thereupon  complainant  offered  the  said  passage  on  page 
17  in  evidence. 

(Objected  to  as  incompetent,  immaterial  and  irrelevant.) 

In  the  volume  entitled:  "Annual  Eeports  of  the  Department 

of  Public  Works,  Chicago,  1876,  1878,”  the  statement  in  the  Com- 
missioners’ report,  beginning  on  page  19,  is  as  follows: — 

"The  Rnmu:  Closed  without  completing  any  improve- 

ments which  have  been  designed  for  the  purpose  of  cleaning 
the  river,  on  account  of  legal  obstructions  to  the  erection  of 
a dam  across  the  entrance  to  the  Ogden  and  Wentworth 
Ditch.  The  contract  which  was  awarded  for  doing  the  work 
has  not  been  carried  out.  Yet  an  amiable  adjustment  of  the 
difficulty  between  the  parties  interested  is  looked  for  at  an 
early  date,  when  the  improvement  will  be  at  once  completed. 
This  will  enable  the  deepened  Illinois  and  Michigan  Canal  to 
perform  its  part  of  cleaning  the  south  branch  of  the  river.” 
states  the  situation  as  true,  on  that  date,  May  1,  1878, — the 

652  way  I remember  it,  and  I was  in  the  employ  of  the  city  as 
assistant  engineer  and  in  control  of  the  work  at  that  dam  at 

that  time. 


On  page  132  of  the  same  volume  in  the  report  of  the  engineer 
to  the  Commissioners  of  Public  Works,  under  date  of  Jan.  i, 
1877,  in  which  the  following  occurs: — 

^ Conditions  of  the  Eivee  : The  same  objectionable  state 

of  things  in  reference  to  the  condition  of  the  river  that  was 
described  in  the  last  annual  report  continued  to  exist  last 
year,  and  from  the  same  cause, — that  is,  the  large  quantity 
of  water  which  flowed  from  the  Desplaines  Kiver  into  the 
Ogden  and  Wentworth  Canal;  and  through  this  and  the  west 
fork  into  the  south  branch  of  the  Chicago  Piver.  The  liene- 
ficial  effects,  otherwise  naturally  expected  and  formerly  ex- 
perienced from  the  deepening  of  the  Illinois  and  Michigan 
Canal  was  neutralized  by  the  feeding  into  the  canal  largely, 
and  sometimes  wholly,  with  the  Desplaines  water,  thus  great- 
ly obstructing  the  flow  of  the  drainage  of  most  of  the  city 
through  the  canal.  It  is  believed  now  that  such  an  under- 
standing with  all  the  parties  interested  has  been  arrived  at 
as  will  permit  the  building  of  a temporary  dam  at  the  height 
of  the  Ogden  and  Wentworth  Canal,  sufficient  to  restore  the 
south  branch  to  its  former  condition  and  also  allow  experi- 
ments to  be  made  to  show  how  high  the  dam  may  be  raised 
permanently  without  injury  to  the  just  rights  of  any.” — 

The  language  read  represents  the  condition  at  this  place  and 
at  that  time. 

In  the  same  volume,  the  report  of  the  Commissioner  of  Public 
Works  for  the  year  ending  1877,  on  page  20,  is  found  this  lan- 
guage 

‘‘The  Kiver:  The  expenditure  of  $1,500  for  adding  some  two 
feet  to  the  height  of  the  dam  across  the  entrance  to  the  Og- 
den and  Wentworth  Canal,  has  proved  successful  in  prevent- 
ing the  waters  of  the  Desplaines  Kiver  from  flowing  into  the 
waters  of  the  Chicago  Kiver;  and  in  turning  the  current  of 
the  south  branch  into  the  Illinois  and  Michigan  Canal,  there- 
by greatly  perfecting  the  drainage  of  that  portion  of  the 
city  south  of  the  main  river ; and  rendering  the  waters  of  the 
south  branch  comparatively  odorless  and  free  fyom  offensive 
impurities.” — 

which  statement  represents  the  condition  of  affairs  that  existed 
at  that  place  and  at  that  time. 

654  Keferring  to  page  186  of  this  volume  which  purports  to  be 
a report  of  the  Commissioners  of  the  condition  of  the  river  as 
of  December  31,  1877,  as  follows: 

“Condition  of  the  Kiver.  Since  the  building  of  the  dam 
at  the  head  of  the  Ogden  & Wentworth  ditch  early  in  Janii- 


344  Williams, — Direct  Exam. — Continued. 

‘^ary,  1877,  the  condition  of  the  south  branch  of  the  Chicago 
Kiver  has  greatly  improved.  The  dam  is  located  on  the 
east  line  of  Section  12,  Township  38,  Range  11,  1,160  feet 
south  of  the  N.  E.  corner  of  the  section  where  the  line  crosses 
an  arm  of  the  Desplaines  River  with  which  the  Ogden  & 
Wentworth  canal  has  connected.  It  is  temporary  in  its  na- 
ture being  composed  of  a row  of  sheet  piling  supported  on 
the  lower  side  with  round  timber  piles  and  filled  on  the  upper 
side  with  earth. 

Owing  to  the  peculiar  and  unreliable  character  of  the 
ground  into  which  the  sheet  pilings  were  driven  the  sheets 
between  them  proved  to  be  very  imperfect  and  leaked  badly. 
To  prevent  a reoccurrence  of  this  it  is  recommended  that  a 
row  of  longer  tongued  and  grooved  sheet  piles  be  driven 
several  feet  from  the  old  row  or  two  rows  being  tied  to- 
gether to  prevent  spreading  and  the  interrhediate  space  filled 
with  earth.  By  this  means  the  dam  may  be  made  to  do 
service  for  a number  of  years  without  any  material  repairs. 
The  top  of  the  dam  is  about  11.8  feet  above  Chicago  city 

655  datum.  During  the  greater  part  of  the  time  no  water  flows 
over  its  top,  hence  the  water  from  the  Desplaines  River  is 
excluded  during  the  season  of  the  year  when  its  presence  is 
seriously  objectionable.’’ 

The  above  statement  represents  correctly  the  condition  at  that 
time  and  at  that  place  as  I remember  it. 

Thereupon  counsel  for  complainant  offered  these  several  pages 
from  the  said  volume  in  evidence  in  connection  with  the  depo- 
sition. 

(Objected  to  as  incompetent,  irrelevant  and  immaterial, 
and  no  sufficient  foundation.) 

Looking  at  the  map  which  hangs  on  the  wall  here  labeled 
“Rand  McNally’s  new  standard  map  of  Chicago,  scale  two  and 
one-half  inches  to  a mile,  copyright  1902,  Rand  McNally  & 

656  C.”,  the  Ogden  ditch  began  approximately  at  48th  street 
at  the  extreme  end  of  the  west  fork  of  the  south  branch 

which  is  coincident  with  the  red  line  marked  on  the  map  “city 
limit”  just  where  it  crosses  below  what  is  called  the  Hawthorne 
Race  Track  indicated  by  the  lead  ]:)encil  mark  “a”  on  said  map. 

Approximately  in  that  vicinity  the  Ogden  & Wentworth  ditch 
was  begun  and  carried  to  the  southwest  as  shown  on  tlie  map 
here.  It  is  marked  “Ogden  ditch”  on  the  map,  and  strikes  the 
line  of  47th  street  at  a little  less  than  one-half  mile  east  of  liar- 


lem  avenue,  which  is  a range  line.  It  tlien  follows  just  south  of 
49th  street  on  Harlain  avenue.  It  was  then  cut  in  Harlem  avenue 
which  would  be  Harlem  avenue  if  it  i)rojected.  There  was  no 
street  there  southward  for  a distance  of  about  1,000  feet,  striking 
the  arm  of  the  Desplaines  Kiver  as  it  then  existed.  That  is  sliown 
on  Section  12  of  this  map.  That  re])resents  the  situation  pretty 
correctly.  On  that  line  of  Harlem  avenue  and  where  the  line 

657  of  Harlem  avenue  crosses  that  arm  of  the  river  was  the 
space  where  the  dam  was  i)uilt  and  ])erlia])s  just  a little  west 

of  it  so  that  the  ditch  as  constructed  prior  to  the  building  of  that 
dam  and  the  Desplaines  River  as  it  then  existed  connected  and 
made  the  continuous  water  course.  The  words  upoii  the  map  in 
the  immediate  vicinity  between  the  dotted  lines  “old  river  1)ed” 
indicate  that  that  was  the  main  river  bed  as  it  existed  ]u*ior  to  the 
work  of  the  Sanitary  District.  The  Sanitary  District  made  a new 
channel  for  the  river  from  a ]x)int  north  and  west,  mostly  west, 
of  the  Ogden  dam  and  changed  the  course  of  the  river  turning 
it  out  of  this  old  bed  entirely.  The  river  indicated  on  the  map 
where  the  words  “Desplaines  River  diversioii”  re])resent  the  new 
channel  that  I have  spoken  of. 

The  channel  began  at  the  Doiiit  vrhere  the  Santa  Fe  Railroad 
crosses  the  Desplaines  River.  The  area»  of  land  on  each  side 

658  of  this  Ogden  ditch  and  between  the  points  “a”  and  “b” 
were  known,  when  I first  became  accpiainted  witli  it,  as  Mud 

Lake.  I think  they  had  cut  through  connecting  tlie  original  Mud 
Lake  with  the  west  branch  and  draining  at  Mud  Lake  ]>retty 
much  before  I was  acquainted  with  it.  It  showed  where  it  was. 
I saw  the  depression  and  soft  land  upon  which  the  vrater  used  to 
stand  in  a condition  showing  that  it  was  tlie  foiiner  bed  of  i\fud 
Lake.  Tlie  Ogden  & M^entworth  ditcli  runs  tliroiigh  that  miginal 
bed  of  the  lake.  And  it  was  there  when  I first  ])egan  to  see  the 
country,  and  the  bed  of  the  Desplaines  River  ran  through  this 
Ogden  ditch  into  the  south  branch  unless  it  was  drained  off  by 
the  Illinois  and  Michigan  Canal,  that  is  turned  back,  that  is  it 
would  run  into  the  south  branch  and  then  here  in  Section  9 

659  on  this  map  wdiere  there  is  represented  a narrow  ribbon  of 
water  extending  first  southwardly  and  then  southwestwardly 

which  is  labeled  “Illinois  & Micliigan  Ckinal”  at  a ])oint  just 


346 


Williams, — Direct  Exam, — Continued. 


east  of  Ashland  avenue  about  a block  east.  The  red  letter 
which  is  put  at  that  point  on  the  map  by  counsel  for  complainant 
was  the  point  at  which  the  Ogden  ditch  fed  into  the  south  branch 
and  that  point  was  the  Illinois  and  Michigan  Canal  feeding  out 
of  the  south  branch.  Sometimes  the  Ogden  & Wentworth  ditch 
neutralized  the  Illinois  and  Michigan  Canal  so  that  it  sent  out 
a strong  current  into  the  lake.  That  was  one  of  the  difficulties 
I had  to  contend  with  that  led  to  the  organization  of  the  Sani- 
tary District  of  Chicago  and  the  construction  of  its  channel.  That 
is  indicated  on  this  map  in  Section  30  by  the  point  marked  by 
counsel  with  the  letter  I find  that  map  represents  the  con- 

ditions correctly  as  I am  familiar  with  them. 

Thereupon  counsel  for  complainant  offered  the  said  map  in  evi- 
dence in  connection  with  the  deposition.  (Atlas  p.  3952;  Trans., 
p.  6574;  Abst.,  p.  1926.) 

660  (Objected  to  as  incompetent,  immaterial  and  irrelevant.) 

Q.  Mr.  AVilliams,  just  tell  us  now  in  a general  way,  take 
it  by  periods  so  as  to  separate  it  one  from  the  other,  what  the 
conditions  have  been  as  to  the  relation  of  the  Desplaines  Kiver 
to  the  waters  of  the  south  branch  and  Lake  Michigan  going  back 
first  to  what  they  used  to  be  long  prior  to  that  time  as  indicated 
by  the  logical  and  historical  data,  if  you  are  familiar  with  it! 

(Objected  to  as  incompetent,  irrelevant  and  immaterial,  and 
calling  for  an  opinion.) 

A.  The  logical  evidence  is  that  the  Desplaines  Eiver  and  Illi- 
nois Eiver  below  were  at  one  time  a great  outlet  for  the  lake  pre- 
sumably at  the  close  of  what  is  known  as  glacial  period  and  the 
valleys  of  those  rivers  show  that  it  has  been  an  immense  stream 
away  beyond  any  that  exists  to  it  in  any  part  of  the  country,  I 
mean  the  Desplaines.  Subsequently  by  the  leaving  of  some  sand 
to  the  east  or  the  lowering  of  the  crest  of  the  earth  at  that 

661  point  or  an  upheaval  of  this  ground  Lake  Michigan  was  shut 
out  from  the  Desplaines  to  the  Illinois.  During  the  various 

times  these  banks  with  various  levels  that  have  formed  along  the 
lake  beginning  at  the  lake  and  going  along  as  far  west  as  LaGrange, 
those  were  beaches  formed,  in  the  forming  of  which  the  u])per 
Desplaines  was  formed  occupying  a space  between  two  different 
levels.  They  might  be  called  dunes  and  they  found  its  outlet  prob- 


ably,  at  least  at  one  time,  probably  mostly  into  Lake  Michigan. 
Instead  of  following  the  channel  as  indicated  on  this  map  that 
yon  refer  to,  the  Eand-McNally  map,  this  way  it  had  its  outlet 
through  Mud  Lake  and  that  way  (indicating  on  map).  At  one 
time,  of  course,  it  discharged  both  ways.  As  the  silt  was  washed 
down  by  the  upper  Desplaines  and  overflowed  into  the  weeds  and 
grass  it  deposited  that  silt  and  back  up  into  the  Desplaines  and 

662  around  its  eastern  arm  and  dike.  Like  alluvial  streams  they 
are  always  higher  close  to  the  river  than  they  are  back  from 

the  river  and  that  is  true  here.  It  was  gradually  shutting  itself 
out  from  the  Chicago  Eiver  and  the  Ogden  & Wentworth  ditch 
was  cut  through  that  grade  that  had  formed.  Beavers  may  have 
helped  by  throwing  up  dams,  anything  like  that,  causing  deposits, 
and  as  the  water  gets  out  of  its  channel  it  causes  deposits  any- 
way. From  the  time  when  the  river  had  opened  its  outlet  into  the 
Illinois  and  clear  up  to  the  time  when  I constructed  the  Ogden 
dam  the  Desplaines  Eiver  made  a certain  amount  of  discharge 
into  the  Chicago  Eiver  so  far  as  I knew  about  it  unless  it  might 
have  been  a very  dry  year  when  there  were  no  floods,  and  in  the 
higher  floods  the  whole  area  occupied  by  the  ditch  and  by  the 
river  at  the  bend  there  was  flooded  many  feet  deep.  The  water 
was  sufficient  for  small  boats  to  pass  from  the  Desplaines  Eiver 
into  the  Chicago  Eiver  and  out  into  the  lake.  Boats  drawing 

663  several  feet  could  pass  out. 

664  I can  not  tell  you  the  exact  year  when  the  Ogden  ditch  was 
constructed.  It  was  between,  I think,  1869  and  1874  or  ’5. 

It  was  after  the  deepening  of  the  Illinois  & Michigan  Canal.  They 
may  have  dug  a part  of  it  part  of  the  way  up  to  Mud  Lake  in  the 
’40 ’s,  but  they  did  not  tap  the  Desplaines  Eiver  at  all  that  time. 
There  is  an  old  ditch,  I don’t  know  whether  it  shows  on  this  map, 
another  ditch  entirely,  but  that  that  tapped  the  Desplaines  Eiver 
was  not  built  until  after  1870.  I did  not  state  that  until  after  1870 
the  waters  of  the  Desplaines  Eiver  did  not  flow  into  the  south 

665  fork  of  the  south  branch.  It  did  not  flow  into  it  at  low  water. 
It  did  not  flow  in  until  the  water  came  up  so  it  poured  all  over 

the  prairie.  It  overflowed  from  the  east  and  south  so  that  during 
the  period  of  high  water  a great  deal  of  water  of  the  Desplaines 
Eiver  flowed  into  the  water  of  the  south  fork  of  the  south  branch 


348 


Willuuns, — Direct  Exam. — Continued. 


tlirougli  Mud  Lake  and  those  low  lands.  I should  think  it  was 
only  two  or  three  years  after  the  ditch  was  constructed  before 
the  dam  was  built.  I could  not  tell  that  because  my  attention 
was  not  drawn  to  it,  and  in  fact  I had  nothing  to  do  with  the  Sani- 
tary Commission  until  1872  and  I know  my  earliest  requirement 
now  with  reference  to  that  matter  was  that  they  began  to  com- 
plain about  the  bad  condition  of  the  river  caused  by  that  ditch. 
That  was  before  I knew  of  any  of  the  circumstances  at  all.  I am 
not  sure  how  long  that  ditch  had  existed  at  that  time,  only  I know 
it  was  quite  recent.  That  I know  from  the  general  knowledge 
66G  that  existed  and  from  the  appearance  of  the  banks,  the  ma- 
terial show^ed  when  I first  saw  that  ditch  that  the  bank  was  a 
comparatively  recent  bank. 

That  ditch  was  constructed  under  no  authority  except  the  land 
owners.  They  just  went  in  and  dug  their  ditch  on  their  land. 
Primarily  the  original  ditch  was  to  drain  off  the  water  from  Mud 
Lake  into  the  Chicago  Eiver  and  get  the  water  down.  And  then 
they  pushed  it  along  five  or  six  miles  and  of  course  drained  it  a 
little  better,  and  of  course  I knew  what  the  general  charge  was, 
the  reason  why  they  tapped  the  Pesplaines  Eiver.  I knew  what 
that  was,  but  that  was  as  far  as  I knew.  It  was  said  that  they 
tapped  the  river  to  drain  out  the  water  in  there  and  poured 
(1G7  out  that  ditch  and  make  it  dry.  The  ditch  had  been  con- 
structed before  the  river  was  tapped.  The  purpose  of  the 
ditch  was  to  drain  the  lands  through  which  it  flowed.  IVell,  I don’t 
know  how  far  they  expected  to  render  those  lands  valuable.  It 
merely  made  it  so  they  could  cut  the  wild  hay  on  it. 

The  Ogden  dam  was  built  across  the  place  where  the  ditch  tapped 
the  river  in  1877.  The  ditch  tapped  the  river  a few  years  before 
that.  I never  went  down  below  so  as  to  see  how  much  water  was 
dowino'  in  the  ditch,  but  in  low  water  I think  it  virtually  did  not 
flow  into  it  at  all.  Boats  could  have  been  navigated  in  the  Og- 
GG8  den  ditch.  I did  not  testify  that  they  ever  had  been.  I should 
think  the  Ogden  ditch  was  20  or  25  feet  wide.  Since  the  Ogden 
dam  was  constructed  the  water  continued  to  flow  into  it  when  it 
went  from  the  dam  and  since  the  Sanitary  District  carried  out 
their  work  out  there  it  is  seldom  that  any  water  flows  into  it  exce])t 
local  rain  fall.  It  then  flows  down  into  the  Chicago  Eiver  when  it 


:u<) 

overflows,  which  is  down  about  the  spillway.  On  A])ril  14th,  when 
1 went  down  to  Dresden  Heights,  Mr.  Kramer  and  Mr.  Lyman  H. 
Cooley  were  with  me. 

G69  We  went  from  Chicago  to  Joliet  and  then  went  down  in  an 
aiitomohile  and  got  as  near  to  it  as  we  could  get  and  walked 
the  rest  of  the  way.  We  got  down  there  just  before  noon.  We 
stayed  there,  I should  think,  about  two  and  one-half  hours  or 
three.  We  ran  over  the  property  and  walked  up  the  canal  hank 
for  something  over  a mile,  I should  think,  above  the  dam.  We 
walked  below  the  dam  for  a half  hundred  feet  only  out  into  where 
the  waste  material  was.  We  took  no  actual  measurements  of-  the 
canal  bank,  just  looked  over  the  ground.  I knew  at  that  time,  from 
my  general  knowledge,  what  the  ])lans  were  for  doing  the  work 
only  so  far  as  I was  shown  on  the  ])lat  that  was  exhibited,  which 
was  one  Mr.  Cooley  had  in  his  possession  as  I remember  it. 

670  It  showed  what  purported  to  be  the  location  of  tlie  power 
house  and  of  the  dam  and  of  the  gates  and  overflow. 

I don’t  think  the  plans  showed  as  to  what  the  company  proposed 
to  do  with  the  hank  or  how  it  |)roposed  to  widen  the  tow  i)ath.  T 
got  that  from  what  was  actually  done.  Part  of  it  seemed  to  he 
about  completed  as  I judge  it.  I would  not  say  that  I knew  any- 
thing was  completed.  I only  know  what  they  had  done  at  the  time 
I was  there. 

Q.  You  did  not  know  for  instance  at  that  time  that  the  com- 
pany contemplated  only  raising  the  tow  path  about  two  feet?  A. 
Yes,  I did,  that  is,  I judge  say,  from  two  to  three  feet  according 
to  the  height  of  the  bank  as  it  now  exists,  that  was  evident  to 
me  that  they  were  raising  it  about  five  feet  above  the  water 

671  in  the  canal  as  it  existed  when  I was  there,  there  were  evi- 
dently grade  stakes  where  the  raising  had  not  been  done. 

I don’t  know  what  is  contemplated  by  the  company  in  the  way 
of  protecting  that  bank  after  it  is  raised.  It  is  not  a fact  that  the 
outside  slope  of  this  canal  hank  at  the  point  where  the  dam  is 
being  constructed  is  lined  with  dimension  stone.  There  are  some 
places  there  where  it  has  been  riprapped  or  sort  of  paved  with 
small  stone.  Well,  if  the  outside  slope  outside  of  the  canal 

672  had  l)een  built  with  stone  it  has  all  been  obliterated  and  cov- 
ered over  with  earth.  It  has  got  an  earth  slo]>e  now.  There 


350 


Williams, — Direct  Exam. — Continued. 


were  places  where  there  was  stone  that  was  visible  bnt  for  the  most 
part  there  was  not.  It  was  not  what  engineers  or  builders  would 
call  dimension  stone.  There  were  places  where  it  was  paved,  that 
is  with  the  stone  where  the  current  sets  in  against  it.  There  were 
places  where  they  had  paved,  or  put  in  riprap,  to  protect  the 
wash.  I say  that  that  stone  was  not  and  could  not  be  dimension 
stone.  I examined  the  bank  for  about  a mile,  except  where  it  had 
been  covered  up  with  the  material  that  had  been  deposited  there. 

There  was,  I should  think,  about  one-cjnarter  of  a mile  that  was 
673  covered  up  also  at  the  top.  It  was  covered  up  beginning  at  the 
dam  site  and  going  up  stream.  For  one-qnarter  of  a mile  up 
[ could  see  what  it  showed  for  the  lower  part  of  the  slope.  The 
other  portion  was  covered  with  the  material  that  had  been  taken 
out  by  this  excavation,  new  material.  I went  on  above  where 
the  new  material  had  been  deposited.  The  new  material  had  been 
deposited  on  the  side  and  top  of  the  bank  raised  for  perhaps  1,000 
feet  possibly  a quarter  of  a mile,  then  for  another  stretch  of  a 
number  of  hundred  feet  had  been  deposited  on  the  side  of  the  slope, 
the  top  of  the  slope  besides  and  even  to  about  the  original  tow 
path  leved.  I think  my  examination  was  such  as  would  enable 
me  to  know  that  the  bank  was  not  constracted  right  from  its 
base  up  to  the  top  of  the  tow  path  originally  with  dimension 
stone  laid  one  on  top  of  each  other.  It  was  paved  in  places  when 
the  water  was  low  in  the  river  where  it  might  strike  in  on  the 
671  bank.  There  was  a great  part  of  the  way  where  there  were 
trees  going  up  the  slope.  There  was  more  or  less  paving  along 
there  up  to  the  county  line  of  Grundy  County.  It  was  tilled  over 
but  in  here  where  it  was  not  too  much  tilled  I could  see  there  was 
more  or  less  paving  in  there  (indicating  between  the  points  x and  y 
on  the  map)  for  a distance  of  about  1,000  feet  from  the  location 
of  the  dam  up  stream.  It  was  so  covered  it  showed  the  stone  for 
a good  deal  of  the  way  along  there.  The  other  part  of  the  bank 
was  covered  with  freshet  material.  In  places  the  stone  showed. 
675  It  might  have  been  paved  all  the  way.  It  may  have  been- 
covered  over  with  dirt  but  there  were  places  that  I saw  the 
paving.  The  impression  I got  from  the  bank  was  that  they  had 
1‘iprapped  there  and  paved  wherever  it  was  bare,  and  in  some  of 
that  rock  it  worked  down  and  you  could  see  it  at  the  toe,  and  there 


are  places  it  was  mixed  in  witli  the  dirt  and  covered  np,  you 
could  not  see  it  at  all. 


C ross-Exa  m i)  i a ti  on. 

Q.  If  it  turns  out  to  be  a fact  that  that  hank  is  all  built  up 
with  dimension  stone  from  base  to  the  top,  then  your  testimony 
with  regard  to  the  action  of  water  upon  it  would  not  apply,  would 
it?  A.  I think  it  wmuld  because  there  was  a good  deal  of 

676  that  bank  that  was  not  protected  with  stone  at  all. 

Q.  I am  asking  you  on  the  presumption  that  it  is,  that  you 
are  mistaken  as  to  that?  A.  It  depends  on  how  well  that  is  done, 
I don’t  know.  If  it  is  as  it  appears  why  it  would  not  protect  it. 

Q.  Do  you  undertake  to  say  that  when  that  bank  was  buiU 
originally  it  was  not  a proper  bank  for  the  purposes  for  which  it 
was  designed.  A.  No,  I did  not  say  that.  That  bank  seems  to 
have  answered  its  purpose  very  well. 

I don’t  know  that  during  the  flood  season  the  water  of  the  Des- 
plaines  Eiver  comes  up  on  that  bank  at  a very  much  higher  level 
than  it  would  come  if  this  praposed  dam  were  put  in.  I don’t 
think  that  is  true.  I know  something  about  it.  I saw  marks  of 
the  flood  time  when  I was  there.  They  came  up  quite  a distance, 
I should  think,  within  five  or  six  feet  from  the  top  of  the  bank. 

677  The  reason  I answered  you  that  way  was  this,  that  I don’t 
know  anything  that  you  could  do  with  the  dam  that  will  lower 

the  flood  waters.  Anything  you  may  do  will  raise  it  but  not  lower 
them.  I know  how  high  I was  told  the  crest  of  the  dam  was  going 
to  be.  I think  it  was  minus  74  feet  below  Chicago  datum. 

The  action  of  the  water  in  flood  time  against  the  bank  would 
not  be  more  serious  than  the  action  of  the  still  water  formed  by  the 
construction  of  the  dam.  It  would  not  be  still  water.  The  bank 
would  be  destroyed  with  the  affect  of  wave  action  and  winds  and 
being  kept  constantly  saturated  as  the  bank  is  at  present 

678  constructed  and  as  a new  portion  has  been  constructed  up 
to  date.  I have  no  knowledge  what  the  company  intends  to  do 

to  protect  that  bank.  It  is  possible  to  so  protect  that  bank  that  the 
construction  of  the  dam  and  the  formation  of  the  pool  above  the 
dam  would  not  endanger  the  bank  in  any  way.  I have  never  seen 
the  contract  with  the  Canal  Commissioners. 


352 


Williams, — Cross-Exam.— Continued. 


Q.  You  think,  though,  that  it  would  be  quite  feasible  to  put  in 
the  work  there  in  such  a way  that  the  bank  would  not  be  injured? 

(Objected  to  as  not  cross-examination.) 

A.  Oh,  yes,  if  you  get  enough  material  there  of  the  right  kind 
and  put  it  on  the  slope  you  could  protect  it.  The  width  of  the  canal 
varies  a great  deal.  _I  never  measured  it.  Eight  opposite 
G79  the  dam  the  canal  narrows  up  and  widens  out  in  places.  At 
the  point  where  I said  the  earth  was  thrown  over  on  the  inside 
bank  of  the  canal  it  is  wider  in  places  than  the  standard  at  the 
surface,  I don’t  know  that  it  is  below. 

By  drawing  the  water  down  in  the  dam  the  aqueduct  across 
the  river  there  could  be  restored.  What  I meant  to  say  (direct 
examination)  was  that  if  the  dam  was  kept  up  to  the  height  of 
the  crest  that  it  ^ould  interfere  with  the  aqueduct. 

G80  Q You  mean  that  if  it  were  kept  up  to  the  height  of  the 
crest  the  surface  of  the  water  would  be  above  the  present  top 
of  the  pier?  A.  Yes,  that  is  right. 

Counsel  fok  Complainant.  I object  to  the  last  question  because 
the  question  asked  in  the  direct  examination,  to  which  response 
was  made  by  the  witness,  was  in  substance  that  if  the  water  was 
kept  flowing  to  the  crest  of  the  dam  wdiere  would  the  feeder  be 
with  reference  to  the  surface  of  the  water  and  then  whether  it  could 
be  restored  all  upon  the  hypothesis  that  the  wmter  was  kept  at  the 
crest  of  the  dam. 

I only  know  how  the  old  aqueduct  was  built  from  the  appear- 
ance of  the  old  piers  that  still  exist.  The  aqueduct  was  supported 
by  the  top  of  the  middle  portion  of  the  piers,  not  the  extreme 
()81  top  at  the  edges  but  in  the  middle  of  the  piers,  the  box  rested 
on  the  middle  of  the  piers.  The  top  of  the  middle  part  was 
not  higher  than  the  top  of  the  aqueduct.  It  was  higher  than  the 
bottom  of  the  aqueduct.  A pier  has  a small  width  up  and  down 
stream,  I don’t  know  just  wliat  it  is,  but  on  each  extreme  edge  of 
the  middle  part  of  the  pier  there  was  some  masonry  carried  u|) 
perha])s  as  high  as  the  top  of  the  aqueduct.  Between  those  was 
sort  of  se])arated  piers  formed  on  the  main  piers  but  the  to])  of 
the  middle  part  of  the  pier  was  where  the  aqueduct  rested.  Dur- 
ing a flood  season  when  the  old  aqueduct  existed  there  the  water 


would  come  up  on  the  a(iueduct  proper,  I don’t  know  just  how 
high. 

682  As  to  whether  the  feeder  could  be  maintained  there  across 
the  river  depends  entirely  upon  the  level  of  the  water  to  main- 
tain it  and  that  would  depend  upon  how  much  water  was  let  through 
the  outlet.  It  would  be  quite  possible  to  let  a sufficient  amount 
of  water  through  the  dam  to  keep  the  aqueduct  out  of  water  all  of 
the  time  if  the  water  did  not  get  up  to  the  crest  of  the  dam.  After 
the  dam  is  constructed  and  the  water  should  be  at  the  level  of  the 
crest  it  would  be  only  up  to  the  toe  of  the  bank,  that  is  part  down 
slope.  The  level  of  the  pool  that  would  be  formed  by  this  dam 

would  be  below  the  point  where  the  tow  path  is  being  raised,  I 

683  mean  the  water  would  be  up  against  the  toe  of  the  material 
that  is  put  in  there.  The  water  would  not  be  up  against  thi^^ 

684  part  of  the  tow  path  that  is  being  raised  nowq  but  would  be 
several  feet  below  it,  that  is  several  feet  below  the  old  tow 

path  bank. 

R e-direc t Examin a ti on. 

If  the  crest  of  the  dam  is  built  at  an  elevation  73.2  Chicago  datum 
and  the  bottom  of  the  aqueduct  is  minus  74  Chicago  datum,  it 
would  flow  up  into  the  bottom  of  the  aqueduct,  and  if  the  crest 

685  of  the  dam  was  73.2  and  the  aqueduct  73  minus,  it  would  be  .8 
of  a foot  deep.  Suppose  that  the  flow  of  the  water  from  the 

dam  was  six  feet  deep  the  aqueduct  would  be  submerged  6.8  feet. 

I stated  in  my  cross-examination  that  the  bank  above  this  canal 
at  places  has  trees  growing  on  the  side  of  the  bank.  It  would  not 
be  possible  for  the  character  of  trees  I saw  growing  there  to 
grow  if  the  bank  had  been  either  riprapped  or  constructed  with 
dimension  stone.  The  size  trees  that  were  growing  there,  I should 
think,  would  need  two  or  three  feet  of  earth  to  grow  in.  Most  of 
the  way  along  both  directions  from  the  side  of  this  dam  I saw 
trees  growing  on  the  side  of  the  tow  path  bank.  The  stone 

686  that  I saw  piled  on  the  banks  were  thrown  in  with  some  regu- 
larity on  the  outer  line  of  it.  They  were  loosely  thrown  in, 

they  were  not  set  in  by  hand,  they  were  not  hand  work. 

Of  course,  the  cotfer-dam  was  full  of  water  and  I could  not  see 
the  bottom  of  the  stone  in  there,  but  there  was  no  other  place 


354 


for  the  stone  to  come  from  thaf  I knew  of.  To  construct  the  bank 
or  tow  path  of  the  canal  so  that  water  might  be  put  in  outside 
of  it  and  still  the  canal  be  protected  it  would  either  be  by  heavy 
riprap  letting  that  riprap  extend  down  under  the  toe  of  the  bank 
or  it  could  be  down  with  perhaps  a lighter  work  if  they  had  the 
right  kind  of  stone  by  getting  a proper  footing  at  the  toe  of  the 
bank  and  building  them  up,  paving  them  like  you  would  pave  a 
687  reservoir.  It  might  be  cement  or  it  might  be  dry,  but  that 
would  have  to  be  carefully  hand  laid.  It  would  have  to  be 
different  kind  of  stone  from  anything  that  was  there.  It  would 
have  to  be  a sort  of  a picked  stone  such  as  rubble  stone  or  dimen- 
sion stone. 

Suppose  the  water  was  kept  at  the  crest  of  the  dam  and  there 
was  three  to  three  and  one-half  or  four  feet  of  water  in  the  river 
above  the  crest  of  the  dam  or  going  over  the  dam  that  water  would 
reach  the  new  part  of  the  tow  path  bank  as  it  extends  down  on  the 
slope. 


AVilliam  Kramer, 

688  a witness  in  behalf  of  complainant,  testified  as  follows : 

Direct  Examination, 

My  name  is  William  Kramer.  I am  forty-five  years  old.  I 
live  in  Chicago  and  have  lived  there  since  1892;  that  would  be 
about  sixteen  years.  My  occupation  is  that  of  civil  engineer  and 
surveyor.  I have  been  enaged  in  that  line  of  work  since  I was 
fifteen  years  old.  That  is  twenty-nine  or  thirty  years. 

I have  seen  the  site  of  the  proposed  dam  that  has  been  par- 
tially constructed  by  the  defendant,  just  a short  distance  above 
^ the  mouth  of  the  Desplaines  Kiver.  I have  viewed  that  whole  region 
for  a short  distance  around  about  it,  that  is,  the  Illinois  & 

689  Michigan  Canal  and  the  river  and  the  proposed  dam.  I last 
saw  it  on  Thursday,  the  14th  of  the  present  month.  Mr.  Bene- 

zette  "Williams  and  Mr.  Cooley  were  with  me  when  I viewed  it. 
I went  down  there  at  the  request  of  Mr.  Starr,  for  the  purpose  of 
examining  it  and  inspecting  it  and  learning  the  situation. 

The  canal  bed  proper  and  the  two  banks  are  the  necessary  in- 
gredients or  component  parts  of  a commercial  canal.  The  banks 
of  the  canal  are  necessary  to  hold  the  water  in  the  canal.  I exam- 


ined  the  bank  on  the  east  side  of  the  canal  next  to  the  Desplaines 
Eiver,  at,  and  near,  and  about  the  site  of  tlie  dam  joeing  constructed 
by  the  defendant. 

690  The  top  of  the  towpath,  that  is,  the  way  I rememl)er  it, 
is  84  Hennepin  datum,  and  I think  that  the  day  we  were  down 

there,  the  river  was  about  61  Hennepin  datum.  That  would  make 
a difference  of  23  feet  between  the  top  of  the  towpath  and  the 
water  in  the  river.  The  height  from  the  side  of  the  towpath  bank 
down  to  what  appeared  to  be  the  ordinary  level  of  the  side  at  the 
foot  of  the  bank,  varied  a great  deal.  Take  it  below  the  dam,  that 
is,  I mean  along  the  dam  to  be  constructed  by  the  Economy  Light  & 
Power  Company,  below  there,  the  canal  bank,  that  is  the  toe 
of  the  canal  bank,  on  the  edge  of  the  water,  are  identical;  right 
at  the  place  where  the  dam  is  being  constructed,  I should  think 
that  it  was  about  18  feet  above  the  toe  of  the  towpath.  The  toe 
that  I refer  to  is  the  bottom  of  the  bank. 

691  I think  the  towpath  of  the  Illinois  & Michigan  Canal  is  l)e- 
tween  12  and  16  feet  in  width  throughout  its  length.  I mean  the 

towpath  itself,  the  top  of  the  bank.  That  would  be  14  feet,  and 
then  it  would  take  a slope  of  two  to  one  on  the  bank  nearest  the 
river ; if  the  bank  is  18  feet  high,  you  would  have  36  feet  more  for 
the  bank,  which  would  make  in  all  60  feet.  That  would  be  from 
the  edge  of  the  towpath,  almost  from  the  water’s  edge  of  the  tow- 
path,  down  to  the  bottom  of  the  bank  of  the  toe  of  the  slope  at 
the  power  house.  A greater  base  would  be  required  for  sustain- 
ing this  bank  then  than  just  the  base  of  the  towpath  bank.  You 
have  the  slope  in  the  canal  proper.  There  is  the  bank  from  the 
edge  of  the  towpath  down  into  the  water,  that  is,  to  the  bottom  of 
the  canal.  On  the  assumption  that  the  water  is  4 feet  deep  in  the 
canal,  there  would  be  left  on  that  side  of  the  bank,  4 feet  in  the 
bottom  of  the  towpath.  The  depth  of  the  water  in  the  canal 

692  would  be  4 feet,  and  2 feet  for  the  bank.  That  would  be  about 
6 feet  and  there  ought  to  be  a slope  of  about  three  to  one; 

that  would  be  3 times  6 or  18  feet  on  that  side.  The  other  side 
was  50  feet.  That  would  be  68  feet.  Ordinarily,  there  would  be 
rec[uired  some  additional  width  on  the  outside  of  that  bank  as  a 
base  or  support  of  that  bank;  if  the  bank  is  properly  constructed, 
there  should  be  a berm.  The  width  varies.  It  should  not  be  less 


356 


Kramer, — Direct  Exam. — ‘Continued. 


than  about  6 feet,  and  then  it  should  slope  about  3 to  1 from 
there  on.  I assumed  here  in  giving  the  first  figures  that  we  would 
take  a uniform  slope  of  2 to  1.  It  is  my  judgment  that,  for  that 
one  bank,  i^roperly  constructed,  the  minimum  amount  of  land 
required  in  which  to  construct  the  towpath  bank  and  support  it, 
in  the  condition  that  it  is,  at  and  near  the  site  of  the  proposed 
dam  of  the  defendant,  is  89  feet.  If  this  tow^Dath  bank  was 

693  raised  2 feet  above  the  height  that  it  has  been  for  years,  16 
feet  more  additional  width  would  be  required  to  sustain  the 

towpath  in  that  enlarged  condition,  keeping  the  top  of  the  tow- 
path  the  same  width  as  it  is  now.  In  my  judgment,  if  the  tow- 
path  bank  of  the  Illinois  & Michigan  Canal  at  the  site  of  the  pro- 
posed dam,  were  raised  2 feet  above  the  height  at  which  it  has 
been  heretofore  maintained^  the  minimum  width  of  land  required 
for  the  jDroper  maintenance  of  this  canal,  would  be  105  feet. 

If  the  water  was  caused  to  be  held  back  by  the  dam  that  is 
proposed  to  be  built  by  the  defendant,  so  that  it  flowed  up  on  that 
side  of  this  bank, ’the  effect  of  the  water  on  the  bank  would 

694  be  that  it  would  wash  the  bank.  That  would  hurt  the  bank 
unless  it  was  properly  constructed.  It  would  hurt  the  bank 

on  account  of  the  actions  of  tl^e  current,  which  will  be  quite  strong 
on  that  side  of  that  river,  because  it  is  the  deepest  part  of  the 
river  there;  and  also  the  action  of  the  waves  would  certainly 
have  the  effect  of  cutting  in  a berm  into  the  canal  bank  and  eventu- 
ally, if  the  bank  was  not  properly  constructed,  the  water  would 
eat  into  the  canal  bank  and  destroy  the  towpath.  If  you  would 
throw  a head  of  water  up  against  this  bank  in  its  present  con- 
dition, the  etfect  would  be  that  it  would  cut  the  berm  in  the 

695  bank  that  I spoke  of.  The  way  I took  in  the  situation  Tues- 
day, I thought  that  this  dam,  which  is  started  to  be  constructed 

across  the  Desplaines  Eiver,  and  across  the  land  between  the  river 
and  the  towpath,  crosses  it  nearly  at  right  angles.  It  may  incline 
a little  bit  over  to  the  southeast,  so  that  the  angle  between  the  dam 
and  the  towpath  will  be  less  than  90  degrees. 

If  the  bank  is  not  riprapped  at  least  50  feet  up  stream,  that  is, 
by  riprapped,  I mean  paving,  actual  paving  with  big  stones,  it 
would  certainly  eat  away  the  canal  bank,  that  is,  if  you  would 
throw  water  on  it  with  a dam  up  to  70  or  80  feet  Hennepin  datum. 


357 


the  water  there  in  the  reservoir  would  go  above  tlie  present  riprap. 
The  riprap  as  it  is  now,  only  extends  about  half  the  way  up.  I 
suppose  it  was  for  the  protection  of  that  particular  part  of 

696  the  bank  against  high  water.  The  character  of  the  stone  that 
I refer  to,  that  should  be  used  there  would  be  dimension  stone, 

or  the  same  kind  of  material.  Of  course  all  stone,  when  it  comes 
out  of  the  quarry,  there  is  a face  which  you  can  use  for  the  top 
of  the  riprap.  You  would  not  have  to  make  a dimension  stone  out 
of  it.  What  I understand  by  dimension  stone  is  that  it  has  been 
made  into  a square  stone.  I think  the  stone  that  has  been  used 
there  was  limestone.  I would  not  know  where  it  came  from,  but 
I suppose  it  came  from  Joliet,  from  the  quarries  there,  thougii 
it  might  come  from  across  the  river,  there  being  quarries  over 
there. 

If  water  were  kept  up  to  the  crest  of  this  dam,  and  caused  to 
flow  against  the  side  of  this  towpath  bank  up  to  within  anywhere 
from  2 to  5 or  6 feet  of  the  top  of  the  towpath  bank,  it  being 
raised,  say  2 feet  above  the  old  bank,  the  etfect  would  certain!}^ 
be  hurtful,  because  the  water  would  eat  away  the  towpath;  that 
is,  the  current  and  also  the  action  of  the  waves  caused  by  a strong 
wind  like  we  had  yesterday,  for  instance. 

697  I observed  where  the  old  Kankakee  feeder  had  been  erected. 
If  water  was  held  back  by  this  proposed  dam,  the  question 

whether  or  not  the  water  would  overflow  the  bottom  of  the  aque- 
duct, depends  upon  the  amount  of  water  which  will  be  used,  will 
be  going  through  the  wheels  at  the  power  house.  If  we  assumed 
that  they  used  400,000  cubic  feet  per  minute  of  the  amount  which 
will  go  down,  which  is  going  down  now,  I have  not  kept  track  of 
it  lately,  I should  think  that  the  top  of  that  dam  would  be  about 
73.8  Hennepin  datum,  minus  73.8  Chicago  datum.  I mean  the 
spillway  would  have  to  be  put  at  that  level  before  it  would  over- 
flow, and  take  it  from  151.8 — that  would  be  73.8  Chicago  datum. 
At  that  elevation,  if  the  water  goes  through  the  wheels  there, 
I think  there  will  be  no  water  flowing  over  the  dam,  and  at  that 
elevation  it  would  just  about  touch  the  bottom  of  the  water 

698  in  the  feeder.  Upon  the  supposition,  that  instead  of  the  water 
being  only  up  to  the  crest  of  the  dam,  that  there  was  any- 
where from  2 to  4 feet  of  water  going  over  the  dam,  then  the 


358 


Kramer, — Direct  Exam. — Continued. 


bottom  of  the  feeder,  or  Kankakee  feeder,  would  be  in  the  water. 
It  would  be  in  the  water  just  the  amount  which  would  be  flowing 
over  the  dam.  That  aqueduct  could  not  be  maintained  under  those 
conditions,  nor  could  it  be  restored  under  those  conditions,  unless 
you  take  out  the  spillway,  the  dam  next  to  the  power  house.  I 
suppose  tliej^  would  have  a spillway. 

I have  been  acquainted  with  the  Desplaines  Eiver  since  I first 
1)ecame  connected  with  the  Sanitary  District  of  Chicago  in  Feb- 
ruary, 1892.  That  is  sixteen  years.  I came  in  under  Mr.  Benezette 
AVilliams  and  Mr.  Cooley  was  trustee.  This  dam  being  built,  as 
proposed,  the  Kankakee  adequct,  in  case  of  high  water,  would 
(>99  be  submerged  to  the  extent  of  the  high  water.  This  high  water 
would  make  the  conditions  of  the  towpath  worse  than  it  would 
be  under  ordinary  conditions.  By  worse  I mean  greater  destruc- 
tion of  the  bank,  and  it  would  probably  overflow  the  bank,  that 
is,  the  present  bank,  might  just  come  to  the  top  or  a little  higher. 
And  in  that  way  the  water  would  pass  into  the  old  Illinois  & 
Michigan  Canal.  As  to  how  deep  the  spring  floods  would  carry 
the  water  over  the  top  of  the  dam  at  73.2  Chicago  datum, 

700  if  you  have  that  spillway  in  there  and  you  let  this  water 
come  down  the  river,  it  would  increase  the  height  up  to  about 

6 feet  more,  so  that  I should  think,  it  would  be  just  about — it  would 
just  about  bring  it  up  to  the  elevation  of  84  Hennepin,  which 
would  be  about  the  top  of  the  towpath. 

Now  I would  like  to  explain  this  answer.  If  you  have  an  ob- 
struction there,  you  have  the  power  house,  and  you  have  a spill- 
way, and  the  top  of  a spillway  is  73.8  Chicago  datum.  If  you  take 
that  amount  of  high  water  which  came  down  in  1892,  and  also 
a few  years  ago  when  it  was  still  higher,  by  several  hundred 
thousand  cubic  feet  per  minute,  if  you  could  not  afford  relief  at 
the  power  house  in  the  shape  of  gates,  water  gates  or  tender 
gates,  you  would  certainly  overflow  that  canal  bank.  If  you 
don’t  do  that,  if  you  don’t  use  the  gates  there,  that  is,  if  you  use 
the  gates,  you  will  have  no  head,  so  you  would  have  to  close  down 
the  plant.  As  to  how  Hennepin  datum  compares  with  Chicago 
datum,  the  figures  I have  always  used,  and  which  were  given  to 
me  ])y  the  Sanitary  District  some  years  ago,  when  I was 

701  in  charge  of  the  woilv  at  Marseilles,  was  15.8  below  Chicago 
city  datum.  I don’t  think  it  has  been  changed  since  then. 


I know  that  Mr.  Beiiezette  Williams  was  chief  engineer  of  the 
Sanitary  District  of  Chicago  in  1892,  hecanse  I came  to  Chicago 
and  applied  to  him  for  work. 

I saw  the  work  that  has  been  done  down  there.  They  are  en- 
larging, that  is,  they  are  raising  and  enlarging  the  top  of  the 
bank  in  some  places  on  both  sides;  Imt  it  seems  they  are  tilling 
np  the  Illinois  & Michigan  Canal,  up  to  the  beginning  of  the  deep 
water  in  the  canal.  That  will  certainly  have  the  effect  to  fill  in 
the  canal  np  to  that  rock  which  is  l)eing  ])laced  there.  I know 
that  to  be  a fact.  i\[y  experience  has  been  that,  nearly  the  same 
rock  that  we  had  in  Marseilles,  and  also  at  Williamstown,  dis- 
integrates very  fast  wlien  it  is  exposed  to  the  surface.  I 

702  don’t  think  that  what  has  been  used  there,  for  any  preserva- 
tion of  the  bank,  ought  to  be  called  a rock.  It  is  what  I should 

term  a shale.  That  will  certainly  disintegrate  within  a year  or 
two  after  it  has  been  exposed  to  the  frost,  and  heat  of  the  sun. 
Ihmestone  rock  will  not  disintegrate  very  fast.  It  does,  but  it 
takes  a number  of  years.  But  this  rock  would  only  take  a few 
years  to  disintegrate. 

I have  noticed  the  construction  of  the  elevation  of  the  tow- 
path  as  they  have  been  doing  it  there.  As  to  whether  or  not 
that  elevation  is  resting  on  the  base  of  the  old  towpath,  or  whether 
the  base  of  the  old  towpath  has  been  widened  to  accommodate 
that,  it  seems  that  the  slope  has  been  steepened  on  the  river  side, 
I should  think  that  the  present  slope  there,  I mean  in  some  places, 
I would  say  most  of  the  places  where  they  have  thrown  rocks  on 
the  riverside  of  the  bank,  is  one  to  one,  or  less  than  one  to 

703  one.  It  did  not  look  to  me  as  if  they  widened  the  base  of 
that  towpath,  in  order  to  support  the  higher  elevation.  It 

seemed  to  me  that  the  new  filling  just  about  struck  the  toe  of  the 
canal  bank.  Taking  a line  from  the  top  of  the  towpath  bank  as 
elevated  to  the  bottom  of  the  tow]3ath,  the  slope  would  be  much 
steeper  than  the  slope  of  the  old  towpath  bank. 

704  Cross-Examination. 

I constructed  a canal  at  Marseilles.  It  was  the  canal  which 
feeds  the  different  flumes  of  the  Marseilles  Land  & Water  Power 
Co.  The  canal  is  about  a mile  long.  We  constructed  three  canals 


360  K ra  mer, — C ross-Exam . — C o n tinned . 

there,  one  leading  into  the  Crescent  Mills,  and  one  leading  into  the 
box  factory,  which  is  owned  by  the  National  Biscuit  Company, 
and  one  going  down  to  the  pulp  mills.  The  pulp  mill  canal,  the 
way  I remember  it,  is  nearly  a mile  long,  and  the  Howe  & David- 
son is  about  one-half  mile  long;  that  is,  Howe  & Davidson — I 
mean  the  Biscuit  Company  Trust  canal,  and  the  one  leading  into 
the  Crescent  Mills  is  about,  say  a quarter  of  a mile  long.  These 
canals  were  built  as  feeders  of  water  to  the  various  works.  The 
object  is  to  carry  water,  but  not  for  the  purpose  of  navigation. 
As  to  building  any  high  bank  on  these  canals,  my  experience  has 
only  been  with  the  ‘Chicago  Sanitary  District  in  that  respect, 
705  as  I worked  for  them  about  seven  or  eight  years.  I built 
some  high  banks  in  those  three  canals  at  Marseilles.  I should 
think  that  bank  was,  in  some  places,  all  of  twenty  feet  high.  I 
remember  the  dimensions  of  it.  The  bank  is  irregular.  It  is — 
the  nearest  part  of  it — that  is,  the  way  I remember  it,  about 
twenty  or  twenty-five  feet  on  top,  with  two  side  slopes  of  1\  to 
1 on  each  side. 

On  last  Tuesday,  April  14th,  we  got  to  Dresden  Heights  about 
noon,  and  left  again  about  three  o^clock.  We  took  our  dinner 
down  there  at  the  Towpath  House.  "We  got  back  to  Joliet  about 
a quarter  to  five.  I went  down  in  an  automobile  and  at  Mr. 
706- Starr  ^s  request.  lYe  had  a conference  here  at  the  office  be- 
tween Mr.  Starr  and  Mr.  Cooley  and  myself.  We  did  not 
take  any  actual  measurements  down  there;  just  looked  over  the 
ground.  I did  not  guess  what  the  height  of  the  bank  was;  I knew 
that  to  be  a fact,  the  height  of  the  bank.  I know  what  the  height 
of  the  bank  is  at  that  point,  because  we  have  run  levels  all  over 
that  part — I went  and  talked  with  the  parties  who  made  a topo- 
graphical survey  down  there.  That  was  two  years  ago  this  sum- 
mer, in  June,  1906.  This  survey  was  made  for  Mr.  Munroe.  I 
remember  from  that  time,  two  years,  exactly  what  the  height 
707  of  the  bank  was  at  that  point.  The  reason  I remember  was 
this:  Because  the  water  at  the  mouth  was  just  60,  and  it  is 
a little  higher  now  than  it  was  when  we  took  the  measurement — 
a measurement  like  that  I could  remember.  That  enables  me  to 
remember  what  the  height  of  the  bank  is,  because  I can  tell  about 
the  difference  of  the  level  between  the  water  surface  of  the  river 


361 


and  tile  bottom  of  the  towpath;  that  s,  the  toe  of  the  slope.  I 
remember  that  to  be  about  6 feet.  When  I visited  there  on  Tues- 
day I should  think  the  water  in  the  river  below  the  dam  was  61 
Chicago  datum.  I could  tell  that  by  the  ground  it  covered.  I 
mean  61  Hennepin  datum.  I did  not  ascertain  that.  I guessed 
at  that — I know  that  country  so  well  that  there  is 

708  not  very  much  guessing  about  it.  I know  it  very  close. 

I told  you  before  that  the  plan  upon  which  the  power  house 
is  being  constructed,  or  part  of  the  power  house  will  be  con- 
structed, is  quite  familiar  to  me,  because  we  have  spent  four  days 
right  there  taking  soundings  over  this  place.  That  was  in  1906. 
I did  that  work  for  Mr.  Munroe,-  for  the  purpose  of  making  a 
topographical  map  of  that  section.  No,  I don’t  think  he  was  mak- 
ing it  just  for  fun.  Of  course,  these  are  things  I would  not  like 
to  talk  about  here;  it  is  a matter  of  the  past.  I was  in  charge 
of  that  party  making  the  soundings  and  the  topographical  sur- 
vey. I suppose  I was  making  that  under  Mr.  Munroe’s  employ- 
ment, with  a view  to  a construction  of  a dam  and  power  house 

709  at  Dresden  Heights.  I don’t  know  whether  it  was  or  not,  be- 
cause I did  not  make  the  plans.  Previous  to  the  time  when 

I made  the  survey,  I advised  Mr.  Munroe  in  regard  to  the  feasi- 
bility and  practicability  of  building  that  proposed  dam  and  works. 
I should  think  my  advice  extended  about  up  to  the  time  we  made 
the  survey.  I looked  all  over  the  ground  at  his  instance,  with  a 
view  of  seeing  whether  it  was  practicable  to  construct  a dam 
there  with  the  power  plant.  At  that  time  I suppose  I advised 
him  that  from  an  engineering  standpoint,  it  was  practicable 

710  and  feasible  to  be  done.  I think  it  was  in  1904  when  I first 
went  over  the  ground  at  Mr.  Munroe’s  instance,  to  advise 

with  him  about  the  feasibility  of  this  enterprise.  It  might  have 
been  the  spring  of  1904.  The  present  bank,  this  canal  bank  at 
about  the  point  where  the  proposed  dam  is  to  be  constructed,  is 
a good  bank.  It  has  served  its  purpose  for  about  50  years  and 
in  most  places ; of  course,  there  have  been  breaks,  which  I know, 
along  the  towpath  on  account  of  high  water  and  freshets,  etc.  I 
don’t  know  of  any  breaks  at  that  point.  I think  it  is  even  now 
a good  bank,  although  it  has  not  a base  of  105  feet.  It  has  an- 


362 


Kramer, — Cross-Exam. — Continiied. 


swered  tlie  purpose  for  which  it  was  designed.  The  slope  is 

711  not  regular  in  that  outside  bank.  Now  the  way  I know  that 
hank  is  this : The  riprap  part  is  a slope  of  about  2^  to  1,  and 

the  part  wliich  is  not  riprapped  is  about  11  to  1 or  2 to  1.  I don’t 
think  that  that  bank  was  originally  all  riprapped,  from  its  toe  to 
the  top  of  the  towpath.  The  reason  I could  tell  is  this:  There 

was  a little  path  leading  down  from  the  towpath  on  to  that  flat 
upon  which  they  are  now  building  the  power  house,  and  that  was 
worn  and  there  were  no  signs  of  riprap  there ; but  below,  say  about, 
say  about  to  the  high  water  line,  whicE  would  be  78  Hennepin 
there  to  84,  that  would  be  about  6 feet.  This  6 feet  has  never 
been  riprapped,  I am  certain  of  that.  I can  tell  that  by  the  cut 
in  the  towpath.  It  has  disappeared  now.  They  have  oeen  filling 
it  up,  I think,  with  rocks. 

I did  not  know  that  the  extreme  high  water  of  1902  had 

712  any  effect  upon  that  bank  at  that  point.  In  1902  during  the 
flood  season,  the  water  came  up  in  that  bank  to  about  78  Hen- 
nepin datum.  That  would  be  6 feet  lower  than  the  top  of  the 
towpath.  With  that  high  water,  with  reference  to  the  top  of  the 
proposed  dam,  which  is  to  be  minus  73.2  Chicago  city  datum,  that 
would  just  about  make  it  to  the  top  of  that  dam.  The  high  water 
of  1902  came  up  to  the  top  of  that  dam.  I think  that  the  highest 
water  which  has  since  come  down  the  Desplaines  Hiver,  I think 
it  was  in  1904,  if  I remember  right,  the  Desplaines  Eiver  carried 
more  water  that  year  than  it  did  in  1902,  but  the  elevation  was 
about  the  same  as  in  1902.  It  varied,  it  showed  that  as  much 
water  did  not  come  down  the  Kankakee  Eiver  in  1892.  The  water 

of  the  flood  of  1902  came  just  about  as  high  as  the  flood  of 

713  1904,  but  not  any  higher.  The  flood  of  1902  came  up  to  about 
what  the  crest  of  this  dam  will  be,  if  constructed  under  the 

present  plan.  And  that  high  point  is  about  6 feet  below  the  toy) 
of  the  bank.  To  my  knowledge,  neither  the  flood  of  1902  or  1904, 
did  any  damage  to  that  bank  at  that  point.  I think  that  if  a dam 
were  constructed  there,  and  a pool  formed,  whicli  would  come  as 
liigh  as  the  high  water  of  1902,  that  there  would  be  a great  damage 
to  that  bank.  The  water  in  the  pool  would  do  a greater  damage 
to  the  bank,  than  the  flood  water  of  1902,  because  this  water 
level  of  the  height  of  the  dam,  which  I have  given  as  78  Henne])in 


datum,  would  just  about  be,  some  inches,  pro))a1)ly  six  iuclies 
higher  than  the  end  of  the  embankment;  that  is,  I mean  in  the 
riprap.  And  any  waves  or  action  of  the  current  would  certainly 
have  the  tendency  to  wash  the  part  of  the  bank  which  is  not  rip- 
rapped.  My  answer  is  based  upon  the  supposition  that  the 

714  l)ank  would  remain  an  earthen  bank;  that  is,  if  there  was 
nothing  done  on  this  bank,  if  it  were  left  iir  the  position  it  is 

now.  When  I said  ‘‘present  condition,”  I would  also  include  the 
new  wmrk  which  has  been  done  there.  If  the  bank  were  properly 
riprapped,  the  construction  of  that  dam  would  not  do  any  injury 
to  it  at  all.  If  the  bank  were  properly  riprap|)ed  on  that  side, 
namely,  the  side  toward  the  river,  the  construction  of  the  dam, 
and  the  formation  of  the  pool  above  it,  could  never  be  of 

715  benefit  to  the  old  bank,  for  the  simple  reason  that  you  ai*e 
disturbing  a bank  which  has  been  in  position  for  fifty  years, 

and  you  could  never  make  that  bank  any  better,  no  matter  how 
hard  you  tried.  Any  changes  you  make  in  that  bank  will  sim])ly 
have  the  effect  of  injuring  it.  There  is  a strain  upon  the  bank 
by  the  waters  of  the  canal,  on  the  canal  side,  but  the  depth  is 
so  slight  that  you  could  not  speak  of  a strain,  as  you  call  it,  on 
the  bank,  I mean  the  depth  of  the  w’ater.  To  that  extent  there 
is  some  strain,  on  the  bank,  the  weight  of  the  water  in  the  canal. 
If  the  bank  were  properly  riprapped  on  the  other  side,  and  a pool 
were  formed  there  by  the  construction  of  the  dam,  it  would  help  to 
hold  the  water  in  the  canal,  but  it  would  wash  out  that  bank. 

716  If  it  was  properly  riprapped  from  its  toe  to  its  top  and 
raised,  and  the  dam  was  constructed,  and  a pool  of  water 

formed  there,  that  water  would  only  relieve  the  bank  from  such 
strain  as  existed,  caused  by  the-  waters  of  the  canal  on  the  other 
side,  during  high  water,  because  your  level,  78  Hennepin  datum, 
would  be  about  the  bottom  of  the  canal.  The  high  water  would 
be  a benefit  to  the  canal;  that  is,  the  high  water  would  be  the 
only  factor  that  would  help  to  hold  the  water  in  the  canal. 

717  There  is  a certain  strain  on  that  bank,  by  the  waters  of  the 

718  canal.  During  high  water  time  there  would  be  a pressure 
from  the  river  against  the  canal,  only  during  high  water 

time.  Because  during  ordinary,  say  under  400,000  cubic  feet 
flow,  when  the  level  of  the  bank  was  78,  then  the  surface  of  the 
water  in  the  pool  would  be  just  about  even  with  the  water  in  the 


364 


Kra m er, — C ) oss-Exa m.— Conti n iied. 


bottom  of  the  canal.  So  in  that  case  yon  could  not  speak  about 
any  particular  benefit  to  the  bank,  by  reason  of  the  pressure  from 
the  river.  That  bank  does  not  need  any  relief,  because  it  is  con- 
structed well  enough  to  take  care  of  the  weight  of  the  water  in 
the  canal,  so  you  cannot  add  any  strength  to  it.  It  is  a ques- 
tion in  my  mind  which  would  be  worse,  the  formation  of  this 
pool  on  the  other  side  of  the  bank,  so  that  the  bank  could  be  re- 
lieved from  that  strain  during  high  water  seasons,  or  the  strain 
that  exists  there  now.  You  know  when  there  is  a good  deal  of 
high  water  coming  down  the  river,  it  carries  with  it  all  kinds 
of  articles  and  debris,  logs,  etc.,  and  the  current  is  very  strong, 
particularly  at  that  point  it  would  be  very  strong,  because  it  is 
the  deepest  part  of  the  river,  and  the  current  would  be  swifter 
at  that  point,  and  the  wash,  the  action  of  the  current,  the 

719  stuff  coming  down  the  river,  would  certainly  do  more  dam- 
age than  the  pressure  would  exert  to  help  carry  the  water 

in  the  canal.  Theoretically,  the  formation  of  the  pool  of  water 
Ithere,  whether  there  is  a current  or  not,  would  relieve  the  bank 
from  that  strain  which  I say  exists.  When  I say  that  the  deep- 
est part  of  the  river  is  at  the  point  where  the  dam  is  being 

720  constructed,  I mean  the  depth  of  the  riprap  that  you  are  go- 
ing to  create. 

If  the  bank  were  properly  riprapped  from  top  to  bottom,  and 
the  top  paved  and  the  slope  on  the  canal  on  the  other  side,  I think 
you  would  have  almost  the  identical  condition,  but  it  would  add 
about  $500,000  to  your  expenditure. 

Q.  What  would  you  suggest  as  to  the  proper  riprap  of  the 
bank  on  the  river  side?  A.  Why,  I would  not  disturb  the  canal 
liank  on  the  river  side  at  all.  I would  dredge  the  bank,  or  I mean 
the  old  canal  too,  that  is  of  course,  I would  continue  the  riprap 
from  the  point  which  I have  indicated;  that  is,  about  6 feet  be- 
low the  bank  up  to  the  top,  and  make  the  slope,  that  is,  to 

721  cut  into  the  towpath,  so  as  to  reduce  the  slope  on  that  first 
part,  and  then  I would  carry  it  out  in  the  canal,  and  dredge 

the  canal  at  the  bank  and  build  up  the  bank  from  that  side.  Of 
course,  that  would  i)ractically  mean  the  construction  of  a new 
canal. 

If  you  do  that,  the  bank  would  not  be  in  any  danger  from  the 


construction  of  the  dam.  I do,  and  I don’t  know  what  the  com- 
pany intends  to  do  in  the  way  of  protecting  tlie  l)ank.  That  is  a 
matter  which  I would  not  like  to  speak  about,  because  I have  not 
seen  the  plans  of  the  company.  I haven’t  any  personal  knowledge 
of  what  they  intend  to  do  there.  My  testimony  that  this  pool  of 
water,  which  would  be  formed  by  the  construction  of  the  dam, 
might  injure  the  hank,  is  based  upon  the  proposition  that  the 
bank  is  not  properly  riprapped,  because  I don’t  think  any  com- 
pany organized  for  gain  would  spend  half  a million  dollars  in  im- 
proving the  canal  bank.  It  would  simply  mean  the  impossibility 
of  the  scheme. 

722  Q.  You  didn’t  advise  then,  in  1904,  that  this  very  work 
that  is  going  on  there  in  respect  to  that  bank,  was  proper 

for  that  purpose?  A.  Why,  at  that  time,  why,  we — I looked — T 
think  I recommended  dredging. 

Q.  Dredging  what?  A.  Dredging  the  old  canal. 

I would  not  like  to  go  into  the  transactions  I had  with  Mr. 
Munroe  at  that  time,  because  they  were  confidential,  and  they 

723  are  still  confidential  as  far  as  I am  concerned.  If  the  bank 
were  properly  riprapped  from  the  bottom  to  the  top  on  the 

river  side,  there  certainly  would  be  more  danger  of  the  water 
eating  into  the  bank,  and  injuring  it,  than  there  is  now  to  the  pres- 
ent bank,  from  high  water;  that  is,  with  the  pool.  That  is  so 
because  your  water  will  raise,  as  we  have — I think  I have  said, 
up  to  the  height  of  the  towpath,  which  is  84  Hennepin  datum.  As 
to  whether  that  depends  upon  how  the  water  is  controlled  by 

724  the  gates,  if  you  let  out  the  water  by  the  gates,  and  if  you 
are  able  to  maintain  this,  why  you  could  not  maintain  the 

said  gate,  if  you  wanted  to;  it  would  have  to  go  a little  higher; 
then  suppose  you  could  maintain  it  at  78  during  high  water  time, 
you  would  have  no  power  at  all  at  your  plant,  absolutely  none. 
If  you  did  not  have  any  power,  your  plant  would  be  a very  poor 
one. 

The  present  condition  at  the  site  of  the  proposed  dam,  has  al- 
ready been  changed.  The  conditions  as  they  exist  today  at  the 
mouth  of  that  river  are  not  the  same  as  they  were  a year  ago. 
The  water  is  about  2 feet  above  the  cofferdam.  Deferring 


36G  Kramer, — Cross-Exam. — Continued. 

725  to  the  conditions  that  existed  before  the  work  was  done,  I 
don’t  think  you  could  ever  make  another  hank  like  that  by 

altering  it,  and  make  it  as  good  as  it  has  been,  I don’t  care  what 
you  do,  you  could  never  establish  that  bank  again.  You  could 
not  improve  that  bank  by  riprapping  it  from  the  river  side.  If 
you  don’t  built  any  dam  there,  that  is  what  I mean,  I think  it 
would  be  better  to  leave  it  just  the  way  it  is.  Of  course,  if  you 
build  a dam,  then  you  have  to  change  the  entire  conditions  of  that 
bank.  If  you  would  build  a dam,  it  would  be  better  to  riprap  it 
on  that  side.  That  would  certainly  be  a protection. 

726  Of  course  now  the  bank  stands  in  the  canal,  you  understand 
that.  Well,  when  I made  this  statement  about  that  bank,  I 

remember  that  I assumed  there  would  be  no  riprap.  Of  course  the 
bank  is  riprapped,  and  I asked  Mr.  Eeeves  at  the  time  if  that 
was  not  the  canal  bank,  the  way  it  was  now,  so  you  could  not 
cross  examine  me  properly  on  that  particular  bank  which  I have 
indicated  there  before.  I testified  in  response  to  Mr.  Reeves’ 
(piestion  that  a canal  bank  properly  constructed,  which  was  18 
feet  high  and  14  feet  wide  at  the  top,  should  have  a base  of  105 
feet.  I meant  by  the  base,  the  bottom  of  the  slope  in  the  canal. 
Any  canal  has  a berm.  There  is  supposed  to  be  a level  part.  I 
think  in  the  Illinois  & Michigan  Canal,  it  is  about,  oh,  say,  20  foot 
level  at  the  bottom.  Then  it  slopes  up  to  the  top  of  the  towpath, 
then  comes  the  towpath,  then  down  on  the  other  side  up  to  the 
top  where  the  slope  on  the  canal  bank  meets  the  natural  surface, 
that  is  what  I testified  to  about  105  feet.  I have  said  that  a 

727  bank  properly  constructed,  18  feet  high,  and  the  bank  of  the 
canal  to  be  7 feet,  I want  to  add  that,  that  is,  the  Illinois 

Michigan  canal  bank.  I was  just  trying  to  make  some  figures  on 
the  base  of  the  present  bank,  but  I was  interrupted.  The  nearest 
I could  get  at  it,  it  was  about  70  feet.  When  I testified  that  the 
proper  construction  of  a canal  bank,  that  is,  18  feet  high  and  14 
feet  wide  at  the  top  was,  that  it  should  have  a base  of  105  feet, 
I did  not  refer  to  a bank  that  was  riprapped.  That  is  based 
u])on  the  assumption  of  the  bank  that  is  made  of  earth,  and  1 
would  leave  a berm,  so  that  the  action  of  the  wind  could  not  affect 
it;  that  is,  the  berm,  the  water  will  make  its  own  berm  at  a bank. 

1 think  1 said  that  this  particular  bank  in  its  ])resent  condition, 


or  its  condition  before  any  work  was  done  tliere,  was  18  feet 

728  high  and  14  feet  wide  at  the  top.  And  it  only  had  a base  of 
70  feet,  I believe.  It  has  remained  there  and  served  its  pur- 
pose for  fifty  years,  but  it  was  riprapped. 

I suggested  that  a proper  construction  of  this  particular  bank, 
of  the  proper  work  to  be  done  upon  it,  in  view  of  the  proposed 
dam,  would  be  the  paving  of  the  top  of  the  towpath,  and  the  pav- 
ing of  the  side  of  the  bank,  the  l)ank  and  the  side  of  the  canal. 
I think  that  would  be  a proper  thing  to  do,  because  the  Desplaines 
River  is  a river  which  is  very  uncertain.  AVe  have  had  occasion 
to  find  that  out  in  1902.  Now  of  course,  I said  pave  the  top  in 
case  you  put  that  feeder  there,  you  understand;  then  only  will 
my  statement  be  correct.  But  we  cannot  tell  how  much  water 
will  go  down  there.  Now,  for  instance,  where  the  Draniage  Canal 
had  figured  on  850,000  cubic  feet  ])er  minute.  Then  you  had 

729  the  high  water  of  1904  and  1902  we  will  say,  because  in  1904 
was  what  was  mixed  with  the  canal  water,  so  we  cannot  very 

well  go  by  that,  but  we  will  take  what  came  down  in  1902,  well, 
they  say  it  was  800,000  to  a million.  It  has  been  variously  esti- 
mated. Mr.  Johnson  has  estimated  it  800,000,  and  he  was  at  that 
time  the  hydraulic  engineer  of  the  Sanitary  District.  Now  you 
take  a million  and  you  take  the  850,000  feet,  that  will  give  you 
1,850,000  cubic  feet  per  minute,  for  which  you  will  have  to  pro- 
vide. Therefore,  you  will  have  to  pave  the  top  of  the  towpath 
if  you  only  build  it  up  to  the  height  which  you  want  to  build  it. 

If  you  build  enough  gates  in  your  power  house,  and  work  so 
that  you  control  the  level  of  the  water  and  pass  the  water  througii, 
you  would  have  to  pave  it  up  to  the  top  or  a little  higher,  the  ele- 
vation of  which  you  would  create  during  high  water  time.  If  you 
had  enough  gates  there  to  control  the  water,  you  could  keep 

730  the  water  from  overflowing  on  the  top  of  the  towpath.  In  that 
case  you  might  say  you  would  have  to  pave  it  up  to  the  point 

to  which  you  expected  the  water  to  rise.  • That  is  an  engineering 
matter,  and  it  would  have  to  be  figured  out  how  much  water  those 
gates  would  let  through  and  where  you  could  maintain  the  level. 
It  would  be  possible  to  maintain  your  level  below  the  top  of  the 
towpath  bank.  And  in  that  case  it  would  not  be  necessary  to  pave 
the  top  of  the  towpath  bank.  My  suggestion  is  that  the  slope 


368 


of  the  bank  on  the  river  side,  should  be  paved  clear  up  to  the 
level  of  the  towpath,  to  the  level — if  yon  then  could  control  it  up 
to — say  you  could  maintain  it  at  80,  well  then  if  you  pave  up 

731  to  81.  You  see  you  prescribe  conditions  there  to  a great  ex- 
tent. I don’t  think  that  you  could  make  any  accurate  figures 

on  how  much  those  gates  will  let  through,  because  you  cannot  fore- 
tell the  water  which  would  come  down  that  river.  If  you  built  a 
dam  there,  you  would  alwa^-s  have  to  figure  on  the  water  running 
over  the  towpath.  If  you  are  acquainted  with  the  flow  of  the  river, 
you  can  figure  very  closely  how  many  gates  you  could  have.  I 
don’t  think  I could  figure  without  knowing  the  plans,  how  many 
gates  the  company  is  going  to  put  in  that  dam.  I think  it  would 
be  possible  to  put  gates  in  that  cylinder  to  control  that  water,  and 
keep  it  from  rising  at  a flood,  even  to  the  top  of  the  bank,  if  you 
would  also — if  you  would  let  water  enough  run  to  get  away  below 
the  gate.  That  would  necessitate  the  excavation  of  channels  there 
where  the  gates  are.  You  understand  you  are  going  to  put 

732  your  gates  on  the  other  side,  or  between  the  power  house  and 
the  spillway.  You  could  never  figure  on  the — it  is  always 

best  to  be  prepared  for  the  worst.  Therefore,  I would  pave  right 
to  the  top,  even  if  I could  maintain  the  elevation  to  about  80 ; you 
could  never  tell  what  it  would  do. 

I think  it  would  be  necessary  to  riprap  or  pave  the  bank  on 
the  canal  side,  because  if  the  water  would  go  round  over  the  top, 
it  would  wash  that  part,  and  wash  it  worse  than  if  it  would  come 
from  the  river  side.  It  would  wash  it  down  into  the  canal;  that 
is,  on  the  assumption  that  it  is  under  its  bank  on  that  side.  If 
the  water  would  not  overflow,  if  it  could  be  controlled  so  that  it 
would  not  overflow  the  top,  then  I don’t  think  it  would  be  neces- 
sary to  pave  the  canal  slope.  Nor  would  it  be  necessary  to  pave 
the  top  of  the  canal  slope. 

733  Re-direct  Examination. 

From  this  site  up  the  canal,  I don’t  think  that  it  is  a fact  that 
at  times  the  high  water  has  overflowed  the  canal  bank  and  went 
into  the  canal.  If  that  is  true,  that  at  times  that  bank  down  there 
at  the  site  of  that  dam,  or  within  2 or  3 miles  above  it,  has  been 
overflowed  by  high  water,  and  flowed  over  into  the  canal,  then  if 


tills  (lam  is  constructed  as  proposed,  it  is  true  that  the  water 
would  overflow  this  bank,  without  reference  to  any  gates,  or 

734  any  number  of  gates  that  might  be  put  in.  I remember  the 
figures,  but  I would  rather  not  answer  the  (question,  as  to 

where  this  dam  is  to  be  built  according  to  the  plans  and  specifica- 
tions. I told  you  before  it  was  78  at  400,000  cnibic  feet  per  min- 
ute, at  the  top  of  the  spillway.  If  you  speak  about  a dam  in  con- 
nection with  the  power  plant,  you  are — you  see  the  whole  power 
house  practically  is  a dam,  and  then  the  gates  form  a dam,  the 
gates  by  which  they  control  it.  The  only  thing  that  you  could 
properly  term  a dam,  would  be  what  is  commonly  known  as  a 
spillway,  because  that  is — the  surplus  of  the  water  would  go  over 
the  spillway  ordinarily,  unless  in  high  water  time,  when  they 
would  run  water  througli  the  gates.  Now,  of  the  78  feet,  I mean 
the  top  of  the  spillway,  and  the  400,000  cubic  feef  flow,  if 

735  you  use  400,000  cubic  feet,  the  surplus  of  the  water,  even  if 
there  is  more  in  the  river,  would  flow  over  the  dam.  This 

dam  is  to  reacli  across  the  Desplaines  Eiver,  and  up  to  and  con- 
nect with  the  bank  of  the  Illinois  & Michigan  Canal.  Between  the 
tow  bank  of  the  canal,  and  across  the  river  to  the  bank  on  tbe  other 
side,  is  the  part  that  will  be  flowed  full  if  this  dam  is  put  there. 
The  dam  itself  would  be,  if  you  assume  the  river  to  be  61 — but 
you  will  have  to  go  down,  because  it  is  4 feet  deep.  That  would 
bring  it  down  to  55  or  at  least  to  the  rock,  55  to  78,  or  23  feet, 
that  would  be  the  height  of  the  structure,  of  whicli  you  would 

736  have  6 feet  below  the  bed  of  the  water  at  the  junction.  Then 
that  would  be  17  feet  from  the  surface  of  that  water  to  the 

top  of  the  dam.  That  17  feet  of  dam  must  be  within  a foot  of  the 
bottom  of  the  water  in  the  Illinois  & Michigan  Canal.  Then  if 
that  pool  is  formed,  there  will  be  more  than  17  feet  of  water 

737  up  to  the  top  of  the  dam.  There  would  be  22  feet.  And  if 
the  river  itself  have  a volume  of  water  that  will  raise  it  4 

feet  further,  that  will  make  it  26  feet  deep.  The  surface  of  the 
water  in  the  canal,  I should  think,  was  about  82  Hennepin,  and 
that  elevation,  including  high  water,  is  82,  so  it  would  be  just 
about  even,  and  if  this  dam  is  built  according  to  the  dimen- 

738  sions  we  have  just  been  talking  about,  and  a volume  of  4 feet 
deep  of  water  runs  over  the  crest  of  the  dam,  then  the  top 


370 


of  the  water  in  the  river  will  be  about  on  the  level  with  the 
top  of  the  water  in  the  canal.  I am  figuring  on  about  5 feet  of 
water  in  the  canal.  If  the  water  is  poured  on  the  river  side  of 
this  embankment,  whether  it  is  riprapped  or  not,  it  will  saturate 
and  soften  the  canal  bank,  and  there  is  another  point  coming  in 
there.  Sometimes  the  water  is  let  out  of  the  canal  entirely,  so 
that  you  have  no  wmter  in  the  canal.  Therefore,  if  your  water 
comes  up,  high  water  comes  up,  there  will  be  a pressure  against 
the  canal  bank,  and  no  pressure  inside  to  sustain  it.  So  far  as 
the  pressure  is  concerned,  5 feet  of  water  does  not  amount  to 

739  much.  The  bank  is  sufficiently  strong  to  maintain  the  canal. 
The  saturating  of  the  bank  with  water  and  softening  it,  dim- 
inishes its  strength,  especially  when  there  is  no  water  in  the  canal. 
The  water  in  the  Illinois  & Michigan  canal  is  let  out  each  winter. 
I have  seen  it  drawn  out  from  November  up  to  April,  this  time 
of  the  year.  I would  not  say  at  that  point,  I don’t  know  about 
that  particular  river  here,  but  I mean  the  river  further  down,  for 
instance,  at  Marseilles,  along  the  drainage  canal,  the  Summit 
canal- and  the  canal  below  Lockport,  etc.  They  let  water  out  all 
along  the  canal  as  a protection  to  it  against  frost  and  freezing. 
IVhile  I have  not  seen  it  emptied  at  this  particular  point,  I have 
seen  it  emptied  both  above  and  below. 

The  way  I remember  it,  this  proposed  diini  will  certainly 

740  flow  the  bank,  as  far  as  tlie  bank  at  Channahon.  I think 
that  is  about  34  miles.  On  cross-examination  I have  an- 
swered in  substance  that  it  is  not  possible  to  make  a construction 
by  ])utting  up  stone  and  masonry  on  the  side  of  the  bank  to  pro- 
tect it.  It  would  not  be  a commercial  proposition  to  build  a wall 
there,  34  miles  long,  that  would  protect  it  from  being  saturated 
and  weakened  by  water  being  placed  on  the  side  of  it.  As  the 
work  has  been  commenced  and  'partially  done  at  and  near  the 
site  of  this  dam,  the  method  of  construction  that  they  have  used, 

if  they  continue  it  the  way  they  have,  I don’t  think  would  do 

741  any  good  at  all.  As  to  the  advice  and  counsel  that  I may 
have  given  Mr.  Munroe  in  1904,  concerning  the  possibility 

of  the  construction  of  a dam  at  and  near  the  site  of  the  present 
dam  in  ])i*ocess  of  building,  there  were  no  plans  and  specifica- 
tions drawn,  except  a re])ort  made  on  the  ])ro]^osition,  which  is 
still  in  existence. 


371 

The  engineering  feasibility  must  also  carry  with  it  the  com- 
mercial possibility.  An  engineer  could  not  advise  his  client,  just 
from  an  engineering  standpoint,  to  go  ahead  and  do  work,  un- 
less he  was  convinced  that  it  would  also  be  a commercial 
proposition.  So  I had  in  mind  the  element  of  the  ])racticability 
in  point  of  expense,  as  well  as  the  possibility  of  doing  the 
7-t2  work,  when  I so  advised  him.  As  to  whether  I had  in  mind 
also  the  protection  of  the  canal  and  the  canal  bank  from 
any  injury,  you  are  asking  me  a question  that  I would  rather  not 
answer,  because  we  had  at  that  time  spoken  about  it,  and  Mr.  Mun- 
roe  made  a certain  statement,  and  after  he  told  me  that,  I thought 
it  was  all  right.  I regard  the  information  I have  in  this  respect 
as  confidential,  and  for  that  reason  don’t  wish  to  answer. 

743  In  my  cross-examination  I spoke  about  the  necessity  of 
riprapping  out  into  the  Illinois  & Michigan  Canal,  in  order 

to  save  the  bank.  As  to  how  much  of  the  prism  of  the  canal, 
in  point  of  width  of  the  canal,  that  would  destroy,  the  way  I 
proposed  was  to  continue  the  slope  of  the  riprap.  I think  that 
slope  is  24  to  1.  If  you  continue  that  slope  up  to  the  top  of 
the  towpath,  and  riprap  it  up  to  the  toj)  of  the  towpath,  and 
then  pave  the  towpath,  and  also  pave  the  other  slope  over  the 
water  in  the  canal,  you  would  cut  oft  on  the  towpath  probably 
5 feet,  and  therefore  you  would  have  to  add  the  5 feet  at  the 
canal  side.  I should  think  you  would  have  to  fill  up  5 

744  feet  of  the  canal;  that  is,  you  would  have  to  maintain  your 
towpath  under  the  law,  I think  it  is  12  or  16  feet,  some  say, 

12  and  others  say  16. 

(The  objection  to  the  admission  of  the  map  marked  ^^The  Rand- 
McNally  new  standard  map  of  Chicago,”  which  was  offered  this 
morning  in  connection  with  the  testimony  of  Benezette  Williams, 
is  withdrawn  by  the  defendant.) 

James  0.  Heyworth, 

745  a witness  on  behalf  of  complainant,  testified  as  follows : 

m red  Examination. 

My  name  is  James  0.  Hey  worth.  I was  sworn  to  testify 
and  did  testify  before  the  Legislative  Committee  last  December. 

I was  subpoenaed  yesterday  to  appear  'here  this  morning,  and 


liave  come  in  obedience  to  the  subpoena.  The  subpoena  required 
me  to  bring  with  me  the  plans  and  specifications  for  the  dam  of 
the  Economy  Light  & Power  Company,  in  course  of  construe-. 

746  tion,  in  Grundy  County,  Illinois.  I did  not  bring  them  with 
me,  because  a counsel  for  the  Economy  Light  & Power  Com- 
pany advised  me  not  to.  The  counsel  was  Mr.  McKeever.  I 
think  it  was  Mr.  Buell  McKeever,  of  the  firm  of  Isham,  Lincoln 
& Beale.  So  far  as  I can  recollect,  this  is  the  subpoena  that  was 
served  on  me. 

Said  subpoena  was  thereupon  marked  Heyworth  Exhibit  1 and 
offered  in  evidence. 

My  business  is  that  of  a contractor.  I have  been  in 

747  that  business  since  1890.  At  present  I have  a contract  with 
the  Economy  Light  & Power  Company  for  doing  some  work 

on  a dam,  in  the  County  of  Grundy,  near  the  inoutli  of  the  Bes- 
plaines  Elver.  I have  a copy  of  that  contract,  with  the  plan  and 
specification  attached,  but  not  with  me.  It  is  at  my  office  at 
Michigan  Ave.  and  Harrison  St.  in  the  City  of  Chicago.  That 
is  where  the  set  of  plans  are.  There  is  no  physical  inconveni- 
ence about  bringing  the  plans,  if  I had  not  been  directed  not  to. 
The  date  of  the  contract  is  July  15,  1907.  I first  learned  that 
there  was  such  a piece  of  work  to  be  done,  by  receiving  an  invita- 
tion to  bid  from  Daniel  M.  Meek,  consulting  .engineer,  Madi- 

748  son,  MTs.  I believe  he  was  the  consulting  engineer  of  the 
Economy  Light  & Power  Company  at  that  time.  He  so  held 

himself  out  to  me.  I have  not  that  letter  with  me.  That  stated 
when  the  bid  should  be  in,  but  I don’t  know  when.  My  recoL 
lection  is  it  was  longer  than  ten  days.  I had  about  four  weeks 
to  prepare  the  bid  for  it.  I knew  of  the  work  before,  through 
Mr.  Munroe.  I could  hardly  say  I had  been  in  consultation  with 
Mr.  Munroe  before  that,  excejDt  that  he  asked  me  if  I would  like 
to  bid  on  the  work,  and  I said  I would.  That  is,  Mr.  Charles  A. 
Munroe.  I knew  there  were  four  or  five  other  bidders ; I 

749  don’t  know  how  many.  The  length  of  the  time  called  for  by 
that  contract,  was  in  a way  problematical;  it  would  depend 

upon  the  development  of  conditions  there  somewhat.  You  real- 
ize that  there  were  a great  many  dimensions  connected  with  this 
power  plant.  From  water’s  edge  to  water’s  edge,  I should  say 


it  was  in  the  neighborhood  of  280  feet.  That  would  l)e  from  the 
low  land.  Yon  see  the  channel  in  the  river  is  indicated  on  the 
map.  That  would  be  the  width  there.  That  has  been  changed  a 
good  deal  though  since  that  map  .was  made.  Those  banks  are 
not  now  where  they  were  on  that  map.  This  side  is  washed  out 
considerably.  By  ‘^this  side/’  I mean  the  south  side.  I 

750  think  the  elevation  of  the  proposed  dam  was  77.  And  that 
is  minus  77  Chicago  datum.  Without  referring  to  the  plans, 

I could  not  give  the  height  which  the  dam  would  have  from  the 
surface  of  the  ground,  at  the  bed  or  bottom  of  the  river  in  the 
center  of  the  river,  to  the  crest  of  the  dam,  in  feet  and 

751  inches.  It  was  in  the  neighborhood  of  18  to  22  feet.  My 
best  recollection  now  is  that  it  was  about  21  feet.  The 

contract  specified  a time  when  the  work  should  be  completed, 
which  was  September  1,  1908.  I can’t  tell  you  whether  there 
has  been  a change  in  that  contract  in  that  respect.  There  has 
been  in  my  attitude.  Before  the  Legislative  Investigating  Com- 
mittee, I said,  ‘^well,  I think  I have  got  four  or  five  months’ 
time  on  it.’^  That  was  correct  as  I understood  it,  that  is,  from 
my  standpoint.  I have  had  no  such  intimation  from  the  Economy 
Light  & Power  Company,  but  it  would  be  a claim  for  delay  or 
extension,  which  I would  expect  to  substantiate.  My  testi- 

752  mony  was  given  on  the  26th  day  of  December,  1907.  I filed 
a claim  or  made  a statement  of  my  position  demanding  ad- 
ditional time.  I have  written  letters  explaining  the  causes  of 
the  delay.  The  letters  to  which  I refer  were  written  before  this 
suit  was  begun,  and  had  no  reference  to  the  injunction  suit.  I 

began  the  actual  construction  of  the  dam  in  the  early  part  of 

753  September,  as  close  as  I can  recollect  now.  On  the  26th  of 
December,  1907,  the  rock  excavation  for  the  power  house  and 

the  dam  was  about  one-fifth  done.  I had  not  at  that  time  begun 
work  on  any  of  the  concrete  or  masonry.  I was  merely  excavat- 
ing the  bed  of  the  river  and  banks  where  the  power  house 

754  was  to  be  located.  I had  at  work  there  in  December,  about 
180  men  down  to  130;  it  varied.  I think  I received  notice 

of  the  injunction  having  been  issued  in  this  cause,  on  the  31st 
of  December,  1907,  promptly  upon  its  being  entered.  I couldn’t 
tell  whether  I did  or  not.  Since  then  we  repaired  a break  in  the 


374 


H ey wo rth^ — D i rect  Exa m . — C on tinued. 


dam,  and  made  otb^r  repairs  on  the  old  levee,  that  was  there 
when  the  work  was  stopped.  That  was  in  the  cofferdam  and  the 
earthen  levee. 

The  cofferdam  is  composed  of  a row  of  4-inch  sheet  piling, - 
with  3 wales  opposed  about  10.  feet  away  by  another  row  of  sheet 
piling  of  heavy  wales,  tied  together  with  tie  rods,  the  same  being 
filled  with  earth  and  rock.  It  was  filled  with  earth  and  capped 
or  bedded  with  rock  on  tojD,  so  as  to  hold  down  the  dam.  This 
would  stand  a head  of  water  of  about  12  feet.  It  was  not  com- 
pleted at  the  time  we  had  the  big  flood,  and  due  to  an  extra 
amount  of  water  which  the  drainage  hoard  let  through  the 

756  bear  trap  dam, — to  the  best  of  my  knowledge  and  investiga- 
tion, I would  say  a part,  about  110  feet  of  the  cofferdam  run- 
ning parallel  with  the  level,  was  forced  in  and  laid  on  its  side,  the 
result  of  which  was  a filling  up  of  the  outer  cofferdam,  and'  later, 
due  to  a washing  of  the  intercepting  levee,  the  filling  up  of  the 
inner  cofferdam  too.  lYliat  I say  about  action  by  the  Drainage 
Board  in  letting  an  extra  amount  of  water  go  through  the  bear 
trap  dam,  is  the  result  of  an  investigation  that  I made  during 
the  time  of  its  action.  I found  some  extra  water  and  1 made 
some  inquiries  and  reached  that  determination  of  the  matter, 

that  that  was  what  caused  it. 

757  (Counsel  for  complainant  moved  to  exclude  from  the  an- 
swer of  the  witness,  the  opinion  and  conclusion  as  to  the 

causes.) 

IVe  repaired  the  cofferdam  referred  to,  replacing  it  in  about 
the  same  condition  as  it  was  prior  to  the  accident,  also  repaired 
the  earthen  intercepting  levee,  and  two  up-stream  and  down- 
stream levees,  which  had  been  cut  up  by  the  flow  of  water,  and 
took  our  machinery  equipment  and  tools  out  of  the  cofferdam 
pits,  and  iDlaced  them  on  high  ground  for  storage.  The  work  to 
repair  the  cofferdam  and  levee  was  done  with  a very  small  force 
of  men.  It  took  about’  45  days.  It  could  have  been  done  with 
the  force  of  men  we  had  there  at  the  time  of  the  accident 

758  in  about  a week.  lYe  had  from  8 to  25  men  at  work  on  it. 
The  cofferdam  as  reconstructed  by  me,  was  about  the  same 

as  before  the  break,  exce])t  that  we  left  out  the  inner  row  of 
sheet  piling.  It  was  neither  higher  nor  lower  than  it  was  before; 


practically  the  same;  it  may  have  been  an  inch  or  two,  some- 
thing like  that,  but  it  was  practically  the  same  type  dam  as  it 
was  before. 

Since  that  time  there  was  some  work  done  on  the  levee  at 
the  Smith  bridge  just  above  Channahon.  A levee  is  a barrier 
composed  of  earth  or  other) suitable  material,  which  is  raised 
above  the  natural  elevation/ of  the  ground,  for  the  purposes  of 
either  impounding  water,  or  keeping  the  water  from  over- 

759  flowing  other  territory  than  that  confined  by  the  levee.  The 
levees  referred  to,  near  the  mouth  of  the  Desplaines  Eiver, 

are  temporary  levees  erected  for  the  purpose  of  prosecuting 
the  work.  They  are  in  the  nature  of  a cofferdam  made  of  dirt. 
I refer  to  none  of  the  permanent  levees  when  I speak  of  the  levees 
at  the  site  of  the  work.  Two  of  those  levees  are  at  right  angles 
with  the  course  of  the  stream,  and  one  of  them  is  parallel  with 
the  course  of  the  stream.  Some  of  the  levees  which  are  at  right 
angles  with  the  course  of  the  stream,  had  a flow  of  water  over 
the  top,  which  caused  a cut  and  washed  out  some  of  the  top  of 
these  levees.  This  was  refilled  with  dirt,  and  some  rock  was 
placed  on  the  top  of  those  earthen  levees,  so  as  to  hold  the 
dirt  as  far  as  possible  against  future  floods.  Its  condition,  after 
T had  caused  that  work  to  be  done,  was  nractically  the  same  as 
was  its  condition  immediately  prior  to  the  break,  with  the 

760  exception  that  it  had  a little  more  rock  on  it  afterwards  than 
it  had  before.  We  made  some  parts  of  it  stronger  when 

we  were  repairing  it,  than  they  had  been  prior  to  the  break. 
There  is  a great  deal  of  it  that  is  practically  the  same  as  it  was 
before  the  break.  We  hardly  went  to  the  extreme  of  making  it 
enough  stronger  than  it  was  before,  to  avoid  possibly  a repeti- 
tion of  that  experience.  We  repaired  the  break  with  a small 
force,  and  tried  to  make  it  as  good  as  we  could  without  much 
planning  for  the  future.  I was  cutting  things  down  as  eco- 
nomically as  I could  at  that  time.  We  always  hope  when  we  fix 
a levee,  to  make  it  somewhat  stronger  than  it  was  before;  but 
we  cannot  tell.  We  had  no  definite  plans  of  strengthening  that 
levee;  that  is,  no  broad  plan  of  making  it  a different  size  or 
stronger  levee.  We  simply  repaired  the  breaks  in  it,  that  is  all 
we  did.  A cut  sometimes  has  to  be  strengthened  with  rock,  where 


an  original -levee  don’t  need  that  rock.  It  is  a new  fill  and 

761  it  is  soft  and  has  got  to  be  protected  with  rock.  I don’t 
think  the  leeve  there  to-day  is  as  strong  as  it  was  when  the 

injunction  was  served.  As  a rule,  a repaired  levee  is  not  quite  as 
strong  as  the  original  levee.  The  initial  strength  of  an  unbroken 
levee  is  somewhat  greater  than  that  of  a repaired  levee.  We 
didn’t  plan  any  such  strengthening,  as  that  of  resisting  any 
similar  fiood.  I had  a very  small  gang  of  men  there,  and  we 
tried  to  hold  it  down  with  as  small  an  expense  as  we  could.  The 
coffers  and  levees  have  since  been  repeatedly  injured  by  the 

762  natural  fioods.  A very  high  flood  is  not  as  dangerous  as  a 
flood  that  just  tops  it.  We  have  repeatedly  had  floods  that 

were  considerably  higher  than  the  one  which  made  the  break. 
Those  floods  -do  not  give  one-fourth  of  the  trouble  that  a flood 
that  has  got  just  about  to  the  top  of  your  work,  does.  It  w'as 
one  of  the  heavy  floods  of  that  season  of  the  year.  An  unusu- 
ally heavy  flood  for  December  as  far  as  I could  gain  from  talking 
to  the  river  men  and  inhabitants  down  there.  Including  Decem- 
ber my  recollection  is  that  the  total  estimate  for  the  work  on 
this  contract  was  about  $36,000,  which,  after  deducting  15%, 
would  give  us  the  amount  of  money  that  was  estimated  to 

763  me  on  January  1st.  That  would  be  $30,600.  That  includes 
part  of  the  regular  contract  work  in  the  month  of  Decem- 
ber. I did  not  get  my  pay  for  December  work  until  along  about 
the  5th  or  10th  of  January,  and  I had  not  received  that  pay  at 
that  time.  I had  the  estimate  made  out  before  I got  the  money. 
I think  about  $22,000  had  been  paid  me  on  the  31st  of  December. 
I have  so  many  of  those  estimates  I can’t  remember. 

Under  the  advice  of  the  counsel  heretofore  referred  to,  I 

764  still  refuse  to  produce  the  contract  plans  and  specifications 
for  the  construction  of  this  dam.  It  is  not  on  account  of 

any  reason  or  interest  of  my  own  that  I refuse  to  produce  the 
plans,  specifications  and  contract,  but  simply  because  of  the  ad- 
vice of  counsel  for  defendant  that  I have  referred  to. 

C ross-Exa  min  at  ion. 

To  the  best  of  my  recollection,  Mr.  Munroe  first  conferred 
with  me,  with  reference  to  this  proposed  work,  about  four  or 


five  weeks  before  the  work  was  let.  I liad  some  talk  with  Mr. 
Munroe  about  his  purpose  of  building  a dam  and  a power  house 
on  the  river,  I should  think,  about  five  years  ago.  At  that  time 
he  talked  with  me  with  a view  of  my  possibly  bidding  upon  the 
contract  for  that  work.  I commenced  getting  my  material  read}- 
for  this  work  at  Dresden  Heights  the  latter  part  of  July, 

765  and  the  first  part  of  August,  1907.  I assembled  some  ma- 
terial there  before  the  contract  between  me  and  the  Economy 

Light  & Power  Company,  was  signed.  I had  been  advised  that 
my  bid  was  accepted  before  the  formal  contract  was  signed.  I 
then  began  getting  my  material  ready  at  the  ground.  In  the 
statement  I have  made  or  the  testimony  I have  given,  as  to  the 
amount  which  had  been  paid  me,  or  estimates  given  me  for  the 
work,  nothing  was  included  for  the  cost  of  my  plant,  assembling 
my  material  there,  and  erecting  my  houses  and  preparing  for 
the  work.  The  cost  that  I was  put  to  in  that  particular  on  this 
contract,  was  about  $110,000  or  $115,000.  I have  a number 

766  of  houses  there  now,  and  a considerable  amount  of  machin- 
ery. I had  certain  sub-contractors  on  this  contract.  Work 

has  been  done  by  the  sub-contractors  in  addition  to  my  work  at 
the  time  this  injunction  notice  was  served. 

Q.  What  was  the  work  that  had  been  done  under  your  con- 
tract or  sub-contract,  in  addition  to  what  you  have  already  men- 
tioned! 

(Counsel  for  complainant  objected  to  the  question  as  ir- 
relevant, inconi})etent  and  immaterial,  and  not  proper  cross- 
examination.) 

It  was  thereupon  agreed  by  stipulation  that  the  objection  might 
stand  to  each  question  asked. 

A.  The  contractor  for  the  levee  for  the  Riley  Creek  diversion 
had  assembled  and  erected  his  machinery  to  do  this  work.  He 
had  it  all  ready  to  begin  within  a few  days  of  the  time  of  the 
injunction.  The  contractor  for  the  levee  at  what  is  called  the 
Smith’s  bridge  levee,  above  Channahon,  had  also  assembled  his 
graders,  teams,  outfit,  etc.,  and  had  done  some  work  on  that. 

That  Smith’s  bridge  work  is  about  4 or  5 miles  above  the 

767  point  where  the  dam  is  being  erected,  I should  think.  The 
Smith’s  bridge  levee  is  a permanent  levee.  On  that  levee. 


378 


at  the  time  the  injunction  was  served,  I should  say  about  12,000 
to  15,000  yards’  work  had  been  done.  The  levees  that  I re- 
paired after  the  flood  were  in  the  bed  of  the  river,  that  a 4 or 
5 foot  rise  would  submerge;  not  under  water  when  the  river  was 
at  its  low  water  mark.  No  work  had  been  done  on  the  levee  in- 
tended for  the  Riley  Creek  diversion,  prior  to  the  injunc- 

768  tion,  except  assembling,  and  erection  of  the  plant  to  do  that. 

A concrete  core  wall  for  a levee  was  made  before  the  in- 
junction, but  no  concrete  for  the  power  house  or  dam  or  plant, 
as  the  question  was  put  to  me  before.  This  core  wall  concrete 
was  a short  piece  of  wall,  about  6 feet  high,  3 feet  base  and  about 
80  feet  long. 

Q.  Was  that  located  upon  the  tract  reserved  for  a govern- 
ment lock? 

(Counsel  for  complainant  objected  to  the  question,  as  as- 
suming a state  of  facts  to  exist  and  to  be  in  evidence,  where- 
as, there  is  no  evidence  that  any  such  state  of  facts  does  exist, 
and  because  the  same  is  irrelevant,  incompetent  and  imma- 
terial, and  not  cross-examination,  in  any  point  of  view.) 

A.  This  core  wall  of  concrete  was  placed  in  the  levee  and 
dam,  which  was  to  connect  the  canal  levee  with  the  proposed 
power  house,  so  as  to  make  the  dam  water-tight.  This  dam  was 
placed  in  this  position  between  the  levee  and  the  canal  and  the 
power  house,  composed  of  dirt,  as  I understood  it,  so  that  the 
same  could  be  readily  removed  at  any  time. 

769  It  was  so  jdaced  for  the  purpose  of  the  installation.  For 
the  purpose  of  the  erection  of  a lock  at  this  point.  That 

would  be,  referring  to  Hillebrandt  Exhibit  3,  at  the  right  hand 
side  of  the  river  going  down,  and  at  the  end  of  the  proposed 
dam.  The  purpose  of  the  core  wall  that  I refer  to,  was  to  pre- 
vent water  following  the  course  of  the  bed  rock  underneath  the 
surface  and  undermining  this  dam.  The  portion  that  I refer 
to  as  having  been  built  of  earth  could  be  very  readily  and  very 
quickly  removed  by  steam  shovels.  That  work  was  made  of  that 
character  under  the  direction  of  the  Economy  Light  & Power 
Company.  At  the  time  the  injunction  was  served,  the  earthen 
dam  part  was  completed;  the  up-stream  side  had  been  riprapped 


379 


to  the  rock.  It  was  practically  ready  for  the  service  for 

770  which  it  was  intended.  The  connections  provided  for  the 
towpath  bank  had  been  completed  at  the  time  of  the  injunc- 
tion. With  the  exception  that  the  towpath  was  to  be  raised  some 
2 feet,  that  was  the  only  connection  to  be  made  with  the  tow- 
path  on  the  plans.  About  1,000  feet  of  the  work  of  raising  the 
towpath,  had  been  completed  at  the  time  of  the  injunction.  It 
had  been  raised  2 feet,  under  the  supervision  of  Mr.  Mead,  rep- 
resented by  Mr.  Woermann,  the  Dresden  engineer.  The  Canal 
Commissioners  were  represented  in  this  towpath  matter. 

The  canal  superintendent  was  down  there  and  consulted 
with  us  and  we  with  him,  and  finally  we  put  it  in  according  to 
his  directions. 

(Counsel  for  complainant  objected  to  the  last  answer  spe- 
cifically as  being  a conclusion  and  opinion  of  the  witness, 

771  and  embracing  transactions  and  conversation  and  directions 
between  the  witness  and  this  other  party,  and  that  it  is  not 
the  best  evidence,  and  also  as  irrelevant,  incompetent  and 
immaterial.) 

The  plans  for  this  work  are  not  physically  attached  to  the 
contract  between  myself  and  the  Economy  Light  & Power  Com- 
pany. The  earthen  dam  or  embankment  that  abuts  upon  the  tow- 
path  is  now  about  90  feet  wide,  or  the  proposed  width,  I think, 
is  96  feet;  it  is  now  about  75  or  80  feet  wide,  ready  for  its  junc- 
tion to  the  masonry  as  soon  as  that  is  completed.  That  was  so 
at  the  date  of  serving  the  injunction.  The  specifications  are 
physically  attached  to  the  contract,  but  the  plans  are  not. 

lie-direct  Examination. 

In  the  center  of  the  river  at  the  point  where  the  dam  would 
come,  before  I did  anything  at  low  water,  it  was  about  4 or  5 
feet.  deep.  It  is  now  about  the  same.  I don’t  know  what  the 
depth  is  to-day.  At  the  time  we  got  our  coffer  and  levee  in,  we 
had  about  16  feet  of  water.  It  was  considerably  deejjer  at  these 
various  floods  I have  referred  to.  The  country  down  there  is 
to  a.  considerable  extent  rather  flat  on  one  side.  It  is  high 
773  on  the  right  hand  side,  and  it  is  low  on  the  left  hand  side.  I 
haven’t  myself  seen  the  bottom  of. Pie  river.  We  took  the 
soundings  that  were  made  by  the  representatives  of  the  Economy 


380 


Light  & Power  Company  people,  and, we  made  a few  ourselves, 
hut  could  not  determine  by  those  the  character  of  the  bottom, 
except  that  it  was  about,  on  an  average,  4 or  5 feet  deep.  There 
were  some  boulders  in  it  and  some  rocks.  At  low  water  that  was 
all  covered  throughout  the  width  of  the  stream. 

The  canal  superintendent  that  I referred  to  was  a Mr.  Keough; 
he  is  now  dead.  Mr.  McDonald,  I think,  was  the  last  man  along 
there.  Mr.  Keough,  as  well  as  Mr.  McDonald  were  there;  they 
talked  with  my  superintendent.  Whatever  direction  or  conver- 
sation of  that  kind  occurred,  occurred  between  Keough,  or 
Keough  and  McDonald  and  my  superintendent.  It  did  not  occur 
directly  with  me.  My  orders  to  my  superintendent  were  to  see 
them  and  have  them  approve  the  till  that  we  were  putting  on  the 
canal  levee  towpath. 

774  (Counsel  for  complainant  thereupon  moved  to  strike  out 
all  reference  to  the  witness’  orders,  through  his  superin- 
tendent, and  to  the  conversations  by  the  superintendent,  as  being 
transactions  of  which  the  witness  does  not  have  personal  knowl- 
edge, and  as  not  being  the  best  evidence.) 

I say  the  work,  on  the  connection  of  that  dam  with  the  tow- 
path,  and  the  raising  and  filling  of  the  towpath  for  a thousand 
feet  back  up-stream  before  the  connection,  is  completed. 

Re-cross  Examination. 

The  character  of  the  rock  that  I excavated  from  the  cofterdam, 
was  a sandstone,  also  a soapstone,  also  a soap  sandstone,  also 
a bastard  sandstone,  some  iron  in  it. 

Re-re-direct  Examination. 

775  That  is  not  what  is  ordinarily  geologically  called  sand- 

776  stone  shale.  There  were  shale  stratas  of  it.  There  were  also 
stratas  of  sandstone  and  stratas  of  soapstone.  I have  told 

you  all  I know  about  that  sandstone.  It  was  probably  formed 
there  in  the  same  manner  as  it  is  formed  in  the  other  deposits 
found  in  the  country,  with  the  exception  that  the  top  of  this  sand- 
stone was  subject  to  severe  glacial  drifts,  and  I think  the  action 
of  the  receding  waters  and  sun  caused  the  shale,  caused  it  to 


disintegrate  to  a certain  extent.  If  the  same  intluences  would 
be  continuous,  it  was  a continuous  process;  and  there  was  some 
evidence  of  clay,  which  undoubtedly  formed  the  soapstone..  As 
to  whether  it  was  the  customary,  normal  sandstone  and  shale 
which  overlies  the  coal  measures,  and  belongs  to  the  coal  measure 
period,  it  was  not  quite  as  deep  as  you  find  that.  You  take  it 
in  Alabama  in  the  Birmingham  district,  and  you  will  find  the 
shale  limestone,  that  is  down  lower  in  the  river  in  what  they 
call  the  foot  hill  district,  which  runs  3 to  4 and  5 feet  deep. 

777  This  shale  seemed  to  be  very  shallow,  and  was  superficial  in 
that  respect.  This  sandstone  shale  is  the  same  as  I have 

found  in  Louisiana  and  Alabama  or  Indiana;  it  was  much  shal- 
lower in  depth.  It  seemed  to  have  been  caused  more  by  tlie 
water  than  by  any  upheavals,  as  the  other  sandstone  fields,  to 
which  I have  referred,  seemed  to  have  been  caused  by  the  u]>- 
heavals  or  action  of  the  heat  and  the  ground. 

I mean  to  convey  the  idea  that  in  the  recession  of  the  waters 
from  the  higher  points  to  the  valleys  and  the  lower  points,  the 
loose  material  will  follow  the  drainage;  naturally  our  shed  is 
toward  the  Mississippi  River  here,  and  the  evidence  is,  and 

778  the  valleys  of  that  district  show  that  a glacial  drift  had 
drained  off  through  that  way  and  had  lodged  and  been  left 

there  by  the  receding  water. 

Robeet  E.  Ore, 

a witness  called  on  behalf  of  complainant,  testified  as  follows: 

Direct  Examination. 

Q.  I believe  Orr  Exhibit  3 has  already  been  put  in  evidence. 
I direct  your  attention,  Mr.  Orr,  upon  this  Orr  Exhibit  3,  to  the 
enclosed  area  marked  ‘‘Riv.  Desplaines,’’  which  has  already 
been  testified  as  representing  the  Desplaines  River,  and  to  the 
two  sets  of  lines  by  which  that  river  is  delineated  and  its 

779  course  enclosed;  one  is  the  firm,  continuous  white  line  on 
one  side  and  the  other  is  a set  of  dotted  lines  adjacent  to  it, 

and  which  is  outside  of  the  firm  line  most  of  the  way,  however,  in 
one  or  two  instances,  it  seems  to  be  reversed.  What  is  this  dotted 
line,  or  what  are  these  dotted  lines?  A.  It  represents  the 
meandering  line  of  the  Desplaines  River. 


382 


Explaining  the  condition  between  the  index  plat  and  the  sec- 
tion plat,  Orr  Exhibits  1 and  2 are  indexes  of  hooks,  plat  hooks 
1 and  2 in  the  Canal  Commissioner’s  office  at  Lockport.  The 
index  plat  is  on  a small  scale,  showing  the  whole  area  of  what  is 
in  the  book.  The  book  is  made  up  of  section  plats  showing,  on  a 
large  scale,  each  section  in  the  canal.  The  three  hooks  known 
as  plat  hooks  1,  2 and  3,  which  I have  referred  to,  contain  sec- 
tion plats  of  the  canal  for  its  entire  length,  from  Bridgeport  on 
the  northeast,  down  past  Joliet  and  Dresden  and  clear  to  Ottawa, 
or  the  west  end  of  the  canal.  Each  of  these  hooks  has  an 

780  index  plat  on  the  front,  and  then  section  maps  for  the  de- 
tail work  following  it.  These  section  maps  throughout  the 

course  of  the  Desplaines  River  delineate  these  dotted  lines  upon 
each  side  of  the  river.  Those  plats  were  prepared  hy  A.  J. 
Mathewson,  Assistant  Engineer  of  the  Canal  Trustees.  He  was 
employed  by  the  Canal  Trustees  in  1847  and  1848. 

The  blue  print  now  shown  me,  which  is  marked  ^^Orr  Exhibit 
6,”  for  identification,  is  a representation — it  is  a tracing  of  plat 
hook  No.  1,  representing  Sections  3,  4,  and  5,  Township  38,  North 
Range  13,  East  of  the  3rd  P.  M.,  showing  a part  of  Mud  Lake. 

781  This  is  a part  of  the  plat  that  was  surveyed,  and  to  which  I 
have  heretofore  referred,  made  at  the  time,  and  by  the  person 

to  whom  I have  already  referred.  I know  from  practical  examina- 
tion it  is  a true  copy  in  every  respect. 

Counsel  for  complainant  thereupon  offered  in  evidence  a cer- 
tified copy  of  plat  of  map  of  Beard,  part  of  Handy’s  part  of 
the  Town  of  Kankakee,  laid  out  between  the  mouth  of  the  Kanka- 
kee and  AuPlaine  River,  in  Section  36,  Township  34,  North 
Range  8,  East,  certified  by  Fred  S.  Johnson.  Said  plat  was 
thereupon  marked  as  complainant’s  Exhilut  iV-1.  (Atlas,  p.  3929; 
Trans.,  p.  6527 ; Abst.,  p.  1920.) 

Counsel  for  complainant  also  offered  in  evidencec  a certified 
copy  of  a plat  of  Buffalo,  a town  laid  out  in  the  northwest  quar- 
ter of  Section  2 in  Township  34,  North  of  Range  9,  East,  in 
Will  County,  j^roperly  certified  by  the  proper  officer  of  the 

782  county.  Said  plat  was  thereupon  marked  as  complainant’s 
Exhibit  A-2.  (Atlas,  ]).  3930;  Trans.,  p.  6529;  Abst.,  p.  1920.) 

Counsel  for  complainant  also  offered  in  evidence  a certified 


383 

copy  of  a plat  or  map  of  the  School  Section  Addition  to  the 
Town  of  Juliet,  Cook  County,  Illinois.  Said  plat  was  thereupon 
marked  as  complainant’s  Exhibit  A-3.  (Atlas,  p.  3931  ; Trans.,  p. 
()531;  Abst.,  p.  1920.) 

Counsel  for  complainant  also  offered  in  evidence  a certified 
copy  of  a plat  of  Juliet  Subdivision  of  the  southeast  fractional 
quarter  of  Section  9,  Township  35,  North  Eange  10,  East  of  the 
3rd  P.  M.,  platted  May  13th,  1834.  Said  plat  was  thereu})on 
marked  complainant’s  Exhibit  A-4.  (Atlas,  p.  3932;  Trans.,  ]>. 
0533;  Abst.,  p.  1920.) 

Counsel  for  complainant  also  offered  in  evidence  a certified 
copy  of  the  plat  of  Subdivision  known  as  AVest  Juliet,  a survey 
and  Subdivision  of  the  west  4 of  the  southeast  } of  Section  9, 
Township  35,  North  Eange  10,  East  of  the  3rd  P.  AI.  Said 
plat  was  thereu])on  marked  complainant’s  Exhil)it  A-5.  (Atlas, 
}).  3933;  Trans.,  ]).  0535;  Abst.,  p.  1921.) 

Counsel  for  complainant  also  offered  in  evidence  a certi- 

783  tied  copy  of  a map  or  plat  of  the  Town  of  AJenna.  Said  plat 
was  thereupon  marked  complainant’s  Exhibit  A-0.  (Atlas,  p. 

3934;  Trans.,  p.  0537;  Abst.,  p.  1921.) 

Counsel  for  complainant  also  offered  in  evidence  a certified 
copy  of  the  plat  of  Lockport.  Said  plat  was  thereupon  marked 
complainant’s  Exhibit  A-7.  (Atlas,  p.  3935;  Trans.,  p.  0539;  Abst., 
]).  1921.) 

Counsel  for  complainant  also  offered  in  evidence  a certified 
copy  of  plat  of  AVest  Lockport,  together  with  a certificate  of  va- 
cation in  1855  attached.  Said  plat  was  thereupon  marked  com- 
plainant’s Exhibit  A-8.  (Atlas,  p.  3930;  Trans.,  p.  0541;  Abst.,  p. 
1921.)  ' 

C ross-Exam  ina  t i o n . 

I have  a personal  knowledge  that  Air.  Alathewson  made  the 
maps  I refer  to.  Mr.  Alathewson  told  me  that  he  made  those 
maps  and  that  he  preserved  a copy,  and  they  are  in  his  own 
handwriting;  the  printing  is  in  his  own  handwriting;  all  this 

784  work  was  his  tracing.  On  these  copies  presented  here,  his 
handwriting  is  represented;  that  is  his  printing;  his-  hand- 
printing. I know  his  hand-printing.  I had  known  Air.  Alathew- 


384 


On', — Cross-Exam. — Continued. 


son  since  1900.  He  is  not  living  now.  These  maps  were  made 
in  1847  and  1848.  I was  not  there  when  they  were  made.  I am 
now  52.  I was  not  living  at  the  time  these  maps  are  alleged  to 
have  been  made.  In  addition  to  what  I have  said,  I base  my 
statement  that  these  were  made  by  Mr.  Mathewson  from  certifi- 
cates : that  is  to  say,  the  certificates  tell  that  they  were  made 

785  by  a certain  person.  The  certificates  to  which  I refer  are 
in  the  records  of  Will  County.  I could  not  say  whether 

there  are  any  certificates  there  signed  by  Mr.  Mathewson  which 
show  that  these  maj^s  were  made  by  him.  I speak  of  the  public 
records,  and  he  was  the  surveyor,  county  surveyor,  there  for 
some  time.  There  are  no  certificates  there  that  show  that  these 
particular  maps  were  made  by  Mr.  Mathewson.  The  maps  as 
recorded  bear  a date.  This  date  here  that  I produce  is  June  5th. 
1847.  I understand  that  to  be  the  date  at  which  the  map  was 

786  made.  There  is  a date  other  than  that  on  the  maps  as  they 
are  recorded.  The  original  maps  of  Mr.  Mathewson  were 
not  recorded  at  all.  These  are  copies  of  the  original  maps ; 

787  duplicate  copies.  The  canal  people  kept  the  original  copies 
and  they  are  in  the  canal  office  now.  I cannot  say  whether 

or  not  the  maps  which  are  in  the  Canal  Commissioner’s  office  are 
copies  of  the  original.  These  maps  that  I produce  are  copies 
of  that  one  in  the  canal  office. 

788  Q.  You  don’t  know  whether  that  is  the  original  or  not! 

(Question  objected  to  as  immaterial;  he  stated  that  they 
were  the  canal  records,  and  that  is  sufficient  for  the  purpose. 
Whether  Mr.  Mathewson  made  two  or  three  sets  and  kept 
one  of  them  and  returned  another  to  the  Canal  Commis- 
sioners or  Trustees  by  whom  he  was  employed  to  make  a 
survey  of  the  plat,  is  immaterial.) 

A.  That  is  the  original  plat,  so  far  as  the  canal  records  go, 
that  I can  find. 

So  far  as  the  records  go,  that  is  the  original  map,  with  the 
Trustees;  that  is  all  the  original  that  I know  of. 

Q.  Do  you  know  that  it  is  an  original  at  all? 

(Question  objected  to  as  an  attempt  to  assume  a state  of 
facts.) 

A.  I do  not  know  particularly  that  it  is,  but  it  is  an  original.  I 


mean  it  is  the  first  copy  of  the  records  of  survey  made  by  Mr. 
Mathewson  from  Ottawa  to  Chicago,  on  the  canal.  That  is,  it 
is  a copy  of  what  appears  in  the  Canal  Commissioner's  office,  as 
to  that  survey — is  the  first  copy;  that  is,  the  original  map 

790  made  by  Mr.  Mathewson  from  that  survey.  It  is  in  his 
drafting,  his  delineation;  that  which  is  there  in  the  office, 
was  made  by ‘his  hand;  that  is  his  work;  that  is  the  way  I 

791  identify  the  work.  I could  not  swear  that  that  which  is  in 
the  office  was  made  by  his  hand.  I did  not  see  Mr.  M^athew- 

son  draw  the  lines  on  the  cloth.  I take  it  that  it  was  under  his 
direction,  and  Ihat  he  altered  and  made  these  notes  as  he  saw 
fit,  and  corrected  them  from  time  to  time.  The  records  and  cor- 
rection, dating  from  1837  to  1892,  are  his  handwork.  I knew  Mr. 
Mathewson  as  a neighbor.  He  lived  in  Lockport,  and  I lived  in 
Joliet.  I had  some  business  over  there.  I do  not  know  of  my 
own  knowledge  whether  or  not  those  meander  lines  correctly 
represent  any  meander  lines  shown  by  the  survey  of  that 
property.  I do  not  know  when  the  meander  lines  were  placed 
upon  the  map.  They  were  made,  though,  at  the  time  of  the  map. 
I know  that  from  the  work. 

792  There  are  no  characteristics  in  that  dotted  line  that  show 
me  it  was  made  by  Mr.  Mathewson.  I have  no  knowledge 

of  my  own  as  to  when  that  meander  line  was  traced;  whether 
it  is  the  correct  meander  line  of  the  stream  or  not,  I have  no 
personal  knowledge.  These  Exhibits, — the  same  being  plats, 
which  I have  identified  and  which  are  marked  Exhibits  Orr  from 
one  to  six,  inclusive,  are  true  and  correct  copies  of  plats  in  the 
office  of  the  Canal  Commissioners,  purporting  to  be  made  by 
Mathewson.  There  is  just  one  set  of  those  plats  in  the  office  of 
the  Canal  Commissioners,  purporting  to  be  made  by  Mathewson. 
These  Exhibits  are  copied  from  the  only  plat  of  the  survey,  as 
made  by  Mathewson,  which  is  on  file  in  the  office  of  the  Canal 
Commissioners. 

793  Q.  I direct  your  attention  to  the  following  question  and 

answer  appearing  in  your  cross-examination:  ^^As  a mat- 

ter of  fact,  were  the  original  maps  of  Mr.  Mathewson  recorded 
at  all.  A.  No  sir.”  In  that  answer  did  you  mean  to  state  that 


38(j  On', — C ross-Exam. — Continued. 

they  had  not  been  recorded  in  the  recorder’s  office  as  land  titles 
are  recorded?  A.  Yes  sir. 

Q.  Did  you  have  any  other  meaning  than  that?  A.  No  sir. 

I have  seen  the  book  in  which  these  plats  appear  in  the  office 
of  the  Illinois  and  Michigan  Canal.  There  are  three  books,  ai^d 
I have  exhibited  the  detailed  pages  of  1 and  2 here,  Exhibits  1 
and  2,  and  they  constitute  all  these  sections,  a delineation  of  all 
the  sections  cut  and  traversed  by  this  canal  and  this  survey  by 
Mathewson.  They  do  not  purport  to  be  a survey  of  the  canal 
land ; they  do  purport  to  be  a survey  of  the  canal  90-foot  strip. 
794  The  title  of  that  book  reads,  ‘‘that  book,  numbers  1,  2 ajad 
3 Canal  Survey,”  that  is  the  title.  That  is  all  there  is;  that 
is  all  that  appears  on  the  book  aside  from  plats  themselves  and 
the  index.  I made  these  blue  prints  by  the  blue  print  process.  I 
took  that  from  Mr.  Mathewson ’s  own  work.  This  is  a copy  of 
Mr.  Mathewson ’s  own  work.  I did  not  get  this  from  Mr.  Mathew- 
son myself.  These  are  the  Sanitary  District  maps  purchased  of 
Mr.  Mathewson.  Mr.  Mathewson  made  them.  These  blue  prints 
were  made  by  Mr.  Pierson  this  week.  I got  Mr.  Mathewson ’s 
tracings;  it  was  the  original,  these  are  duplicates. 

Q.  Mr.  Mathewson,  then,  kept  the  original  himself,  did  he 
not? 

(Question  objected  to  on  the  ground  of  ambiguity  as  being 
directed  to  the  blue  print  and  asking  whether  the  thing  from 
which  the  blue  print  was  printed  was  the  original  which,  in 
the  connection  in  which  it  was  used,  specified  that  it  was 
the  original  as  to  the  blue  print,  and  later  giving  it  the  sig- 
nificance in  the  following  question  of  its  being  the  original 
of  the  work  done  for  the  Canal  Commissioners.) 

796  Q.  Isn’t  it  true  that  Mr.  Mathewson  kept  his  original 
tracing  and  that  that  is  what  the  Sanitary  District  acquired? 

(Question  objected  to  on  grounds  already  indicated.) 

A.  No  sir. 

797  AVe  left  it  in  the  Canal  Commissioners’  office.  The  original 
is  in  the  Canal  Commissioners’  office. 

Q.  You  are  as  sure  of  that  as  anything  you  testified  to? 

(Objected  to  as  improper.) 

A.  The  original  plat  is  in  the  Canal  Commissioners’  office. 


387 


The  original  plat  made  by  Mr.  Matliewson  is  in  the  Canal 

798  Commissioners^  office.  This  I liave  here  is  a duplicate  from 
that  in  their  office. 

This  is  Mr.  Matliewson ’s  work;  his  private  excerpt  from  that 
record;  I mean  by  that,  private  tracing.  I do  not  mean  that  these 
particular  documents  that  I have  produced  were  themselves  made 
by  Mr.  Mathewson.  This  print  was  made  by  Frank  Pierson  in 
the  Tacoma  Building,  from  a tracing  that  the  Sanitar}'  Dis- 
trict purchased  from  Mr.  Mathewson.  Then  I went 

799  down  to  Lockport  and  compared  it  with  the  original  in  the 
Canal  Commissioners’  office.  This  is  a duplicate  of  the  plat 

records  that  are  in  the  Canal  Commissioners’  office.  I don’t 
say  that  the  one  that  is  on  file  down  there  and  the  one  that  was 
copied  here  in  the  Tacoma  Building  were  made  at  the  same  time 
by  the  same  person,  but  it  is  an  exact  copy.  The  reproduction 
here  is  an  exact  copy  of  our  records. 

800  I personally  took  with  me  the  blue  print  and  tracing  from 
which  the  blue  print  was  made  to  Lockport.  And  I compared 
that  blue  print  and  tracing  and  each  of  them,  with  the 

original  in  the  Canal  Commissioners’  office  at  Lockport.  These 
blue  prints  which  have  been  introduced  in  evidence,  and  which 
were  prepared  in  the  way  that  I have  described,  are  exact  copies 
of  the  original  records  in  the  Canal  Commissioners’  office  at 
Lockport.  When  I say  original  records,”  I mean  books  1,  2 
and  3 which  I have  described  down  there  and  nothing  else. 

It  is  stipulated  that  the  signatures  of  witnesses  are  waived,  and 
that  the  exhibits  may  be  retained  without  attaching  to  the  depo- 
sitions and  produced  at  the  trial. 

801  Counsel  for  complainant  offered  in  evidence  a copy  of  a 
subdivision  by  Russell  E.  Heacock,  Joel  Manning  and  Ed- 
ward B.  Talcott,  recorded  as  document  5303  in  the  recorder’s 
office  at  Cook  County,  Illinois.  Said  document  was  thereupon 
marked  Exhibit  A-9  and  is  as  follows : 


388 


Orr, — Cross-Exam. — Continued. 


25 


‘ ‘ Subdivision 

by 

Eussell  E.  Heacock, 
Joel  Manning  and 
Edward  B.  Talcott. 
Doc.  5303. 


Map  entitled  ‘ ‘ summit,  ’ ’ recorded  Au- 
gust 17,  1837,  in  Book  H,  page  302,  New 
Book  H of  Maps,  page  113. 

A subdivision  of  N.  ^ and  S.  ^ of  W. 
1 of  S.  W.  i of  Sec.  12  T.  #38,  E.*'l2  E.’’ 


(See  Atlas  p.  3937;  Trans.,  p.  6543;  Abst.,  p.  1921.) 


Counsel  for  complainant  then  otfered  in  evidence  a copy  of  the 
Subdivision  by  William  B.  Archer  and  Hiram  Pearsons,  recorded 
May  22,  1837.  Said  document  was  thereupon  marked  Exhibit 
A-10,  and  is  as  follows : 


86 


‘ ‘ Subdivision 
by 


MTlliam  B.  Archer 
and  Hiram  Pear- 


Plat  recorded  May  22,  1837,  in  Book 
H.  of  Maps,  page  17. 

Being  subdivision  of  the  N.  E.  \ of 
^Sec.  14,  T.  37  N.,  E.  11  E.  of  3rd  P.  M., 
entitled  ‘Map  of  Archer  and  Pearsons 
Addition  to  the  Town  of  Desplaines, 
Cook  County,  Illinois.’ 

Surveyor’s  certificate  dated  May  22,  1837. 


sons. 


Acknowledged  by  said  Archer  as  owner  of  the  E.  ^ and  by 
said  Pearsons  as  the  owner  of  the  W.  4 of  said  N.  E.  J. 


Note:  At  the  date  of  record  of  above  subdivision,  William  B. 
Archer  had  title  to  the  E.  4 of  N.  E.  J of  Section  14  afore- 
said.” (See  Atlas  p.  3938;  Trans.,  p.  6545;  Abst.,  p.  1921.) 


802  Counsel  for  complainant  then  offered  in  evidence  a copy 
of  the  subdivision  of  Keepotaw,  recorded  in  the  recorder’s 
office  of  Cook  County  as  document  No.  3854.  Said  copy  was  there- 
upon marked  Plaintiff’s  Exhibit  A-11,  and  is  as  follows: 

“107  Keepotaw  ) Map  entitled  as  in  the  margin,  re- 
Doc.  3854.  > corded  July  22,  1836,  in  Book  H,  page 

J 241,  New  Book  H.  of  Maps,  page  88. 

A subdivision  accoiMing  to  surveyor’s  certificate  (not  dated) 
of  the  southwest  fractional  quarter,  the  west  half  of  the  south- 
east quarter  and  a part  of  the  south  fraction  of  the  northeast 
quarter  of  Section  20  aforesaid  into  lots,  blocks  and  streets. 

Acknowledged  by  Hiram  Pearsons  and  David  Hunter  as  pro- 
prietors July  22,  1836,  before  Isaac  Harmon,  Justice  of  the  Peace. 

(See  Atlas  p.  3939;  Trans.,  p.  6547;  Abst.,  p.  1922.) 

Counsel  for  complainant  then  offered  in  evidence  a copy  of 
the  subdivision  of  Edward  E.  Hunter,  E.  I.  Gavin,  Lathrop  John- 


389 


son  and  Robert  Davidson,  recorded  as  document  No.  4499  in  tlie 
recorder’s  office  of  Cook  County.  Said  document  was  there- 
804  upon  marked  plaintiff’s  Exhibit  A-12  and  is  as  follows: 


^ ^ Subdivision 
123  by 

Edward  E.  Hunter, 
R.  I.  Gavin,  La- 
throp  Johnson  and 
Robert  Davidson. 
Doc.  4499. 


Map  recorded  Januarv  5,  1837,  in 
Book  H.,  page  268  (NeW  Book  H.  of 
Maps,  page  99),  entitled  ^‘Emmets- 
burg.”  being*  a subdivision  of  W.  ^ of 
N.  W.  frl.  i Sec.  30,  with  10  acres  on  the 
N.  end  of  the  W.  ^ of  S.  AY.  d taken 
parallel  with  N.  Boundary  line,  all  of 
which  are  in  Section  30,  T.  37,  R.  11  E. 


(See  Atlas  p.  3940;  Trans.,  p.  6549;  Abst.,  p.  1922.) 

Counsel  for  complainant  then  offered  in  evidence  (from  the 
official  Gazette  of  the  United  States  Patent  Office  for  July  7,  1903), 
a description  of  certified  copy  of  United  States  letters  patent.  No. 
733010,  for  the  propellation  of  vessels,  being  the  ^‘Coen”  patent 
referred  to  by  the  witness  Fox.  (Said  letters  patent  appear  in  Ap- 
pendix II,  p.  3891;  Trans.,  p.  5860;  Abst.,  p.  1725.) 

Said  certified  copy  follows : 

A copy  of  the  drawing  referred  to  in  said  patent  is  also  shown 
in  the  Abstract,  p.  1727. 

Here  follows  the  certificate  of  C.  C.  Billings,  Assistant 
805  Commissioner  of  Patents,  that  the  annexed  is  a true  copy 
of  the  letters  patent  of  Charles  M.  Coen,  granted  July  7, 
1903,  for  improvement  in  apparatus  for  the  propellation  of  ves- 
sels. 


Here  follows  grant  of  letters  patent  by  E.  B.  Moore,  Acting 

806  Commissioner  of  Patents. 

807  Here  follows  diagram  of  patent. 

Here  follows  specification  forming  part  of  letters  patent, 

808  No.  733,010,  dated  July  7,  1903. 

809  Here  follows  certificate  of  Commissioner  Charles  L.  Binns, 
Notary  Public,  dated  April  20,  1908. 


390 


813  Depositions  of  Arthur  C.  Clement,  W.  W.  Stevens,  H.  H. 
Spoor,  Urias  Bowers,  Isaac  M.  Johnson,  Mikrel  Anderson, 
Geo.  S.  Wightman,  Jas  B.  Flanders,  Geo.  W.  Kaymond, 
Obediah  Hicks,  Francis  V.  Belz,  Henry’  B.  Pohl,  Geo.  A. 
Perrent,  Geo.  Abbott,  Edwin  D.  Brockway',  Lisle  Tanner, 
AVm.  Found,  Eliza  P.  Jones,  Paul  W.  Jones,  D.  W.  King, 
Charles  Hoy’,  Frank  Paeddock,  Eugene  Daly’,  Charles 
Clay",  Charles  E.  Kerchival,  Joseph  Countryman,  Jacob 
Blaess,  Samuel  Gatons  John  W.  Taylor,  L.  F.  Conant, 
John  McCowan,  James  H.  Ferris,  and  Charles  Dimick. 

(Filed  April  18,  1908.) 

Commissioner  certifies  said  witnesses  were  produced,  sworn 
and  examined  on  their  oaths,  on  February  19,  1908,  and  thereafter 
on  days  to  which  hearing  was  continued  by  agreement  of  parties, 
at  the  office  of  Frederick  A.  Hill,  Master  in  Chancery  of  Will 
County,  Illinois,  jiursuant  to  the  attached  notice,  and  by  stipula- 
tion and  agreement  of  counsel. 

Said  witnesses,  being  first  duly  sworn,  testified  as  follows : 

Here  follows  notice  of  taking  of  depositions  attached  to  said 
• introduction. 

815  Venue:  Caption  of  cause. 

Notice  addressed  to  defendant’s  counsel  that  on  AYed- 
nesday,  February  19,  1908,  at  10  o’clock  A.  M.,  before  Frederick 
A,  Hill,  a Master  in  Chancery  of  the  Circuit  Court  of  Will  County, 
Illinois,  in  Joliet,  depositions  of  witnesses  named  will  be  taken, 
said  taking  of  said  depositions  to  be  continued  from  day  to  day, 
until  completed. 

816  Complainant  deems  the  testimony  of  said  witnesses  neces- 
sary in  said  cause.  Witnesses  named:  AV.  "VV.  Stevens,  H. 

H.  Spoor,  Urias  Bowers,  Edward  D.  Brockway,  Mhn.  AV.  Stevens, 
Geo.  A.  Parrent,  H.  B.  Pohl,  A.  C.  Clement,  G.  AY.  Baymond,  D. 
W.  King,  Geo.  S.  AYightman,  G.  M.  Hollenbeck. 

‘AYe  shall  also  at  the  time  and  place  aforesaid  take  the 
de])ositions  of  other  witnesses,  to  be  read  in  evidence  on  the 
part  of  the  complainant  in  the  above  entitled  cause.  Dated 
Chicago,  III.,  February  7,  1908.  Signed  by  solicitors  of  com- 


:]9l 

plainant.  Acknowledgment  of  receipt  of  notice  hy  Tsliam, 
Lincoln  & Beale,  solicitors  for  defendant. 

817  Here  follows  copy  of  said  notice,  to  which  is  attached  the 
following  stipulation: 

“Chicago,  February  22,  1908. 

The  further  taking  of  depositions  under  the  foregoing  no- 
tice, now  set  by  the  said  Frederick  A.  Hill,  for  Friday,  Feb- 
ruary 28,  1908,  is  at  the  request  of  defendant’s  counsel  con- 
tinued by  agreement  to  Wednesday,  March  4,  1908. 

‘ W.  H.  Stead, 

Walter  Beeves, 

' Merritt  Starr, 

For  Complainant . 
Tsham,  Lincoln  & Beale, 

For  Defendant. 

819  Here  follows  the  following  stipulation.  Venue  and  ca])tion 
as  before. 

“Stipulation. 

It  is  hereby  stipulated  by  and  betv/een  ('ounsel  for  the 
parties  in  the  aboye  entitled  cause,  that  iMr.  Fred’k.  A.  Hill, 
the  master  before  whom  depositions  are  to  be  taken  on  the 
])art  of  the  complainant  in  said  cause,  under  notice  hereby 
attached,  may  cause  the  testimony  of  the  witnesses  to  be 
taken  in  shorthand  by  stenographers  and  then  typewritten 
from  stenographers’  notes. 

It  is  also  stipulated  that  the  witnesses  need  not  sign  their 
testimon}^  after  it  is  so  taken. 

It  is  further  stipulated  that  the  stenographers’  fees  may, 
after  being  adyanced  in  the  first  instance  by  the  party  on 
whose  behalf  testimony  is  taken,  be  taxed  as  ]^art  of  the  costs 
as  the  court  may  allow,  the  stenographers’  and  typewriters’ 
fees  to  apply  hereafter  only  to  the  one  official  copy,  this  stip- 
ulation howeyer,  shall  not  be  a waiyer  of  the  objections  made 
by  defendant  to  the  taking  of  depositions  before  answer 
filed. 

(Signed)  William  H.  Stead, 

Walter  BsEyES, 

Merritt  Starr^ 

Charles  A.  Munroe,  For  Complainant. 

Solicitor  for  Defendant. 

Arthur  C.  Clement, 

a witness  for  complainant,  testified  as  follows : 

-Direct  Exa Jiiination . 

821  I am  56  years  old,  was  born  here  in  "Will  County.  Haye 
always  liyed  here  except  an  absence  in  boyhood  prior  to  the 

time  I w^as  ten  years  old.  I haye  liyed  right  on  the  banks  of  the 


392 


Clement y — Direct  Exam.— Continued. 


Desplaines  and  gone  up  and  down  the  river  in  boats  from  an  early 
l^eriod  of  my  life,  practically  every  year,  say  from  1864  to  1900. 
I have  not  boated  on  the  river  since  the  drainage  canal  water 

822  was  turned  in.  I had  a boat-house  at  the  lock  at  Jetferson 
street  bridge,  kept  in  it  a clinker-built  keel  boat,  14  feet  long, 
capable  of  carrying  about  a thousand  pounds.  I loaded  it  to 

823  the  full  capacity  on  the  river  lots  of  times.  Before  that  I 
had  a flat-bottomed  boat  14  feet  long  but  smaller  than  the 
clinker.  After  that  I got  a 16  foot  boat,  also  a canoe,  also 
a half  interest  in  a semi  flat-hottomed  boat,  also  I had  a sail 

824  boat  there.  The  semi  flat-bottomed  boat  drew  a foot  of  water 
loaded.  It  would  carry  seven  to  eight  hundred  pounds.  The 

said  boat  was  22  feet  long  and  drew  two  feet  of  water  and  would 
carry  probably  three  tons.  I did  not  use  that  on  the  river.  We 
went  with  that  hy  way  of  the  I.  and  M.  Canal  on  the  Chicago 
River  and  Lake  Michigan  up  to  Chicago  and  to  Lake  Superior. 

825  We  did  use  it  on  one  or  two  experimental  trips  in  the  upper 
basin  through  the  upper  locks  and  up  to  the  tow-path  bridge 

on  the  Desplaines  once  or  twice.  MTien  I was  using  the  river  or- 
dinarily from  the  middle  of  May  until  October  I was  down  on  the 
river  nearly  half  the  time. 

I started  in  life  as  an  attorney  and  followed  it  up  by  the  loan 
and  real  estate  business.  Since  1895  I have  kind  of  retired. 

As  to  the  depth  of  water  in  the  river,  there  was  plenty  ex- 
cept that  up  the  rapids  this  side  of  Brandon’s  bridge  and  a little 
below  and  the  rapids  at  Treat’s  Island.  There  was  no  trouble 

826  in  running  a boat  down  there  that  would  draw  even  three 
feet  of  water,  if  you  knew  the  channel.  Between  Lockport 
and  a point  two  miles  above  Joliet  the  river  is  not  navigable 

827  for  small  boats.  From  Malcolm’s  dam  down  to  the  mouth 
there  was  plenty  of  water  until  you  got  down  about  a half 

mile  this  side  of  Brandon’s  bridge.  There  was  a shallow  place 
there  amongst  the  bowlders.  I had  no  trouble  in  running  a row 
boat  there,  if  I knew  where  to  go,  drawing  fifteen  inches  of  water. 
Then  you  had  clear  sailing  if  you  knew  the  channel,  right  straight 
through  to  Treat’s  Island.  There  you  took  the  left  hand  channel 
going  down,  that  is  the  east  channel.  That  was  the  deepest  chan- 
nel. Ahont  one-third  of  the  way  down  the  island  there  used  to 


393 


be  an  old  dam,  I think,  or  something.  There  was  tlie  shallowest 
place.  I have  grounded  there  a great  many  times ; sometimes 
I had  to  get  out  and  pull  it  over.  Generally  I could  pole  it 
over. 

The  length  of  that  shallow  place  was  not,  I don’t  think,  over  100 
feet.  After  that  the  water  was  deep  until  about  the  mouth 

828  of  the  DuPage  River.  There  you  had  to  know  the  channel, 
or  a boat  drawing  fifteen  inches  might  strike  bottom.  Then 

you  had  clean  sailing  until  just  below  the  aqueduct  there  was  an 
old  dam  used  to  be  there  and  you  passed  through  a rather  nar- 
row channel  there.  Below  that  it  was  all  bowlders  for  half  a 
mile  to  the  mouth.  If  you  dodged  the  bowlders  you  were  all 
right.  If  you  did  not  you  would  come  to  grief.  These  were  loose 
bowlders.  There  would  be  about  three  or  four  inches  over  the 
top  of  them,  maybe  two  feet  of  water  between  them.  The  bowlders 
were  about  three  feet  in  diameter,  a great  many  of  them.  There 
was- plenty  of  water  between  the  bowlders  if  you  could  dodge  them. 
About  1885  I made  a trip  from  here  to  a mile  below  the  junction 
of  the  Kankakee  and  Desplaines  Rivers  and  returned  on  the  canal 
the  same  day,  making  a trip  of  about  32  miles  from  eight 

829  o’clock  in  the  morning  until  ten  at  night.  That  was  prob- 
ably either  in  June  or  September;  there  was  no  trouble  on 

the  water  that  trip.  I made  two  carries,  one  from  the  canal  into 
the  river,  one  from  the  Illinois  River  into  the  canal.  We  did 

830  not  have  to  pole  at  all  that  trip.  The  boat  loaded  as  it  was 
drew  between  twelve  and  fifteen  inches.  We  put  in  oppo- 
site the  oatmeal  mill,  about  three-quarters  of  a mile  below  Jef- 
ferson street. 

At  that  time  a boat  drawing  two  feet  of  water  would  find  the 
river  navigable  in  the  condition  it  then  was. 

If  the  loose  bowlders  were  removed  and  the  hundred  feet 
of  shallows  were  excavated  at  Treat’s  Island,  and  the  bowlders 
at  the  mouth  and  at  Brandon’s  bridge  were  removed,  I could  run 
a boat  carrying  three  feet  of  water  on  that.  I presume  in  the 
neighborhood  of  three-quarters  of  a mile,  taking  all  these  three 
together,  would  have  to  be  cleared  out  before  you  could  get  through 
drawing  three  feet  of  water. 


394 


The  part  of  the  river  up  near  Lockport  I could  not  run  a row- 
boat on,  and  did  not  go  there. 

832  Lake  Joliet  before  the  deep  cut  was  put  through  was  quite 
deep,  in  some  place  more  than  sixteen  feet.  Lake  Joliet  is 

833  about  five  to  five  and  a half  miles  long.  Mount  Joliet  would* 
be  almost  at  the  head  of  the  lake,  about  a half  mile  down 
from  the  head.  Mount  Joliet  has  been  pretty  near  all  carted 

834  away  by  being  used  for  gravelling  and  clay  for  tile  drains. 
The  mound  is  now  pretty  near  level.  They  were  carting  it 
away  in  1863.  The  place  above  Joliet  where  we  could  not  get 

835  through  was  a very  rocky  channel  and  there  was  not  wmter 
enough  there  to  float  a boat  over.  That  extended  about  two 

miles.  The  back  water  from  dam  number  one  went  up  to  Wood’s 
Island.  I never  went  above  that. 

Witness  is  shown  Cooley  profile  wdiich  is  marked  for  identifica- 
tion Exhibit  1 of  Complainant’s  Depositions.  Witness  was  un- 
able to  make  use  of  the  profile. 

836  C ross-Examinati  o n . 

North  of  Joliet  I have  seen  the  river  from  the  train  as  far  up 
as  Lockport. 

837  For  a mile  and  a half  to  two  miles  north  of  Wood’s  Island 
you  could  not  run  a small  boat  either  way.  My  boat  house 
was  in  the  vicinity  of  the  guard  lock  at  Jetferson  street. 

The  I.  and  M.  canal  and  the  Desplaines  were  coincident  at 

838  that  point.  When  I went  down  the  river  I generally  went 
through  the  locks  into  the  canal  and  pulled  the  boat  over  at 

the  Malcolm  dam  or  below  there  at  the  oatmeal  mills.  Then  I 
ran  down  the  rapids  past  Brandon’s  bridge  and  so  on  to  the 
mouth  of  the  river.  There  was  a stone  dam,  the  Jetferson  street 
dam,  across  the  river  just  at  the  boat-house.  That  dam  formed 
what  was  known  as  the  lower  basin  of  the  I.  and  M.  canal.  I 
went  in  the  canal  as  far  down  as  Malcolm  dam.  That  dam  used 
to  extend  north  of  McDonough  street.  It  is  gone  now.  A 

839  man  who  was  an  experienced  oarsman  could  descend  the 
river  from  Malcolm  dam  to  the  head  of  Lake  Joliet  with 

safety,  but  would  have  lots  of  trouble;  the  trouble  would  come 


395 


from  shallow  water  and  bowlders.  I would  not  say  lie  would  be 
in  danger  of  being  overturned;  I never  knew  of  anyone  being 
tipped  over  there  in  ordinary  water.  It  is  not  a fact  that  very 
few  people  went  down  the  river.  T can  remember  a good  many. 

Prom  the  head  of  Lake  Joliet  to  Treat’s  Island  there  are 

840  rapids.  Treat’s  Island  is  a little  less  than  half  a mile  long. 
After  passing  the  foot  of  Treat’s  Island  down  to  what  is  now 
Smith’s  bridge  it  was  dead  water  half  the  way,  and  then  the 

841  current  began,  and  passing  under  Smith’s  bridge  there  was 
plenty  of  good  current.  Passing  the  mouth  of  the  DuPage 

there  is  a good,  heavy,  swift  current.  After  that  the  current 
slowed  down  until  I got  about  to  the  cut-otf,  and  there  it  is  ]>rac- 
tically  dead  water  until  you  ]>ass  the  a({ueduct.  Prom  the  aque- 
duct to  its  mouth  it  is  good  water  until  you  get  to  where  the  old 
dam  was  and  there  there  was  a narrow  channel  through.  I 
should  say  there  was  at  least  three  feet  of  water  there.  Below 
that  you  entered  into  about  a half  mile  of  bowlders,  about  three 
feet  of  water  in  depth  between  the  bowlders. 

Q.  At  the  mouth  of  the  Desplaines  isn’t  the  current  very  rapid, 
boiling?  A.  I should  not  say  so;  there  is  a good  heavy  cur- 

842  rent  above  the  mouth. 

Q.  And  the  water  is  in  waves  from  the  rapid  declivity? 
A.  Unless  it  was  high  water  it  was  not,  but  since  the  drainage 
canal  turned  their  water  in,  why,  it  is. 

Q.  Was  it  worse  in  low  water  ! A.  If  it  was  as  you  describe 
it,  I would  have  smashed  a boat  there,  and  I have  been  through 
there  a thousand  times,  I guess,  and  I never  smashed  a boat 
there  yet. 

If  a man  did  not  understand  a boat  I don’t  think  he  had  any 
business  there. 

Q.  The  man  who  attempted  it  was  considered  somewhat  of  a 
dare-devil!  A.  No,  I don’t  think  so.  I never  heard  of  people 
being  capsized  there.  I never  was.  I ran  right  through  there  at 
the  mouth  of  the  Desplaines  without  any  trouble,  did  not  hit 

843  a rock  on  the  passage.  Went  a clean  shoot  from  here  down 
there.  I came  up  on  the  canal  in  ’85  because  it  is  easier  to 

pull  a boat  in  dead  water  sixteen  miles  than  to  pole  it  up  against 


396 


Clement, — Cross-Exam. — Continued. 


the  current.  I could  have  brought  it  hack  by  the  river.  I would 
have  paddled  it  and  poled  it  and  rowed  it. 

Q.  Do  you  think  you  would  have  had  to  get  out  and  pull  it? 
A.  Well,  I have  done  that  at  Treat’s  Island.  I have  brought  it 
back  without  getting  out  hundreds  of  times.  I have  paddled  a 
boat  up  that  stretch  of  the  river  from  the  aqueduct  to  the  mouth 
of  the  Desplaines  right  up  the  current.  The  current  was  not 

844  too  swift.  I paddled  about  as  well  as  an  Indian.  There  is 
no  trouble  of  going  up  that  stretch  of  river.  I have  been 

down  there  with  boat-loads  of  passengers  who  were  green  and 
could  not  help  me  any  at  all,  hardly,  and  I got  up  the  river  from 
the  junction  to  Joliet  as  far  as  Brandon’s  bridge.  I have  done 
it  time  and  time  again.  Sometimes  I did  get  out  of  the  boat.  It 
was  easier  to  get  out  and  pull  a little  than  it  was  to  work  in 
the  rapids.  It  is  not  a fact  that  just  below  the  junction  of  the 
rivers  there  was  not  sufficient  water  to  float  a boat  or  that  it  was 
necessary  to  one  going  up  or  down  that  stretch  to  get  out  and 
pull  the  boat  along.  I never  had  any  trouble  of  that  kind. 

There  is  a place  down  below  the  junction  about  a mile  and  a 
half  where  there  are  some  sand  bars.  That  is  in  the  Illinois  Eiver. 
I have  got  into  difficulties  there.  It  is  not  a fact  that  at 

845  Treat’s  Island  at  most  seasons  of  the  year  you  have  to  get 

out  and  pull  the  boat  by  hand.  I will  pull  a boat  up  there 

with  oars  or  a paddle  any  time.  My  boat  drew  about  fifteen 
inches  when  it  was  heavily  loaded.  My  boats  were  good 

846  grades  of  row-boats,  $50  row-boats.  I remember  the  depths 
of  water  as  far  back  as  1865.  There  was  more  water  after 

the  deep  cut  went  in  in  1872,  I think.  I have  paddled  a row-boat 
from  the  mouth  of  the  Desplaines  Kiver  up  the  river  to  Mal- 
colm’s dam  between  the  years  1865  and  1871.  I would  not  say 
that  I did  it  without  ever  getting  out  of  the  boat.  It  was  done  for 
pleasure. 

Q.  Have  you  stated  to  any  one  within  the  last  thirty  days 

that  it  was  perfectly  absurd  to  contend  that  the  Desplaines 

Eiver  was  a navigable  river!  A.  I don’t  think  I said  that. 

847  I made  the  remark  that  I understood  that  the  Desplaines 
Eiver  was  not  a navigable  river,  and  that  the  Su])reme  Court 

of  this  state  had  determined  it  was  not  navigable. 


397 


(At  the  trial,  counsel  for  complainant  moved  to  strike 
out  the  answer  ‘‘I  don’t  think  I said  that”  and  the  volunteer 
statement  which  follows  that  ‘‘I  made  the  remark  that  I 
understood  the  Desplaines  River  was  not  a navigable  River, 
and  the  Supreme  Court  of  this  state  determined  that  it  was 
not  navigable.”  Motion  overruled.) 

(Said  ruling  appears  on  Trans,  pp.  2597-8.) 

Q.  And  did  you  not  in  that  connection  state  that  you  knew 
of  your  own  knowledge  it  was  not  navigable,  because  you  had 
])een  obliged  to  get  out  and  pull  a row  boat,  even  in  places  in  the 
Desplaines  River?  A.  I don’t  remember  saying  that.  I would 
say  it  now,  because  I have  got  out. 

(At  the  trial  the  counsel  for  the  complainant  moved  to  strike 
out  the  above  answer  on  the  ground  that  it  was  not  respon- 
sive. Motion  overruled.) 

(Said  ruling  appears  on  Trans,  p.  2598.) 

Q.  As  a lawyer  and  a man  who  is  familiar  with  the  Des- 
plaines River,  and  knowing  that  the  river  is  not  a navigable  river 
that  is  capable  of  carrying  commerce  in  the  ordinary  way  in 
which  commerce  is  carried  on ; I ask  you  whether  or  not  in  your 
opinion  the  Desplaines  River  is  a navigable  river? 

Counsel  for  Complainant.  The  question  is  objected  to,  as 
not  cross-examiantion,  and  as  embracing  elements  of  supposed  ^ 
legal  determination  by  the  Supreme  Court,  which  should  be  sep- 
arated from  the  question;  so  that  that  element  can  be  judged  of 
separately.  The  witness  probably  refers  to  the  case  which  has 
been  cited 'by  counsel  for  defendant  in  the  argument  for  an  in- 
junction in  this  case,  in  which  it  is  stated  in  the  opinion  of  the 
court  that  it  was  stipulated  by  the  parties  that  the  river  was  not 
navigable,  and  which  is  the  only  reference  to  that  subject  which 
occurs  in  the  decisions  of  the  Supreme  Court;  where  the  owner 
of  the  dam  on  one  side,  and  the  Commissioners  of  the  canal  on  the 
other,  which  desired  to  obtain  and  make  use  of  the  water  of  the 
river;  one  for  the  purposes  of  his  mill,  and  the  other  for  the 
848  purposes  of  their  canal ; and  where  the  parties  having  mutual 
interest  that  the  river  should  be  considered  as  non-navigable, 
which  is  the  only  decisions  by  our  court  upon  the  navigability  of 
the  Desplaines  River. 


398 


Mr.  Muneoe.  I object  to  the  argument  and  dissertation  of  Mr. 
Starr,  and  move  that  it  be  stricken  out  as  entirely  improper. 

Witness.  I have  always  understood  that  the  Desplaines  Kiver 
was  non-navigable. 

(The  trial  court  having  ruled  at  a prior  point  in  the  trial 
that  the  objection  of  the  complainant  above  mentioned  was 
sustained,  counsel  for  defendant  subsequently  again  called  the 
attention  of  the  court  to  the  said  objection  in  connection  with 
the  direct  examination.  Thereupon  the  court  ruled.  Objec- 
tion overruled.) 

(Said  ruling  appears  on  Trans,  p.  2597.) 

Q.  From  your  knowledge  of  the  Desplaines  Kiver,  I ask  you,  in 
your  opinion,  whether  or  not  the  Desplaines  Kiver  ever  was  or 
now  is  capable,  without  improvement,  of  carrying  commerce  in 
the  ordinary  way  in  which  commerce  is  carried  on  in  this  country? 

Counsel  foe  Complainant.  The  same  objection  made  to  all  the 
questions  before  may  be  considered  to  each  and  all  of  them  re- 
peated here. 

(The  trial  court  having  ruled  at  a prior  point  in  the  trial 
that  the  objection  of  the  complainant  above  mentioned  was 
sustained,  counsel  for  defendant  subsequently  again  called  the 
attention  of  the  court  to  the  said  objection  in  connection  with 
the  direct  examination.  Thereupon  the  court  ruled.  Objec- 
tion overruled.) 

(Said  ruling  appears  on  Trans,  p.  2597.) 

A.  Why,  in  its  present  condition  you  couldn’t  carry  on  com- 
merce. Of  course,  I understand  you  can  put  a flat  bottomed 
boat  on  a river  and  put  a wheel  on  the  back  end  and  navigate 
it  in  three  feet  of  water. 

Q.  That  the  currents  in  this  river  are  such  that  you  simply 
could  not  go  up  it  or  go  down?  A.  I don’t  think  the  currents 
are  that  way.  Certain  points  in  the  river  are  too  shallow  for 
it,  even  now. 

(At  the  trial,  counsel  for  complainant  moved  to  strike  out 
the  above  answer  as  not  responsive.  Motion  overruled.) 

849  I have  never  seen  any  fences  across  the  Desplaines  River 
at  any  point,  and  I have  been  down  the  Desplaines  Kiver  every 
year  from  1865  to  1899.  I heard  the  first  time  I went  down  in  1865 


that  there  were  fences  across  the  river  down  near  tlie  month  of 
the  DnPage  and  that  it  was  dangerous  to  run  there  and  strike 
those  fences,  hut  I went  down  and  I didn’t  find  them  and  I never 
did.  I don’t  know  that  there  were  any  fences  maintained  during 
that  period  by  Mr.  Adler  at  Sinitli  street,  nor  l)etween  Soutli 
street  and  Brandon’s  road.  I liave  gone  down  tlie  J)esplaines 
Kiver  in  times  of  high  water.  There  was  no  difficulty  then. 

850  It  was  easy  then.  I did  not  come  up.  There  was  too  much 
current.  I could  row  my  boat  up.  I would  be  willing  to  bet 

I could.  I did  not  want  to. 

Re-direct  Examination. 

Q.  Your  statement  on  cross-examination  of  your  opinion  as  to 
the  non-navigability  of  the  river  is  meant  to  apply  to  the  river 
without  improvements  in  the  respect  you  mention  in  your  direct 
examination  by  the  removal  of  boulders  and  excavations?  A.  No, 
sir;  I always  understood  that  the  river  was  non-navigable.  I 
don’t  know  exactly  what  navigability  means,  to  tell  the  truth. 
I have  always  understood  from  other  attorneys,  that  the  decisions 
of  the  Supreme  Court  were  always  that  it  was  non-navigable,  and 
I always  regarded  it  as  that.  But  not  having  any  clear  idea 

851  in  my  own  mind  what  navigability  means,  I haven’t  got  any. 

Q.  And  having  given  your  impression  from  the  statements 
from  other  attorneys,  you  were  repeating  opinions  so  obtaineds 
in  answer  to  Mr.  Munroe’s  question?  A.  Yes,  sir;  I never  have 
looked  it  up. 

Q.  You  don’t  mean  to  be  now  understood  as  expressing  an 
opinion  of  your  own  on  that  subject?  A.  I have  no  opinion. 

Jefferson  street  dam  is  gone  out,  the  drainage  people  took  it 
out  about  1898.  The  old  dam  near  Treat  Island  was  across  one 
branch.  There  is  none  showing  there  at  all  except  that  the 

852  water  was  shallow  at  that  point.  The  other  shallow  point 
was  incident  to  an  old  dam  about  three-quarters  of  a mile 

below  the  aqueduct.  There  is  nothing  there  to  show  what  kind 
of  a dam  it  was,  nothing  more  than  there  were  rocks  there,  did 
not  show  above  the  water. 


400 


Re-cross  Examination. 

There  is  a very  heavy  current  at  McDonough  Street  since 
the  dam  was  taken  out. 

Q.  Assuming  that  dam  number  one  was  not  in  the  river— 

A.  That  is  the  dam  up  above  here? 

Q.  Yes,  sir,  that  is  the  dam  that  the  Economy  Light  & Power 
Company  now  has;  and  solely  upon  your  knowledge  as  to  the 
conditions  in  the  river,  I will  ask  you  to  state  whether  or  not  in 
your  opinion  the  Desplaines  Eiver  is  capable,  in  its  present  state, 
of  carrying  the  commerce  of  this  country  up  and  down  the  river? 

(Objected  to  as  not  re-cross  and  because  the  witness  has  de- 
clared he  has  no  opinion  and  because  of  indefiniteness  and  as 
853  irrelevant,  incompetent  and  immaterial. 

A.  The  rapids  at  the  Saulte  Ste.  Marie  are  16  feet  fall 
there  in  a mile;  and  the  rapids  are  so  stiff  there  that  nothing 
can  go  up  except  in  places  by  professional  Indians  with  poles. 
It  is  a rapid,  the  worst  in  the  country.  And  the  fall  through  here 
to  the  head  of  Lake  Joliet  is  nearly  double  that  amount. 

(At  the  trial,  counsel  for  complainant  moved  to  strike  out 
the  above  answer  as  not  responsive.  Motion  overruled.) 

(Said  ruling  appears  on  Trans,  p.  2598.) 

Q.  I understand,  you  then  answer  my  question  by  saying  no? 
A.  If  that  dam  was  taken  out,  it  would  be  a raging  rapid, 
with  double  the  fall  of  the  Soo  rapids. 

(At  the  trial,  counsel  for  complainant  moved  to  strike  out 
the  above  answer  as  not  responsive.  Motion  overruled.) 

(Said  ruling  appears  on  Trans,  p.  2598.) 

Q.  And  could  not  be  used  for  commercial  purposes? 

Counsel  for  Complainant.  I object. 

A.  If  there  was  water  enough,  you  could  go  down  a-kiting,  but 
you  couldnT  get  up. 

Counsel  for  Complainant.  We  will  enter  a motion  to  strike 
out  the  re-cross  examination.) 

(Ruling  on  said  motion  at  the  trial  of  said  cause:  The 

Court.  I overrule  these  motions  on  the  ground  that  these 


401 


^‘motions  to  strike  out  are  not  made  in  time.  Eef erring  to  the 
specific  motions  made  in  the  trial  court  to  strike  out  specific 
answers  under  the  general  objection  ‘‘to  strike  out  the  whole 
re-cross  examination’’  made  at  the  taking  of  the  deposition. 
Said  ruling  appears  on  Trans,  p.  2599.) 

William  W.  Stevens^ 

a witness  for  complainant,  testified  as  follows : 

Direct  Examination. 

My  name  is  William  Wallace  Stevens;  my  age  78.  I have  lived 
in  Will  County  since  November,  1855,  was  born  in  Eumford,  Maine, 
came  to  Illinois  in  November,  1855.  My  first  place  in  Illinois  was 
at  the  Old  National  Hotel.  My  first  work  was  teaching  school 

855  in  Dresden,  Grundy  County.  I went  down  there  the  same 
month  I came.  I finished  that  school  in  March,  ’56,  and  came 

back  here  until  September.  I read  law  with  Parks  & Elwood 
here  in  Joliet  and  became  a lawyer.  I have  been  an  editor  of  the 
Joliet  Eecord  from  1880  to  1900.  I have  made  a study  of  the  his- 
tory of  Will  County  and  published  a book  on  the  history  of  Will 
County.  There  was  a histoiy  of  Will  County  published  prior 

856  to  mine.  It  was  prepared  by  George  H.  Woodruff.  He  was 
one  of  the  old  residents  of  the  city  here.  He  came,  I think, 

in  the  spring  of  1834.  I knew  him  well  from  the  time  I first 
came  here  until  his  death  in  1890.  As  matter  of  current  repu- 
tation and  history  of  Joliet  and  WTll  County  I was  acquainted 
with  the  standing  and  acceptation  of  the  history  that  he  pub- 
lished. It  was  of  good  standing.  He  has  a name  as  a his- 

857  torian  since  publishing  that  book.  This  book,  marked  for  iden- 
tification Complainant’s  Exhibit  2,  is  Woodruff’s  history  of 

Will  County  that  I have  referred  to,  and  was  published  by  Wil- 
liam LeBaron,  Junior,  & Company,  186  Dearborn  Street,  Chicago, 
1878.  I did  not  know  Perrin  or  Hill.  Mr.  "Woodruff  was  the 
first  recorder  of  Will  County. 

Passage  from  page  607  introduced  in  evidence  as  Complain- 
ant’s Exhibit  2 as  follows: 

858  “The  Kankakee  being  navigable  for  small  steamers  to  the 
eastern  point,  an  outlet  is  thus  furnished  for  the  upper  por- 
tion. Though  navigation  has  been  improved  by  the  building 
of  dams  at  Wilmington,  it  has  in  reality  been  used  for  that 
purioose  during  wet  seasons  since  the  earliest  settlements  of 


402 


Stevens, — Direct  Exam. — Continued. 


‘‘the  adjacent  country.  As  early  as  1834  the  products  of  the 
farm  were  boated  down  the  Kankakee  to  the  Desplaines  and 
up  the  latter  river  to  Chicago.  It  is  related  that  during  the 
year  named  some  parties  loaded  a boat  on  Sugar  Creek,  a 
tributary  to  the  Iroquois  with  300  bushels  of  oats,  300  bushels 
859  of  wheat,  and  some  hams,  with  the  design  of  taking  them  to 
Chicago  to  supply  the  garrison  stations  there.  The  trip  down 
the  Kankakee  was  accomplished  without  accident  or  unusual 
trouble,  but  after  entering  the  Desplaines,  when  near  Treat’s 
Island  the  boat  di]>ped  water  and  so  dampened  the  grain 
that  they  were  obliged  to  unload  and  try  to  dispose  of  their 
produce  at  that  point.  At  the  time  settlers  were  arriving  in 
that  neighborhood  quite  rapidly  and  they  had  no  trouble  in 
disposing  of  their  whole  cargo,  the  oats  at  50  and  the  wheat 
at  75  cents  per  bushel.  At  present  small  steamers  owned  by 
Messrs.  Small  of  Wilmington  and  Stephen  F.  Hanford,  of 
Warner’s  Landing  ply  regularly  between  these  points  and 
Chicago,  carrying  to  that  city  corn,  oats,  rye  and  other  prod^ 
nets,  and  bringing  back  lumber,  salt  and  other  heavy  articles. 
The  “landing”  which  is  located  near  the  eastern  point  of 
the  township  is  considered  the  head  of  navigation  during 
the  dry  season,  but  when  the  river  is  ordinarily  full  boats  can 
run  much  higher.” 

The  title  page  and  preface  of  the  book  are  as  follows: 

861  “The 

History 

of 

Will  County, 

Illinois, 

containing 

A History  of  the  County — Its  Cities,  Towns,  &c.,  a Directory 
of  Its  Real  Estate  Owners;  Portraits  of  Early  Settlers 
and  Prominent  Men;  General  and  Local  Statistics; 

Map  of  MTll  County;  History  of  Illinois,  Il- 
lustrated; History  of  the  Northwest,  Il- 
lustrated; Constitution  of  the  United 
States,  Miscellaneous  Matters. 

&c.,  &c.,  &c.. 


ILLUSTKATED. 


Chicago : 

AVm.  Le  Baron,  Jr.,  & Co.,  186  Dearborn  Street, 


1878. 


862  PREFACE. 

]n  ])resenting  our  History  of  Will  (’ounty,  we  deem  a few 
prefatoi’y  words  necessary.  We  have  S])ared  neither  pains 


403 


nor  expense  to  fulfill  our  engagement  with  our  patrons  and 
make  the  work  as  complete  as  possible.  We  have  acted  upon 
the  principle  that  justice  to  those  who  have  subscribed,  be 
they  few  or  many,  requires  that  the  work  should  be  as  well 
done  as  if  it  was  patronized  by  every  citizen  in  the  country. 
We  do  not  claim  that  our  work  is  entirely  free  from  errors; 
such  a result  could  not  be  attained  by  the  utmost  care  and 
foresight  of  ordinary  mortals.  The  General  History  of  the 
County  was  compiled  by  Hon.  Geo.  H.  Woodruff,  of  Joliet, 
and  the  Township  histories  by  our  historians,  W.  H.  Perrin 
and  H.  H.  Hill.  Some  of  the  Township  Histories  are  indeed 
longer  than  others,  and  have  been  the  scenes  of  more  import- 
ant and  interesting  events.  While  fully  recognizing  this  im- 
portant difference,  our  historians  have  sought  to  write  up 
each  township  with  equal  fidelity  to  the  facts  and  information 
within  their  reach.  We  take  this  occasion  to  ])resent  our 
thanks  to  all  our  numerous  subscribers  for  their  patronage 
and  encouragement  in  the  ])ublication  of  the  work.  In  this 
confident  belief,  we  submit  it  to  be  the  enlightened  judgment 
of  those  for  whose  benefit  it  has  been  prepared,  believing  that 
it  will  be  received  as  a most  valuable  and  complete  work. 

The  Publishees.  ” 

863  This  book  you  now  show  me  is  a bound  volume  of  the  Joliet 
Signal  for  the  years  1846,  1847  and  1848.  It  is  kept  in  the 

public  library  and  is  a part  of  the  public  library  of  Joliet.  The 
library  label  of  the  book  is,  ‘^Joliet  Public  Library.  Eeference 
Book.  Not  to  be  taken  from  the  library.  Class  No.  E071JS.  Ac- 
cession No.  1057.” 

I was  acquainted  with  the  Joliet  Signal  as  a newspaper  from 
the  time  I resided  in  Will  County.  It  ceased  to  be  pub- 
lished in  1900.  It  was  published  regularly  as  a weekly 
newspaper  at  the  time  I came  to  Will  County  and 

864  continued  to  be  all  the  time  up  to  1900.  It  was  a news- 
paper in  general  circulation  in  Joliet  and  Will  County  at  that 

time.  My  information  from  the  current  reputation  and  history  of 
Joliet  and  Will  County  is  that  that  paper  was  in  general  circula- 
tion in  Joliet  and  Will  County  in  the  years  1846,  1847  and  1848. 

Complainant’s  Exhibit  3 offered  in  evidence  appearing  in  the 
paper  under  the  heading  ‘Moliet  Signal,  Joliet,  Illinois,  Tuesday,  * 
June  8th,  1848.” 

(Eeading)  : ''Appalling  accident.  Ten  Men  Drowned.  It 

becomes  our  duty  to  record  a most  painful  accident  which 
happened  yesterday  morning,  about  fourteen  miles  south  of 


404  W.  W.  Stevens, — Direct  Exam. — Continued: 

this  place,  on  the  Desplaines.  A boat  containing  sixteen  men 
was  sunk,  and  only  six  of  the  number  were  saved. 

^‘It  appears  that  they  were  at  work  on  the  canal,  and  board- 
ed on  the  opposite  side  of  the  river,  and  when  returning  from 
their  breakfast,  the  boat  was  sunk  by  a yoke  of  oxen  which 

865  was  on  board  becoming  ungovernable  and  moving  so  near 
one  end  as  to  cause  it  to  fill  with  water.  It  was  just  above 
Beard’s  mill,  and  in  about  twenty  feet  of  water.  We  learn 
that  the  bodies  have  been  recovered. 

‘^It  is  reported  that  C.  Delmore,  John  Dougherty,  P. 

O’Neill,  Turner,  Jas.  Dunn  and  Chas.  Kelly 

of  this  place  are  among  the  drowned.  The  names  of  the  oth- 
ers we  have  not  learned.  Five  of  those  who  made  their  escape 
were  from  this  place,  viz:  David  Major,  J.  Kelly,  J.  Mulhol- 
land,  C.  Stevens  and  James  Davilin.” 

866  I have  made  a study  of  the  early  history  of  northern  Illi- 
nois and  Will  County.  I wrote  the  book  which  was  published 

by  S.  J.  Clark  & Company,  Chicago,  in  1907,  entitled  ‘‘Pasf 
and  Present  of  Will  County,  Illinois”.  I knew  the  late  George 
H.  Woodruff  well ; I heard  him  lecture  on  that  subject. 

867  I have  been  connected  with  the  Will  County  Old  Settlers’ 
Society,  the  Will  County  Pioneers’  Association  a good  many 

years,  and  I have  been  president.  It  was  organized  in  1880  and  has 
continued  in  existence  to  the  present  time.  I united  with  it  about 
fifteen  years  ago  and  have  been  an  officer  all  of  the  time  since. 
It  had  about  150  members  when  I joined.  I was  personally  ac- 
quainted with  the  greater  portion  of  them  at  that  time. 

868  Mr.  Woodruff,  whose  lectures  I have  heard,  was  a member 
of  the  organization.  The  lectures  were  printed  in  his  life 

time  in  the  Joliet  Eepublican  here  when  James  Goodspeed  was 
the  editor,  and  were  afterwards  published  in  book  form  and 
bound  in  with  another  book. 

I have  a copy  of  the  book  here. 

The  book  Stevens  Exhibit  4 was  printed  in  1875.  I have  had 
the  book  all  the  time  since  then.  It  is  entitled  ‘‘Directory  of  the 
City  of  Joliet  for  1875,  etc.” 

869  At  the  end  of  the  book  is  a supplemental  title  page  reading 
as  follows: 

“Forty  years  ago.  A contribution  to  the  early  history  of 
Joliet  and  Will  County.  Two  lectures  delivered  before  the 
Historical  Society  of  Joliet,  by  George  H.  Woodruff,  Decern- 


405 


ber  17,  1873,  and  March  24,  1874.  Published  by  James  Good- 
speed,  Joliet.  Joliet  Republican  Steam  Printing  House,  1874.” 

On  the  reverse  side  of  the  title  page  is  a copyright  memorandum 
as  follows: 

‘‘Entered  according  to  the  Act  of  Congress  in  the  year  1874 
by  James  Goods^jeed,  in  the  office  of  the  Librarian  of  Congress, 
Washington.” 

On  page  5 is  the  title : 

“Lecture  1.  Delivered  at  the  Central  Presbyterian  Church 
in  Joliet,  December  17th,  1873.” 

I was  present.  I heard  one  of  the  lectures.  I am  quite  certain 
it  was  the  first.  I don’t  know  but  I heard  both  of  them.  I pre- 
sume I was  present  at  both.  The  house  was  pretty  nearly 
filled.  There  must  have  been  five  hundred  probably  present, 

870  embracing  the  Old  Settlers  and  others.  Mr.  AVoodrufCs  state- 
ments were  always  accepted  as  true  and  authoritative  on  all 

matters  of  history  in  regard  to  the  settlement  of  AVill  County,  and 
from  that  time  forward  he  was  known  as  the  historian  of  Will 
County.  The  society  to  which  I have  referred  was  called  also 
the  Will  County  Historical  Society.  It  is  the  society  referred  to  on 
the  title  page  and  in  the  preface.  The  preface  is  by  the  late  Judge 
John  M.  Wilson,  of  Chicago,  who  was  formerly  a resident  of 

871  Joliet.  I knew  him  as  a resident  here. 

Counsel  for  Complainant.  I will  offer  in  evidence  the  pas- 
sage on  pages  34  and  35  of  this  supplementary  book  by  Mr.  W^ood- 
ruff  as  follows : 

“But  there  was  also  another  famous  city,  just  over  the  line 
in  another  county,  of  which  a little  Dutchman,  Johnny  Beard, 
was  the  proprietor.  Johnny  thought  this  was  to  be  ‘one  very 
great  city.’  He  made  a splendid  looking  one  on  paper,  with 
the  great  Kankakee  coming  down  from  the  east  and  the  Des- 
plaines  and  Du  Page  united  from  the  north,  the  ‘ City  of  Kan- 
kakee’ reposing  in  native  beauty  at  the  junction.  Johnny  used 
often  to  come  up  with  his  wife  in  a little  old  ‘coachee’  and  was 
always  full  of  his  ‘city.’  He  used  to  squeeze  in  a little  whis- 
key, too;  but  the  old  horses  and  coachee  used  to  take  him 
safe  home,  whether  he  could  drive  or  not.  He  dug  a dam 
across  the  Desplaines,  a little  above  its  junction  with  the  Kan- 
kakee (which  forms  the  Illinois),  and  commenced  building  a 
mill.  But  the  next  spring  the  Kankakee,  which  drains  a greai 
extent  of  country  far  to  the  east  in  Indiana,  got  on  a rampage 


406  JV.  TV.  Stevens, — Direet  Exam.— Continued. 

long  before  the  Desplaines,  which  rises  much  farther  in  the 
north,  and  coming  down  with  its  great  volume  of  water  and 
ice,  dammed  up  the  Desplaines — turned  its  current  northward, 
and  sent  Johnny  Beard’s  dam,  city,  mill  and  all,  a kiting  up  to 
Treat’s  Island,  where  it  deposited  the  fragments.  This  was 
the  last  we  heard  of  ‘Kankakee  City,’  until  some  of  our  citi- 
zens ‘struck  ile’  there  a few  years  since,  and  sunk  a well, — and 
sunk  a little  pile  of  money  too.” 

872  Counsel  for  Complainant.  I will  also  offer  in  evidence  the 
passage  on  page  14,  reading  as  follows : 

“John  Norman  built  a mill  on  this  river” — the  reference  is  to 
the  Desplaines  Eiver — “at  the  head  of  an  island  which  took  his 
name,  just  above  the  penitentiary.  He  built  a dam  across  one 
])rancli,  which  threw  the  current  into  the  other,  in  which  he  placed 
his  wheel,  while  the  shaft  at  the  other  end  connected  with  the  mill 
gearing  in  a log  mill.”  I omit  various  passages.  “I  remember 
visiting  this  mill  in  1834.  The  island  was  then  quite  a romantic 
spot,  being  covered  with  a heavy  growth  of  timber.  The  digging 
of  the  canal  has  almost  obliterated  the  locality.” 

Counsel  for  Complainant.  And  on  page  15  I offer  a statement 
introducing  a list  of  names  as  follows : 

“The  following  are  the  names  of  othpr  settlers  in  those 
localities  now  included  in  the  Town  of  Homer,  and  that  part 
of  Lockport  east  of  the  river,  and  which  were  known  in  early 
days  as  ‘Yankee  settlement,’  ‘Gooding’s  Grove,’  and  ‘Had- 
ley.’ ” 

(On  page  378,  infra,  to  avoid  encumbering  the  record  by  attach- 
ing the  Joliet  Directory  to  the  deposition,  complainant’s  counsel 
gives  notice  that  he  expects  to  read  further  from  that  book  on  the 
hearing  and  will  keep  it  accessible  to  counsel,  and  withdraws  the  at- 
taching of  the  book  as  a whole  to  the  deposition.) 

874  Q.  Where  did  you  live  when  you  first  came  to  Will  County, 
Mr.  Stevens? 

(Ruling  on  said  question  by  trial  court.) 

Counsel  for  Complainant.  Shall  I read  all  of  the  objections! 

Counsel  for  Defendant.  I understand  all  these  objections  are 
reserved. 

The  Court.  Just  mention  the  fact.  They  are  all  reserved. 

Counsel  for  Defendant.  These  questions  and  answers,  if  your 


407 


Honor  please,  about  the  portage,  we  move  to  strike  out  because  he 
does  not  purport  to  state  what  anybody  told  him  and  he  does  not 
show  that  he  knows  anything  about  the  portage. 

The  Court.  I understand. 

(Said  ruling  occurs  on  Trans,  p.  1935.) 

Temporarily  I taught  school  at  Dresden,  Grundy  County,  in  the 
winter  of  1855,  near  the  junction  of  the  Kankakee  and  Des- 

875  plaines.  I returned  here  early  in  March,  1906.  I taught 
school  in  Channahon  in  the  fall  of  1856  and  finished  out  a 

school  in  the  Aux  Sable  in  Grundy  County.  I was  admitted  to  the 
bar  of  Illinois  in  March,  1859.  I am  acquainted  with  the  current 
reputation  and  common  report  as  to  the  early  history  of  the  use  of 
the  Desplaines  by  early  settlers  and  explorers,  that  is,  the  current 
reputation  and  common  report  in  existence  when  I came  here.  I 
inquired  a great  deal.  I was  on  the  river  a great  deal  and  talked 
with  a great  many  of  the  early  settlers  in  regard  to  the  use  that 
was  made  of  the  river  before  the  opening  of  the  canal. 

Q.  What  was  the  current  reputation  as  to  the  early  use  of  the 
river  as  you  so  obtained  it? 

(Ruling  on  said  objection  by  trial  court.) 

The  Court.  The  current  reputation  as  to  the  use.  Its  reputa- 
tion in  1856.  That  is,  what  did  the  people  say  in  1856  as  to  what 
had  been  done  twenty  or  thirty  years  before! 

Counsel  for  Defendant.  Yes.  Most  of  those  people  who  were 
living  there  in  1856  are  living  now  and  are  witnesses  in  this  case ; 
a good  many  of  them. 

The  Court.  It  is  a pretty  old  community,  doubtless. 

Counsel  for  Defendant.  I move  the  questions  and  answers  be 
excluded. 

The  Court.  I will  let  it  stand.  You  want  to  make  them  as  dead 
as  most  of  the  people  there. 

(Said  ruling  occurs  on  Trans,  p.  1936-7.) 

876  AYhen  I first  came  here  most  of  the  people,  the  early  settlers, 
were  then  living,  and  I became  well  acquainted  with  them.  I 

talked  with  them  a great  deal  about  the  early  settlement  of  the 
city  and  county,  not  only  with  Mr.  lYoodruff,  but  with  a great  many 


408  TF.  TF.  Stevens, — Direct  Exam. — Continued. 

others,  among  them  Mr.  Daggett  and  Mr.  Fish  and  the  Schermer. 
horn  family  at  Channahon.  They  came  in  1833  or  ’4.  I boarded 
with  them  in  Channahon. 

Q.  State  in  a general  way  what  the  current  general  reputation 
was  on  that  subject  as  you  received  it  from  them? 

(Objected  to  as  hearsay.) 

877  A.  The  current  reputation  was,  up  to  the  time  of  the  open- 
ing of  the  Illinois  and  Michigan  Canal,  that  the  river  was  used 

more  or  less  for  transportation,  certain  portions  of  it. 

I heard  of  the  lower  part  of  the  river  being  used  for  carrying 
lumber.  Parties  themselves  told  me  they  brought  lumber  up  and 
brought  it  down  to  Kankakee  and  up  the  Desplaines  to  the  mouth 
of  the  Du  Page  and  then  up  the  Du  Page  to  near  their  place  there 
at  Channahon.  I was  told  that  by  John  S.  and  Edward  H.  Jesup. 
I knew  them  well;  was  often  at  their  house  and  talked  with  them. 
They  lived  right  on  the  bank  of  the  Du  Page,  about  one  hundred 
rods  from  its  mouth,  or  practically  at  its  mouth.  It  was  dead 

878  water  from  the  mouth  up  to  that  point.  They  came  in  1834  as 
young  men  with  their  fathers. 

(Objected  to  as  not  being  the  witness’  own  knowledge.) 

When  I was  teaching  school  there  it  was  the  fall  of  the  year. 
I used  to  go  hunting  considerable,  and  Edward  used  to  go  with  me. 
He  took  me  over  to  what  was  called  the  cut-otf  and  then  I first  heard 
of  their  bringing  lumber  from  Kankakee  or  AYilmington  down  the 
Kankakee  and  up  the  Desplaines,  and  he  showed  me  where  they 
used  to  cross  over  in  high  water  from  the  Kankakee  over  in  the 

879  Desplaines  through  the  cut-off.  That  was  before  the  canal  or 
feeder  was  built.  He  told  me  how  they  got  it.  There  was  no 

mill  at  that  time.  Treat’s  Island  mill  was  not  built  until  several 
years  afterwards,  and  Wilmington  was  the  only  place  they  could 
get  lumber  for  use  there  in  Chamnahon. 

He  said  after  they  came  there  with  their  father,  Isaac  Jesup, 
that  they  built  a flat  boat  and  would  go  up  to  Wilmington.  When 
the  wind  was  right  they  could  sail  right  up  the  Kankakee  to  Wil- 
mington with  no  obstructions  at  all.  They  would  load  their  boat 
and  come  back  and  if  the  water  was  high  they  would  come  through 
the  cut-off  into  the  Desplaines  and  up  the  Desplaines  to  the  mouth 


409 


of  the  DuPage  and  up  to  their  little  lumber  yard  they  had  near 
their  house  in  Channahon.  If  the  water  Avas  low  they  would  go 
down  around  and  come  up  the  mouth.  He  spoke  of  having 
made  the  trip  repeatedly  by  both  routes;  that  they  did  that  two 
or  three  years  from  the  time  they  came  there  in  the  spring  of 
1834  to  about  1836  or  ’7.  1837  is  the  time  the  mill  was  built 

880  at  Treat’s  Island.  There  was  a grist  mill  at  Wilmington  at 
that  time  and  the  only  mill  anywhere  around  there. 

They  would  carry  grain  up  to  the  mill  on  a boat.  They  car- 
ried it  not  only  for  themselves  but  for  others  from  farms  in  that 
vicinity. 

The  lumber  was  mostly  hauled  for  others,  as  I understood  it. 
They  got  lumber  as  it  was  needed.  They  were  building  there  a 
good  deal  at  that  time. 

It  was  a flat  bottom  boat  as  they  told  me.  My  recollection 
is  that  it  was  25  to  30  feet  long  and  8 or  10  feet  wide.  They 

881  would  bring  down  with  them  from  four  to  five  thousand  feet 
of  lumber  at  a time.  My  recollection  is  that  it  drew  from  18 

inches  to  two  feet  loaded;  when  it  was  light  it  wouldn’t  draw 
over  8 or  10  inches.  I never  heard  them  say  that  they  had  much 
of  any  difficulty  in  navigating  the  river  as  it  was  then.  Edward 
and  John  Jesup  both  died  a good  many  years  ago.  Their  father 
died  fifty  or  sixty  years  ago. 

I knew  the  late  Mr.  Henry  Pish  in  his  life  time.  He  told 
me  that  he  had  a saloon  at  the  Aux  Sable  locks,  at  the  mouth 
of  the  Aux  Sable  Kiver  Avhere  it  crossed  the  canal.  IVe 

882  used  to  joke  with  him  about  his  tapping  his  barrel  at  each  end. 
He  told  how  he  got  his  whiskey  dowm  there,  and  as  I under- 
stood it  from  him  nearly  all  the  time  he  was  there  it  came  down 
in  boats  from  Chicago.  That  was  the  first  time  I ever  heard  about 
the  cut-off  down  there  at  Chicago  from  the  Chicago  Piver  to  the 
Hesplames.  There  was  a cut-off  there  where  they  went  through 
in  high  water.  There  was  a portage  when  there  was  not  high 
water  and  a water  communication  when  there  was  high  water. 

Q.  Who  told  you  that!  A.  He  told  me  that. 

Q.  Who!  A.  Mr.  Fish. 


410  W.  W.  Stevens, — Direct  Exam. — Continued. 

(Ruling  on  said  question  by  trial  court.  Objected  to.  Over- 
ruled.) 

(Said  ruling  occurs  on  Trans,  p.  1936.) 

That  is  what  Mr.  Fish  told  me.  He  said  they  could  bring  from 
four  to  eight  barrels  of  whiskey  at  a time  in  high  water  by  boats 
from  the  Chicago  River  down  through  the  cut-olf  into  the  Bes- 
plaines  River  and  from  the  Desplaines  down  to  the  mouth  of  the 
Aux  Sable  and  up  the  Aux  Sable  a hundred  rods  or  so  to  where 
his  place  was. 

He  told  me  they  were  Mackinaw  boats.  My  recollection 

883  is  he  said  he  was  there  several  years.  Mdiether  he  got  his 
whiskey  that  way  all  the  time  or  only  in  high  water  I couldn’t 
say.  After  pay  day  he  said  he  sometimes  sold  a barrel  a 
day  to  the  men  on  the  canal. 

884  As  I understand  it  it  was  a matter  of  accommodation  at 
times  that  they  would  bring  down  other  merchandise  or  what- 
ever they  wanted,  tools,  iron  bolts  and  such  like. 

I know  Swalms  or  Davidson’s  quarry  in  Joliet.  I knew  Mr. 
Swalm  very  well.  It  is  located  about  a mile  and  a half  or  two 
miles  southwest  of  Joliet  near  the  head  of  the  lake,  a little  above 
and  opposite,  on  the  other  side  of  the  canal.  It  was  probably  150 
rods  nearly  from  the  river.  I have  seen  the  road  leading  from 
where  the  canal  is  now  down  to  the  river  below  Brandon’s 

885  bridge  many  times.  I think  I first  saw  it  in  1856.  It  was  a 
good  road  across  the  flat  there  and  looked  as  though  it  had 

been  filled  in  with  strippings  from  the  quarry.  There  was  then 
stone  and  other  material  in  the  road  and  it  was  deeply  rutted  as 
though  heavy  teams  had  gone  down  there  with  heavy  loads.  At 
its  terminus  at  the  river  bank  it  came  to  a deep  hole  that  was  in 
the  river  at  the  head  of  the  lake.  There  is  a sort  of  a bend  in 
the  north  end  of  the  lake  and  the  deep  hole,  and  from  there  on 
down  it  was  still  water.  It  looked  as  though  it  had  beenm  land- 
ing place,  I don’t  recollect  of  any  dock. 

They  told  me  at  the  time,  and  it  was  the  current  reputation  that 
it  had  been  used  to  haul  stone  from  Swalm ’s  quarry  down  to  the 
river  there  and  load  it  onto  boats.  I don’t  know  what  for. 

886  I have  used  the  river  myself  a good  deal.  I have  been  up 
and  down  the  river  a good  many  times  up  to  twenty  years 


411 


ago,  that  is,  about  1885,  from  the  time  I first  came  here.  I have 
been  up  and  down  with  boats.  I have  been  down  with  teams  and 
crossed  it  at  various  places  and  fished  it  and  hunted  it  a great 
deal. 

In  July,  August  and  September  the  water  was  generally  low, 
especially  when  you  got  below  Treat’s  Island,  but  in  the  spring 
and  fall  there  was  a good  stage  of  water  always.  We  used  a 
two-oared  and  a four-oared  row  boat.  We  had  from  three  to 
six  of  us  in  the  boat.  There  were  six  of  us  at  once  that  went 

887  down  and  camped  below  Kock  liun.  AVe  all  went  down  in 
a boat  together;  that  was  in  the  fall  of  the  year,  about  half 

way  up  the  lake  from  Treat’s  Island,  two  and  a half  to  three 
miles  up  the  river.  We  had  our  tent  and  camp  equipage  and 

888  provisions.  It  was  a four-oared  boat,  18  to  20  feet  long.  The 
outfit  would  be  250  to  300  pounds.  The  boat  must  have 
drawn  from  18  inches  to  two  feet  of  water. 

889  I identified  this  history  of  AYill  County  by  George  H.  AYood- 
ruff  in  my  former  testimony. 

Counsel  for  Complainant.  I will  read  in  evidence  here  page  251 
of  that  book. 

(Objection  as  incompetent,  irrelevant  and  immaterial.) 

(Eeading.) 

John  Norman  erected  the  first  flouring  mill  in  Joliet.  * * * 
About  opposite  the  penitentiary  there  was  an  island  in  the 
Desplaines  heavily  wooded,  a romantic  spot  where  the  writer 
often  went  in  search  of  plants  and  flowers.  At  the  head  of 
this  island  across  one  channel,  Norman  built  a brush  and 
gravel  dam,  which  threw  the  current  strong  upon  the  other 
side.  Near  this  he  built  a log  mill.  His  wheel  was  placed  in 
the  current  and  the  shaft  running  into  the  mill  turned  the 
machinery  which  ground  the  grain.” 

Counsel  for  Complainant.  I also  give  notice  to  counsel  on  the 
other  side  that  we  expect  to  read  from  this  book  more  at  large 
at  the  hearing. 

890  The  Joliet  Directory  of  1875  (in  which  the  Woodruff  lec- 
tures are  published)  was  in  general  use  and  circulation  in 

Joliet  in  the  year  1875  and  the  years  following.  It  was  the  only 
one  published  at  that  time.  I don’t  think  there  was  any  one  pub- 
lished after  that  until  1881,  ’2  or  ’3,  somewhere  along  there.  I 


412  ir.  ir.  St  evens,- — Direct  Exam. — Continued.. 

liave  always  taken  and  preserved  the  directories.  I have  a large 
number  on  hand  now.  This  directory  was  in  general  use  and 
circulation  from  1875  to  1880.  There  was  no  other  in  use. 

I know  Alexander’s  quarry.  I have  been  there  twice  since 

891  the  first  testimony  was  taken  in  the  case  in  January.  Mr. 

Johnson  and  Mr.  Anderson  went  with  me  the  last  time.  AVe 

went  to  examine  the  quarry.  M^e  went  all  through  it,  from  one 
end  to  the  other,  examined  it  thoroughly,  and  saw  the  floor  of 
the  quarry.  There  were  leaves  on  it,  hut  no  indication  that  it 
had  ever  been  excavated  lower. 

They  measured  the  stones.  My  recollection  is  that  twenty 
inches,  I don’t  know,  twenty  inches,  or  perhaps  two  feet,  was 
the  thickest.  I didn’t  pay  attention  to  that.  They  attended  to 
the  measurements  and  I looked  after  some  other  things. 

We  also  counted  the  piers  of  the  Kankakee  aqueduct.  I had 

892  a man  take  a boat  and  we  went  out  all  around  the  piers  and 

across  the  river.  The  thickest  stone  in  the  piers  were  26 

inches  thick.  There  was  no  stone  as  thick  as  that  in  the  quarry. 

There  was  no  indication  of  any  ledges  thicker  than  20  inches,  I 
think  it  was. 

I have  known  the  witness  Comstock  well  for  forty  or  fifty  years. 
I had  a conversation  with  him  on  the  subject  of  bo/ its  coming  up 
the  Desplaines  Eiver. 

Q.  You  may  state  whether  or  not  he  made  any  statement  to 
you  as  to  boats  coming  up  the  Desplaines  Eiver  and  the  method 
by  which  they  came  up? 

(Objected  to  as  immaterial  and  improper.) 

(Euling  on  said  objection  by  trial  court.) 

The  testimony  of  what  Mr.  Comstock  may  have  said  to  him 
was  held  inadmissible,  and  thereupon,  the  residue  of  the 
deposition  to  end  of  the  direct  examination  was  omitted. 

Counsel  for  Defendant.  It  seems  to  begin  with  “Q.  Do 
you  know  when  Mr.  Comstock  came  to  AVill  County — .”(  read- 
ing) 

That  deals  with  the  other  incident. 

Counsel  for  Complainant.  Yes,  I think  you  will  find  a 
great  number  of  those.  It  goes  on  to  the  bottom  of  page 
259,  and  if  you  are  going  to  leave  out  that  Comstock  portion, 
you  certainly  ought  to  leave  out  from  the  beginning  of  the 


41 :] 

cross-examination  down  to  the  question  on  page  o59  where  it 
says  ‘‘Do  yon  remember  along  in  the — 

I think  in  fairness,  if  counsel  is  going  to  omit  the  cross-ex- 
amination, he  should  omit  the  three  or  four  questions  x^reced- 
ing  the  questions  and  answers,  all  of  which  are,  “ Do  you  know 
Comstock!’’  “Was  he  a good  man?”  etc. 

Counsel  fok  Defendant.  I think  that  point  is  well  taken 
so  that  it  should  he  left  out  fi*om  the  l)eginning  of  the  cross- 
examination  and  commencing  on  page  359:  “Do  you  remem- 

ber having  an  interview  within  tlie  last  two  months  or  so  with 
Mr.  Charles  Kercheval  and  Mr.  Charles  A.  Atunroe?” 

(Said  rulings  a|opear  on  Trans.  ]).  1941.) 

Said  omitted  portion  of  said  deposition  is  al)stracted  as  fol- 
lows : 

He  came  to  my  office  one  day  and  T asked  him  if  he  knew  any- 
thing about  boating  on  the  river.  He  said  he  didn’t  know  any- 
thing about  the  river  anyway,  that  he  was  hardly  ever  on  the 
river,  but  had  surveyed  uj)  and  down  the  banks  and  knew  some- 
thing of  it.  We  talked  for  perhaps  half  an  hour.  He  was  very 
deaf.  I had  to  halloo  in  his  ear.  I asked  him  if  he  didn’t 

893  know  anything  about  boats  carrying  stone  down  the  river,  and 
he  said  he  didn’t.  I asked  him  how  they  got  those  large 

boats  up  over  the  rapids  at  Treat’s  Island.  “A¥hy,”  says  he, 
“they  warped  them  up;  they  put  a tackle,  fastened  at  the  end 
of  the  bow  of  the  boat,  and  they  would  take  the  tackle  away  up 
the  river  and  tie  it  to  a tree  and  draw  the  boat  to  that  and 
take  the  tackle  up  to  another  tree  and  work  on  over  the  rapids.” 
“AYell,”  says  I,  “how  long  would  it  take  them  to  get  up  over 
the  rajuds  there?”  “Well,”  says  he,  “it  would  not  take  them 
over  half  an  hour.” 

That  conversation  was  probably  four  or  five  weeks  ago.  (Testi- 
mony was  being  taken  March  4th,  1908.) 

(Bight  of  further  examination  in  direct  of  witness  Stevens  is 
reserved,  but  he  is  submitted  for  cross-examination  because  coun- 
sel have  expressed  a desire  to  cross  examine  him  this  afternoon.) 

894  Cross-Examination. 

I think  Mr.  Comstock  came  to  MTll  County  with  his  father 
somewheres  about  1834  or  ’36;  I don’t  know  exactly.  He  has 
been  here  some  twenty-one  years  longer  than  I. 


414 


I never  noticed  anything  wrong  about  his  faculties  except  his 
hearing.  I was  asking  him  if  he  knew  of  boats  carrying  stone 
down  the  river  to  the  aqueduct  and  he  said  he  didnh.  Says  I, 
‘^Did  you  ever  know  of  any  boats  going  up  and  down  the  river!” 
And  he  said  ‘^No,  not  j^articularly,  ” or  something  of  that  kind, 
and  I don’t  know  whether  I said  it  to  catch  him  or  how  it  was, 
Init  I wanted  to  know  if  he  did  understand  anything  of  it,  and 
I asked  him  that  question,  that  I didn’t  understand  how  they  ever 
got  those  big  boats  back  over  the  rapids  there. 

895  Q.  When  he  was  describing  the  warping  of  boats  wasn’t 
he  describing  how  it  was  done  on  other  rivers!  A.  Well, 

he  might  have  so  understood  it,  hut  1 particularlii  mentioned  get- 
ting the  boats  hack  over  the  rapids  at  Treat’s  Island. 

Q.  He  might  not  have  heard  you  say  Treat’s  Island!  A.  Well, 
he  might  not ; but  I said  it  nevertheless.  He  might  have  under- 
stood it  in  that  way,  but  I certainly  asked  him,  that  I didn’t  under- 
stand how  they  got  those  big  boats  back  over  the  rapids  at  Treat’s 
Island,  and  he  said  they  warped  them  up. 

He  was  not  talking  about  any  other  part  of  the  United  States. 
We  had  not  talked  of  any  other  river  than  this  one.  I had  not  asked 
him  about  any  other  river  and  he  didn’t  talk  about  any  other  river 
that  I recollect  of.  I might  have  asked  him  about  the  Kankakee, 
but  it  was  about  this  river  here,  how  far  up  and  down  the  river 
he  had  been  and  all.  He  didn’t  remember  of  any  boat  going  up  and 
down  and  he  said  he  hadn’t  heard  of  boats  carrying  stone  dowm 

896  the  river.  He  answered  me  readily  and  I understood  it  to 
mean  that  he  understood  what  I asked  him,  because  he  was  a 

man  of  intelligence. 

Yes,  Mr.  C.  A.  Munroe  and  Mr.  Charles  E.  Kercheval  came  to 
my  office  last  month  and  talked  about  my  affidavit  and  knowledge 
of  the  river.  My  statements  to  them  were  correct.  I had  no 

897  desire  to  attempt  to  conceal  anything  or  fool  anjffiody.  I was 
describing  the  thing  as  I believed  it  and  understood  it  at  that 

time.  I discussed  the  fact  that  one  of  the  Jesup  boys  had  brought 
some  lumber  down  the  Kankakee  Eiver  to  Channahon.  My  recol- 
lection is  that  he  was  eighteen  to  twenty  years  old  when  he  came 
there  and  his  brother  was  older,  about  twenty-four.  That  was  in 
1834.  That  conversation  with  me  was  when  I was  teaching  school 


415 


there  at  Channalion  in  the  fall  of  185()  and  7.  I commenced  tliere 
the  first  week  in  September  and  taught  until  along  in  January.  I 
went  hunting  with  Edward  several  times.  It  was  when  we  went 
over  the  cut-off  to  hunt  he  used  to  tell  me  what  a splendid  place 
that  was. 

898  I don’t  recollect  going  to  the  cut-off  with  Air.  Jesup  but 
once  or  twice.  I went  with  several  ]>arties  there.  It  was  very 

convenient  to  go  v/ith  him  as  he  lived  right  near  there  and  had  a 
boat.  We  would  go  down  the  DuPage  into  the  Desplaines  then  the 
Desplaines  to  the  cut-off,  and  up  that. 

The  testimony  I gave  was,  as  I recall  it,  the  substance  of  what 
the  two  Jesups  told  me  in  the  fall  or  winter  of  185(i-7.  I recall  of 
one  or  two  other  parties  there  going  with  them  and  carrying  grain 
to  get  ground,  and  they  would  help  navigate  the  boat  to  pay  for 
their  passage.  I told  Kercheval  and  Alunroe  that  Air.  Jesu})  told 
me  of  carrying  grain  to  AVihnington,  but  not  on  a wagon. 

899  I am  positive  that  I never  mentioned  a raft  to  them  directly 
or  indirectly.  I think  it  would  be  almost  impossible  to  float 

a raft  up  the  Desplaines  against  the  current.  I didn’t  say  to  you 
that  that  was  the  only  time  that  Jesup  used  the  Kankakee  or  Des- 
plaines. There  were  two  Jesups.  I recall  staying  at  Air.  John 
Jesup ’s  house  several  years  afterwards  and  in  the  evening  he  told 
the  story  of  his  early  life  there  in  Channalion  and  how  he  spent 
his  time  and  about  his  bringing  lumber  fi*om  AVilmington  down  the 
Kankakee.  That  is  John  Jesup.  Edward  was  a younger  brother. 

His  father’s  name  was  Isaac  Jesup,  and  after  he  came  there  with 
his  father  they  built  a small  flat  boat  and  used  it  for  that  purpose. 

Nobody  told  me  about  the  dam  at  the  mouth  of  the  Des- 

900  plaines  Eiver.  There  was  not  a dam  there.  That  was  in  1834 
and  1835. 

They  didn’t  get  any  corn  ground,  as  I understood  it,  except  when 
they  carried  it  for  other  parties.  I don’t  know;  they  might  have 
carried  some  for  themselves,  but  other  parties  would  go  with  them 
and  they  would  help  navigate  the  boat  and  they  would  bring  their 
grain. 

Q.  AVho  went  with  them?  A.  I recollect  Air.  Isaac  Schermer- 


416  Stev  ens, — C ross-Exam . — C ontinued. 

liorn;  I boarded  with  him.  He  told  me  about  going  to  Wilmington 
through  the  cut-off. 

It  enters  the  Desplaines  on  the  east  branch  within  a mile 

901  north  of  the  aqueduct.  They  told  me  they  brought  their  boat 
down  the  Kankakee  Eiver  and  up  the  Desplaines  when  the 

water  was  too  low  in  the  cut-otf.  The  saw  mill  at  Treat’s  Island 
was  commenced  in  1836  and  finished  in  1837.  The  grist  mill  was 
built  shortly  afterwards.  I got  that  information  from  parties  who 
knew.  The  Jesups  told  me  that  after  the  saw  mill  was  built  at 
Treat’s  Island  they  didn’t  have  to  go  so  far  for  their  lumber. 

My  recollection  of  it  is  that  the  saw  mill  was  commenced  in  1836 
and  finished  in  1837. 

902  M^hen  I first  came  here  in  1855  I saw  the  end  of  an  old  dam 
on  the  Desplaines  Eiver  there  at  the  mouth;  I never  heard  of  a 

dam  there  except  one  that  was  built  in  the  fall  and  went  out  the 
next  spring.  That  is  a historical  fact,  I never  could  find  out  that 
there  was  any  dam  there  that  amounted  to  anything  and  lasted  long. 
There  are  some  of  the  boulders  of  the  foundation  there  still. 

903  I have  seen  it  many  times.  I don’t  recollect  much  about  it.  I 
recollect  some  logs  sticking  into  the  bank  on  the  north  side  of 

the  river  and  some  boulders  lying  on  the  logs.  That  was  probably 
fifty  years  ago.  It  was  a little  ways  up,  might  have  been  a hundred 
rods  or  a half  mile  from  the  mouth;  it  was  between  the  aquediu^t 
and  the  mouth. 

Mr.  Fish  told  me  he  brought  his  whiskey  down  the  Desplaines 
Eiver;  it  was  in  the  spring  of  the  year  and  it  was  practically  im- 
possible to  get  to  Chicago  and  back  with  a team.  Teams  did 

904  do  it  in  the  summer  time  when  the  water  was  not  high.  There 
were  no  bridges  across  the  sloughs  and  flat  places,  and  they 

couldn’t  get  to  Chicago  with  a team  except  when  the  water  was  low 
and  when  the  ground  was  dry.  I have  got  that  information  from 
many  a person.  I couldn’t  give  the  names  of  any  persons.  It  was 
general  conversation  that  there  were  several  months  in  each  year 
it  was  impossible  to  get  from  here  to  Chicago  with  a team.  I asked 
Air.  Fish  how  he  got  his  whiskey  down  there  when  the  roads  were 
bad,  and  he  said  they  brought  it  down  in  boats.  AVhether  it 

905  was  more  than  one  time  or  forty  times  I couldn’t  tell.  I 
couldn’t  give  the  year.  I think  he  went  there  about  1837  or  ’8, 


417 


and  lie  was  there  three  or  four  3^ears.  I talked  with  him  several 
times  about  it.  He  didn’t  talk  about  how  they  got  the  boats  back; 
they  might  have  sailed  it  back  or  warped  it  back,  as  Mr.  Comstock 
described. 

I didn’t  see  Woodruff’s  manuscript  before  it  was  printed.  My 
knowledge  as  to  Mr.  Woodruff  writing  these  books  is  what  he  told 
me.  He  told  me  he  had  written  that,  that  is,  the  history  and 

906  the  lectures.  He  came  to  AVill  County  in  1864. 

The  passage  in  it  that  said  1878  ‘Mioats  are  now  plying  be- 
tween Wilmington  and  Kankakee  City  and  Chicago,  carrying 

907  grain,”  went  this  way.  They  went  down  the  Kankakee  Eiver 
through  the  Kankakee  lock,  what  is  called  the  upper  lock  there 
above  the  feeder,  into  the  feeder,  down  the  feeder  into  the 

908  canal  and  right  up  to  Chicago.  They  didn’t  go  into  the  Des- 
plaines  Eiver  except  in  the  basin,  but  in  1834 — as  to  the  stone 

from  the  quarry  I said  1 was  told  they  were  loaded  onto  boats  and 
taken  down  the  river.  I said  I understood  that  they  were  used 
in  building  the  aqueduct  piers. 

909  I don’t  recollect  the  names  of  the  persons  that  told  me.  I 
used  to  live  down  there.  I didn’t  see  the  stones  shipped  up.  I 

made  an  affidavit  in  this  case  about  the  20th  of  December.  There 
was  one  mistake  in  date  in  it  which,  when  you  called  my  attention 
to  it  I had  corrected.  It  said  1855  when  it  should  have  been 

910  1835.  It  should  have  stated  it  as  information  and  belief.  I 
heard  these  boats  were  loaded  with  whiskey  and  loads  of  corn. 
They  were  Mackinaw  boats.  I have  seen  a great  many  of  them. 

911  Mr.  Fish  told  me  they  brought  down  three  or  four  barrels  of 
whiskey.  He  may  have  told  me  the  size  of  the  boats.  He  said 

it  was  brought  down  for  him.  I never  heard  of  teams  going  back 
and  forth  to  Chicago  every  day  from  the  Aux  Sable.  I never  knew 
of  a stage  being  built  so  as  to  carry  a barrel  of  whiskey.  It  was 
about  twenty  years  before  my  day,  some  of  it.  When  I hear 

912  good  men  tell  me  things  that  are  true  I take  it  for  granted  it 
is  a fact,  especially  such  a man  as  Mr.  Woodruff  or  the  Jesups. 

I knew  them  well.  I cannot  at  this  late  date  describe  every  instance 
that  I have  heard  of  the  river  having  been  used  for  commercial 
purposes,  not  at  this  late  date.  It  is  too  long  ago.  Personally  I 
don’t  know  of  the  commercial  uses  of  the  river.  I did  not  say  that 


418 


tlie  boat  coming  up  to  Treat’s  Island  and  Fish  carrying  his  whiskey 
down  and  Jesnp  bringing  his  lumber  were  the  only  instances  I knew. 

I said  I knew  those  as  instances. 

913  I have  heard  of  the  rafts  coming  down ; I have  heard  of  boats 
coming  down.  I can’t  remember  for  fifty  years  any  better 

than  yon  can.  Mr.  Woodruff’s  lecture  was  not  over  thirty-five  years 
ago.  It  is  only  what  they  told  me,  what  the  two  Jesups  and  Mr. 
Schermerhorn  and  Mr.  Fish  told  me  and  whaf  I got  from  Mr.  Wood- 
ruff’s lectures  and  his  book.  There  is  no  impression  about  it. 

914  I take  that  to  be  a fact.  Yes,  I make  the  statement  now  that 
the  river  was  commercially  navigated  for  at  least  six  months 

each  year. 

I am  employed  by  the  State  of  Illinois  in  this  case.  I was  first 
retained  some  time  in  November.  I have  been  interviewing  wit- 
nesses and  procuring  witnesses.  I have  got  a few.  I went  down 
to  see  Mr.  Feed  at  Stark  County;  I went  to  Aurora  and  some  other 
jdaces.  I suppose  I am  in  their  pay.  They  haven’t  said  any- 

915  thing  about  it  and  I haven’t  asked  them.  Mr.  Riley  asked  me 
to  attend  to  this.  He  is  the  representative  and  he  said  he 

wanted  I should  take  charge  of  it  and  would  see  that  I got  my  pay, 
but  I haven’t  got  anything  yet. 

Directory  withdrawn  from  attachment  to  the  deposition  and  no- 
tice that  complainant  would  read  further  from  it  at  the  hearing  and 
keep  it  accessible. 

Harlow  H.  Spoor, 

a witness  for  complainant,  testified  as  follows: 

D i rect  Exa  mi  nation. 

916  My  birthday  was  July  3,  1820.  I was  born  in  Lyons  Town- 
vship,  Ontario  County,  New  York. 

I landed  in  Chicago  and  came  to  Kendal  County  September  20, 
1844.  I took  up  my  residence  in  Will  County,  Jackson  Town- 
!)17  ship,  as  a school  teacher  November  2,  1844.  I made  a settle- 
ment there  in  the  spring  of  ’44,  bought  real  estate  there,  made 
my  residence  there  until  ’54,  when  I came  to  Joliet. 

The  attention  of  the  witness  is  directed  to  the  item  from  the 
Joliet  Signal,  June  8,  1847.  Asked  whether  he  knew  of  that 
918  event.  ‘H  recollect  of  hearing  of  it  at  the  time.” 


419 


The  attention  of  the  witness  is  directed  to  the  passage  read 
from  Woodruffs  History  in  the  deposition  of  Mr.  Stevens,  about 
the  boat  coining  up  the  river  with  grain  and  di])])ing  water  at 

919  Treat’s  Island. 

I remember  of  hearing  of  tlie  circumstances,  it  was  the 
current  report  by  men  that  I believed  to  be  truthful  and  had  no 
interest  in  it  other  than  that. 

920  I knew  George  W.  Eeed.  He  had  a farm  about  three  miles 
from  where  I lived.  It  was  in  Reed’s  grove.  His  father  held 

a good  deal  of  property  in  Will  County  and  held  a farm  there.  He 
inherited  it  from  his  father.  I was  acquainted  with  him  as  a young 
man,  grown. 

I taught  school  at  Jackson’s  Grove.  I knew  William  Goodingy 

921  the  chief  engineer  of  the  canal,  by  reputation,  not  jiersonally. 
I knew  Mr.  Matthewson,  the  surveyor  on  the  canal,  very  well. 

Cro  ss-Eoca  m i n at  ion. 

I did  not  have  to  go  to  Chicago  before  going  to  Jackson’s 

922  Grove.  I went  to  Chicago  in  1845.  I went  afoot  part  of  the 
way  and  got  a ride  with  a man  with  a load  of  grain.  I followed 

the  river  part  of  the  way  on  the  west  side.  There  was  a wagon 
road.  We  met  some  teams.  They  hauled  their  grain  by  wagon. 
I don’t  thing  they  hauled  it  by  boats  because  they  had  no  way  of 
hauling  them.  I don’t  know  that  I ever  heard  of  a boat  going  from 
Joliet  to  Chicago  on  the  Desplaines  with  grain  or  merchandise,  that 
is  not  about  their  going  through  the  whole  length  of  it,  only  this 
circumstance  about  the  boat  load  of  grain  I was  telling  you 

923  about.  That  was  common  report  at  the  time.  I know  some- 
thing about  the  rivers.  I crossed  the  river  at  one  time,  and 

only  once  I guess  at  the  mouth  of  the  Desplaines  where  it  goes 
into  the  Kankakee  I crossed  in  a buggy.  In  some  places  it  was 
pretty  deep  and  some  of  the  places  it  was  rather  shallow.  There 
was  a fording  place  there  and  they  had  stones  marked  out  to  show 
the  drivers  the  current  there.  There  is  no  other  boat  that  occurs 
to  me  now  directly  except  that  one  circumstance. 

As  to  the  men  being  drowned  about  June  8,  1847,  I knew 

924  it  only  by  report.  I never  was  in  the  Desplaines  River  in  a 
boat  myself.  I saw  some  of  them  in  Lake  Joliet  and  down 


420 


below  there.  They  had  a saw  mill  at  the  foot  of  Treat  Island.  I 
saw  them  working  on  a dam  on  one  side  of  the  river  to  turn  the 
water  on  the  other  side  of  the  island  for  a saw  mill.  They  used 
to  have  a mill  there  and  we  got  our  lumber  sawed  there  at  the 
mill.  The  dam  was  across  only  one  channel.  It  was  across 

925  the  west  side  of  the  river.  I saw  the  relic  of  a mill  at  Treat 
Island  in  1831.  It  had  been  abandoned;  it  was  not  in  operation. 

It  was  a log  mill.  The  dam  at  Treat  Island  only  went  from  the 
island  to  the  west  shore.  I don’t  think  it  went  clear  across  the 
river.  I first  went  to  Treat  Island  in  1845  and  was  there  several 
times.  I went  to  Beardstown.  I don’t  recollect  whether  there  was 
a saw  mill  there  or  not.  I never  examined  the  river  down  at 

926  Beardstown.  I came  here  in  1844  and  in  ’46  I went  to  cutting 
lumber  to  build  a house  and  got  the  logs  in  Trautman’s  grove 

and  hauled  them  to  Treat  Island  to  the  saw  mill  to  get  them  sawed. 
There  was  a saw  mill  on  the  west  side  of  the  Besplaines  Eiver. 
There  was  the  remains  of  a grist  mill  that  was  located  on  the  east 
side  of  the  Besplaines  Eiver.  I could  not  tell  exactly  when  I first 
heard  about  a paragraph  of  this  kind  in  the  book.  I heard  of 

927  a history  of  Will  County  written  a number  of  years  ago.  I 
forgot  who  wrote  it.  I read  some  of  it.  I don’t  know  that  I 

read  it  through.  I think  I remember  having  read  the  passages  that 
were  read  here  about  the  boat.  I don’t  recollect  any  other  boaf 
with  merchandise  on  the  Besplaines  at  the  present  time.  I 

928  may  not  understand  you.  I know  of  their  building  the  feeder 
dam  across  the  Kankakee.  They  had  a boat  they  used  to  tow 

up  the  canal  and  river  and  across  from  one  side  to  the  other  and 
then  it  froze  and  they  had  to  put  on  a pair  of  horses  and  pull  it 
out  of  the  ice.  I could  not  remember  the  precise  date  of  the  boat 
at  Treat’s  Island;  I was  not  interested.  I could  not  say  I ever 
went  and  saw  the  boat.  I could  not  tell  who  owned  the  boat. 

929  I could  not  tell  where  it  was  going  to  or  who  built  it. 


421 


Ukias  Bo  wees, 

930  a witness  for  tlie  defense,  recalled  for  further  cross-examina- 
tion by  the  State: 

(Objection  by  the  defense  to  any  testimony  from  Mr.  Bowers 
except  as  a witness  for  the  state.) 

I have  never  been  up  and  down  the  Desplaines  Eiver  in  boats. 
I have  seen  boats  in  the  canal  and  basin  here  pushing  boats 

931  is  about  all.  I remember  along  in  ’49  or  ’50  seeing  two  large 
boats  come  down  the  river  large  enough  to  carry  three  men 

and  a camp  equipage  in  each  of  them.  I saw  three  men  come  along 
the  two  dams  here  this  dam  here  and  down  to  Haven’s  dam.  Each 
man  had  their  trunk  and  I suppose  cooking  utensils  and  they  put 
them  on  a wagon  and  hauled  them  down  to  Haven’s  dam  on  the 
towpath  and  then  they  put  them  in  the  river  again.  They  hauled 
them  around  the  dams  from  above  dam  number  one  to  below  the 
lower  dam.  The  haul  was  about  three-quarters  of  a mile  long.  We 
heard  that  they  came  from  Chicago  and  were  going  down  to  New 
Orleans  and  then  to  California.  That  is  what  the  report  was.  A 
lot  of  boys  followed  them  down  to  the  dam  when  they  went 

932  over  for  curiosity.  That  was  awfully  hot  weather  at  that  time. 

Examination  bij  Mr.  Munroe. 

They  went  right  over  the  dam  with  their  boat.  There  was  two 
men  rowing  and  one  man  steering  the  boat  to  keep  her  straight 
and  when  they  went  over  the  comb  of  the  dam  they  took  a jump 
and  went  off.  They  came  down  the  I.  and  M.  Canal  as  far  as 
Joliet.  They  went  down  the  river  instead  of  the  canal  because 
they  could  float  with  the  current  faster  than  they  could  pull  them 
down  the  canal.  They  were  called  yawl  boats;  every  steamboat 
has  them.  There  were  two  canal  boats  that  went  over.  One  went 
over  the  lower  dam  and  one  went  over  the  upper  dam  the  same 

933  spring.  The  one  that  went  over  the  lower  dam  broke  in  two. 
The  upper  one  it  did  not  hurt  a particle.  I helped  catch  her 

and  tie  her  up.  The  one  that  came  over  dam  number  one  went  right 
into  the  canal  again.  The  one  that  went  over  the  Jefferson  street 
dam  broke  in  two  and  lodged  on  a little  island  in  the  river  and  lay 
there  until  it  was  broken  to  pieces.  That  is  the  only  canal  boat 


422 


I ever  saw  in  the  river.  That  one  was  broken  to  pieces  by  the 
current.  I have  heard  of  the  fellows  down  there  talking  about 
the  boat  that  capsized  and  drowned  some  men  at  the  aqueduct.  It 
was  no  boat,  as  I understand  it,  it  was  a kind  of  a flat  boat  or 
raft  they  had  for  fetching  stone  for  the  piers  for  building  the 

9 

aqueduct.  I did  not  see  it.  I have  always  understood  that  the  way 
the  boat  came  to  sink  a yoke  of  cattle  on  it  backed  up  to  the 

934  hind  end  of  the  boat  and  sunk  it  so  that  the  cattle  let  the  boat 
over.  My  father  owned  a place  right  opposite  the  Johnnie 

Beard  dam.  I don’t  know  when  that  was  built,  but  it  was  torn 
down  and  everything  tore  away.  This  dam  that  the  Economy  Light 
Power  Company  is  building  is  below  the  Johnnie  Beard  dam,  but 
it  cannot  be  very  far  if  it  is  in  the  Desplaines  River.  The  Johnnie 
Beard  dam  was  below  the  aqueduct  and  went  clear  across  the 
river. 

935  Isaac  M.  Johnson, 

a witness  for  complainant,  testified  as  follows: 

Direct  Examination. 

I live  at  1121  Benton  street,  Joliet.  Have  lived  here  since  ’82. 
1 am  a stone  cutter  by  trade.  Sometimes  ran  stone  quarries.  Have 
been  in  the  business  since  ’79;  followed  it  continuously  since  coming 
to  Joliet.  Am  acquainted  with  the  qualities  and  characteristics  of 
Joliet  stone.  Have  seen  the  piers  of  the  Kankakee  feeder  in  the 

936  Desplaines.  Examined  them  February  17,  ’08.  Mikarl  An- 
derson and  W.  W.  Stevens  were  with  me.  We  went  down  with 

a team  to  the  aqueduct,  got  a boat  and  went  out  and  examined 
the  piers  and  abutments.  There  were  five  piers  and  two  abutments. 
Examined  the  stone  in  most  of  them.  It  was  limestone.  We 

937  took  samples.  We  also  went  to  the  Alexander  quarry  down 
there  in  Channahon.  We  could  not  find  any  layers  of  stone  in 

the  Alexander  quarry  as  thick  as  the  stone  in  the  piers.  The 
stone  in  the  piers  was  from  16  up  to  26  inches  in  thickness.  The 
longest  stone  was  five  feet  three  inches  long,  24  inches  thick, 

938  24  inches  broad.  In  Alexander’s  quarries  we  found  layers  10 
to  20  inches  thick.  We  found  stone  in  the  piers  26.  Some 

part  of  the  ])acl<  stone  in  the  piers  might  be  taken  from  the  Alex- 
ander (quarry.  There  were  back  stones  and  wings  there  in  the  back 
filling  nine  to  twelve  inches  thick,  but  the  dimension  facing  stone 


T don’t  tliiiik  came  from  the  Alexander  (|iiarrv.  It  is  my  o]>inion 
they  came  from  Joliet.  I know  the  Davidson  (iiiarry  in  Joliet,  \ 
am  acquainted  with  the  character  and  quality  of  stone  and  the 
dimensions  of  the  layers  of  stone  in  the  Davidson  (juarry.  in 

939  my  Oi:>inion  it  looked  like  they  came  from  there.  The  biggest 
stone  in  the  piers  I estimated  would  weigh  about  4,000  pounds. 

I figured  it  out  in  cubic  feet  and  called  every  cul)ic  foot  185  pounds. 
That  is  the  standard  of  Joliet  limestone.  There  were  five  ])iers 
and  two  abutments;  at  rough  measure  there  would  be  about  1^,000 
cubic  yards  in  the  whole  thing.  We  had  a push  ])ole  to  measure 

940  below  the  surface  of  the  water.  The  water  there  was  some- 
thing between  five  and  six  feet  deej)  in  two  or  three  places. 

One  ])lace  it  was  87  inches. 

C ro  ss-Exa  m iuafi  oh  . 

Mr.  Stevens  showed  us  the  xVlexander  (juari-y.  We  saw  the  layers 
there.  We  didn’t  know  whose  it  was  except  Mr.  Stevens  said  it 
was  Alexander’s  quarry.  AVe  saw  a man  who  said  he  rented  a farm 
from  Mr.  Alexander.  We  asked  him,  “Is  this  Alexander’s  quarry 
in  Channahon?”  He  said,  “Yes,  this  is  the  old  quarry.”  We 

941  drove  over  a bridge  over  the  river  just  a little  above  there. 
There  was  a fork  in  the  roads  just  a little  below  the  house. 

That  is  the  only  quarry  I know  of  down  there.  I know  about  the 
quarry  at  Drummonds  two  miles  east.  That  was  not  started  until 
the  Santa  Fe  road  was  built.  I was  cutting  stone  on  the  Coal  City 
branch  of  the  Alton  in  the  summer  of  ’82  from  Krohnmeyer’s 
quarry  in  Joliet.  After  that  I heard  of  Drummonds.  I don’t  know 
the  date  it  was  open.  It  was  hard  to  tell  whether  there  was  any 
stone  in  Alexander  ’s  quarry  of  the  same  quality  as  the  stone  in 

942  the  piers.  The  i^iers  they  say  are  52  years  old.  It  was  limestone 
in  the  piers  and  looked  like  Joliet  limestone.  Between  the 

stone  in  Alexander’s  quarry  and  in  Davidson’s  quarry  there  might 
be  a little  difference  in  hardness  and  so  on.  It  is  all  limestone. 
I never  cut  any  at  the  Alexander  quarry.  I cut  some  at  David- 
son’s. In  my  opinion  it  looks  like  it  came  from  Davidson’s 

943  quarry.  Part  of  it  anyway.  I found  such  layers  in  the  David- 
son quarry  and  did  not  find  them  in  the  Alexander  quarry. 

Q.  Do  you  want  to  be  understood  as  saying  there  is  no  layer 


424 


of  stone  in  the  Alexander  quarry  thicker  than  20  inches!  A.  The 
face  of  the  quarry  would  show  if  it  was. 

Q.  One  of  the  witnesses  in  this  case  has  testified  that  he  rode 
on  the  wagons  of  stone  that  came  from  the  Alexander  quarry  that 
went  into  the  aqueduct,  and  that  there  are  layers  of  stone  more 
than  four  feet  in  thickness  in  that  quarry.  A.  Is  that  so? 

944  We  could  see  the  entire  face.  I don’t  know  if  there  was 
more  under  where  we  were,  but  go  there  to-day  and  you  cannot 

see  anything  thicker  than  20  inches.  It  might  he  that  the  pit  had 
filled  with  dirt,  hut  I could  not  swear  that  there  is  thicker  layers 
under  the  dirt.  It  must  he  quite  a few  years  since  the  quarry  was 
worked;  I cannot  swear  to  it.  I know  about  7 or  8 years  ago  when 
I was  on  the  Board  of  Supervisors  we  let  a bridge  in  Channahon 
and  Alexander  took  the  contract  and  said  he  took  the  stone 

945  from  his  quarry.  It  might  be  that  the  quarry  hole  is  filled  and 
there  are  layers  of  stone  under  the  dirt.  Mostly  the  further 

down  you  go  the  bigger  the  strata ; sometimes  it  strikes  into  thinner 
stone.  We  did  not  attempt  to  remove  the  dirt.  I operated  a cj[uarry 
up  here  for  years,  Lajmian’s  quarry,  and  one  on  Cass  street. 

946  I run  three  quarries  all  in  Joliet. 

Mikael  Axdeeson^ 

a witness  for  complainant,  testified  as  follows: 

Direct  Examviation. 

^[y  business  is  working  in  stone  quarries;  has  been  for  23  years. 
I have  lived  in  Joliet  24  years  next  22nd  of  August.  I have  fol- 
lowed the  stone  business  ever  since  I came  here.  I am  a quarry- 
man.  I was  taken  down  to  the  piers  of  the  Kankakee  feeder  and 
Desplaines  Kiver  ]\[onday,  February  I7th.  Mr.  Johnson  and  Mr. 
Stevens  and  I went  together.  IVe  went  first  to  the  aqueduct  piers 
and  then  over  to  the  old  Alexander  quarry.  We  asked  a man 

947  in  the  road  and  he  told  us  it  was  Alexander’s.  I had  never 
been  there  before.  IVe  examined  the  stone  in  the  piers.  AVe 

went  out  in  a boat.  IVe  examined  the  stone,  the  grain  of  them, 
we  measured  them.  I estimated  the  stone  as  a whole  and  took 
samples.  At  Alexander’s  quarry  we  found  stone  from  five 

948  inches  up  to  twenty.  The  largest  was  twenty  inches.  There 
was  not  stone  thick  enough  in  those  quarries  to  come  ii])  to  the 


425 


stones  that  was  in  the  piers.  We  have  got  lots  of  stone  in  Joliet 
of  the  same  quality  and  the  same  thickness  as  the  piers.  Of  course 
if  it  came  from  here  I could  not  say.  We  got  stones  here  in  Joliet 
that  will  answer  the  same  purpose,  the  same  size  and  the  same 

949  quality,  agreeing  with* the  sample  we  took.  There  was  stones 
14  to  16  inches  there  at  Channahon  of  the  same  quality.  We 

did  not  see  any  26  inches  thick. 

950  Cross-Examination  by  Mr.  Munroe. 

There  was  stone  in  the  Alexander  quarry  from  6 to  20  inches 
thick  of  the  same  quality.  I did  not  find  any  stone  over  20  inches 
thick  there.  I did  not  see  any  ledge  of  stone  four  feet  thick  there. 
As  you  go  down  some  layers  get  thicker,  some  thinner.  I cannot 
say  if  the  quarry  was  tilled  up  or  not.  I don’t  know  whether 

951  there  is  a layer  underneath  that  is  three  feet  thick.  The 
ground  was  frozen,  there  was  a little  dirt  in  the  bottom,  the 

bottom  surface  of  the  pit  was  clean  and  fresh  so  that  we  could 
go  right  down  there  and  quarry.  It  was  level.  There  was  a little 
dirt  washed  down  into  the  quarry;  how  much  I could  not  say. 

952  George  S.  Wightmax, 

a witness  for  complainant,  testified  as  follows : 

Direct  Examination. 

I was  50  years  old  February  13,  1908.  I live  at  Plainfield,  Will 
County;  have  never  lived  anywhere  else.  My  mother  came  to 
Will  County  in  ’31  and  my  father  about  ’33  or  ’34.  My  mother’s 
name  was  Susan  Sisson.  Her  folks  settled  on  the  Hanford  farm 
a mile  east  of  Lockport  in  ’31,  and  moved  from  there  north  of 
the  river  in  ’32  or  ’33.  My  father’s  family  settled  in  House’s 
Grove,  Aux  Sable.  My  father  did  not  live  close  to  the  Des- 

953  plaines  until  he  bought  the  old  Sisson  place  in  ’64.  My 
mother’s  family  lived  right  there  all  the  time  before  that. 

The  Aux  Sable  grove  is  just  a little  below  the  mouth  of  the  Des- 
pl allies  in  Grundy  County  on  the  Aux  Sable  river,  running  into 
the  Illinois.  I have  played  and  fished  and  traveled  the  Desplaines 
River  from  Lockport  up  to  Goose  Lake.  That  is  a Avidening  of 
the  river.  Some  very  muddy  and  stringy  holes  in  there.  I have 
been  there  on  ice.  It  makes  a stretch  of  four  and  a half  miles 


426 


that  I was  personally  familiar  with.  That  was  from  ’64  to 

954  ’88,  about  20  years  ago.  My  travels  were  mostly  in  the  May- 
time of  the  year.  At  that  time  Goose  Lake  was  too  deep  to 

wade.  The  river  south  of  that  would  he  about  two  feet  in  the 
shallow  places  and  the  deep  ones  together.  I heard  my  mother 
tell  several  times  about  the  raft  of  logs  going  down  the  river  in 
the  early  days.  That  was  before  I was  old  enough  to  remember 
anything,  and  the  men  having  little  shacks  for  houses  on  the  raft 
and  they  done  the  cooking  in  the  house,  and  they  stopped,  I think, 
a day  or  two  right  there  at  my  grandfather’s  place;  I don’t  know 
how  long.  I heard  her  speak  about  it  many  times.  My  father 
and  mother  are  both  dead. 

955  Cross-Examination. 

I don’t  know  where  the  raft  came  from;  she  said  they  were 
going  down  the  river.  I have  been  at  the  Daggett  mill,  but  that 
was  built  after  that  time.  I never  heard  anything  about  boats 

956  carrying  merchandise  on  the  Desplaines.  I never  heard  any- 
thing to  the  contrary.  I think  my  mother’s  people  came  over- 
land from  Indiana.  I never  used  a boat  on  the  Desplaines  except 
for  fishing  purposes. 

Q.  Is  it  possible  to  go  from  Lockport  north  or  from  Lockport 
south  during  the  summer  months,  the  ordinary  stages  of  water, 
without  getting  out  and  pulling  your  boat  over  the  riffles  every 
little  ways!  A.  Not  in  ordinary  times,  but  I have  seen  times — 
times  I think  a steamboat  could  go. 

Q.  In  ordinary  times,  exclusive  of  flood  periods  when  the  whole 
thing  was  washed  there,  that  is  a low  and  swampy  country,  isn’t 
it!  A.  Yes  sir. 

Q.  Excluding  those  times  of  extreme  high  water  and  taking 
the  ordinary  summer  months,  the  ordinary  conditions  of  water, 
is  it  possible  for  a row-boat  to  be  rowed  up  and  down  the  river 
from  where  your  father  was  without  getting  out  and  pulling  the 
boat  over  the  shallow  places!  A.  Well,  I think  that  when  I first 
went  there  there  was  more  water  running  in  the  river  than  there 
is  at  the  present  time.  I think  the  water  was  more,  and  since  they 
used  that  tiling,  since  that  was  going  on,  that  it  makes  the  river 
low. 


427 


957  To  go  up  and  down  without  getting  out  of  the  shallow^ 
places  it  would  have  to  be  a row  boat.  In  ordinary  stages 

of  water  a row  boat  could  be  taken  down  without  getting  out.  I 
doubt  if  you  could  take  it  up  without  getting  out  l)ecause  of  the 
current. 

Asked  if  there  were  shallow  ])laces  where  it  was  not  more  than 
seven  inches  deep.  “Well,  it  would  have  to  be  a pretty  dry  time 
if  there  was  not  more  water  than  that.  In  ordinary  times  we 
could  run  a boat  with  two  or  three  men  in  it,  that  is  a fishing 
boat  or  a scow  or  a flat  boat,  as  they  call  it,  run  down  stream, 
but  we  never  tried  to  work  back  up  stream,  because  the  cur- 

958  rent  would  be  too  swift.  You  would  have  to  get  out  and  pull 
it  up  the  whole  distance.  There  was  ])ools  and  shallows,  but 

the  shallow  places  would  be,  I should  say,  about  six  inches  to  a 
foot  in  depth,  what  they  call  riffles,  (piite  a good  many  of  them. 
It  was  not  possible  to  walk  across  the  river  on  rocks  and 

959  boulders  in  an  ordinary  season,  not  unless  it  would  be  a pretty 
dry  time.  I have  waded  across  the  river  in  a great  many 

different  places.  I remember  one  season  there  was  not  any  water 
running  over  the  riffles.  That  season  the  fish  all  died.  There  was 
water  from  the  Lockport  bridge  up.  By  our  place  there  was  no 
high  water,  but  right  above  Lockport  where  the  Illinois  and 

960  Michigan  Canal  came  at  that  time  it  was  all  dried  up,  no  cur- 
rent at  all.  Father’s  farm  was  right  here  on  the  map  (point- 
ing to  place  marked  Enshaw  in  the  plat  book  of  Will  County. 

961  Section  10,  Township  36,  N.  R.  10  East)  number  95.  It  had 
a frontage  of  about  a half  a mile  on  the  river.  We  used  a 
pole  fence  across  the  river  to  Fitzpatrick’s  fence.  His  fence 

962  run  up  along  the  river.  That  was  necessary  to  keep  cattle  from 
going  from  one  man’s  land  to  another  man’s  land.  That 

time  when  the  fish  died  and  the  river  was  dried  up  was  “I  don’t 
think  but  a very  short  time.”  It  was  in  August  or  September  as 
near  as  I can  remember.  The  farmers’  wells  were  dry  and  they 
used  to  drive  their  cattle  across  the  channel.  There  were  two 
channels  with  islands  between.  The  water  that  was  in  the  river 
south  of  the  Lockport  bridge  did  not  come  from  the  I.  and  M. 

963  canal;  I don’t  know  where  it  came  from.  I always  under- 
stood it  came  from  up  where  those  locks  were.  They  put  that 

viaduct  there  and  carried  the  water  through. 


428 


Re-direct  Examination. 

There  was  a sort  of  tunnel  or  viaduct  that  took  the  water  right 
across  under  the  canal.  It  came  into  the  river  at  the  mouth 

964  of  the  Lockport  bridge  before  the  drainage  canal  was  there. 
It  crosses  right  under  the  canal  and  jDOurs  into  the  river 

965  again.  It  is  located  at  the  main  channel  of  the  river  north 
of  Lockport.  I have  seen  where  the  water  comes  down  through 

there.  It  runs  down  and  empties  into  the  main  channel  of  the 
river  right  north  of  the  stone  bridge  at  Lockport.  The  water  that 
used  to  come  into  the  swamp  region  above  there  is  now  carried 
off  by  the'  tiles.  The  tiles  were  not  there  in  my  father’s  and 
grandfather’s  day,  nor  in  my  early  boyhood  days.  The  water  runs 
away  from  this  swamp  district  into  the  river  much  more  rapidly 
than  it  used  to.  In  the  old  days  it  run  off  much  more  slowdy. 
The  body  of  water  in  the  river  in  dry  times  is  much  less  now 

966  since  the  tile  were  put  in  than  it  used  to  be.  Before  the  tile 
were  put  in  the  water  was  deeper  than  at  the  time  I have 

described.  The  point  where  the  drainage  channel  water,  300,000 
cubic  feet  a minute,  is  turned  into  the  Desplaines  is  about  two 
miles  south  of  my  father’s  place.  There  is  a great  deal  more 

967  water  in  the  river  from  that  point  right  now  than  there  was 
before.  There  is  more  than  double  what  there  used  to  be. 

I went  into  the  river  below  there  once  or  twice  on  horseback  down 
where  the  old  mill  was  in  the  dry  time,  I did  not  go  across,  I 
waded  out  until  the  water  came  up  to  the  horse’s  kneees  and  then 
turned  and  went  back. 

968  As  to  the  way  that  we  made  the  fences  across  the  stream,  we 
made  saw  horses,  bored  holes  in  logs  and  put  legs  in  there 

and  then  put  the  logs  on  top  of  those  horses  and  hung  the  pole 
to  it.  A saw  horse  with  heavy  legs  on  the  bottom  anchored  to  the 
bottom  and  two  legs  on  the  log,  the  poles  were  laid  across  the 
horses  and  fixed  to  hold  them  in  place. 

969  Re-cross  Examination  by  Mr.  Mimroe. 

I remember  seeing  north  of  the  Lockport  road  as  I was  going 
into  Lockport  bridge,  no  water  running  there,  only  in  that  chan- 
nel that  came  down  from  Big  Run.  I think  it  was  some  time 

970  in  the  ’70s.  There  was  some  tiling  had  been  done.  I would 
not  state  ])ositively,  my  recollection  is  it  was  in  the  ’70s.  I 


429 


remember  seeing  it  low  m the  winter  time  when  it  was  froze. 
There  was  no  water  running  in  the  channel.  It  froze  solid.  There 
was  plenty  of  water  there  if  it  had  not  been  frozen  up.  But  it  was 
frozen  solid  so  there  wasn’t  any  water  running  in  the  main  chan- 
nel. We  chopped  the  fish  out  of  the  ice  right  in  the  riffles  where 
they  came  there  for  air.  I don’t  recollect  of  anything  now, 
971  of  any  other  times  when  there  was  no  water  running  in  the 
river.  I remember  a good  spring  on  a man’s  land  north  of 
our  farm  and  two  on  my  father’s  farm  had  dried  up  after  the  tiles 
were  put  in. 

973  James  E.  Flanders, 

a witness  for  complainant,  testified  as  follows: 

Direct  Examination. 

I have  lived  in  Will  County  all  my  life  except  when  I was  away 
in  the  army  and  at  the  university  of  Ann  Arbor.  I will  be 

974  62  years  old  August  27th.  I have  lived  close  to  the  Desplaines 
all  my  life.  I was  acquainted  with  the  river  as  a boy  from 

my  earliest  recollection.  I hunted  and  fished  on  the  river  as  a 
lad,  in  vacations  went  home  there  about  the  river  and  in  ’67  or 
’68  I had  my  first  boat  and  from  that  time  probably  up  to  about 
ten  years  ago  I used  the  boat  every  year.  My  boating  has  been 
mainly  from  Joliet  down  stream  to  the  mouth.  The  average  depth 
from  Joliet  to  the  mouth  (excluding  the  deepest  places  in  Lake 
Joliet  and  Lake  DuPage  on  the  one  hand  and  the  extreme 

975  shallow  point  on  Treat’s  Island  on  fhe  other)  would  be  from 
three  to  four  feet.  In  Joliet  Lake  there  are  places  I think 

18  to  20  feet. 

We  used  three  classes  of  boats,  canoes,  flat-bottomed  boats  and 
clinker-built  boats.  I have  gone  down  on  flat-bottomed  boats  with 
parties  of  six  or  seven  people  and  camp  equipages.  On  one  or 
two  occasions  we  had  a large  flat-bottomed  scow-built  boat. 

976  It  would  draw  loads  from  ten  to  twelve  inches  of  water.  We 
found  that  amount  of  water  or  more.  A greenhorn  could 

not  have  got  through  on  account  of  the  rocks.  A man  that 
knew  the  channel  could  go  through  with  a boat  in  from  a foot  to 
16  inches  of  water.  It  might  possibly  have  been  less  in  an  ex- 
tremely dry  season.  There  are  three  shallow  points.  There  is  a 
ledge  of  gravel  at  Brandon’s  bridge  and  a shallow  point  at  Treat’s 


430 


Island  and  another  shallow  point  from  a quarter  to  a half  mile 
this  side  of  the  junction  of  the  Desplaines  and  the  Kankakee. 
Our  party  of  seven  went  down  in  ’68.  I have  been  over  the 

977  river  since  the  flood  of  the  drainage  canal  has  been  turned 
in,  that  is  since  January  17,  1900.  There  is  very  much  more 

water  since  then,  very  much  more  indeed.  I found  at  diffreent 
times  it  was  down  almost  to  normal.  That  is  when  the  water  was 
shut  off,  when  the  three  young  men  were  drowned  and  the  water 
was  shut  off.  They  were  hunting  the  bodies  and  it  was  said  that 
it  ran  the  lowest  it  ever  ran.  That  was  about  three  years  ago 
last  summer.  A certain  amount  of  water  has  been  taken  from 
the  Desplaines  River  for  the  purpose  of  feeding  the  I.  and  M. 
Canal  for  many  years.  It  is  fed  from  the  Desplaines  River, 

978  from  up  above  the  Ruby  street  bridge;  there  was  a project- 
ing embankment  there,  projected  out  into  the  body  of  the 

river  so  as  to  divert  the  water  from  the  river  into  the  canal,  and 
there  was  a foot-path  and  a bridge  thrown  across.  It  was  one 
of  the  main  feeders  of  the  I.  and  M.  Canal  and  increased  the 

979  water  in  the  canal  very  perceptibly.  For  some  little  distance 
above  that  point  the  I.  and  M.  Canal  and  the  Desplaines 

River  coincided  in  their  course.  That  was  prior  to  any  work 
being  done  by  the  Sanitary  District.  The  canal  was  steered  into 
the  river,  and  then  it  was  steered  out  again,  and  part  of  the  river 
was  steered  into  the  canal  along  with  it.  Referring  to  this 

980  profile  map,  Joliet  Mound  was  located  about  three-quarters 
of  a mile  north  of  Brandon’s  bridge  (in  Sections  18  and  19). 
The  canal  changes  its  direction  when  it  approaches  Brandon’s 

981  road,  so  that  people  could  hardly  tell  their  direction  unless 
they  were  posted. 

Cross-Examination  hij  Mr.  J\lunroe. 

AVhen  we  took  the  l)oat  with  five  to  seven  people  it  was  put  into 
the  Desplaines  River  just  below  the  Adams  dam.  We  left 

982  the  boat  at  Ottawa.  We  did  not  bring  it  back;  we  did  not 
take  it  down  for  that  purpose.  We  could  have  taken  it  l)ack 

if  we  wanted  to  in  the  I.  and  !M.  Canal.  I ’have  done  that  hun- 
dreds of  times.  AVe  owned  the  boat  and  we,  had  no  objection 
exce])t  we  were  not  looking  for  toil.  AVe  could  have  brought  it 


back.  I have  been  down  on  tlie  canal  and  down  on  the  river  with 
larger  boats  than  that.  We  could  not  rely  upon  the  wind,  al- 
though we  had  a sail,  and  there  were  rapids  that  we  could  pole 
by.  We  had  to  i)ole  it.  Anyone  as  skillful  as  an  Indian  might 
possibly  have  rowed  it,  a boat  of  that  size,  but  in  those  rapids 

982  with  two  poles  and  two,  of  us  in  it  you  could  do  it.  There 
were  three  of  the  rapids  we  would  have  to  pole  the  boat  to 

get  over  the  rapids..  No  sir,  we  did  not  get  out  of  the  boat  at 
any  time.  A greenhorn  would  get  wrecked  because  there  were 
rocks,  some  visible,  others  not,  but  there  was  a channel  through 
them.  He  might  not  if  he  would  sit  right  down  and  let  the 

983  boat  go  down.  I presume  I have  been  on  the  river  a hun- 
dred times.  Through  neglect  or  mismanagement  I have  been 

caught  on  the  rocks.  One  occasion  1 remember  ])articularly  we 
did  not  get  out  and  pull  the  boat.  ANe  got  out  and  the  boat  tipped 
over.  That  was  at  Brandon’s  bridge.  There  was  never  any  other 
point  where  I was  wrecked.  I should  say  the  rapids  near  the 

984  mouth  of  the  river  are  perhaps  25  rods  u]).  I never  regarded 
it  as  dangerous  to  go  through  those  rapids.  Of  course  a 

person  must  understand  a boat  and  must  know  the  channel.  A 
person  who  did  not  understand  the  boat  and  did  not  understand 
the  channel  would  be  liable  to  get  ti])ped  over.  I don’t  think  it 
would  be  as  hazardous  down  there  at  the  junction  of  the  Des- 

985  plaines  and  Kankakee  as  at  Brandon’s  bridge.  Since  the 

986  Sanitary  District  water  was  turned  in  we  took  our  boat  in 
at  Brandon’s  bridge  and  floated  to  the  mouth  of  the  Des- 

plaines.  I don’t  think  it  is  hazardous  in  the  present  condition  to 
go  down  the  river  if  a person  understands  the  boat.  I never 
heard  of  any  ])erson  being  capsized  on  the  Des])laines  Kiver 
since  the  drainage  water  was  turned  in.  I never  experienced  any 
great  difficulty  in  going  down  the  river  to  the  mouth  of  the  Des- 
plaines.  AVe  generally  came  back  by  the  way  of  the  I.  and 

987  AI.  Canal,  making  a x)ortage  of  about  20  rods  in  the  canal. 
AVe  never  attempted  to  come  up  any  great  distance  since  the 

Sanitary  water  was  turned  in.  The  difficulty  would  be  the  swift- 
ness of  the  current.  I have  seen  the  time  when  I could  pick  my 
fellow,  we  could  not  go  up  in  race-horse  time,  but  we  could  make 
it,  give  me  Clement  in  the  stern  with  two  i)addles. 


Q.  You  have  shown  a very  considerable  knowledge  of  the  Des- 
plaines  Eiver.  Assuming  that  dam  number  one  was  taken  out 
and  that  there  was  no  dam  in  the  Desplaines  Eiver  between  Lock- 
port  and  the  mouth  of  the  Desplaines  Eiver,  assuming  that  the 
bridges  were  taken  out,  I will  ask  you  would  it  be  possible,  in 
your  judgment,  for  boats  to  go  up  and  down  the  Desplaines 
Eiver  in  its  present  condition  to-day  with  those  changes  made?  A. 
Possibly  for  boats. 

988  Q.  Yes.  A.  Yes  sir. 

Q.  To  go  up  and  down!  A.  To  go  up  and  down.  There 
is  a fall  from  dam  number  one  to  South  street  to  the  south  limits 
of  about  35  to  40  feet.  A boat  could  go  up  there  without  locks 
and  dams  by  warping  it  up  by  snubbing  posts  along  the  shore, 
just  as  they  do  on  the  Mussel  Shell  Shoals  in  Tennessee,  but  I 
don’t  think  it  is  a practicable  way.  I think  it  could  be  done.  You 
understand  what  I mean  by  warping.  I remember  the  current 
reputation  of  the  early  use  of  the  stream  by  people  when  they 
warped  up  the  boat.  Warping  would  not  be  limited  to  boats 

989  of  small  size.  It  would  depend  upon  the  amount  of  power. 
If  there  was  water  enough  and  power  enough  you  could  warp 

up  a man  of  war. 

Mr.  Muxeoe.  I ask  you  from  your  opinion  of  this  river  to  state 
whether  or  not  the  Desplaines  Eiver,  if  dam  number  one  were 
removed  and  the  bridge  were  taken  out  is  suitable  or  adapted  in 
its  present  state  for  carrying  the  commerce  of  this  country  ad- 
jacent to  it  without  improvement  or  by  means  of  locks? 

990  (Objected  to  as  not  cross-examination.) 

A.  Oh,  I don’t  think  it  would  be  without  the  construction. 

Re-direct  Examination. 

Q.  You  have  been  asked  on  cross-examination  to  consider  the 
river  with  the  removal  of  all  existing  dams,  otherwise  not  changed, 
and  with  the  300,000  cubic  feet  per  minute  of  drainage  water  pass- 
ing through  it;  now  let  me  ask  you,  assume  for  the  moment  that 
the  improvements  which  are  outlined  in  the  survey  of  1905  by 
the  United  States  Government  which  provides  for  ten  dams  with 
appropriate  locks  between  the  north  city  limits  of  Joliet  and  the 


4:]:] 

north  of  tlie  river  were  put  in,  with  dams  wliidi  are  broad  enougii 
and  strong  enough  and  locks  wliich  were  wide  enough  to  accommo- 
date Mississippi  Elver  craft  of  the  largest  size  floating  on  the 
Mississippi  Elver,  that  is  the  description  of  the  report,  I will 
ask  you  to  state  whether  the  Desplaines  Elver  under  those  cir- 
cumstances would  be  capable  of  handling  and  carrying  the 

991  commerce  that  is  arising  out  of  the  territory  immediately  ad- 
jacent to  it?  A.  I think  it  would. 

992  I have  personally  been  present  on  a boat  that  was  warped 
up  stream  in  the  way  I have  described.  It  was  on  the  Tennes- 
see Eiver  at  Mussel  Shell  Shoals.  One  time  during  the  service 
we  took  a steamer  there.  There  were  perhaps  800  of  us  there. 

There  is  a great  deal  of  warping  done.  The  men  were  on  the 
998  shore  helping  do  the  warping.  The  method  consists  of  hav- 
ing a hawser  at  the  bow  lashed  somewhere  between  the  bow 
and  the  midships  and  it  is  taken  up  the  shore,  up  stream,  and 
made  fast  to  a snubbing  post  or  tree  or  any  object  that  will  hold. 
Then  the  nose  of  the  boat  is  turned  into  the  current  and  another 
hawser  is  made  fast  to  the  bow  and  as  the  boat  sheers  into  the 
current  it  sheers  otf  to  the  right  if  you  are  going  north,  say,  and 
of  course  makes  progress  up.  This  rope  that  is  made  fast  to 
the  bow  is  hauled  on  until  the  boat  is  parallel  with  the  line  that 
is  hitched  first  until  it  is  right-angled  with  the  shore.  Then  the 
boat  is  allowed  to  swing  back  to  the  shore  and  the  process 

994  repeated.  I have  seen  the  boat  go  that  way  40  rods  at  a time; 
That  was  on  the  Tennessee  Elver,  I could  not  tell  how  many 

times.  I have  made  the  trip  down  the  St.  Lawrence  from  Thou- 
sand Islands  to  Quebec  by  steamboat  through  the  Lachine  Eapids 
and  the  narrows  of  the  St.  Lawrence.  And  I have  seen  boats 
come  back  through  the  canal  that  runs  right  alongside  of  the  St. 
Lawrence.  They  shoot  the  rapids  going  down  and  would  come 
back  by  the  canal. 

995  George  W.  Eaymond, 

a witness  for  complainant,  testified  as  follows: 

D i rect  Examina tion. 

I will  be  70  years  old  May  20,  1908.  I have  lived  in  Morris, 

996  Grundy  County  9 years.  Have  lived  in  Grundy  County  40 
years.  I remember  the  high  water  in  the  Illinois  of  1857. 


434 


I was  a good  swimmer.  My  brother  sent  me  to  Morris  to  get  some 
milling  done.  On  the  south  bank  to  approach  the  ferry  I put  our 
grain  on  some  boards  on  top  of  the  wagon  box.  I managed  to 
get  to  the  little  ridge  along  next  to  the  south  bank  and  got  oh 
to  a ferry  and  when  I got  there  I crossed  over.  I got  my  milling 
done  and  by  that  time  the  river  had  arisen  so  that  it  was  im- 
passable. So  I took  down  the  north  bank  to  what  they  called  the 
McMillen  farm  where  I put  my  horses  up  and  stowed  away  my 
stuff  and  got  one  of  the  boys  to  row  me  over  the  river  and  walked 
over  to  our  home.  Our  team  remained  there  about  two 

997  weeks.  Then  I went  over  and  got  an  old  scow  flat-boat  and 
put  my  wagon  and  team  on  and  my  commodities  and  I started. 

I landed  about  two  miles  below  on  the  opposite  banh.  There  was 
a hackberry  tree  between  our  house  and  the  bottom  road  that  had 
a high-water  mark.  The  tree  is  gone,  but  I could  locate  it  within 
a reasonable  distance.  The  water  of  ’57  was  about  six  feet  higher 
than  it  was  last  year,  1907.  I am  acquainted  with  the  local  repu- 
tation among  the  Indians  who  were  still  living  in  that  vicinity 
at  the  time  of  the  high  water  of  1857.  The  Pottawatomie  chief 
Shabbona  lived  and  died  about  a mile  and  a half  from  the 

998  farm  I own  now.  I knew  him  very  w^ell.  I conversed  with 
him  about  the  local  reputation  of  the  state  of  the  water  on 

the  river.  When  I wanted  to  go  back  after  my  horses  and  wagon 
that  time  I went  to  Shabbona  and  told  him  I wanted  to  get  across. 
He  called  a couple  of  squaws  and  they  took  me  up  the  river  and 
got  into  a canoe  and  took  me  across.  I gave  them  a quarter  of 
a dollar.  I asked  him  in  regard  to  the  water  at  that  time  and 
he  indicated  with  his  cane  this  way,  ‘‘So,  there,  so,  up,”  in  the 
Indian  way.  The  height  that  he  indicated  compared  with 

999  the  level  of  1857  by  being  about  four  feet  higher  than  the  level 
of  1857.  He  told  me  of  the  local  reputation  of  the  use  of 

the  stream  in  the  early  days  by  the  settlers  and  explorers,  motion- 
ing and  indicating  that  when  he  was  a small  boy,  “Me  go  this 
way,  so,  around  Seneca.”  That  would  be  about  20  foot  above  the 
natural  flow  of  the  Illinois  Kiver.  He  said  they  could  go 
from  here  around  there  with  canoes,  the  Indians,  when  he  was 
a small  boy.  He  was  then  about  80  years  of  age.  He  used  to  say 
that  the  river  had  been  used  l)y  the  early  settlers  and  explorers 
and  that  the  white  men  years  ago  used  to  go,  “So,  so,  so,”  point- 


435 


ing  down  stream;  and  that  the  Indians,  ^^So,  so,  so,  np,^’  pointing 
both  np  and  down  stream;  that  the  white  men  did  not  go  up 
stream,  but  did  go  down  stream. 

1000  Cross-Examination  hij  Mr.  Munroe. 

Our  farm  was  13  miles  from  Morris  from  the  south  bank  of 
the  Illinois  Kiver.  It  is  eight  miles  from  there  up  to  Au  Sable. 
The  old  Indian  said  the  white  men  went  down  stream,  down  the 
Illinois  into  the  Mississippi,  but  did  not  go  up  stream. 

1001  The  river  took  us  two  miles  down  when  I brought  the; 
horses  back  across  the  stream  on  the  flat  boat.  It  was  a 

swift  current.  I took  an  angling  course  across  it.  I had  some 
experience  in  boating  on  the  Mississippi,  the  Arkansas  and  the 
White  Eiver. 

1002  Asked  if  the  Illinois  Eiver  at  his  farm  is  capable  of  car- 
rying the  commerce  of  the  adjacent  territory;  objection  be- 
ing made  that  it  is  not  cross-examination  and  no  foundation  hav- 
ing been  laid,  he  replied,  ^ ‘ From  Au  Sable  down  to  our  farm 

1003  as  a practical  mode  of  transportation,  it  is  not  so.’’  That 
refers  to  both  past  and  present  conditions.  Shabbona  gave 

me  to  understand  he  had  been  familiar  with  the  river  since  he  was 
a mere  boy  of  five  or  six  years.  He  was  a Pottawatomie  Indian. 
Personally  I don’t  know  anything  about  the  Desplaines  Eiver 
and  its  adaptability  for  carrying  commerce. 

1004  Obadiah  Hicks, 

a witness  for  complainant,  testified  as  follows: 

Direct  Examination. 

Age,  7-8.  I have  lived  in  Joliet  since  1862.  My  business 
was  canal  boat  building  principally.  I carried  that  on  in  the  old 
country  before  I came  here.  Was  dry  dock  building  in  New  York 
in  ’54  and  ’55.  Came  to  Lockport  in  ’58.  Worked  at  canal  boat 
building  then.  Came  to  Joliet  in  ’62  and  had  a dry  dock  of  my 
own  here  and  worked  at  that. 

Q.  Were  you  acquainted  with  the  local  reputation  as  to  the  ex- 
ploration and  early  use  of  the  Desplaines  Eiver  and  the  use  of  it 
by  boats  prior  to  the  opening  of  the  canal  in  1848!  A.  No, 

1005  sir,  only  what  I have  heard  others  say. 


436 


Q.  I asked  you  if  you  were  acquainted  with  its  local  repu- 
tation from  what  you  have  been  informed  by  others?  A.  Yes,  sir, 
some,  because  I was  making  inquiries  about  the  stream  in  hopes 
that  sometime  it  would  be  a ship  canal  and  then  I would  have  some 
of  my  business  to  do  on  it;  that  is  the  reason.  It  was  general  talk 
around  the  boat  yards  when  I came  up  here,  you  know,  about  having 
this  for  a ship  canal. 

(Ruling  on  said  questions  and  answers  by  trial  court.) 

(Objection  by  defendant  on  the  ground  that  this  witness 
was  testifying  in  regard  to  the  reputation  as  to  early  years 
which  he  heard  after  1862.  Objection  overruled.) 

Counsel  for  Defendant.  That  matter  is  all  subject  to  dis- 
cussion hereafter,  as  I understand  it? 

The  Court.  Yes. 

Counsel  for  Defendant.  But  it  seems  to  me  that  this  is  a 
question  that  has  not  come  under  your  former  ruling. 

The  Court.  Where  it  came  as  a matter  of  general  talk,  and 
that  in  what  he  says,  this  is  a matter  of  general  talk,  I will 
let  it  go  in  subject  to  the  general  objection. 

(Said  ruling  appears  on  Trans,  p.  1942.) 

That  was  before  the  canal  was  opened.  There  was  some  boat- 
ing on  it,  mostly  trappers  and  hunters  that  came  up  through  there. 
1 observed  that  prior  to  1860  there  used  to  be  more  water  in  the 
river  in  the  summer  time  than  there  was  after  that  for  some  years. 
That  was  because  the  farmers  were  draining  their  lands  about 

1006  that  time  everywhere  by  ditching  and  tiling.  The  tiling  and 
draining  dried  up  the  sloughs  and  then  in  the  summer  there 

was  no  water  in  the  river.  It  was  lower  afterwards  than  it  was 
before  the  putting  in  of  the  drains.  I have  been  fishing  up  there 
prior  to  1860  when  the  water  was  two  feet  and  some  places  four 
feet  deep.  After  that  in  a very  dry  summer  there  was  no  water 
running  through  the  river  at  Lockport.  Of  course  there  was  plenty 
of  water  in  the  spring  and  fall. 

Cross-Examination  hij  Mr.  Munroe. 

1 have  seen  it  in  a dry  summer  when  there  was  no  water  run- 
ning under  the  bridge  at  Lockport,  two  or  three  times.  There 

1007  was  some  water  coming  out  of  the  back  water  that  was  run- 
* ning  under  the  east  bridge,  but  not  under  the  west  bridge  at 


437 


Lockport.  The  west  bridge  carried  the  chamie]  of  the  river.  I 
iiave  seen  it  so  low  there  that  it  did  not  go  over  the  Jefferson 
street  dam,  sometimes,  only  jnst  enough  water  to  feed  tlie  canal. 
It  used  to  take  all  the  water  to  feed  the  canal  sometimes. 

(Enling  at  the  trial  of  said  cause.  Counsel  for  defendant 
moved  to  strike  out  the  following  testimony.  Motion  sustained. 

Said  testimony  so  stricken  out  is  as  follows:) 

Did  you  ever  hear  of  anybody  taking  any  grain  or  merchan- 
dise from  Joliet  to  Chicago  by  way  of  the  Desplaines  Kiver?  A. 
No,  no,  not  till  recently.  I haven’t  heard  of  it. 

Q.  Who  did  you  ever  hear  it  from  recently?  A.  The  papers, 
and  some  fellows  that  have  been  talking  about  the  evidence  they 
were  going  to  give  and  so  on. 

Q.  Who  ever  told  you  that  they  knew  of  grain  being  taken  from 
Joliet  to  Chicago  by  way  of  the  Desplaines  Eiver?  A.  I couldn’t 
say  that,  but  I understood  there  was  a cargo  loaded  in  Kanka- 
1008  kee  and  brought  down  to  Treat’s  Island,  a cargo  of  grain 
and  they  wrecked  the  boat  there  and  lost  the  grain. 

Q.  But  did  you  ever  hear  of  a boat  going  from  Treat’s  Island 
to  Chicago? 

A.  No,  sir,  not  of  grain. 

Q.  Or  with  anything  else?  A.  Why,  yes  I have.  Not  to  Chi- 
cago; but  go  to  the  headwaters  of  this  river.  I have  heard  of 
trappers’  boats  going  up  there. 

Q.  Going  through  the  Desplaines  Eiver  to  the  mouth  of  the 
river?  A.  Not  to  the  mouth.  Up  to  the  turn  there  at  Eiverside. 
They  would  go  up  there,  they  couldn’t  go  any  further. 

Counsel  for  Complainant.  He  refers  to  the  portage  there? 

The  Witness.  The  river  turns  and  goes  up  to  Wisconsin  then 
you  know.  They  would  go  as  far  as  the  turn. 

Q.  Who  did  you  ever  hear  went  up  there?  A.  1 heard  a man 
here  in  Joliet  say  he  had  gone  onto  the  boats,  and  talked  with 
the  trappers  and  examined  the  skins  on  the  boats. 

Q.  What  was  his  name?  A.  William  Found. 

Q.  How  do  you  spell  his  last  name?  A.  F-o-u-n-d.  He  is  on 
the  streets  most  every  day. 


438 


Q.  How  old  is  lief  A.  How  old  is  he! 

Q.  Yesf  A.  He  is  older  than  me.  He  is  somewhere  around 
80  I guess. 

Q.  And  the  first  time  you  heard  about  that  was  since  this  trial 
came  up? 

(End  of  testimony  stricken  out.) 

(Said  rulings  appear  on  Trans,  p.  1943.) 

1009  I have  heard  that  the  trappers  used  to  be  up  around  here. 
I have  heard  others  state  that  a good  many  years  ago.  They 

were  not  canoes,  they  were  bateaux.  That  is  what  they  called 
them,  a bateau.  They  were  boats  about  20  feet  long  and  the  sides 
of  them  were  about  three  or  four  feet  high  and  they  had  a little 
deck  on  one  end,  or  a little  cabin  and  they  loaded  their  skins  on 
there  and  put  a canvass  over  them,  generally,  and  they  used  to 
come  up  here  to  the  big  island,  I understood,  and  stop  there  during 
the  winter  and  trap  and  hunt  there.  They  would  go  as  far  up 
the  river  as  they  could  go  and  then  have  to  wagon  them  to  Chicago, 
put  them  on  wagons,  that  is  what  I understood  them  to  say.  They 
would  go  up  to  hunt  and  trap  all  winter  at  the  big  island,  so  he 
told  me,  and  then  would  go  in  the  spring  and  unload  them  and  then 
go  back  again  down  the  river.  That  is  not  of  my  own  knowl- 

1010  edge.  I was  not  here.  In  1858  I came  to  Lockport.  When  it 
was  dry  a bateau  could  not  go  up  or  down  the  Desplaines 

Kiver.  There  was  plenty  of  chances  to  go  in  the  spring  and  fall. 
They  could  go  down  fast  enough  and  they  could  pole  them  up,  gen- 
erally, and  rope  them  up,  and  so  on.  They  could  pole  them  along 
the  middle  of  the  river.  I never  saw  a fence  across  the  Desplaines 
Eiver,  not  right  across  the  river,  because  it  was  always  considered, 
that  the  middle  of  the  river  was  a navigable  stream  and  belonged 
to  the  Government,  and  they  were  not  allowed  to  put  fences  across 
the  river. 

Q.  Who  do  you  say  contended  thatf  A.  Why,  I know  of  a case 
that  transpired  while  I was  in  Lockport.  There  was  two  farmers 
owned  some  land  that  run  down  to  what  they  called  the  big  island 
there  at  Eomeo  and  there  was  a tree  grew  right  on  the  line  fence, 
and  one  farmer  cut  it  down.  Tom  Williams  was  one  and  Eobinson 


or  Anderson  the  other.  The  other  sued  him  and  the  matter 

1011  was  carried  to  Washington.  Charles  E.  Boyer  carried  it 
to  Washington  and  got  a decision  and  his  decision  was  that 

the  tree  did  not  belong  to  either  of  them;  it  belonged  to  the  Gov- 
ernment because  it  grew  in  a navigable  stream.  The  old  tree  lay 
there  for  a good  many  years  afterward.  I got  my  information  from 
ex-surveyor  A.  J.  Mathewson,  the  old  county  surveyor.  He  told 
me  more  than  once,  and  he  told  me  where  the  termination  of  the 
river  was.  Some  man’s  house,  he  told  me,  I forget  his  name, 
whether  it  was  Nickerson,  or  something  like  that,  he  had  been  over 
the  ground  and  surveyed  and  knew  all  about  it.  He  surveyed  for 
the  old  canal  and  the  Ogden  ditch,  and  he  was  well  acquainted  with 
that.  He  told  me  that  the  Government  reserved  this  river  toward 
a link  between  the  lakes  and  the  gulf.  Now,  that  is  what  I under- 
stood from  Mathewson.  Ex-Surveyor  Noah  Whitley  also 

1012  told  me  that  he  had  examined  the  state  records  at  Spring- 
field  and  there  was  nothing  to  show  that  the  Government  ever 

relinciuished  its  claim  to  the  use  of  the  river  below  Jefferson.  It 
gave  the  canal  authority  to  put  the  two  basins  in  here,  but  they 
were  to  keep  it  open  perpetually  for  navigation. 

1013  Re-direct  Examination. 

I don’t  know  who  these  trappers  were  working  for;  they  were 
working  for  some  company.  They  went  all  over  down  the  river,  I 
understood. 

Fkances  Belz, 

a witness  for  complainant,  testified  as  follows: 

Direct  Examination. 

1014  Will  be  67  February  26,  1908.  Born  in  Joliet  and  lived 
there  all  my  life  except  a few  years  in  Chicago  just  after 
the  fire.  My  father  came  in  1833.  I was  a soldier  in  the’ 

1015  Union  Army  in  the  Civil  War.  I lived  about  a half  block 
from  the  Hesplaines  Kiver  all  through  boyhood  days.  I have 

known  of  the  rafting  of  lumber  and  timber  down  the  Hesplaines 
River.  I saw  that  when  I was  ten  or  twelve  years  old.  I saw  a 
raft  150  to  200  feet  long  and  18  to  20  feet  wide.  It  came  down  the 
Hesplaines  River  to  what  they  called  the  towpath  bridge; 

1016  then  they  separated  it,  took  part  of  it  in  the  locks  and  the 
other  logs  they  broke  loose  and  they  rolled  over  the  Jackson 


440 


* 


street  dam.  They  floated  them  into  the  canal  and  then  floated  them 
over  the  dam  again  down  to  the  boom  for  catching  the  logs  they 
had  at  Havens’  mill.  I have  seen  Mackinaw  boats  on  the  Desplaines 
liiver.  They  were  a kind  of  a flat  bottom  boat  and  drew  about  a 
foot  or  a little  over  a foot  of  water.  They  were  15  to  30  feet 
1017  long,  perhaps  longer,  six  to  seven  feet  wide.  They  were  loaded 
with  passengers  and  loads. 

Q.  Describe  the  loads?  A.  I should  think  there  was  some  mer- 
chandise of  different  kinds,  I could  not  tell  you  what.  I think  there 
was  salt  came  down,  but  I could  not  say  if  it  came  on  the  raft  or  on 
the  boat.  There  was  a man  in  Chicago  used  to  own  pretty  much  all 
the  salt  there  and  he  had  it  at  a very  high  figure,  and  the  people 
were  poor  in  them  days,  and  in  order  to  get  his  pay  out  of  the  salt 
he  left  a barrel  here  and  a barrel  there  until  he  got  down  to  the 
mouth  of  the  river  or  further  south  to  Saint  Louis. 

Q.  The  boat  would  come  down  with  barrels  of  salt?  A.  Yes, 
and  distribute  it  at  different  jDoints  on  the  way  down. 

3018  You  saw  the  boat  with  the  barrels?  A.  Yes,  sir. 

Q.  How  old  were  you  then?  A.  I was  between  10  and  12 
years  old. 

I have  been  on  the  river  from  Jackson  street  and  been 
on  a little — had  a little  yawl  boat  that  we  used  to  take  pleasure 
rides  back  and  forth.  I would  go  on  the  river  with  old  John  Bolin. 
He  was  a great  trapper.  In  some  places  it  was  pretty  deep,  other 
places  it  was  shallow.  In  the  spring  of  the  year  there  would  be  a 
big  flood  and  of  course  the  water  would  be  higher,  and  in  Jhe  sum- 
mer time  it  would  be  a little  shallower.  I made  trips  both 

1019  ways  from  the  bridge  here.  I have  been  up  the  river  to  Goose 
Lake.  In  the  spring  it  would  be  from  three  and  one-half  to 

five  feet  deey);  in  August  and  September  three  feet.  On  the  west 
side  of  the  river  before  you  get  into  Goose  Lake  it  was  from  three 
to  three  and  one-half  feet  deep.  I knew  the  old  Swalm  quarry,  or 
the  Davidson  quarry.  I have  seen  the  old  road  going  down 

1020  to  that.  This  road  took  an  angle  off  from  the  Brandon’s 
bridge  road  and  ran  right  down  into  the  Swalm  quarry.  It 

ran  right  plump  down  to  the  river  at  the  water’s  edge.  I never 
saw  anybody  ford  the  river  there.  It  was  pretty  deep  there;  I 


441 


could  not  say  liow  deep.  Mr.  Lappin,  an  old  fisherman  here, 

1021  told  me  they  unloaded  the  boats  down  here  and  took  tlit* 
teams  and  hauled  them  down  the  river  l)elow  the  dams  and 

1022  loaded  them  up  again.  That  was  when  1 was  a young  man. 
Mr.  Lappin  is  dead. 


Cross-Exanimation  hi)  Mr.  Munroe. 

The  canal  was  opened,  I think,  in  1848.  It  was  not  oj^ened  all  the 
way  at  first.  They  opened  to  Joliet  and  stopped  awhile  and  then 
opened  lower  down.  It  was  when  I was  eight  or  nine  years  old,  no, 
seven,  I was  born  in  February,  1841.  The  raft  I saw  was  in 

1023  1852  or  ’53.  A schoolmate  named  Hollister  saw  the  raft 
come  down.  We  talked  with  the  men  that  ran  the  raft.  They 

said  they  came  down  the  Desplaines  Kiver.  Up  above  Lockport, 
above  Fitzpatrick’s  they  tied  up  the  raft  and  I believe  a part  of  it 
got  wrecked  and  the  men  went  over  to  a party  and  got  pro- 

1024  visions.  I heard  them  tell  about  it.  They  got  the  raft  over 
the  Daggett  dam.  They  might  have  taken  it  apart  and  took 

1025  cant-hooks  and  rolled  it  over.  They  took  them  down  and 
rolled  part  of  it  over  up  at  the  lower  basin.  That  was  their 

route  to  take  them  to.  The  I.  and  M.  Canal  and  the  Desplaines 
River  coincide  from  a point  where  the  canal  enters  the  river 
near  the  towpath  bridge.  They  got  them  over  the  Jackson 

1026  street  dam  by  taking  cant-hooks  and  rolled  them  over.  They 
took  part  of  it  through  the  lock  at  dam  number  1.  The  biggest 

part  went  over  the  dam.  They  took  them  from  there  down  to  Hav- 
en’s mill  to  be  sawed.  They  rolled  them  over  the  dam  from  the 

1027  lower  basin  to  the  Haven  mill.  They  never  could  have  got 
them  from  the  I.  and  M.  Canal  up  to  Haven’s  mill.  These 

were  oak  and  walnut  logs.  The  water  was  not  high  enough  to  float 
them  over  the  top  of  the  dam.  They  pulled  them  over  the 

1028  dam  and  brought  them  to  Haven’s  mill.  I saw  them  in  the 
upper  basin  of  the  canal.  Where  they  came  from  T knew  only 

by  what  I heard  men  tell  me.  I saw  the  Mackinaw  boats  in  the 
upper  basin  and  in  the  lower  basin.  They  were  for  pleasure  and 
commercial  purposes  both,  I guess.  I never  saw  them  except 

1029  where  the  river  and  the  canal  came  together.  I rowed  from 
the  towpath  1)ridge  a mile  and  a half  up  to  Woods’  Island. 


442 


1030  I went  a little  farther  up  than  the  backwater  from  dam  one, 
as  far  as  Daggett’s  quarry.  You  can  get  a boat  up  there  any 

time.  I took  a rowboat  and  anchor.  I and  another  man  we  can 
draw  a boat  up  the  river.  I mean  there  is  water  enough  in  the  Des- 
plaines  Eiver  there  at  all  seasons  of  the  year  to  float  a boat.  I 
can  get  up  there  any  time  I want  to.  I got  up  as  far  as  Daggett’s 
quarry,  not  farther.  There  was  no  dam  there.  There  used 

1031  to  be  a dam  where  Norton  had  the  mill.  I saw  them  get 
logs  over  what  they  called  the  Jackson  street  dam.  This  dam 
was  here.  It  took  quite  awhile;  I could  not  state  how  long. 

1032  It  was  before  dinner.  I know  they  locked  part  of  it  through 

1033  the  locks.  I saw  them  going  through.  They  did  not  get  them 

1034  over  dam  number  two  the  same  day.  The  raft  was  16  to  20 
feet  wide  and  100  feet  long.  A raft  that  wide  could  not  go 
through  the  locks.  I guess  that  was  the  reason  for  taking  it 

1035  apart.  The  boy  with  me,  Andrew  Howliston,  is  dead.  He 
died  about  a year  ago.  When  they  take  a raft  through  a nar- 
row channel  they  always  take  them  apart.  I have  seen  them  in 
Michigan  and  in  the  Mississippi  Eiver  in  1863.  I was  at  a 

mill. 

1036  Q What  time  of  the  year  was  it  that  you  saw  this  raft? 
A.  What  raft  are  you  alluding  to? 

Q.  The  only  raft  that  ever  came  down  the  Desplaines  Eiver? 

Counsel  for  Complainant.  ^‘I  object  to  that  statement.” 
(Euling  on  said  objection  by  trial  court.) 

Counsel  for  Complainant.  object.  The  only  raft  that  ever 
came  down  the  Desplaines  Eiver.  There  is  no  basis  for  such  a 
statement.  ’ ’ 

(Objection  overruled.) 

(Said  ruling  on  said  objection  occurs  on  Trans.,  p.  1827.) 

This  raft  on  the  Desplaines  Eiver  was  in  May  or  June,  or  per- 
haps before.  The  water  was  pretty  fair  them  days.  The 

1037  water  was  at  an  ordinary  stage,  not  low.  I think  Haven 
owned  the  logs,  or  the  company.  I think  they  got  them  in 

Wisconsin.  I told  you  the  I.  and  M.  Canal  was  not  completed  then, 
only  from  Chicago  down  here.  That  was  in  ’48  that  it  was 
1039  com])leted.  ^\y.  Tanner  and  Mr.  Blass  talked  about  seeing 


443 


the  raft.  Blass  said  the  boys  would  go  in  swimming  and 
have  great  times  among  the  logs.  There  might  have  been 

1040  other  rafts;  I would  not  say  positively.  They  took  it  from 
Wisconsin.  The  water  used  to  raise  up  the  Desplaines  some- 
times and  flow  in  up  above,  what  they  call  the  south  branch.  It 
would  flow  in  what  they  call  the  south  branch.  My  father  told  me 
that. 

Q.  Don’t  you  know  it  is  a matter  of  history  that  the  Desplaines 
Eiver  and  the  Chicago  Eiver  never  met  but  once  and  then  it  was 
caused  by  an  ice  gorge  in  the  river  backing  the  river  up!  A.  Ugh ! 

Q.  Did  you  ever  see  it!  A.  No,  but  old  residents  of  the  river 
have  seen  it. 

Q.  Well,  who!  A.  Well,  I can’t  remember  who  they  were  at 
present  now. 

Re-direct  Examination. 

1041  We  took  the  boat  and  run  it  into  the  bank  and  took  a rope 
and  anchored  it  and  two  men  pull  on  the  rope  until  we  got 

near  the  end  of  the  anchor  and  then  we  hugged  the  bank  and  kept 
on  that  way  until  we  got  up.  We  came  up  hand  over  hand  in  the 
river. 

When  they  put  in  the  tile  it  drained  and  let  the  water  run  out. 
The  water  ran  away  faster  after  the  tile  was  put  in.  It  would  be 
higher  then.  Then  after  the  water  was  run  out  it  would  be  lower. 

Re-cross  Examination  hy  Mr.  Munroe. 

1042  I have  propelled  a yawl  boat  by  using  an  anchor  as  I have 
described.  I did  it  down  beyond  the  towpath  walker’s,  from 

Channahon  to  Morris.  Then  when  we  got  to  where  the  river  was 
close  to  the  bank  we  would  take  it  and  carry  it  over  into  the  I.  and 
M.  Canal.  I have  been  down  to  Dresden.  We  took  the  canal  down 
to  a narrow  place  and  carried  the  boat  over  into  the  river. 

1043  I could  go  to  the  place  and  show  you.  We  went  down  to  the 
towpath  walker’s  house.  We  went  down  a ways  and  carried 

the  boat  over  into  the  river.  And  we  went  down  to  the  towpath 
walker’s  and  they  stopped  there  and  I and  somebody  else  went  on 
as  far  as  Dresden.  We  came  back  part  on  the  river  and  part  on 
the  canal.  We  used  the  lower  part  of  the  river. 


444 


Q.  Why  didn’t  you  come  ail  the  way  up  on  the  river!  A.  Be- 
cause we  had  a horse  that  would  tow  us. 

1 045  Extract  from  . J oliet  Signal  read  in  evidence : 

'Woliet  Signal,  Tuesday,  March  28,  1848.  Tolls  on  the 
Canal.  ^ The  rafting  of  timber  on  the  canal  or  feeders 
is  prohibited  unless  by  special  or  written  agreement  of  the 
superintendent  of  the  canal.  Any  violation  of  this  order  will 
subject  the  person  violating  it  to  a penalty  of  $10  for  every 
such  offense.  * * * First  Arrival.  A canal  boat  arrived  at 
this  place  yesterday  froni  Channahon.  This  is  the  first  boat 
that  has  been  launched  on  this  section  in  the  canal.  It  was 
loaded  with  lumber  by  the  Messrs.  Havens  of  this  place  for 
the  northern  portion  of  the  wmrk.  The  canal  here  is  in  navi^ 
gable  order.” 

1046  Henry  H.  Pohl, 

a witness  for  complainant,  testified  as  follows: 

Direct  Examination . 

Am  fifty-seven  years  old;  live  in  Joliet.  I have  lived  in 
IVill  County  since  1859.  Have  boated  on  the  Desplaines;  used  to 
from  1869  to  1876,  usually  in  July  and  August.  We  started  in  one 
boat  just  below  the  old  planing  mill  at  Adams  dam.  Other  times 
we  would  start  in  just  below  Brandon’s  bridge  at  the  head 

1047  of  Lake  Joliet  and  go  south.  lAe  generally  stopped  at  Treat’s 
Island  on  account  of  trouble  in  getting  through.  There  is  a 

shallow  place  there.  I have  been  through  there.  I remember  twice 
going  down  through  below  there  with  A.  C.  Clement.  I had  a joint 
interest  with  him  in  a flat  bottomed  boat.  IVe  had  to  get  out 

1048  at  times  and  lift  her  over.  The  water  was  rather  low  that 
summer  but  we  managed  to  get  through  all  right  with  the 

boat.  There  w^ere  quite  a number  of  boulders  scattered  around  in 
the  bed  of  the  river.  The  boulders  would  be  two  feet  or  more  in 
diameter  and  from  that  smaller;  the  largest  ones  would  show  the 
t()})s  above  the  water.  AVe  had  no  difficulty  anywhere  else  in  get- 
ting through.  There  was  some  difficulty  there  because  the  boulders 
were  pretty  thick  and  it  was  difficult  to  run  a boat  through  in  the 
swift  running  water.  The  depth  of  water  in  Lake  Joliet  near  Flat- 
head  Mound  was  from  twelve  to  twenty  feet,  I should  say, 

1049  varying  of  course  at  different  points.  In  1869  I made  the 
trip  from  here  down  to  Marseilles.  M^e  had  to  pole  through 

and  lift  over  at  the  one  point  at  the  head  of  Treat’s  Island. 


Cross-Examination  hy  Mr.  Munroe. 

I am  secretary  of  the  People’s  Loan  & Homestead  Association. 
The  boat  that  Clement  and  I went  down  with  was  a row  boat,  f 
was  often  on  the  Hesplaines  river.  I never  rowed  a boat  u])- 

1050  stream  from  Brandon’s  bridge  to  the  Adams  dam.  The  cur- 
rent was  too  swift  to  row  ni)streani  against.  One  might  be 

able  to  sail  one  up  with  a good  stiff  wind;  he  might  pole  it  up  possi- 
bly. I don’t  think  he  could  row  it  up.  The  distance  there  is  about 
half  a mile.  I can’t  recall  seeing  a boat  come  up  through  that  half 
mile.  I am  acquainted  with  the  river  north  of  Joliet  for  a cer- 
tain distance,  up  above  Wood’s  Island;  at  the  foot  of  Wood’s 

1051  Island  is  about  where  the  slack  water  commences.  We  didn’t 
go  up  beyond  that  on  account  of  the  current  and  ri])ples.  We 
couldn’t  very  well  row  above  that  point.  The  current  was 

1052  pretty  swift.  That  was  for  a stretcli  of  perhaps  three  city 
blocks.  I have  been  further  north  up  to  the  old  Norton  mills, 

a mile  and  a half  or  two  miles  above  Wood’s  Island.  There  were 
more  or  less  obstructions,  stones  and  riffles,  but  we  could  sail 
1052  up  there  using  an  ordinary  leg  of  mutton  sail.  The  river  is 
very  wide  there.  There  was  water  enough  to  carry  the  ])oat 
without  any  difficulty.  I never  went  north  of  Daggett  mill  at  Lock- 
port.  Between  Daggett’s  mill  at  Lockport  and  Wood’s  Island, 
Joliet,  in  ordinary  stages  of  water,  one  boated  up  through  there 
but  it  was  with  some  trouble,  of  course.  In  the  low  stage  of  water 
it  would  be  impossible,  unless  you  dragged  it.  I never  had  oc- 

1054  casion  to  go  north  of  Daggett  mill.  Lake  Joliet  is  about  four 
miles  long.  It  is  practically  a dead  level;  there  wasn’t  mucli 
current  there.  The  stretch  at  Treat’s  Island  has  a very  rapid 

1055  current,  judging  from  the  map  (p.  25),  plat  book  of  Will 
County,  a little  over  half  a mile  long.  I thought  it  was  about 

1056  1,000  feet.  The  current  was  swift  the  entire  length  of  the 
island  at  the  time  I was  there.  We  v^ent  down  the  right  hand 

side,  west  channel.  We  rowed  down,  occasionally  would  get 
stranded  on  a rock,  get  out  and  lift  her  off,  shove  her  down, 

1057  but  we  were  out  only  at  times.  There  were  some  rapids  just 
below  the  mouth  of  the  DuPage  Eiver.  I think  we  had  a 

little  trouble  there.  I don’t  recollect  any  trouble  at  the  mouth 


446 


of  the  Desplaines  or  for  the  400  feet  above  the  mouth.  I re- 

1058  member  the  Kankakee  was  quite  high.  We  went  down  as  far 
as  Marseilles.  We  had  no  trouble  in  the  Illinois  Eiver,  did 

not  have  to  get  out  and  pull  over  any  obstructions.  The  Des- 
piaines  Eiver  at  that  time  seemed  just  'normal  stage  I thought. 
It  was  either  the  latter  part  of  July  or  the  fore  part  of  August. 
I did  not  go  down  to  Marseilles  but  once.  I was  down  a second 

1059  time  past  the  island.  We  had  to  get  out  the  same  as  the  first 
time  at  Treat’s  Island  and  at  the  DuPage  riffles. 

When  we  went  down  to  Marseilles  we  came  back  on  the  canal  be- 
cause it  was  a good  deal  easier  to  come  up  the  canal.  We  could 
hitch  on  a canal  boat  and  be  towed  up.  It  would  have  been  hard 
work  of  course  to  have  come  up  the  river.  There  would  be 

1060  places  where  we  couldn’t  row;  some  of  them  more  than  half 
a mile  long.  I have  been  down  to  Treat’s  Island  perhaps  a 

hundred  times.  I have  not  been  up  above  Wood’s  Island  a great 
many  times.  I have  had  no  experience  traveling  on  other  rivers. 
I have  been  on  a steamboat  on  the  Mississippi,  but  not  on  any 

1061  of  its  tributaries. 

The  witness  is  asked,  based  on  his  knowledge  of  the  river  and 
assuming  that  Dam  No.  1 were  taken  out  and  the  bridges  over  the 
Desplaines  were  removed,  is  the  river  An  your  opinion  capable  of 
being  used  in  its  present  state  for  any  commercial  purpose,  or  in 
the  state  it  was  when  you  knew  it  best? 

(Objection,  as  not  cross-examination,  also  the  question  as- 
sumes non-existent  conditions  and  calls  for  opinions  and  con- 
clusions which  are  irrelevant,  incompetent  and  immaterial.) 

A.  It  would  not  have  much  commercial  value  I don’t  think, 
left  in  that  condition,  with  the  dams  out  and  no  improvements 
made  with  reference  to  checking  the  water. 

Q.  Would  the  river  have  any  commercial  value,  carrying  com- 
merce, or  be  capable  of  carrying  commerce  up  and  down? 

(Same  objection.) 

1062  A.  Well,  it  would  have  a very  limited  use  under  those  con- 
ditions. It  would  be  possible  of  course  to  go  up;  whether 

it  would  be  profitable  or  not  would  be  another  question,  by  small 
boats,  skiffs,  row  boats,  batteaus  or  something  of  that  kind.  You 


447 


would  slide  them  over,  push  them  over  the  obstacles  and  push 
them  along. 

I have  seen  the  Desplaines  since  the  Sanitary  District  water 
was  turned  in.  I have  crossed  the  river  often.  Under  the  present 
conditions  of  water  it  would  be  dangerous  for  an  ordinary  person 
not  skilled  in  a boat  to  go  down  through  the  river,  but  a 
1063  skilled  person  could  go  down  there.  A man  could  not  take 
a row  boat  from  Lake  Joliet  to  the  foot  of  Dam  No.  1 to-day 
in  the  present  conditions.  I would  not  say  he  could  not  get  it 
up  there  in  any  way.  With  a motor  boat  you  could  go  up  there 
possibly.  With  a stiff  wind  I am  not  sure  that  a person  could  not 
sail  a boat  up  there  even  now.  That  distance  is  about  a mile  and 
a half. 


Re-direct  Examination. 

Any  boat  equipped  with  a gasoline  motor  is  what  I had  in  mind. 
I have  not  seen  it  tried.  I was  just  wondering  whether  it  could 
not  be  done.  I don’t  own  a motor  boat.  I have  seen  them, 

1064  eighteen  or  twenty  feet  long  and  four  to  six  feet  beam,  draw- 
ing probably  two  feet,  the  shorter  ones.  They  had  machin- 
ery, propelled  by  gasoline  in  the  bed  of  the  boat.  I have  seen 
them  on  the  canal  in  use.  This  kind  of  craft  is  comparatively  a 
new  invention,  just  beginning  to  be  introduced.  I believe  the 
river  at  this  time  is  in  receipt,  above  Joliet,  of  substantially  300,- 
000  cubic  feet  a minute  from  the  Sanitary  District  channel.  The 

canal  has  been  coincident  with  the  river  for  a portion  of  the 

1065  distance  above  Joliet,  and  there  is  a feeder  provision  with 
a lock  by  which  a considerable  portion  of  the  Desplaines 

Eiver  is  made  to  feed  into  the  canal.  Open  ditch  draining  had 
been  going  on  in  the  country  for  a long  time  before  the  tile  drain- 
ing came  in.  Our  tiling  factory  here  was  running  in  1869,  for 
manufacturing  under-draining  tile  and  had  been  for  some  years 
before  1869. 


Re-cross  Examination  by  Mr.  Munroe. 

1066  I don’t  know  whether  the  taking  out  of  Dam  No.  1 would 
make  any  ditference  after  the  first  rush  of  water  was  over. 
I don’t  know  that  that  would  increase  the  hazard  any. 


448 


Re-re-direct  Examination. 

Dam  Xo.  1 has  been  here  ever  since  I can  remember.  There 
used  to  be  some  other  dams,  but  they  have  all  been  removed.  Dam 
No.  1 is  the  only  dam  there  is  in  the  river  from  Joliet  to  its 
mouth. 

1067  It  is  stipulated  that  page  15  and  page  25  of  the  plat  book 
may  be  put  in  evidence  in  connection  with  the  witness’  testi- 
mony if  desired. 

(Plat  book  of  Will  County,  Illinois,  compiled  and  published  by 
George  A.  Ogle  & Go.,  Chicago,  1893,  assisted  in  record  work  and 
drafting  by  W.  E.  Hocking,  Joliet,  111.,  being  a book  produced  by 
counsel  for  defendant.  Atlas  pp.  3917-3918;  Trans.,  pp.  6488-6490; 
Abst.,  p.  1916.) 

George  Albert  Parrext, 
a witness  for  complainant,  testified  as  follows: 

Direct  Examination. 

1068  I am  sixty- five  years  old.  Live  in  Joliet  and  have  lived 
in  Will  County  ever  since  1853.  Have  been  acquainted  with 

the  Desplaines  River  continuously  since  that  time.  Have  gone 
upon  it  in  boats.  My  last  boat  was  19  feet  10  inches  long,  17  feet 
on  the  water  line,  5 feet  beam.  It  had  a three-inch  keel  on  the 
outside  and  it  had  a sail.  I have  carried  1,500  pounds  of  luggage 
two  men  at  200  pounds  apiece,  they  would  weigh  that  or  more, 
and  a couple  of  hundred  pounds  of  decoy  ducks.  I would 

1069  go  down  twice  a year,  in  the  spring  and  again  in  the  fall. 
From  the  early  use  in  the  spring  to  the  latest  use  in  the  fall 
it  would  be  about  five  or  six  months  between.  At  the  head 

1070  of  Treat’s  Island  was  the  shallowest  places.  I have  been 
through  there  two  hundred  times.  We  used  to  go  pretty 

often.  I have  gone  down  there  when  the  water  at  the  head  of 
Treat’s  Island  was  four  feet  deep  on  the  riffles.  At  the  shallow- 
est place  we  could  go  up  there  with  a boat  drawing  18  inches 

1071  of  water.  I once  loaned  two  boats  to  a man  on  the  island 
to  haul  his  hay  off  the  island.  I had  two  boats  there  14 

feet  long;  they  were  27  inches  wide  on  the  bottom  and  44  on  the 
top.  He  put  the  two  boats  together  and  took  a big  load  of  hay  off 
the  island  there.  I know  the  location  of  Davidson’s  quarry.  It 


449 


is  about  a mile  back  from  the  river.  There  was  a road  con- 
nected it  with  the  river.  I used  to  see  it  before  there  was  any 
bridge  there.  I have  noticed  the  road  in  particular  coming 

1072  down  where  it  touched  the  river.  The  road  came  down  at 
right  angles  to  the  river  and  then  a road  branched  otf  and 

went  down  to  the  round  place  at  the  head  of  the  lake.  Eight  there 
there  was  a deep  hole.  There  was  a well  traveled  road  went  right 
down  to  the  place;  it  was  filled  up  as  a regular  road.  I noticed 
the  road  there  in  the  fore  part  of  the  fifties,  when  a man  was 
drawing  a seine  there.  There  was  a big  cove  in  there  and  the 
water  was  deep  and  at  the  point  where  the  curved  road  came 
down  to  the  water’s  edge  it  was  five  or  six  feet  deep.  There  was 
no  ford  way  or  roadway  across  the  river  at  that  point;  they 
couldn’t  get  across  there.  It  was  too  swampy  on  the  other  side; 
they  couldn’t  have  landed.  If  they  had  driven  in  there  they 

1073  couldn’t  have  got  out  and  the  water  would  have  been  too 
deep.  The  road  from  which  this  branched  off  did  go  out 
across  the  river  at  a shallow  point  and  the  branch  came  down 

1074  to  the  river  at  the  deep  point.  That  road  coming  down  to 
the  river  at  the  deep  point  must  have  been  for  loading  ma- 
terial onto  boats  in  the  river,  because  there  were  stakes  driven 
along  the  side.  They  said  they  had  to  be  careful  about  the  stakes 
when  pulling  in  the  seines.  I noticed  them,  and  it  looked  as  though 
they  were  driving  right  along  there  for  a dock  there,  a kind  of 
landing  place.  I noticed  it  on  account  of  the  pulling  in  of  the 
seine  there.  I remember  the  making  of  the  deep  cut  by  which  the 
Chicago  Eiver  was  connected  with  and  turned  into  the  I.  & M. 

Canal,  back  between  1867  and  1871.  That  has  filled  up  the 

1075  bed  of  Lake  Joliet  with  mud  and  made  it  shallower  than  it 
was  before.  It  naturally  would,  because  there  is  no  current 

in  the  lake. 


Cross-Examination  hy  Mr.  Munroe. 

I have  probably  owned  forty  or  fifty  boats  on  the  Desplaines. 
They  have  been  row  boats,  except  this  one  that  was  a sail  boat. 
The  sail  boat  had  a 16-foot  keel,  19  feet  10  inches  long,  17  feet 
on  the  water  line,  5 foot  bottom,  14-foot  mast,  11-foot  boom,  6-foot 
gatf.  I used  that  boat  on  the  river  from  the  oatmeal  mill  down 
to  the  mouth  and  back  again.  George  Abbott  used  to  go  with  me 


450 


Par  rent, — Cross-Exam. — Continued. 


in  that  boat  and  Sam  Cutler.  Cutler  is  dead.  Abbott  lives 

1076  here.  This  trip  went  from  Hickory  Creek  down.  It  drew 
17  inches  loaded.  We  went  to  the  mouth  of  the  Desplaines 

River,  up  the  Kankakee  to  the  first  island.  That  was  about  the 
first  of  March.  The  creek  was  up ; the  river  was  not  up  so  high. 
The  river  was  about  the  same  as  it  would  be  any  time  in  the 
spring.  We  came  back  up  over  the  riffles.  We  didnT  have  any 
difflculty  in  pulling  it  over  the  riffles.  One  man  would  get  out 

1077  of  the  boat  and  the  others  would  stay  in  and  keep  it  away 
from  the  shore,  standing  up  with  the  pole.  The  other  was 

on  the  shore  pulling  on  the  painter  and  that  occurred  right  at 
the  rapids  of  Treat  ^s  Island.  We  had  to  pull  the  boat  that  way 
probably  30  or  40  rods.  We  did  not  experience  any  other  rapids 
that  bothered  us  in  our  course.  We  came  right  along  up  the 
river.  We  brought  it  up  beyond  Davidson’s  quarry  there  and 
then  we  pulled  it  out  and  put  it  into  the  canal  because  we  couldn’t 
get  any  further  on  account  of  the  Jefferson  street  dam.  We  came 
opposite  the  oatmeal  mill,  just  below  Porter’s  brewery.  We 

1078  didn’t  pull  it  up  stream  from  Brandon’s  bridge  to  the  oat- 
meal mill  or  the  dam,  because  we  put  the  sail  up  and  the 

wind  was  good  and  sailed  along.  You  could  sail  it  up  now.  We 
couldn’t  row  it  up  very  well.  I have  rowed  skiffs  up,  but  that 
boat  was  too  large.  Mr.  Abbott  went  with  me  that  trip.  His 
three  sons  have  gone  with  me  on  such  trips.  It  was  1875  or  1876 
that  we  made  that  trip  with  Mr.  Abbott.  I was  over  forty;  I 
am  sixty-five  now.  I saw  this  road  down  to  the  river  about 

1079  1854  or  ’5.  I was  fifteen  or  sixteen.  I was  seeing  the  man 
seine;  I was  not  drawing  the  seine  myself.  It  was  all  open 

prairie  then,  no  fences.  I couldn’t  say  whose  land  it  was.  The 
road  was  right  there  at  the  head  of  the  lake. 

(Witness  is  shown  the  township  map,  showing  Lake  Joliet,  Pat- 
terson’s Island  and  Brandon’s  Road.) 

1080  It  was  right  on  this  bend  (indicating).  I was  at  least  nine 
years  old.  It  was  a well  beaten  road.  There  was  stuff 

thrown  in  to  make  it.  I should  not  think  it  was  used  just  to 
drive  horses  down  to  water.  I knew  all  about  it  at  the  time;  I 
knew  there  was  a road  there  and  I have  always  known  it  since 
and  I know  it  now.  I don’t  think  the  road  is  there  now.  I 


haven’t  been  down  there  for  seven  or  ten  years.  I could  find 

1081  it  if  it  is  there,  if  the  snow  is  off.  The  ford  that  crossed 
there  was  right  above  the  bridge,  where  the  bridge  is  now. 

They  crossed  on  either  side,  because  tliere  was  a stone  l)ottom 
there.  I don’t  think  it  would  have  been  as  far  south  of  Brandon’s 
bridge,  as  ten  rods.  It  would  be  too  wide  there.  I have  seen  the 
ford  there  before  the  bridge  was  built  and  gone  across  it.  There 
was  no  bridge  when  I was  first  around  there.  I have  gone  down 
the  Desplaines  when  I did  not  have  to  get  out  and  pole 

1082  the  boat  along.  I have  gone  down  in  June  and  did  not  have 
to  take  the  boat  out  to  get  over  the  riffles.  There  was  a 

young  fellow  with  me.  I have  come  up  the  Desplaines  Eiver  at 
other  times  without  having  to  get  out  and  pull  the  boat  up  from 
Treat’s  Island  up  to  the  oatmeal  mill.  I cannot  say  from  the 
mouth  of  the  river.  Yes,  we  rowed  the  boat  right  over  the  riffles. 
I couldn’t  say  whether  we  could  do  it  to-day  under  the  present 
condition  of  the  water,  because  I haven’t  been  down  there  to  see. 
Yes,  it  could  be  done  to-day,  and  a motor  boat  could  come 

1083  up  there  to-day.  I have  ridden  in  motor  boats.  They  would 
go  ten  miles  an  hour  in  open  water  and  five  or  six  miles  in 

the  canal.  I have  gone  from  here  to  Channahon  in  it.  I don’t 
own  a motor  boat  myself.  Albert  Keeling  owned  that.  It  went 
about  five  or  six  miles  an  hour  when  I rode  in  it.  It  was  a ten. 
horse  power  boat,  36  feet  long,  covered  in,  with  a full  cabin.  I 
don’t  think  that  boat  could  come  up  the  Desplaines,  because  it 
didn’t  have  power  enough. 

1084  I have  made  an  affidavit  in  this  case.  I don’t  think  I said 
anything  about  hay  being  conveyed  on  the  Desplaines  River 

on  boats  in  the  affidavit,  but  I have  seen  men  carry  produce  up 
and  down  there,  I mean  meal  and  flour,  to  cook.  I don’t  know 
that  I ever  saw  anybody  carrying  things  on  the  Desplaines 

1085  River  to  sell.  I always  took  supplies  when  I went  down  the 
river  hunting.  I did  not  try  to  buy  any.  There  is  a place 

down  there  at  Chananhon  about  two  miles  from  the  river  where 
one  could  buy.  There  used  to  be  a place  at  Dresden  and  another 
at  Au  Sable.  You  can’t  now.  I have  carried  corn  and  wheat. 

1086  I have  carried  a load  of  1,500  pounds  at  a time,  ammunition, 
tents,  stove,  bedding,  decoy  ducks,  traps,  rubber  boots,  beds, 


• 452 


food ; there  were  three  of  us.  I did  not  take  the  hay  off  of  Treat’s 
Island.  I let  a man  take  my  boats  to  get  the  hay  off.  Do  you 
want  to  know  where  I took  hay  off?  I took  it  from  the  DuPage 
River.  We  would  put  the  boat  from  the  Desplaines  into  the  Du- 
page by  locking  it  into  the  canal  at  Channahon.  We  went 

1087  down  the  DuPage  River  to  fish.  We  went  down  by  the 
canal.  I have  taken  the  big  boat  down  to  the  DuPage  River 

a good  many  times.  I have  been  up  the  DuPage  to  Plainfield, 
two  or  three  miles  above  Channahon  with  a small  boat  pushing; 
never  had  occasion  to  go  further.  I never  took  the  big  boat 

1088  up  Hickory  Creek.  We  took  it  to  the  creek  by  taking  the 
big  rubble  car  from  the  house  and  running  it  down.  I kept 
the  boat  on  the  dry  land  between  the  canal  and  the  river, 

1089  pulled  it  out  every  time  with  a block  and  tackle.  I was  down 
there  looking  for  ducks  when  I saw  them  drawing  the  seine. 

They  did  not  tell  me  to  be  careful  and  not  knock  the  posts  down. 
I think  a man  named  Lampin  said  not  to  get  into  the  posts  with 
the  seine.  They  were  talking  to  themselves;  I stood  there  and 
talked  with  them. 

Thereupon  counsel  for  complainant  oifered  in  evidence  as  Ex- 
hibit 4,  an  affidavit  of  Geo.  Albert  Parrent  as  follows: 


1090  State  of  Illinois, 
County  of  Will. 


Geokge  Albekt  Pakkent,  of  said  county,  being  first  duly  sworn 

on  his  oath,  deposes  and  says : 

That  he  is  now  of  the  age  of  65  years  and  that  he  has  resided 
in  Joliet  continuously  since  the  year  1853,  and  that  from  his  first 
coming  to  Joliet  and  for  many  years  thereafter  he  was  much  in- 
terested in  hunting  and  fishing  and  indulged  in  the  sport  at  almost 
all  seasons  of  the  year.  That  he  went  up  and  down  the  Desplaines 
River  often  in  boats  at  times  as  far  up  as  the  Goose  Lake  above 
Romeo,  and  down  to  its  mouth,  that  the  same  was  navigable  for 
ordinary  boats  the  whole  distance  except  when  the  same  was  ob- 
structed by  dams  across  it.  That  said  boating  could  be  carried 
on  for  at  least  six  months  in  the  year,  and  in  some  years  all  the 
year  except  when  obstructed  by  the  dams  and  hy  ice.  That  the 
said  river  was  navigable  for  boats  drawing  from  two  to  four 


453 


feet  of  water  from  the  head  of  the  lake  below  Joliet  to  the  mouth 
of  the  river  at  all  seasons  of  the  year  except  at  the  rapids  at 
Treat  ^s  Island  and  they  were  about  one  hundred  rods  in  length. 
That  boats  of  like  capacity  could  go  up  and  down  these  rapids  for^ 
at  least  six  months  in  the  year.  That  the  river  above  the  dams 
at  Joliet  was  navigable  at  nearly  all  seasons  for  boats  drawing 
at  least  two  feet  of  water,  the  only  obstruction  being  a small 
dam  at  West  Lockport.  That  in  high  water  the  flats  both 
1091  above  and  below  Joliet  were  so  overflowed  that  like  boats 
could  go  up,  or  sail  there  outside  the  current  without  the 
least  difficulty  except  for  the  dams  across  the  same.  That  after 
he  came  here  in  1853  he  remembers  seeing  a road  from  what  is 
now  known  as  Davidson’s  Quarry  in  Joliet  to  the  head  of  Lake 
Joliet,  and  that  the  said  road  was  then  a w^ell  traveled  road  and 
looked  as  though  the  same  had  been  used  for  hauling  heavy  loads 
over  it.  That  there  was  not  then  any  bridge  across  or  over  said 
river  nor  was  there  any  road  leading  from  said  river  on  the  op- 
posite or  east  side  of  the  same.  That  this  affiant  was  informed 
at  the  time  that  said  road  was  used  for  hauling  stone  from  said 
quarry  to  the  river  and  loaded  upon  boats  and  taken  down  the 
river.  That  there  was  a deep  hole  at  the  ))lace  where  said  stone 
and  other  stuff  were  loaded  and  it  was  then  plain  to  be  seen 
where  the  loading  took  place. 

(Signed)  Geoeoe  Albekt  Parrent. 

Subscribed  and  sworn  to  before  me  this  8th  day  of  January, 
1908. 

(Signed)  W.  W.  Stevens, 

(notarial  seal)  Notary  Public. 


1092  A man  stood  down  there  and  told  me  that  stone  from  the 
quarry  was  loaded  on  boats  there  and  taken  down  the  river. 

1093  That  was  told  me  the  same  as  it  was  about  the  abutments 
down  there.  I think  it  was  later  than  1853,  somewheres 

along  in  1854  or  ’55.  He  told  me  that  was  what  the  road  was 
used  for.  The  man  stood  on  the  aqueduct  and  told  me  things, 
too,  about  those  men  being  drowned.  The  man  stood  right  oii 
the  aqueduct  and  told  me  that  that  was  there  at  the  time.  This 
road  was  built  up  with  stones  and  stuff  thrown  in  there.  A man 


454 


couldn’t  help  but  see  it.  These  fishermen  were  there  with  us. 

1094  I don’t  think  there  was  a bridge  there  then.  I said  in  my 
affidavit  the  river  was  navigable  for  boats  drawing  from  2 

to  4 feet  of  water  from  the  head  of  Lake  Joliet  to  the  mouth  of 
the  river  at  all  seasons  of  the  year,  except  at  the  rapids  at 
Treat’s  Island.  There  was  never  less  than  two  feet  of  water  at 
the  mouth  of  the  DuPage  River.  I never  saw  less  than  two 

1095  feet  at  the  mouth  of  the  Desplaines.  I say  a boat  could  go 
up  there  six  months  in  the  year,  drawing  two  feet  of  water. 

That  I know.  It  drew  a good  deal  more  than  that  sometimes. 
We  could  get  it  up  without  going  on  the  bank;  of  course  it 

1096  would  have  to  be  pulled.  You  would  have  to  use  the  capstan ; 
you  would  not  have  to  put  a post  on  the  bank.  You  could 

put  an  anchor  at  the  head  of  the  riffles  and  throw  a line  out  and 
pull  it  up,  do  it  with  a block  and  tackle.  That  would  be  three  or 
four  months  in  the  spring  and  the  balance  in  the  fall,  touching  the 
lowest  points. 

1097  George  Abbott^ 

a witness  for  complainant,  testified  as  follows : 

Direct  Examination. 

I live  in  Will  County  just  outside  the  city.  I am  in  my  eightieth 
year.  Was  born  at  Keene,  New  Hampshire  in  1828;  came  to 
Will  County  in  1853.  My  home  has  been  here  since  1857.  I 

1098  have  been  acquainted  with  the  Desplaines  River  ever  since. 
I went  hunting  and  fishing  on  the  river  in  the  fall  of  1857 ; 

have  been  down  there  ever  since  up  to  within  two  }^ears.  I then 
lived  right  at  the  site  of  the  Rock  Island  depot  in  Joliet;  kept 
a restaurant  there  eighteen  years.  I would  put  my  boat  into 
the  river  right  where  Malcolm’s  dam  used  to  be.  There  is  no 
dam  there  now.  Most  of  the  time  I kept  the  boat  at  Patterson’s 
Island,  below  Brandon’s  bridge.  I have  gone  sometimes  twenty 
trips  in  a year,  sometimes  more  than  that.  Two  years  ago  I 
went  down  clean  through  to  the  mouth.  That  was  in  the  summer 
of  1905.  In  1857  I don’t  think  I w^ent  below  what  was  called 

1099  Charley  Smith’s  bridge.  I went  on  down  to  the  mouth  in 
1858  and  practically  every  year  after  that,  and  sometimes 

several  times  a year.  The  water  was  pretty  shallow  just  at  the 
head  of  Treat’s  Island.  They  had  built  liftle  dams  across  each 


455 


of  the  three  channels  and  turned  the  water  into  the  third,  into  tlie 
race  of  an  old  mill.  It  was  pretty  shallow  in  the  summer  season. 
You  could  run  a skiff  over  it  a good  many  times  after  the  fall 
rains.  The  water  was  a couple  of  feet  deep  near  the  Malcolm 
Dam.  In  Lake  Joliet  it  varied  awfully,  all  the  way  from  three 
or  four  feet  to  the  deepest  place  off  Darcy’s  Bluff;  that  was 

1100  42  feet  deep  in  high  water.  That  was  before  the  opening  of 
the  deep  cut,  when  the  bad  water  came  in.  Since  the  drain- 
age water  came  down  it  overflows  lots  more  country  than  it 
did  years  ago.  I remember  that  just  l)efore  the  Chicago  fire 
there  was  a cutting  made  that  opened  the  Chicago  Eiver  into  the 
canal.  They  turned  in  a lot  of  sediment  and  dirt  and  killed  off 
every  living  thing  in  the  lake.  I have  been  down  there  when  it 
looked  as  though  you  could  walk  right  off  on  the  water  for  an 
acre  with  nothing  but  dead  fish,  because  it  caused  the  sediment 

and  mud  to  accumulate  in  the  lake.  There  used  to  be  a ford 

1101  just  above  Smith’s  bridge.  I have  crossed  it  with  a buggy. 
If  you  knew  the  track  the  water  would  just  about  come  up 

to  the  bottom  of  the  buggy,  sometimes  come  in.  You  had  to  keep 
at  the  shallowest  point  to  keep  the  water  from  coming  into  the 
buggy.  In  low  water,  in  the  summer  season,  I have  been  across 
there  when  it  did  not  come  in.  I know  where  Joe’s  Island  is. 
There  was  a ford  there  Avhere  you  could  cross  when  the  water 
was  low.  I knew  Shabbona,  the  Pottawattomie  Indian  Chief.  He 
told  me  the  current  report  as  to  the  French  and  Indian  trading  in 
furs  up  and  down  the  river.  I used  to  walk  down  with  him  Sun- 
day mornings  and  he  would  stay  at  my  house  and  we  would  walk 
down  together  as  far  as  Patterson’s  Island.  He  told  me  about 
going  up  the  river  in  canoes.  I asked  him  what  the  canoes  were 
doing  up  the  river  here.  He  said  they  bring  furs,  they 

1102  brought  furs  and  took  them  up  to  the  big  waters  from  here, 
at  Fort  Dearborn  somewheres.  I asked  him  how  they  could 

pull  over  these  riffles  and  he  indicated  with  a cane  ‘^poled  up.” 
That  is  all  I remember.  That  was  about  the  outbreak  of  the  Civil 
War  when  Shabbona  told  me. 


456 


1103  C ross-Examination  hy  Mr.  Munroe. 

The  water  was  sometimes  high  enough  at  Treat’s  Island  to  float 
a skiff  over  it;  that  would  be  in  the  spring  and  the  fall  when  we 
had  big  rains.  That  would  be  on  the  side  next  to  Glidden’s,  on 
the  left  hand  side  going  down.  Mr.  Millls  lives  there  now.  I have 
taken  skiffs  up  and  down  a great  manj^  times;  I always  got  out 
and  lifted  it  over  the  riffles.  The  riffles  were  very  shallow  most  all 
the  way  from  the  head  of  the  island  to  the  foot.  There  were  spots 
we  did  not  have  to  take  tlie  boat  up  and  down  over  them  that  dis- 
tance. There  were  spots  where  the  boat  would  run  along  and 
then  in  spots  there  would  be  a deep  place  right  along  and^mu  would 
get  in  until  you  would  come  to  a riffle  and  get  out  again.  The  boats 
I used  on  the  river  were  the  ordinary  skiffs.  There  was  a pretty 
strong  current  below  the  oatmeal  mill  and  a good  many  boulders. 
In  that  strong  current  and  boulders  it  would  be  hazardous  in 

1105  low  water  unless  it  was  daylight.  There  were  boulders  that 
would  come  up  close  to  the  top  of  the  water,  but  a man  that 

was  used  to  the  stream  could  tell  where  they  were.  It  was  not  haz- 
ardous to  go  down  there  in  high  water  if  you  kept  the  channel.  It 
is  not  so  swift  but  what  a man  that  understood  handling  a canoe 
could  pole  up  against  it.  No,  a man  would  not  be  capsized  even  if 
he  was  not  skillful  in  handling  a boat,  but  he  would  turn 

1106  around  and  go  back  toward  the  lake  again.  He  is  apt  to  go 
down  in  safety  in  high  water.  There  were  trees  growing  on 

this  island  and  in  high  water  the  river  spreads  out  and  goes  right 
through  these  trees,  but  a man  going  down  with  a boat  would 
probably  take  the  stream.  There  were  three  channels  there.  The 
current  does  not  travel  out  through  the  trees.  In  high  water  any 
one  of  these  channels  would  take  a boat  through.  No,  I do  not  think 
a man  would  be  apt  to  go  in  among  the  trees  and  tip  over,  even  if 
he  didn’t  exercise  great  care.  He  ymuld  not  do  that  if  he  could 
keep  out  in  the  current.  There  is  a sand  bar  at  the  point 

1107  where  the  HuPage  Elver  comes  in.  It  comes  kind  of  kittering 
down  the  river.  Mostly  you  could  float  the  skiff  over  the 

bar  on  the  east  or  south  side  next  to  the  HuPage.  I have  often 
stuck  there.  There  have  been  times  when  you  would  have  to  get 
out  and  pole  your  boat  along  on  the  east  side  if  you  have  a load. 
There  were  some  rapids  about  600  or  700  feet  from  the  mouth.  It 


457 


was  swift  there,  but  it  was  swifter  right  below  the  mouth  wliere 
they  used  to  have  the  old  dam.  The  water  is  deep  enough  below 
that  for  the  boats.  There  are  a good  many  big  boulders  in 
1108  there.  The  water  makes  waves  now,  but  in  those  days  there 
wasnT  so  much  water  running  down.  It  wasn’t  bad  getting 
through.  We  used  to  bring  our  boat  back  up  the  river.  We  would 
get  out  and  pole  it  and  pull  it.  It  was  not  difficult  or  tedious.  I 
did  not  used  to  think  so.  Two  years  ago  last  summer,  the 
T109  summer  of  1905,  I was  down  there.  The  drainage  water 
was  in  the  river  then.  We  put  our  boat  in  right  below  the 
Eock  Island  railroad  bridge.  I do  not  think  that  there  was  any 
particular  hazard  to  a man  not  skilled  in  handling  a boat  going 
down  there.  I did  not  think  there  was  any  particular  danger  until 
you  struck  close  to  the  mouth  of  the  river,  where  it  is  pretty 
swift,  because  it  would  suck  and  roll  the  boat.  I remember  we 
took  five  or  six,  three  of  them  women,  right  down  there. 

1110  There  were  three  men  and  three  women  and  a little  child 
in  the  boat.  We  pulled  it  over.  We  came  back  up  the  canal. 

It  was  too  much  work  to  come  back  up  from  the  mouth.  I have 
seen  men  come  up  pretty  strong  currents.  I couldn’t  do  it.  (Age 
78.)  I have  been  on  the  Missouri  for  two  years. 

Q.  I want  to  ask  you  from  your  knowledge  of  the  Desplaines 
Eiver,  as  it  is  to-day,  and  as  it  was  when  you  were  down 

1111  there,  the  many  times  that  you  were,  whether  or  not  the  river 
in  its  natural  state  and  without  improvements  by  locks  and 

dams  is  capable  of  carrying  commerce? 

Counsel  for  Complainant.  I object  to  any  such  questions  as 
not  cross-examination,  the  witness,  not  having  been  offered  as  an 
expert  on  that  subject,  not  qualified  in  that  way,  to  enable  him  to 
express  an  expert  opinion  on  a hypothetical  case,  of  the  kind  that 
is  put. 

(Ruling  on  said  objection  by  trial  court. 

The  Court.  Objection  sustained.  You  may  adopt  him  as 
your  own  witness  for  this  question. 

Counsel  for  Defendant.  For  the  purposes  of  that  ques- 
tion, we  adopt  him  as  our  own  witness. 

Counsel  for  Complainant.  If  he  is  offered  as  a witness  on 
the  part  of  the  defendant,  we  will  raise  the  objection  now 


458 


that  he  is  not  qualified,  and  it  is  incompetent,  irrelevant  and 
immaterial. 

Said  ruling  occurs  on  Trans.,  pp.  1945-1946.) 

Q.  The  current  is  such  that  no  commerce  could  go  up  the  river, 
in  your  opinion,  is  that  so? 

(Objection.) 

A.  I should  not  think  so. 

Q.  When  you  were  down  there  the  depths  of  water  were  such 
it  could  not  float  any  commerce?  A.  Well,  take  it  between  Treat’s 
Island  and  Patterson’s  Island,  it  ran  all  the  way  from  three  or 
four  feet,  but  it  is  as  deep  as  forty-two  feet. 

Edward  D.  Beockway, 

a witness  for  complainant,  testified  as  follows: 

Direct  Examination. 

1113  I live  in  Plainfield;  will  be  fifty-nine  years  old  August  9tli. 
Was  born  and  raised  in  Will  County,  about  a mile  from  the 
river.  I have  been  familiar  with  the  river.  I moved  to  Plain- 

1114  field  about  twenty-two  years  ago.  I used  to  hunt  and  fish  and 
trap  on  the  river  andi  go  on  it  a good  deal  from  the  time  I 

was  eight  years  old.  I would  be  there  every  day  in  the  fall  until 
freezing  weather.  We  generally  either  had  a boat  at  Kock  Eun 
or  kept  one  above,  just  below  the  old  Joliet  mound.  Sometimes 
went  as  far  down  as  Treat’s  Island  and  up  as  far  as  Pat- 

1115  terson’s  and  Brandon’s  bridge.  I have  forded  the  river  with 
a team  just  at  the  head  of  Treat’s  Island  quite  often.  We 

would  go  over  there  when  gooseberries  were  ripe  to  get  gooseber- 
ries. I have  forded  it  when  the  water  would  come  into  the 

1116  wagon  box.  Sometimes  it  would  be  quite  a bit  lower  and 
come  up  to  the  hubs.  Sometimes  I went  there  and  couldn’t 

get  across,  wouldn’t  risk  it;  it  was  too  deep  and  I would  walk 
back.  Probably  three  times  a year  I would  do  that,  as  long  as  there 
were  berries.  That  was  from  1861  up  until  they  cut  otf  the  bushes. 
]\Fy  father  came  here  twenty-five  years  before  I was  born.  My 
father  told  me  about  taking  a flat  boat  down  the  river  from 

1117  Peoria  to  Joliet.  He  said  he  got  ten  dollars  for  it  and  bought 
a cow  with  the  ten  dollars.  He  told  me  this  about  two  years 

before  he  died.  He  did  not  fix  the  date  of  the  trip.  He  just  spoke 


451) 


of  it  as  a flat  boat  lie  took  down  the  river.  I suppose  it  would  be 
20  or  30  feet  long,  something  like  that.  I know  Davidson’s 

1118  quarry.  There  was  a road  there  for  awhile  that  went  down 
to  the  river.  I have  been  there  and  seen  where  it  came  to  the 

1119  water’s  edge.  It  was  quite  deep  there,  made  on  purpose  for 
loading  stuff  onto  the  boats  from  the  road.  There  w^ere  ruts 

in  the  road.  There  was  no  road  on  the  other  side  of  the  river 
opposite  where  this  landing  place  was.  There  was  a ford  back  u]) 
that  main  road  where  Brandon’s  bridge  is.  I have  forded  it  there 
in  July  and  August.  It  would  come  up  pretty  near  to  the  box  in 
the  lowest  season  of  water. 

Cross-Exaniination  hy  Mr.  Munroe. 

1120  The  last  I saw  of  that  road  was  over  forty  years  ago.  1 
first  saw  it  three  or  four  yours  before  that.  I was  up  there 

with  a boat  at  that  time,  a kind  of  a flat  boat,  one  that  we  made  our- 
selves. It  was  not  the  kind  that  my  father  took  to  Peoria.  It  wms 
a good  deal  lighter  than  that.  I know  a scow  and  a row  boat 

1121  differ.  A scow  or  flat  boat  is  a great  deal  heavier,  built  of 
heavy  plank;  on  a scow  the  deck  is  built  right  level,  like  that 

table.  When  I saw  the  road  I think  one  of  my  brothers  was  wdth 
me.  He  is  dead.  They  had  a road  there  to  load  the  stuff  onto 
freight  it  down  to  the  quarry.  That  is  what  the  road  is  for.  They 
would  freight  it  out  to  the  quarry  or  Lake  Joliet. 

Q.  And  the  road  leads  down  to  the  water’s  edge  at  Lake  Joliet 
and  Miller’s  in  from  Lake  Joliet,  two  or  three  miles  down,  north 
of  it,  in  that  wide  portion  of  the  river,  and  they  used  a scow 

1122  boat  to  convey  quarry  stone  from  Miller’s!  A.  No,  they 
freighted  material  down  to  that  quarry  on  the  end  of  Mount 

Flathead,  right  where  the  Eock  Eun  empties  into  the  river. 

(Euling  in  reference  to  said  question  by  trial  court. 

Counsel  foe  CompluIinant.  I think  that  we  agree  that  the 
location  of  Mount  Flathead  is  at  the  south  end  of  the  strip 
called  Lake  Joliet,  the  southwest  end,  and  Mount  Joliet  is 
at  the  east  end  of  Lake  Joliet.,  Mr.  Scott  indicated  it  yes- 
terday. 

The  CouET.  Northeast  or  northwest! 

Mr.  Muneoe.  Northwest. 

Counsel  foe  Defendant.  Joliet  w^ould  be  northeast,  all 
of  Lake  Joliet  would  be  northeast. 


460 


Mr.  Mu2^"roe.  That  is  I thought;  it  is  on  the  right- 

hand  side  going  down. 

Counsel  for  Complainant.  I beg  pardon — yes,  it  is  on  the 
right-hand  side. 

The  Court.  Xorthwest,  you  mean? 

Counsel  for  Complainant.  Yes,  the  northeast  end  of  this 
long  strip  is  Mount  Joliet,  and  at  the  southwest  end  of  it  is 
Mount  Flathead. 

The  Court.  Then  it  is  on  the  right-hand  side? 

Counsel  for  Complainant.  Yes,  it  is  on  the  west  side  of 
the  river. 

Said  ruling  appears  on  Trans,  p.  2193.) 

It  is  i3rohably  six  miles.  A man  by  the  name  of  Swalm  run  the 
([uarry.  Lake  Joliet  is  54  or  6 miles  long  from  Patterson’s  Island 
down  to  Treat’s  Island.  It  is  a wide  part  of  the  Desplaines  Eiver. 
It  is  not  shallow.  Oh,  yes,  there  is  some  current.  I have 

1123  crossed  the  river  at  different  points.  I never  saw  a boat  car- 
rying merchandise  or  freight  on  the  river,  only  this  freight- 
ing of  stuff  down  from  the  quarry.  I heard  from  my  folks  about 
his  sending  the  stuff  down.  I only  heard  of  it  the  one  year. 

Q.  Only  one  year,  and  to  get  his  supplies  in  and  open  up  his 
quarry,  is  that  right?  A.  Yes,  that  is  it. 

Q.  And  after  he  got  his  supplies  in  that  was  the  end  of  taking 
any  materials  down?  A.  Yes.  He  freighted  derricks  and  such 
things  down  to  save  hauling  them.  That  is  all  I knew. 

Eiley  Tanner, 

1124  defendant’s  witness,  examined  by  Mr.  Munroe,  testified  as 

follows : 

Direct  Examination. 

I am  sixty-five  years  old  and  have  lived  in  Joliet  since  July, 

1125  1842.  I remember  seeing  logs.  I only  saw  them  in  the  upper 
basin  of  the  I.  & M.  Canal.  I did  not  know  where  they  came 

from.  They  came  down  the  river  and  were  thrown  over  the  dam 
here  and  went  to  Haven’s  mill. 

Counsel  for  Defendant.  Did  they  come  down  the  canal  or 
down  the  river?  A.  I should  judge  they  came  down  the  canal. 
I am  not  sure,  1 won’t  be  sure. 

I saw  them  tuinhle  over  the  dam  here,  down  liy  the  boom,  and 
run  dov/n  to  the  mill. 


561 


1127  Cross-Examination. 

They  were  hard  wood,  oak  and  walnut.  I have  seen  them  many 
and  many  times  when  they  took  cant  hooks  and  threw  them  over 
this  dam  and  floated  them  down  to  this  boom  at  Haven’s 

1128  mill.  Oak,  walnut  and  hickory  were  the  characteristic  trees 
of  the  whole  river  valley  all  the  way  that  I know.  In  the 

early  days  Havens  was  running  a mill  there  and  had  a dam  to 
catch  the  logs  as  they  came  down.  I never  heard  wdiere  they  came 
from.  I couldn’t  say.  I noticed  them  come  down  in  the  basin  and 
tip  over  the  dam  and  go  down  to  the  boom. 

William  Found, 

1129  defendant’s  witness,  testified  as  follows: 

Examination  hy  Mr.  Munroe. 

I will  be  eighty- two  years  old  pretty  quick.  Have  lived  in  Joliet 
fifty-six  years  this  spring.  That  is,  I came  in  1852. 

In  the  spring  of  1853  and  the  fall  of  1852  I hunted  on  the  big- 
island  this  side  of  Lemont  a gKDod  deal,  and  along  in  the  spring 
of  the  year  when  the  water  was  breaking  up  I went  out  again, 
and  in  the  big  island  you  understand  there  was  a number  of  fishing 
men  had  their  camps,  and  trappers  there ; they  were  camping  down 
on  the  islands.  We  talked  to  them.  They  had  a boat  there.  It 
was  I should  think  six  or  eight  feet  wide  and  about  twenty  feet 
long  and  they  had  a cabin  in  it  and  a bunk  to  lie  down  on.  That  is 
the  only  boat  I ever  saw  on  that,  except  a little  row  boat. 

1130  They  had  a good  deal  of  work  getting  their  boat  up  and  down 
the  river.  They  got  on  the  riffles  and  had  to  get  out  in  the 

river.  They  wore  heavy  rubber  boots  and  pushed  it  in  the  deep 
water.  We  used  to  fish  up  and  down  from  Lockport  to  Willow 
Springs. 

Eliza  P.  Jones, 

1132  a witness  for  complainant,  testified  as  follows : 

Direct  Examination. 

My  home  is  in  Homer,  Will  County.  I have  lived  in  the  county 
all  my  life.  My  birthplace  was  the  house  I live  in.  My  father’s 
name  was  William  J.  Paddock.  Our  home  is  about  two  and  a half 


462 


miles  from  the  river,  possibly  four.  Father  came  in  1836.  I 

1133  once  went  fishing-  on  the  river  myself.  It  w^as  up  near  where 
Eomeo  is  now;  it  was  just  before  the  war,  1859  or  ’60.  The 

young  men  got  a boat  and  went  on  the  river.  They  did  not  wade. 
The  water  was  too  deep.  It  was  between  three  and  four  feet 

1134  deep.  I have  heard  my  father  and  others  tell  the  current 
reputation  of  the  history  of  the  early  days  on  the  Desplaines 

Fiver.  I have  heard  my  father  say  many  times  that  supplies  were- 
carried  up  from  the  south  as  far  as  Lockport  or  up  to  here.  When 
father  came  there  was  no  canal  and  there  was  no  railroad.  I re- 
member particularly  of  his  speaking  often  that  there  was  some  man 
cornered  coarse  salt  in  Chicago,  and  that  all  the  way  they  were 
able  to  get  it  was  down  the  river,  and  it  cost  them  $10  a barrel. 
I have  heard  him  say  that  many  times.  That  is  the  way  I 

1135  understood  it.  There  was  no  other  way  to  get  it  unless  they 
went  by  wagons.  That  was  long  before  the  time  when  I went 

fishing.  There  was  a Mr.  Frederick  Collins  used  to  live  there  and 
the  two  old  gentlemen  used  to  sit  and  talk  over  old  times  and  I have 
lieard  them  talk  these  things  over  and  over  and  over  again. 

F36  Cross-Examination  by  Mr.  Miinroe. 

Father  came  from  New  York  State,  walking  and  driving  a one 
horse  wagon  to  Chicago  and  across  country  to  Homer.  He  did 
not  go  down  the  river.  He  did  not  tell  me  that  he  brought  salt 
down  the  Desplaines  Fiver.  He  said  it  came  down  the  river. 
1137  I don’t  know  that  it  was  a fact  that  the  supplies  were  hauled 
to  Joliet  from  Chicago  by  wagons  or  that  grain  was  hauled 
from  Joliet  to  Chicago  by  wagon.  I know  some  grain  was  hauled 
that  way.  That  was  after  the  canal  was  opened  though,  after  they 
commenced  the  canal. 

1 have  heard  my  father  say  that  when  the  state  became  bankrupt 
that  they  had  to  haul  their  grain  to  Chicago.  That  was  after  they 
gave  up  using  the  river,  I suppose.  Father  told  me  that 
li:>8  when  the  state  became  bankrupt  the  canal  was  not  finished, 
so  they  hauled  grain  by  wagon,  not  much  of  it,  only  once  in 
awhile  a load. 

Q.  That  was  the  only  way  they  could  get  it  there,  wasn’t  it  ’ 
A.  1 think  not. 


463 


Q.  Wliat  otlier  way?  A.  I think  tiiey  shipped  it. 

Q.  By  boat?  A.  By  boat. 

Q.  Where  did  you  get  that  information  from?  A.  I inferred 
it  from  what  my  father  said.  All  the  grain  in  our  vicinity  wms 
never  liauled  to  Chicago. 

I am  sixty-three  years  old. 

Q.  You  say  that  supplies  from  the  south  came  up  as  far  as 
Lockport?  A.  Well,  as  far  as  here.  I wouldn’t  be  positive  whether 
they  came  as  far  as  Lockport. 

1139  I only  know  about  supplies  coming  up  from  the  south  by 
river  from  what  I heard  my  father  say.  He  said  it  came  up  on  a 
boat.  I don’t  know  what  kind  of  a boat,  but  supplies  came  up,  and 
some  came  by  wagons  which  they  called  prairie  schooners.  He 

said  some  came  by  boat.  He  spoke  of  fruit  being  brought 

1140  up  from  further  south  because  there  was  no  fruit  here.  1 
understood  him  to  mean  Joliet.  He  didn’t  mean  Ottawa. 

That  is  too  far  off. 


Samuel  W.  Jones, 

1141  a wdtness  for  complainant,  testified  as  follows: 

Direct  Examination. 

1 live  at  Homer,  Will  County.  Have  lived  tliere  since  1866.  The 
Mrs.  Jones  who  has  just  testified  is  my  wife.  1 was  a soldier  in 
the  Union  Army;  I went  into  the  service  from  Massachu- 

1142  setts.  We  made  our  home  with  Mr.  Paddock,  her  father. 
He  died  some  twelve  years  ago.  I have  heard  from  Mr.  Pad- 
dock  and  from  old  settlers  the  current  repuation  as  to  the  his- 

1143  tory  of  the  early  use  of  the  river.  I have  heard  Mr.  Paddock 
and  our  neighbor,  Mr.  Collins,  in  talking  over  their  early 

times,  state  that  supplies  were  brought  up  the  river  by  boat  in  an 
early  day,  that  is,  prior  to  the  opening  of  the  canal.  I have  heard 
them  speak  of  having  salt  brought  down  from  Chicago.  They 
spoke  of  some  fellow  who  got  a corner  on  the  salt  and  they  had  to 
pay  an  enormous  price,  $10  a barrel  for  the  salt ; it  came  down  the 
river,  brought  down  by  boat.  I heard  that  from  them  before 

1144  I went  to  live  with  Mr.  Paddock.  He  talked  about  those 
things  after  my  living  with  him.  He  settled  in  1836,  and  it 


464 


was  immediately  after  that,  I understand,  and  he  began  to  tell 
those  things  about  the  river  after  I became  acquainted  with  him, 
and  after  that  time  made  occasional  allusions  to  it  up  to  the  time 
of  his  death. 


Cross-Examination  hy  Mr.  Munroe. 

The  other  man,  Mr.  Frederick  Collins,  is  dead.  He  came  here 
in  1832  or  1833.  I heard  these  old  gentlemen  talking  these 

1145  things  over  together.  They  never  talked  about  dams  in  the 
river  at  that  time.  I occasionally  visited  the  upper  part 

of  the  river,  at  Lockport  and  above.  If  I went  to  Chicago  after  I 
came  here  in  1866  it  was  by  train.  You  must  remember  the 

1146  railroads  were  here  then.  I would  go  to  the  river  only  for 
fishing  or  something  of  that  kind.  I don’t  think  father  went 

so  very  frequently,  but  he  occasionally  went.  I don’t  think  I heard 
them  speak  of  themselves  bringing  things  on  the  river.  I don’t 
think  they  confused  the  bringing  of  supplies  by  the  canal,  because 
they  were  talking  about  those  early  days  prior  to  the  opening  of 
the  canal.  I don’t  think  they  were  confused  in  that  at  all.  I have 
heard  father  say  he  hauled  grain  in  a wagon.  I never 

1147  heard  him  say  why.  They  had  their  teams  and  they  could 
haul  it  cheap  that  way.  I heard  them  tell  about  hauling 

grain  by  wagon  to  Chicago.  They  never  told  me  that  all  the  produce 
was  hauled  that  way. 


Hanieu  W.  King, 

1149  a witness  for  complainant,  testified  as  follows; 

Direct  Examination. 

I am  fifty-two  years  old  and  live  at  Plainfield,  Will  County; 
was  born  and  raised  there.  Plave  always  lived  in  Will  County. 

1150  I have  lived  within  seven  or  eight  miles  of  the  Desplaines 
Iviver.  My  home  is  below  here.  I have  been  on  the  river 
with  men  who  came  down  from  here  in  a boat.  They  would 

1151  bring  the  boat  down  and  we  made  hunting  and  fishing  trips, 
making  Treat’s  Island  headquarters  and  camping  grounds. 

My  first  trip  when  I camped  at  Treat’s  Island  was  1872,  in  the 
fall  of  the  year.  AVe  usually  would  have  two  men  go  in  the  boat 
down  the  river  and  two  would  hunt  on  the  shore.  They  would 


4G5 


bring  in  the  boat  a tent,  a camp  stove,  stuff  to  last  three  or 

1152  four  days.  Some  of  them  were  great  fishers.  1 used  the  gun. 
I remember  the  shallow  point  at  the  head  of  Treat’s  Island. 

1 never  measured  it,  but  we  used  what  they  called  hip  boots,  tall 
rubber  boots  that  come  up  to  the  hips.  It  would  come  within 

1 153  an  inch  and  a half  or  two  inches  of  going  over  the  tops  of 

them  to  ford  there.  Of  course  we  could  ford  it  over  all  the 
time  that  I was  there  by  facing  up  against  the  stream.  If  you 
turned  sideways  the  current  on  those  riffles  there  would  take  you 
off  your  feet.  I made  the  trip  only  once  that  time,  again  the  next 
fall  and  eight  or  ten  years  after  that  I used  to  make  the  trip  (juite 
frequently  in  the  fall.  I never  made  over  one  trip  in  the  spring 
of  the  year.  We  usually  used  the  same  island  as  the  camping  place. 
I wore  the  hip  boots  and  usually  forded  the  river  at  this  shallow 
])oint.  It  would  never  freeze  up  over  the  riffles.  It  would  vary 
somewhat  of  course  after  short  rains  but  it  would  not  vary 

1154  very  much,  probably  four  or  five  inches.  It  would  be  from 
just  above  the  knee  clear  up  to  the  hip.  I have  seen  it  there 

when  you  couldn’t  ford  it.  That  spring  I couldn’t  ford  it;  it  was 
too  deep.  I have  been  as  far  down  as  the  aqueduct  quite  fre- 
quently. It  was  called  ^‘Dead  Man’s  Hole”  down  there,  around 
the  curve.  I don’t  know  how  deep;  it  was  pretty  deep  I was  told. 
I hav.e  gone  down  to  within  20  or  25  rods  of  the  mouth  of  the 
Dupage  and  then  turned  around  and  came  back.  I usually 

1155  went  on  the  bank  with  the  gun.  I got  tipped  over  once  or 
twice  in  the  boat.  I have  heard  from  the  early  settlers  the 

current  reputation  as  it  was  when  I was  a young  man  as  to  the 
history  of  the  early  use  of  the  river  back  in  the  period  before 
there  was  a canal.  I saw  flat  boats  there  on  the  river  and 

1156  I asked  them  what  they  used  them  for  and  they  told  me  they 
used  them  a little  earlier  to  carry  provisions  on.  One  old 

gentleman  told  me  there  was  a boat  of  grain  brought  there.  That 
was  before  my  time,  when  there  was  a brewery  or  something  es- 
tablished there.  I saw  one  or  two  of  those  flat  boats  in  1872  and  I 
saw  some  of  them  later.  They  were  not  in  use  just  then.  They 
were  anchored  in  the  still  water  above  Treat’s  Island. 


466 


1157  Cross-Examination  hy  Mr.  Munroe. 

They  were  anchored  in  the  still  wide  water  there;  it  was  about 
80  or  90  rods  up  above  Treat’s  Island.  The  man  that  lived  up 
on  the  hill  there,  the  old  gentleman,  is  dead.  He  told  me  they 
were  used  for  carrying  provisions.  Those  flat  boats  were,  I should 
judge,  12  or  14  feet  wide,  20  or  26  feet  long,  built  up  with 

1158  a flap  over  the  top  here.  I saw  them  two  or  three  times 
after  1872.  A1  Eobinson,  Jean  Eobinson,  John  Tyler  and 

J.  1).  Schreffler  were  with  me.  There  ain’t  any  of  them  living. 
Sometimes  we  would  take  a camp  down  Jhere  and  leave  it 

1159  five  or  six  weeks.  AVe  always  employed  somebody  to  run 
the  boat  down  here  from  Doc  Folk’s  farm.  Once  or  twice 

we  brought  my  boat  from  Plainfield  by  wagon,  but  some  of  the 
boys  here  (in  Joliet)  would  most  always  have  the  boats  we  used 
to  hunt  with.  I never  took  a boat  below  Treat’s  Island,  but  the 
boys  did,  the  ones  that  used  to  do  the  boating.  I was  tipped  over 
in  there  once  at  the  head  of  Treat’s  Island,  what  they  call  Deep 
Water.  I don’t  know  how  it  was.  I don’t  think  it  was  on  ac- 
count of  the  current.  I guess  the  other  fellow  got  floundering 
around  a little  bit  and  I lost  my  balance  I guess  and  went  out, 
that’s  all.  No,  the  current  was  not  swift  there.  On  the 

1160  riffles  it  is  swift.  Our  fellows  always  got  up  and  down  with 
the  boat.  It  wasn’t  too  swift  to  take  a boat  up  or  down 

1161  without  getting  out.  I never  done  much  with  the  boat  my- 
self. We  had  to  face  upstream  in  fording  the  river.  The 

current  was  so  swift  it  would  sweep  you  off  your  feet.  My  friend 
was  taken  oft  his  feet  and  went  under,  gun  and  all.  I think  a 
l)oat  could  go  up,  a boatman  that  understands  running  them;  by 
shooting  different  directions  he  couIcT  get  through.  I ain’t  any 
boatman.  I have  seen  it  done  on  riffles,  but  not  on 

1162  those.  I never  took  much  notice.  These  gentlemen  on  either 
side  would  come  down  and  visit  us  and  talk.  These  boats 

tliat  I saw  (in  1872)  were  tlie  worse  for  wear.  They  might  have 
been  built,  oh,  five  or  ten  or  twelve  years,  it  is  hard  to  tell.  They 
was  water  soaked,  you  know. 


467 


Charles  Hoy, 

1166  a witness  for  complainant,  testified  as  follows : 

Direct  Examination. 

I live  in  Will  County,  lived  here  before  the  canal  was 

1167  opened.  I came  out  in  H4.  Age  81.  I worked  on  the  canal ; 

helped  build  the  Marseilles  locks.  I knew  of  the  report  of 

the  men  being  drowned  at  Dead  Men’s  Hole  near  the  mouth  of 

the  Desplaines.  I came  up  that  morning.  I worked  at  Marseilles 
on  the  derricks  and  they  ran  out  of  safety  fuse,  and  Mr.  Gris- 
wold out  here  in  A^ankee  settlement  used  to  make  it.  They  sent 
me  to  Griswold  to  get  some  fuse  for  blasting  purposes.  When  I 
came  up  there  they  told  me  that  the  six  men  were  drowned  and 
the  boat  upse.t.  I passed  right  alongside  of  the  river  at^that 
point.  I could  not  tell  how  many  people  there  were.  They  told 
me  there  were  six  drowned  that  morning  and  I think  a yoke  of 
oxen.  I boated  on  the  canal  and  ran  a boat  for  Mr.  Norton  and 
was  a hand  on  a boat  before  that  and  I owned  a boat  myself 

1168  in  the  last  years.  I worked  at  Lockport  when  they  were 

building  the  basin;  I drove  a team  there.  In  the  spring  of 

the  year  it  came  on  a big  flood  and  the  whole  front  of  it  was 

washed  away  down  into  the  river  and  we  had  to  go  back  and 
build  it  up. 

I fished  and  hunted  up  and  down,  sometimes  with  torch  and 
spear,  sometimes  with  a boat,  sometimes  would  walk. 

Cross-Examination  by  Mr.  Miinroe. 

1169  I came  from  Ireland;  landed  in  Canada,  came  to  Chicago, 
walked  down  to  Joliet  on  the  other  side  of  the  river.  I did 

not  see  any  boats.  There  was  not  any  well-beaten  roads  from  Chi- 
cago to  Joliet.  I saw  farmer’s  teams.  They  went  up  there  with 
oxen.  They  had  ox  teams  and  would  bring  things  down  from  Chi- 
cago and  bring  stuff  again.  That  was  before  the  opening 

1170  of  the  I.  and  M.  Canal.  The  railroad  was  built  in  after  the 
canal.  Before  that  farmers  here  hauled  produce  to  Chicago 

and  brought  supplies  back  by  team.  I went  down  to  build  the 
locks  at  Marseilles  before  the  canal  was  opened.  I drove  a team 
from  here  to  Marseilles.  I did  not  go  back  and  forth  much. 


468 


I got  a team  and  hauled  sand  from  Kickapoo.  There  was  a stage 
running  from  Kickapoo. 

1171  There  was  a stage  that  was  running  through,  coming  up 
from  somewhere,  I couldn’t  say  what  point.  I have  seen 

skiffs  and  the  like  of  that  come  up  and  down;  I don’t  know  what 
they  had  aboard.  I have  been  fishing  up  and  down  the  river  a 
great  many  times.  I never  saw  anything  like  a canal  boat  on  the 
river.  There  was  plenty  of  water  at  some  seasons  of  the  year. 
AVe  could  run  any  boat;  that  I know.  It  was  not  a very 

1172  swift  river  until  you  came  down  to  Joliet,  then  it  got  pretty 
swift.  I don’t  know  what  dams  there  were  when  I came  here. 

I don’t  remember  any.  I remember  some  men  being  drowned 
by  the  aqueduct.  I think  a man  by  the  name  of  Blackstone  had 
a contract  for  building  the  piers. 

Questions  in  cross-examination  by  defendant’s  counsel. 

Q.  And  they  had  a big  raft  there?  A.  Yes. 

Q.  That  they  used  to — A.  Bring  materials  up. 

Q.  To  bring  the  material  from  the  shore  over  to  the  piers? 
A.  Yes. 

Q.  And  they  had  the  men  and  the  oxen  on  that  big  raft  and 
it  tipped  over?  A.  Tipped  over;  and  I came  up  that  morning, 
and  that’s  all  I know  about  it. 

Q.  Did  you  see  the  raft  they  had  there  that  the  men  were  work- 
ing on,  that  tipped  over?  A.  I don’t  remember  whether  I did 
or  not.  I couldn’t  tell  you  that  now.  AYe  hauled  those  stone 
from  Aliller’s  quarry  up  here  for  the  coping  of  that  lock,  with 
teams  over  to  Alarseilles. 

1173  Kobert  Aliller  owned  the  quarry  between  here  and  Lock- 
port.  AYe  hauled  the  stones  to  Alarseilles. 

There  wasn’t  any  way  to  get  it  there.  Nobody  suggested  throw- 
ing them  in  the  river  and  taking  them  down.  I couldn’t  say  how 
to  spell  his  name.  Miller.  He  was  a farmer.  I don’t  know 

1174  how  far  it  was  to  Alarseilles;  it  is  eight  miles  this  sid^e  of 
Ottawa.  I had  a skiff  on  the  river  at  times.  I have  come 

to  shallow  places  where  I would  drag  the  skiff,  and  then  we  would 
come  to  a little  deeper  place  and  it  was  all  right.  Aly  fishing  was 


from  the  double  Jocks  up  to  Homeo.  I never  went  below 

1175  Joliet.  We  could  take  rock  bass  in  the  holes.  1 never  saw 
any  fences  across  the  river.  I saw  cattle  swimming  across 

the  river  from  the  other  side.  There  used  to  be  timber  up  there 
then.  It  was  about  half  way  up  to  Lockport  I have  seen  cattle 
from  the  other  side  swimming  across  the  river.  I can’t  fix  the 
time  of  drawing  the  stone  to  Marseilles.  It  was  over  fifty  years 
ago,  between  the  time  when  I came  in  1844,  and  when  the  canal 
opened.  That  I think  was  in  1848. 

1176  Re-direct  Examination. 

I didn’t  see  the  scow  or  flat  boat  that  the  men  were  drowned 
out  of.  They  were  using  it  to  haul  material  up  and  down.  That 
is  the  work.  I stopped  and  they  told  me  six  men  were  just 
drowned. 

Re-cross  Examination  hy  Mr.  Munroe. 

I undertsood  it  was  tipped  over  by  the  oxen  getting  too  far  to 
one  side. 


Frank  Paddock, 

1178  a witness  for  complainant,  testified  as  follows: 

Direct  Examination. 

I live  in  Homer,  Will  County,  and  have  all  my  life.  My  father 

was  William  J.  Paddock.  It  was  a little  over  four  miles  to  the 

Desplaines  Elver.  My  father  was  living  there  from  the  time  of 
my  birth  and  before.  He  came  here,  I think  he  said,  in  1836. 

1179  I have  heard  my  father  say  they  brought  ap])les  up  the 
river.  I asked  him  how  they  got  supplies  when  they  first 

came  here.  Well,  he  said  they  brought  it  in  on  boats.  I don’t 

know  what  kind  of  boats.  He  said  that  they  brought  some  from 
the  south  and  some  from  Chicago.  He  said  they  brought 

1180  salt  and  groceries  from  Chicago.  I have  been  on  the  river 
a short  ways  fishing  in  a small  boat,  three  of  us  in  the  boat, 

from  the  Twin  Locks,  up  north  of  the  penitentiary,  as  far  as 
Eomeo,  generally  in  May  or  June.  There  was  a pretty  good 

1181  depth  in  some  ])laces,  34  to  4 feet.  I couldn’t  hardly  say 
what  it  would  average  all  over;  considerably  more  than  it 


470 


would  average  now.  I have  noticed  the  falling  off,  which  I sup- 
posed was  caused  by  the  canal  and  the  land  being  tiled  out,  that 
it  drained  it  oft  so  there  ain’t  so  many  feeders  feeding  into  the 
river.  The  river  itself  has  been  used  to  feed  the  canal. 

Cross-Examination  by  Mr.  Munroe. 

I was  born  in  1851.  I will  be  fifty-seven  next  month.  The 
canal  was  opened  before  I was  born. 

Q.  When  your  father  told  you  about  getting  supplies  in  here 
from  the  south  and  from  Chicago  by  boat  in  the  early  days,  did  he 
not  refer  to  getting  those  supplies  in  on  the  Illinois  & Mich- 

1182  gan  Canal  from  the  south  and  from  above?  A.  Well,  that 
is  what  I asked  him,  and  he  said  there  was  no  canal  in.  He 

got  it  on  the  river  when  he  first  came  here  in  ’36. 

Father  used  to  go  to  Chicago  once  in  a while.  How  he  went 
before  the  opening  of  the  I.  & M.  Canal  I couldn’t  tell.  I have 
heard  of  people  going  by  teams.  My  father  didn’t  men- 

1183  tion  the  names  of  the  people  bringing  in  supplies.  I never 
heard  him  mention  any  particular  points  from  which  the 

boats  came,  nor  speak  of  a dam  nor  mention  the  boats  going  over 
the  dam,  nor  how  they  were  propelled. 

Father  came  from  New  York.  He  probably  came  by 

1184  way  of  Chicago.  He  came  from  New  York  with  a horse 
and  wagon  all  the  way  through.  I have  heard  him  say  that. 

I have  been  on  the  river  probably  half  a dozen  times.  I was  able 
to  get  my  boat  along  without  getting  out  and  pulling  it  at 

1185  any  place  all  of  those  times.  I didn’t  have  to  get  out  any 
time  I was  there.  It  was  about  four  miles  we  rowed  against 

the  current  up  to  Borneo.  The  last  time  was  more  than  thirty 
years  ago.  I was  a boy  fourteen  or  fifteen  when  we  used  to  go 
fishing.  Haven’t  since.  I couldn’t  swear  to  measuring  the  water; 
we  didn’t  pay  attention  to  that.  I know  there  was  water  enough 
so  we  could  go  with  the  boat. 


471 


Eugene  Daly, 

1186  a witness  for  complainant,  testified  as  follows: 

Direct  Examination. 

Age,  82;  born  in  Ireland;  came  to  Will  County  in  1850.  Busi- 
ness, cabinet  maker  and  furniture  store  and  undertaker. 

1187  Place,  Exchange  street,  between  Canal  and  the  river.  I 
could  see  both  from  the  windows.  I knew  Mr.  Norton  of 

Lockport  as  any  young  man  would  know  an  old  gentleman.  Had 
no  personal  acquaintance.  I remember  his  mill  for  flour  and 
meal.  It  was  not  in  the  same  place  when  I first  came;  then  it 
was  here  on  the  river.  Afterwards  it  was  on  the  canal 

1188  basin.  The  river  was  lower  than  the  canal  and  the  water 
from  the  canal  got  into  the  river.  There  was  a tail  race 

from  the  mill  that  carried  the  water  to  the  river.  Anything 
thrown  into  the  race  was  carried  on  into  the  river.  In  those  days 
farmers  used  to  bring  the  corn  in  in  the  ear  and  when  it  was 
shelled  at  the  mill  the  cobs  were  thrown  into  the  race  and  carried 
into  the  river  and  a lawsuit  grew  out  of  it.  Daggett  or  Panton 
or  both  sued  Norton  for  damages  on  account  of  the  cobs 

1189  choking  up  the  race.  They  were  interested  in  the  canal  be- 
cause their  mill  was  lower  down  on  the  race. 

It  was  common  talk  after  this  litigation  between  Norton  and 
the  other  parties  that  they  were  fools  to  go  to  law  with 

1190  Norton  because  the  state  or  United  States  had  declared  it 
a navigable  stream.  They  got  beat. 

1191  Cross-Examination  hy  Mr.  Mimroe. 

The  common  report  around  the  streets  at  the  time  of  the  suit 
was  that  the  river  had  been  declared  a navigable  stream  by  the 
state  or  the  government. 

Q.  By  statute?  A.  Yes,  sir. 

And  that  was  the  defense  that  Norton  and  Company  made  to 
the  suit,  as  I understood  it. 

The  canal  had  been  open  for  two  years  when  I came  here. 

Q.  And  you  never  heard,  did  you,  from  anyone,  at  any  time, 
that  the  river  was  actually  used  for  the  purpose  of  carrying  com- 
merce up  and  down?  A.  No,  sir,  I never  did;  because  at  that 


472 


time  they  were  interested  in  the  canal  and  they  didn’t  care  a con- 
tinental about  the  river. 

Q.  I see.  And  you  never  heard  from  any  creditable  source 
that  at  any  time  the  Desplaines  River  was  actually  used  for 

1192  commercial  purjioses  for  carrying  commerce  back  and  forth? 
A.  AVell,  no,  but  I think  here  that  down  below  here,  what 

we  called  Brandon’s  bridge,  from  there,  that  there  was  a town 
originally  laid  out  there  and  that  was  known  as  the  head  of  navi- 
gation, but  how  much  navigation  there  was  I don’t  know,  but 
I know  I have  heard  that  frequently. 

Q.  I see.  You  have  heard  people  say  that?  A.  Well,  yes, 
sir.  It  was  a common — so  understood  then ; and  I have  jead  of 
articles  by  Mr.  Woodruff  and  heard  him  speak  of  it. 

Q.  I see.  Heard  Mr.  Woodruff  and  Mr.  Stevens  and  others 
speak  about  that,  have  you?  A.  They  were  speaking  of  the 
abandoned  villages  and  like  that.  I have  heard  I think  of  four 
or  five  different  ones  that  was  in  and  around  this  neighborhood, 
that  were  abandoned,  and  it  was  in  connection  with  that  that  this 
one  down  at  what  we  call  Brandon’s  bridge. 

Q.  Who  ever  told  you  that  that  was  the  head  of  navigation? 
A.  It  came  up  in  general  conversations  about  those  abandoned 
towns. 

Q.  Who  with?  Who  was  the  party?  A.  Oh,  Lord,  I couldn’t 
tell  how  many.  I know  I have  heard  Woodruff  especially,  because 
I see  the  articles — 

Q.  Do  you  recollect  anyone  else  besides  Mr.  Woodruff?  A. 
Xo,  I would  not.  I wouldn’t  know  only  from  reading  a com- 
munication that  he  had — 

1193  I have  never  been  up  on  the  river  myself.  I am  no  sailor. 
I have  seen  it  from  Brandon’s  bridge  down,  and  seen  boats 

on  it.  I couldn’t  tell  how  many  I have  seen. 

Charles  Clay, 

119()  a witness  for  complainant,  testified  as  follows: 

Direct  Examination. 

I live  in  Joliet,  Will  County.  First  came  here  in  May,  1849. 
I lived  at  Lockport  over  half  a century.  Have  lived  in  Joliet 


473 

this  time  now  six  or  seven  years.  1 was  a carpenter,  worked 

1197  at  boat  building  and  repairing.  The  canal  was  through 
when  I came  here.  I have  heard  of  rafts  coming  down  from 

away  up  near  the  Wisconsin  line.  I give  you  Dr.  Daggett  as  my 
information.  I never  saw  any.  It  was  late  in  ’59  or  early  in 
’60  we  were  talking.  I was  at  work  fixing  the  mill  that  he  owned, 
known  as  Daggett’s  mill.  He  told  me  he  owned  it  all,  had  been 
to  a good  deal  of  expense,  especially  in  the  dam,  and  that  he  came 
pretty  near  losing  it  at  one  time.  He  said  there  was  a man  way 
up  north  that  was  coming  down  ‘'and  I heard  several  days  previ- 
ous to  him  getting  there  that  he  was  coming  down  with  a raft 
and  I had  gone  to  a great  deal  of  expense  in  fixing  up  the  dam 
and  a goo'd  deal  of  trouble  and  labor.”  “Well,”  I says,  “what 
would  the  raft  amount  to  to  you?”  He  says,  “I  would  have 

1198  to  open  my  dam  and  let  them  through  if  they  came  down 
here.”  He  said  that  this  was  a navigable  stream,  laid  down 

on  the  United  States  map  and  the  United  States  surveys.  Well, 
that  was  something  new  to  me.  He  told  me  when  it  was,  but  I 
couldn’t  tell  the  year  now.  It  was  something  that  happened  fur- 
ther back;  I judge  it  would  be  probably  ten  or  twelve  years  or 
such  a matter.  He  might  have  told  me  at  that  time  how  long  it 
was  previous,  but  1 wouldn’t  remember. 

Cross-Exciminaiion  hy  Mr.  Munroe. 

The  raft  didn’t  come  down.  That  is  the  funny  part  of  it.  He 
said  fortune  favored  him  that  time.  He  said  they  got  down  with 
the  raft  somewhere  in  the  neighborhood  of  Goose  Lake  and  it 
struck  something  and  went  all  to  pieces  there;  he  said  he  didn’t 
have  to  open  his  dam  for  it. 

1199  No,  he  didn’t  tell  me  the  raft  got  stuck  on  the  ground 
and  wouldn’t  float  any  further.  The  impression  is  that  it 

struck  something,  probably  a tree  or  something  like  that  and  was 
broken  to  pieces,  so  that  he  didn’t  have  to  pay  for  it.  He  said 
he  would  either  have  to  open  his  dam  or  buy  the  raft  or  make 
some  negotiations  with  the  owners  of  it;  on  account  of  its  being 
a navigable  stream  he  had  no  right. 

He  didn’t  tell  me  about  the  Legislature  passing  a statute  in 
1839,  but  he  said  it  was  a navigable  stream,  so  laid  down  on  the 


474 


United  States  map.  He  made  no  reference  to  the  state  statute. 
I have  lived  in  Lockport  straight  along  with  the ' exception  of  a 
few  months  at  a time.  I was  born  in  1824,  December  21st.  That 
makes  me  last  December  eighty- three  years  of  age. 

1200  I haven’t  been  on  the  river  except  fishing.  I have  heard 
people  tell  about  going  with  teams.  I haven’t  heard  them 

tell  about  the  river.  I have  known  its  being  used  for  commer- 
cial purposes  by  hunters  and  trappers.  They  had  boats  with  a 
cabin  on  four  or  five  feet  high.  I liave  seen  boats  with  cabins 
on  the  river  up  above  Daggett’s  mill,  between  there  and  Lock- 
l^ort.  I remember  distinctly  seeing  two  at  one  time.  I couldn’t 
state  positively  as  to  others.  They  were  16  to  18  feet  long.  I 
was  four  or  five  blocks  away.  There  was  a cabin  so  that  a 

1201  man  could  get  in  for  room  and  take  his  hides  and  such  things. 
The  Daggett  dam  extended  across  the  river  with  the  ex- 
ception of  a little  piece.  There  was  a small  opening  there.  The 
bank  was  not  exactly  connected.  I walked  over  on  a plank.  I 
was  not  there  to  see  it  built.  It  extended  across  the  river  when 

at  low  water,  but  the  river  would  extend  while  overflowed, 

1202  over  the  whole  flat.  The  river  and  all  would  be  about  half 
a mile  wide  there. 

Defendant  moves  to  strike  out  the  answers  on  cross-examination 
as  to  conversations  with  Daggett. 

Re-direct  Examination. 

These  boats  with  the  cabins  on  were  in  use  in  the  fur  business. 
There  was  a common  reputation  that  the  river  was  used  in  the 
fur  business.  They  came  up  in  the  spring  of  the  year.  I saw 
them  two  nr  ‘three  different  times.  I wasn’t  interested 

1203  enough  in  the  river  to  know  as  to  the  raft.  I heard  it  from 
other  sources  besides  Dr.  Daggett.  It  was  general  knowl- 
edge in  the  community. 

In  the  early  fifties  I was  riding  into  Homer  with  a farmer 
named  Matt  Weaver  who  fell  from  his  wagon  and  broke  his  arm. 
He  says,  ^^Now,  Clay,  you  go  back  to  Lockport  and  get  a horse 
and  go  over  to  Dr.  Anderson’s,”  but  I couldn’t  get  anybody  in 
Lockport  to  loan  me  a horse,  even  for  that  purpose,  not  for 
money;  they  wouldn’t  let  a horse  go  across  them  flats. 


475 


I have  known  sturgeons  to  be  taken  out  there  between  sixty 
and  seventy  pounds  weight.  I don’t  know  the  depth  of  the  water 
there  exactly;  probably  four  or  five  feet. 

1204  I was  born  in  Nottingham,  England,  and  came  to  this 
country  in  1848. 

Charles  E.  Keecheval, 

1205  a witness  for  defendant,  testified  as  follows: 

Direct  Examination  hy  Mr.  Munroe. 

I am  sixty-four  years  old;  was  born  in  Will  County  in  1843, 
four  miles  from  the  river.  I know  Mr.  Stevens.  I was  in  his 
office  at  a conversation  that  was  had  between  yourself,  Mr.  Stevens 
and  I.  We  talked  about  his  affidavit.  We  talked  about  his 

1206  knowledge  of  the  Desplaines  Kiver.  I don’t  remember  dis- 
tinctly all  that  was  said  there,  but  I remember  some  of  it.  I 

don’t  remember  the  number  of  boats  that  he  mentioned  that  was 
loaded  with  lumber  that  was  brought  up  there,  but  I remember  it 
was  spoken  of,  the  transportation  of  lumber.  I don’t  remember 
how  they  got  up.  I don’t  remember  what  he  said  in  regard 

1207  to  the  way  he  said  of  getting  up  there,  getting  up  into  the 
Desplaines.  Mr.  Fish’s  getting  whiskey  down  the  river  was 

talked  about. 

I don’t  remember  him  saying  anything  about  bolts,  only  this 
one  shipment  of  whiskey  by  Mr.  Fish,  and  him  saying  that  he 
firmly  believed  it  because  he  was  a member  of  the  church,  a good 
church  member,  that  is  what  impressed  it  on  my  mind.  I don’t 
remember  about  bolts.  I remember  the  whiskey.  I never  knew 
of  any  boats  being  owned  or  who  owned  them.  Very  few, 

1208  from  all  I ever  noticed  them.  They  were  a great  rarity. 
Very  few  boats  owned.  All  that  I ever*  saw  were  row  boats, 

pleasure  boats. 

Cross-Examination. 

I have  sat  here  through  Mr.  Stevens’  testimony  in  the  same 
room  at  Mr.  Munroe ’s  right  hand  and  within  six  feet  of  the 

1209  witness  throughout  his  testimony  on  cross-examination,  and 
through  the  testimony  of  most  of  the  witnesses. 


476 


I have  assisted  Mr.  Munroe  in  assembling  and  interviewing  and 
subpoenaing  and  bringing  in  witnesses.  I have  gone  out  and 
had  interviews  with  the  witnesses  named  in  the  notice  given  by 
the  state.  I had  interviews  with  Mr.  Heydecker,  Mr.  Wightman, 
Mr.  Bowers,  but  not  with  Mr.  Parrent,  Mr.  Pohl,  Mr.  Clement  and 
Mr.  Brockway. 

1210  I have  been  employed  by  the  Joliet  & Southern  Traction 
Company  as  a right  of  way  agent,  securing  right  of  way  and 
negotiating,  with  parties.  I never  read  law.  I expect  to  be  paid 
for  what  I have  done. 

Joseph  Countryman, 

1212  a witness  for  complainant,  testified  as  follows: 

Di  re  c t Examin  a ti  o 1 1 . 

My  name  is  Joseph  Countrjunan.  I will  be  67  years  old  this 
month.  I was  born  in  New  York.  I came  to  Will  County  when  I 
was  two  years  old.  I have  always  lived  here,  except  the  time  I 
spent  in  the  army. 

I was  two  years  old  when  I came  to  Lockport  on  the  canal.  I 
lived  in  Plainfield  most  of  the  time.  I have  seen  the  Desplaines 
Piver  and  been  on  it  in  a boat  down  and  back  a good  many 
times. 

1213  Q.  Bid  you  ever  see  any  rafts  being  floated  down  on  the 
river?  A.  I saw  Jim  Flanders’,  or  something,  I don’t  know 

what  he  called  it, — a boat  of  some  kind  he  had.  I didn’t  ever  see 
any  logs  or  timbers  floated  down  the  river,  or  at  any  point  along 
the  river.  I have  seen  skiffs  and  boats  on  the  river.  Some  were 
16  to  18  feet  long.  Flanders  had  one  that  was  8 or  9 feet  wide,  I 
should  think  by  the  looks  of  it.  I saw  him  going  down.  It  drew 
l)erhaps  6 or  8 inches  of  water.  It  was  propelled  by  oars.  Flan- 
ders had  sails  u]).  We  didn’t  have  sails  on  ours.  We  had  a boat 
that  we  built  to  fish  with.  They  had  their  equipment  in,  camp 
ecjuipment  and  everything. 

1214  They  had  their  tent  and  everything  in. 

(Mr.  Munroe  objected  to  the  question  on  the  ground  that 
the  witness  did  not  testify  that  any  merchandise  was  carried 
down  the  Desplaines  Kiver.) 


477 


Witness.  I don’t  remember  any  goods  they  bad  on  the  boat 
besides  the  tents  and  equipment;  and  they  were  trapping,  hunting 
and  fishing,  just  for  pleasure. 

Q.  Did  they  unload  anything  at  any  point  along  the  river, — any 
freight — ? A.  We  didn’t  go  to  their  camp.  We  had  been  down 
below  and  were  coming  up.  I met  them  down  below  here. 

Q.  And  you  didn’t  see  any  loading  or  unloading  yourself?  A. 
Xo,  sir. 

I have  been  down  the  river  on  ])leasure  trips  several  times.  AVe 
came  up  with  our  boat  the  last  time  I was  down  there,  from  the 
mouth  of  the  river  clear  to  the  Joliet  Dam,  and  took  it  out  here 

1215  and  loaded  it  into  a wagon  and  took  it  home.  In  that  boat 
we  had  our  camp  equippage  and  everything;  three  of  us  in  a 

boat  and  a team  going  on  shore. 

I noticed  the  depth  of  the  water  in  the  river  on  that  trip.  Some 
places  it  was  deeper  than  others.  I could  not  say  exactly  how 
deep  it  was.  There  was  in  some  places  shoals  dowm  there.  AVe  had 
to  get  out  and  shove  it  by  hand ; we  could  not  pole  it  up  by  poles, 
it  was  too  swift.  In  the  deep  portions  below  the  lake  we  found 
some.  In  the  lake  it  was  all  right  deep.  We  could  not  touch  bot- 
tom there  in  some  places.  In  some  places  there  was  not  much 
water  and  some  places  you  could  skip  right  down  a-kiting,  but  you 
could  not  get  back  up  unless  you  pulled  up  by  hand.  AVe  pulled 
it  over  the  worst  places  and  then  got  in  again.  AA"e  could  not 
pole  it  up,  it  was  too  swift.  AVe  had  to  pull  it  up.  The  wmter  was 
deep  enough,  but  it  was  too  swift,  and  there  wtis  some  places 

1216  there  was  rocks  sticking  up.  We  had  a boat  about  5 feet  wide 
and  16  feet  long,  made  of  pine.  AVe  had  it  made  in  Plain- 

field.  We  kept  it  for  a good  many  years.  There  could  four  men 
and  quite  a lot  of  stutf  ride  in  it.  We  put  the  stuff  in  it  that 
we  wanted  to  eat.  We  had  no  barrels.  AA^e  had  the  stuff  that  we 
thought  we  needed  while  we  were  gone. 

AVe  went  down  there  whenever  the  fishing  season  was — sometimes 
in  the  fall  and  sometimes  in  the  spring.  I have  been  down  seven 
or  eight  times  altogether.  The  last  time  I wms  down  there  was 
over  thirty  years  ago.  I took  one  trip  down  there  since  the  war; 
the  others  were  all  before  the  war.  I have  not  been  down  thei*e 


478 


until  since  that  last  trip,  went  down  to  Kankakee  feeder  fishing, 
with  a hook;  but  I made  a number  of  trips  before  that  time  up 
and  down  the  river. 

I think  there  was  a ford  in  the  river  at  Treat’s  Island.  I 

1217  did  ford  the  river  some  places.  At  the  ford  it  was  not  very 
deep,  and  some  places  up  above  your  knees.  There  was  rocks 

sticking  up  down  there.  If  you  found  the  channel  you  could  go  all 
right;  if  you  didn’t  you  get  bumped. 

There  was  a channel, — there  was  one  ford  at  Treat’s  Island  and 
tliree  fords  between  here  and  the  mouth  of  the  river.  I was  fa- 
miliar with  each  of  them  at  that  time.  That  was  a good  while  ago. 
I forded  each  one  and  the  water  at  some  places  was  above  your 
knees  in  depth. 

Q.  Did  you  ever  see  any  boats  on  the  river  besides  the  one 
wdiicli  you  were  in!  A.  Why,  I saw  Jim  Flanders  with  his  craft 
down  there.  I saw  lots  more  camping  down  there;  who  they  were 
I don’t  know.  There  was  a good  many  parties  every  little 

1218  while.  You  would  find  camps  all  along  the  river.  When  we 
were  there  I would  see  camping  parties,  and  boats. 

Q.  On  which  they  had  transported  their  camping  utensils  and 
equipment!  A.  I suppose  so.  We  had  our  boats  with  us. 

We  stopped  several  times  going  down.  One  place  we  found 
Peter  Bryan  in  charge  of  the  camp.  We  was  cooking  there.  I 
remember  that  well.  We  stopped  there  quite  a long  while  with 
him.  They  had  a keg  of  beer  there.  We  stopped  and  had  some, 
and  we  stayed  there  a while,  and  went  on  down. 

They  had  boats  in  their  camping  party  tied  to  the  shore.  I could 
not  tell  }mu  how  large  those  boats  were;  I did  not  take  much 
notice  of  them.  They  had  tents  there;  I don’t  know  how  they  got 
there.  We  had  no  sails  on  our  boat.  The  only  boat  I saw  was 
Jim  Flanders’  with  sails  on.  I could  not  tell  you  what  these  boats 
carried.  I didn’t  go  into  the  boats.  I saw  them  when  they  were 
moving  along.  Most  of  the  time  I saw  them  when  they  were  an- 
chored on  shore.  They  were  camping  on  the  ground;  never  took 
much  notice;  I didn’t  ask  them  what  they  had.  Jim  Flanders’  was 
the  largest  boat  I saw  on  the  river. 


Cross-Examination  hy  Mr.  M unroe. 

Q.  Mr.  Countryman,  there  never  was  any  boats  on  the  Des- 
plaines  River  to  your  knowledge,  except  pleasure  boats,  was  there? 
A.  I didn’t  see  any  boats  unless  the  boats  that  went  down  for 
trapping,  hunting  and  fishing;  that  is  all  I saw. 

Q.  For  pleasure  purposes?  A.  Yes,  sir. 

The  last  time  I came  up  the  Desplaines  River  was  31  or  32 
years  ago,  the  woman  tells  me. 

I didn’t  see  the  Haven’s  dam  in  the  river  at  McDonough  street. 
There  was  a dam  near  Joliet.  "We  pulled  our  boat  out  there  some- 
where near  Jefferson  street.  We  could  see  Joliet  all  right. 

1220  We  took  our  team  out  of  the  barn  and  loaded  our  boat  and 
took  it  home.  The  only  dam  I ever  saw  was  down  below  Jef- 
ferson street  bridge  in  Joliet. 

It  may  be  that  we  took  the  boat  out  at  the  McDonough  street 
dam.  The  first  dam  we  came  to,  we  took  it  out.  I didn’t  know 
that  there  was  two  dams  there.  We  took  it  out  there  and  put  it 
on  the  v/agon  and  hauled  it  home. 

Mr.  Flanders  that  I spoke  of  is  Mr.  James  Flanders,  a lawyer 
in  Joliet.  He  was  raised  in  Plainfield. 

1221  We  took  our  boat  to  Joliet  Lake  usually,  left  our  team 
there.  We  only  came  clear  up  once.  Left  the  team  in  the 

livery  barn  last  time.  I mean  we  only  came  up  the  river  once  with 
the  boat  clear  up  to  Joliet. 

I never  was  in  the  canal.  I have  seined  down  at  the  mouth  of 
the  Desplaines  River.  The  current  was  not  very  swift  when  we 
were  there.  I hadn’t  been  there  for  quite  a long  while.  We  used 
to  own  a seine,  lots  of  us  fellows : I remember  swift  water  at  the 
ford  there, — pretty  swift, — ^you  could  not  row  a boat  up,  you  had  to 
pull  it  up  by  hand.  We  took  ours  out  and  carried  it  over 

1222  there.  The  water  was  too  deep,  so  we  could  not  wade,  so  we 
took  it  over  the  worst  and  then  went  on  up  again.  We  just 

carried  our  boat  over  the  rocks  there  and  then  shoved  it  off  into  the 
current  and  then  went  on.  There  were  other  places  where  we  had 
to  carry  our  boat  on  this  side. 

I remember  the  rapids  in  the  vicinity  of  what  is  now  called 


480 


Smith’s  Bridge,  Whitmore’s  ford,  near  the  mouth  of  the  DuPage 
River.  I was  there. 

There  was  only  one  place  there,  where  we  got  out  coming  up 
here,  and  I could  not  tell  which  one  it  was, — it  was  so  long  ago. 
We  got  out  and  pulled  it  up,  till  it  got  too  deep,  and  then  we  took 
it  out  on  the  shore  and  took  it  up.  There  was  water  enough  there, 
— it  was  too  swift.  It  was  swift  enough  to  take  me  off  my  feet 
if  I was  not  careful, — that  was  the  day  I was  there. 

1228  This  boat  I brought  from  Plainfield,  I used  on  the  DuPage 
River,  and  boated  in  the  Illinois  River  too. 

Q.  You  don’t  pretend  to  have  an  accurate  recollection  of  the 
ford  at  this  day,  do  you?  A.  Not  exactly. 

Q.  There  might  have  been  six  or  seven  fords  instead  of  three. 
A.  There  could  not  have  been  but  three.  I have  been  across  all 
of  them. 

Q.  You  mean  to  say  you  crossed  every  ford  there  was.  A.  I 
have  been  right  at  all  of  them  fords,  yes,  sir. 

The  first  ford,  taking  the  mouth  of  the  Desplaines  River  and 
working  up  this  way,  is  the  one  at  Treat’s  Island.  That  is  the 
first  one  I met  coming  up  and  I think  I have  been  to  all  the 
fords. 

Q.  Well,  there  was  two  before  you  get  to  Treat’s  Island,  Mr. 
Countryman,  as  have  been  testified  to  by  people  who  lived  there. 
A.  I camped  at  Treat’s  Island  three  or  four  times. 

I could  not  tell  you  how  many  times  I have  been  at  the  mouth 
of  the  Desplaines  River;  four  or  five  times.  We  used  to  go 
1224  seining  and  spearing.  I owned  a share  in  the  200  foot  seine. 

At  Treat’s  Island  we  poled  it  up  and  then  waded  and  pushed 
it  part  of  the  way,  and  then  the  water  got  above  our  knees  and 
we  carried  it  around.  There  were  lots  of  rock  there. 

Jim  Flanders’  boat  I saw  there  was  not  an  ordinary  row  boat. 
I could  not  name  all  the  boats  that  I ever  saw  on  the  Desplaines 
River,  because  I could  not  recollect;  I have  seen  (]uite  a number 
of  them. 

Q.  At  one  time  did  you  see  500  or  5 boats  on  a trip  down  the 
river?  A.  500  would  cover  the  river  all  over;  I never  saw  500 
in  my  life,  gun  boats  or  anything  else. 


481 


I have  been  down  there  on  the  river,  when  the  one  we  had  was 
all  we  saw  some  times.;  some  times  I saw  a half  dozen;  I 

1225  never  counted  them.  I would  only  stay  four  or  five  days  and 
go  hack  home.  I saw  a good  many  of  them  little  row  boats, 

not  fishing  boats.  We  called  ours  a fishing  boat;  it  was  not  a row- 
ing boat ; was  made  on  purpose  for  fishing. 

B.e-clirect  Exam  inaUon. 

I could  not  tell  you  whether  these  camping  parties  along  the 
river  obtained  their  supplies  from  distant  points  and  brought  them 
on  the  river  or  not.  We  took  ours  with  us  to  last  us  a week  or 
ten  days.  I have  seen  fishermen’s  boats  from  time  to  time  on  my 
trips;  supposed  to  be  fishermen’s  boats.  They  were  tied  up  in 
the  camps.  I have  seen  some  of  them  rowing  and  some  of  them 
not.  The  fishermen’s  boats  were  larger  than  an  ordinary  skiff. 
You  could  not  spear  out  of  a row  boat;  you  would  fall  out,  it 
would  tip  up  with  you.  Our  boat  was  flat.  If  a man  wants  a 
boat  to  spear  out  of,  he  wants  one  that  won’t  rock;  if  he  does,  he 
will  fall  out  if  he  misjudges. 

Jacob  Blaess, 

1226  a witness  for  complainant,  testified  as  follows: 

Direct  Examination. 

My  name  is  Jacob  Blaess.  My  age  is  66  years  the  28th  of 
last  February.  I was  born  in  France.  I came  to  Joliet  in  1852. 
I have  lived  here  since.  I was  familiar  all  the  time  with  the  Des- 
plaines  Elver  some,  but  not  much.  I have  seen  logs  come  down  as 
far  as  this  here  basin  and  then  from  there  they  were  dumped  over 
the  dam  and  shipped  down.  They  went  down  to  a saw  mill  that 
was  right  below  the  next  dam  there  called  the  Haven  Saw  Mill. 
In  those  days  that  is  all  I saw.  I saw  the  logs  come  down 

1227  from  above.  I couldn’t  tell  you  whether  the  logs  come  from 
Lockport  or  whether  they  come  from  the  sag  or  whether 

they  come  from  Willow  Springs.  They  come  along  down  that 
way.  I have  seen  these  logs  being  sent  down  a number  of  times. 
They  raft  them  down.  I couldn’t  tell  you  the  size  of  those  rafts. 
I never  took  particular  pains  to  look.  They  chopped  them  in 
two  in  the  water  so  as  to  let  the  logs  go  loose  and  then  here  was 


482 


where  they  dumped  them  rig4it  over  the  dam.  This  dam 
they  took  out  down  here,  and  they  went  down  to  the  saw  mills.  I 
guess  it  was  in  high  water  time  that  they  did  that.  I couldn’t 
exactly  tell.  I have  seen  it  done.  I stood  there  many  times  watch- 
ing them. 

Now  I don’t  remember  whether  it  was  in  the  fall  or  in  the 
spring.  I guess  it  was  in  the  summer  anyway,  because  the  boys 
went  swimming  and  they  used  to  crawl  on  these  logs  and  roll  them 
along  on  the  river.  Wlien  the  boys  used  to  go  swimming  in 

1228  them  days  they  used  to  crawl  on  the  logs.  I couldn’t  tell  the 
length  of  those  rafts,  nor  the  width,  nor  the  number  of  logs 

there  may  have  been  in  one.  All  that  I seen  was  loose.  They  had 
them  apart  all  right.  I don’t  know  whether  they  locked  them 
through  the  lock  up  there  or  tumbled  them  over  the  dam.  I never 
took  any  particular  pains  watching  them. 

I have  been  down  there  on  the  Desplaines  Eiver  fishing  and 
the  likes  of  that  down  as  far  as  Malcolm’s  Mill  and  down  below 
the  other  dam,  the  third  dam  that  they  took  out  down  below.  I 
never  was  on  a boat  down  that  way.  Some  places  in  the  river  it 
was  shallow;  some  places  you  could  wade  across;  some  places  then 
there  would  be  a hole  here  and  a hole  there,  the  way  it  is  gener- 
ally in  these  rivers.  I didn’t  ever  see  any  boats  larger  than  these 
fishing  boats.  I knew  of  boats  carrying  goods,  freight  and 

1229  merchandise  from  Joliet  to  Chicago,  but  that  was  right 
from  here  to  go  up  from  Chicago  and  back,  that  is  on  the 

canal.  I didn’t  see  any  on  the  river.  I saw  nothing  below  eJoliet. 
I didn’t  ever  try  to  ford  the  river.  I could  do  that.  There  were 
lots  of  places  where  we  could  ford  it  in  low  water  though.  There 
were  places  there  where  it  went  clean  up  here  (indicating)  for  a 
little  ways,  and  then  there  were  places  again  that  it  would  not  be 
ankle  deep.  Some  places  were  to  the  waist.  I Jidn’t  ford  it 
exactly.  We  waded  in  and  tried  to  catch  fish  and  the  likes  of  that 
where  those  holes  were.  I couldn’t  see  others  ford  it.  AVe  pad- 
died  around  in  the  water. 

Cross-Examination  hy  Mr.  Munroe. 

I saw  those  rafts  right  down  here  between  that  dam  and 

1230  this  one  tliat  they  took  out  here,  that  is  in  the  lower 
basin  of  the  Illinois  and  Michigan  Canal.  INFy  idea  is  they 


48:j 

came  from  Willow  Springs,  or  the  sag,  or  Lockport,  or  I don’t 
know  where  they  come  from,  but  they  came  from  that  way  any- 
how. They  came  down  on  the  canal.  I don’t  know  whether  they 
locked  them  through  up  there  or  not,  hut  here  they  dumped  them 
right  over  the  dam  to  float  them  down  to  the  saw  mill.  The  saw 
mill  was  right  down  here  a little  ways.  That  is  all  I know  about 
it. 


Samuel  Gatons, 

a witness  for  complainant,  testified  as  follows : 

Direct  Examination, 

My  name  is  Samuel  Gatons.  I will  be  67  the  9th  of  next 

1231  April.  I was  born  in  York  State,  Eensselaer  County.  I came 
to  this  state  in  the  fall  of  1844.  I came  to  this  county  direct. 

I have  lived  in  this  county  ever  since,  excepting  the  time  I was  out 
in  California.  I have  lived  on  a farm  most  of  the  time  within 
three  miles  west  of  here. 

I am  familiar  with  a portion  of  the  Desplaines  Eiver.  Of  course, 
I never  was  up  and  down  the  length  of  it.  I am  familiar  with  this 
jjortion  here  in  Joliet  and  a little  below. 

I guess  I was  not  more  than  five  or  six  years  old  when  I saw 
the  first  raft  come  down  before  there  were  any  dams  built  up  here, 
and  I think  before  a dam  was  built  down  here  at  Jefferson  street. 
Well,  I was  most  too  small  to  know  at  that  time  where  these  rafts 
came  from.  The  timber  was  cut  above  there.  It  might  have  been 
at  the  sag  and  it  might  have  been  up  at  Lockport  or  somewhere 
that  way.  What  makes  me  remember  it,  my  brother  came  into  the 
house,  and  he  says,  There  is  a lot  of  logs  coming  down,  two 

1232  men  on  them,”  so  we  all  ran  out  to  the  bank  to  see  them.  I 
think  the  logs  were  to  be  delivered  to  Philo  Haven’s  Saw 

Mill.  It  is  down  here  about  half  a mile  from  here  or  one  mile.  I 
couldn’t  exactly  say  as  to  the  size  of  the  raft.  It  might  have  been 
two  or  three  or  four  or  five  lengths,  but  then  there  were  two  sec- 
tions when  I come  to  think  of  it.  The  next  day  another  section 
came  down  and  stopped  above  Jackson  street  somewhere.  As  to 
how  many  logs  there  were  on  the  raft,  that  depends  on  the  size 
of  the  logs  the  way  they  make  rafts.  They  make  them  about  four- 
teen feet  wide  I think.  I couldn’t  tell  you  as  to  whether  this 


484 


raft  was  in  the  general  proportions  or  not,  because  I don’t  know. 
It  looked  as  though  there  were  a great  many  logs  in  it. 

As  to  the  depth  of  the  river  along  the  portion  with  which  I 
am  familiar,  at  different  times  of  the  year,  of  course,  it  would  be 
deeper,  at  dry  times  it  would  be  more  shallow,  it  would  vary 

1233  in  the  dry  times.  Well,  there  was  considerable  water  all  the 
time  running  there  in  them  days,  probably  more  than  there 

is  now  on  account  of  the  timber  being  cut  all  over. 

As  to  whether  there  was  sufficient  water  to  float  these  logs  at 
all  times  I couldn’t  say.  It  is  like  any  river  you  know  that  is  piled 
up  with  stones.  When  the  water  goes  down  it  gets  shallow  in 
places. 

I saw  on  the  river  nothing  but  a yawl  boat;  that  looked  to  me 
like  those  boats  they  have  in  Chicago  on  the  lake,  them  little 
boats ; it  was  a trapper,  a nice  big  boat  everybody  was  looking  at  it. 
There  was  probably  one  hundred  on  the  bank  wanted  to  see  it.  It 
was  probably  about  sixteen  or  seventeen  feet  long,  I should 
judge,  maybe  six  feet  wide.  I have  not  any  idea  how  much 
water  it  drew.  I know  we  lived  right  up  there  by  Jackson  street 
at  that  time,  and  he  stopped  there  over  night,  and  he  showed  us 
the  furs  that  he  had  been  trapping.  He  had  come  along  from 
Wisconsin,  up  through  there  that  way.  I saw  the  furs  on  the  boat. 
He  was  showing  them  to  my  brothers,  a lot  of  steel  traps  and 

1234  provisions,  a tent  and  a whole  outfit.  There  were  provisions 
on  it  and  boxes.  Everything  was  boxed  up,  and  then  I saw 

several  smaller  boats  after  that,  trappers.  We  lived  ten  years 
right  up  there  at  Jackson  street.  These  trappers  transported 
equipment  on  these  boats.  The  boats  were  propelled  by  oars.  It 
had  a sail,  now  I come  to  think.  The  sail  was  lying  down,  the 
])oles  Vv^ere  in  the  boat.  He  didn’t  claim  to  have  any  difficulty  in 
navigating  the  river. 

I did  try  to  ford  the  river  up  there  by  Jackson  street.  There 
were  places  there  the  stones  would  be  piled  up  in  the  summer  time, 
probably  not  as  deep  as  the  table,  about  two  feet  and  a half,  that 
is  on  those  riffles  of  course.  There  were  holes  that  would 

1235  take  you  over  your  head,  five  or  six  feet  deep,  scooped  out 
you  know.  There  were  places  that  were  deeper  and  the 

stones  were  washed  and  that  would  make  it  shallow,  after  the  or- 


485 


dinary  depth  of  water  at  those  places.  As  I grew  up  in  years  that 
was  all  the  way  I could  judge  from  that  there  would  he  probably 
from  eighteen  inches  to  two  feet  or  two  and  a half  feet  where 
we  would  want  to  cross.  When  it  was  that  I saw  the  raft  coming- 
down  was  in  the  spring  of  the  year.  I couldn’t  just  tell  you  that. 
It  might  have  been  April,  it  might  have  been  later.  I couldn’t 
remember  the  year.  I was  too  small,  you  know,  to  remember  those 
things  then,  but  I should  judge  I was  probably  six  years  old, 
six  or  seven  maybe,  not  over  that.  1841  I was  born.  I was  three 
and  a half  years  old  when  we  came  here,  in  October.  It  was  be- 
fore the  opening  of  the  canal.  There  were  no  dams  at  all 

1236  from  Jackson  street  down  to  Malcolm’s  dam  at  this  time  that 
I saw  these  rafts  coming  down.  They  had  what  they  called 

a corduroyed  bridge  down  here  at  Jefferson  street,  and  if  I am 
not  mistaken  I saw  them  swing  that  one  time  to  let  a raft  through. 
It  was  loose  you  know.  Had  to  just  pull  it  back  to  its  place.  I 
am  sure  these  rafts  came  down  before  the  canal  was  opened. 

Cross-Examination  by  Mr.  Munroe. 

I might  have  been  ten  years  old  when  the  dam  at  Jackson 
street  was  built  by  the  people.  I don’t  know  what  year.  I remem- 
ber of  its  being  built.  My  father  worked  on  it.  I don’t  hardly 
think  I could  fix  the  date  when  it  was  built.  My  recollection  now  is, 
when  we  came  here  that  lock  up  there  was  built  and  the  lock  at  Jef- 
ferson street  I think  they  were  building.  Dam  No.  2 at  Jefferson 
street  was  not  built.  There  was  an  old  dam  there.  There  was  a 
lock  dam  and  I think  it  washed  out.  I am  not  positive  be- 

1237  cause  I don’t  know  for  sure.  Of  course,  I was  too  young  to 
pay  more  than  a passing  attention  to  it.  It  run  over  and  run 

that  mill  that  stood  between  the  two  bridges  there.  I couldn’t 
say  that  was  so  when  I came  here,  because  all  I could  see  was  an 
end  of  it.  It  had  washed  out,  but  that  was  what  it  was  there  for. 
I was  not  old  then.  I was  from  say  five  to  eight  years. 

I didn’t  ever  go  up  to  Lockport  in  them  days.  I didn’t  know 
there  was  a dam  clear  across  the  river  just  below  Lockport. 

1238  When  I came  here  the  canal  was  not  opened  from  Joliet 
north.  I guess  it  was  pretty  well  finished.  No,  there  was 

no  water  up  where  the  tow  path  bridge  is.  I think  I can  remem- 


486 


ber  the  bridge  was  not  built  when  we  came  here.  The  summer 
after,  I went  with  my  brother  and  went  fishing  there.  The  canal 
was  not  open  for  navigation  when  I saw  the  logs.  I know  that 
fact  because  there  was  no  dam  there.  There  couldn’t  be  navigation 
at  Jackson  street. 

I couldn’t  tell  you  who  else  saw  those  logs,  them  that  lived 
around  here.  I don’t  know  where  that  yawl  boat  was  from  that 
came  down  the  river.  I was  pretty  small.  They  took  me  by  the 
hand. 

Q.  You  do  not  pretend  to  testify  under  oath  here  absolutely 
as  to  the  existence  of  facts  which  you  think  you  saw  at  that  early 
day!  A.  Well,  such  things  as  that  I would  not  be  afraid  to 

1239  stand  on  them  because  I know  I was  very  small.  I am  not 
accurate  as  to  dates  at  that  time.  I have  my  age  all  right.  I 

came  here  in  1844.  I was  three  and  a half  years  old.  I was 
born  in  1841.  The  canal  was  opened  in  1848  or  ’9.  I know  I was 
just  about  a little  tad  when  I moved  up  there  to  Jackson 

1240  street.  As  to  what  part  of  the  transactions  testified  to  hap- 
pened before  I was  seven  years  old  I couldn’t  tell  you  the 

dates  because  I don’t  know.  I can  only  remember  seeing  it.  I 
don’t  think  they  happened  after  I was  seven  years  old,  because 
there  were  no  dams  there  when  this  raft  came  there,  the  boats 
came  there,  and  three  or  four  of  the  little  boats  came  there,  not 
like  the  pretty  boat;  one  of  those  red  boats  painted,  a regular 
trapper  boat.  I rode  on  the  third  boat  that  came  from  Lock- 
port  to  Jefferson  street.  I know  I was  very  nearly  pushed  off,  the 
crowd  was  so  heavy  on  the  boat.  As  to  seeing  a sail  on  that  boat 
before  I was  seven  years  old,  come  to  think  of  it  I heard  my 
brothers  talking  about  it,  and  they  asked  him  what  he  wanted  to 
do  with  that  on  there  and  he  said  there  was  wide  waters  below. 
I suppose  he  meant  that  when  he  got  in  the  wide  waters  it  would 
go  faster. 

1241  I didn’t  see  any^  fences  across  the  Desplaines  Eiver  in 
those  days.  I have  seen  wire  fences  now. 

Q.  Were  there  pole  fences  across  the  river  anywhere!  A. 
There  might  have  been  further  down  or  further  up. 

Q.  Were  there  some  opposite  the  penitentiary!  A.  I couldn’t 


487 


remember  what  was  up  there  in  them  days.  1 used  to  go  up  as  far 
as  Jetferson  street  and  up  to  Jackson  street.  I am  distinct  in  my 
recollection  that  those  rafts,  on  which  the  two  men  were,  that  I 
saw  on  the  river  before  the  canal  was  opened,  came  down  the  13es- 
plaines  Eiver.  I went  out  with  my  brothers.  They  took  me  by 
the  hand,  so  I was  pretty  small.  It  was  this  side  of  Jackson 
street  in  the  channel  of  the  river.  They  were  cutting  timber  to 
build  that  bridge  too. 

1242  Q.  How  many  feet  south  of  Jackson  street  was  it?  A. 
You  canT  get  me  into  no  feet  because  I don’t  know.  It 

might  have  been  ten  rods  south  of  Jackson  street,  that  is  where 
I saw  the  raft. 

Re-d  i rect  Exa  mi  nation. 

Those  men  were  on  it  certainly,  and  they  kept  driving  it  around 
tlie  channel.  I can  remember  them  running  up  and  down  it. 

Re-cross  Examination . 

I don’t  think  Dam  No.  2 was  in  the  river  then. 

Mr.  Munkoe.  I want  to  have  the  records  show  that  when  the 
witness  signs  the  affidavit  for  a witness  fee  he  was  reluctant  in 
doing  so,  and  that  he  said  he  was  too  young  to  remember  the  cir- 
cumstances exactly. 

Re-re-direct  Examination. 

I am  sure  and  distinct  in  my  recollection  in  regard  to  the  move- 
ments of  this  raft.  It  occurred  before  that  dam  was  built  up 
there,  and  before  the  canal  was  opened,  and  what  I said  about 
the  depth  of  the  river  at  the  various  fords  is  what  I know 

1243  from  my  own  experience,  when  I was  ten  or  eleven  years 
old.  After  I was  thirteen  or  fourteen  years  old  I went  out  on 

the  farm.  After  that,  I don’t  know  much  about  Joliet. 

John  W.  Taylok, 

1243  a witness  for  complainant,  testified  as  follows : 

Direct  Examination. 

My  name  is  John  AY.  Taylor.  I am  in  my  78th  year.  I was 
born  in  New  York.  I came  to  Illinois  in  1837.  I have  lived  near 


488 


the  Desplaines  Elver,  right  along  here  ever  since, — excepting  along 
in  1858,  I think  I was  in  Wisconsin  about  a year.  That  was  the 
only  time  I was  absent,  and  during  the  war. 

I am  familiar  with  the  Desplaines  Eiver,  and  have  seen  it  in 
all  seasons  of  the  year  and  many  years.  I seen  logs  come  down  the 
river  in  some  shape.  Sometimes  probably  in  small  rafts, 

1244  and  sometimes  scattered.  I have  seen  them  in  the  river.  I 
don’t  have  much  particular  recollection  about  them  though, 

but  I seen  them  in  the  river  floating  down. 

I never  saw'  any  in  the  river  before  the  canal  wuis  completed, 
or  I mean  after  the  canal  was  completed,  principally  before;  along 
about, — ^might  have  been  ’45,  ’6  or  ’7.  I am  sure  in  my  recollection 
that  the  rafts  did  come  down  before  the  canal  was  opened;  ’45 
to  ’47,  I would  not  state  particularly  just  what  years.  I used 
to  see  them  frequently  in  the  river  and  logs  coming  down  in  some 
shape.  Well,  there  might  have  been  probably  a dozen  logs  pinned 
together  there,  or  such  a matter.  I don’t  know  where  those 

1245  logs  came  from;  I don’t  know  in  particular  where  they  went 
to. 

I know  they  have  a boom  there  at  the  dam,  where  the  logs  were 
held,  that  must  have  been  rafted  there.  Used  to  see  logs  there  in 
this  boom  very  frequently  in  the  river.  They  were  there  just 
above  the  dam,  at  the  saw  mill,  and  ready  to  be  used  there. 

I did  not  ever  see  on  the  river  anything  more  than  row  boats, 
skiffs  and  such  like  boats.  I have  been  on  the  river  considerably 
myself, — in  boats,  row  boats;  built  one  here;  built  one  after  the 
canal  was  built,  but  before  that  I was  very  frequently  in  boats. 

I was  familiar  with  the  depth  of  the  river.  I don’t  remem- 
ber that  I ever  saw  the  river  at  a lower  stage  than  2 feet,  at  its 
lowest  stage.  I was  very  frequently  in  the  river  wading  it  and 
swimming  it;  and  along  the  banks  of  the  river  as  far  as 

1246  Channahon.  I forded  the  river  a good  many  times. 

I did  not  ever  see  any  boats  carry  anything  on  the  river.  I 
seen  boats  come  up  the  river  here  that  were  said  to  be  travelers’ 
boats,  or  probably  fishermens’,  but  I never  saw  any  freight  carried 
on  the  river.  I saw  evidence,  I think; — there  was  traffic  some- 
where. I know  of  the  general  talk  or  reputation  in  the  neighbor- 


489 


hood  as  to  the  navigability  of  the  river.  It  was  generally  consid- 
ered by  everybody  of  the  old  inhabitants  as  being  a navigable 
stream.  They  always  regarded  it  as  a navigable  stream.  This 
was  long  prior  to  the  opening  of  the  canal.  That  was  about  1848, 
so  that  it  was  generally  understood  in  the  community  that  it  was  a 
navigable  stream. 

1247  I was  better  acquainted  with  the  river  before  the  canal 
was  opened  than  after.  I am  pretty  sure  in  regard  to  the 

depth  of  the  water,  because  I was  in  the  river  more  or  less  pretty 
well  down.  Eafts  and  boats  of  various  kinds  had  no  difficulty  in 
moving  up  and  down  the  river.  I don’t  think  I recollect  any  con- 
versation about  building  a bridge  over  the  river.  I know  in  an 
early  day  there  were  two  instances  I knew  of  bridges  being  car- 
ried off  by  the  water.  The  two  bridges  on  Cass  street  were  car- 
ried off  by  the  water. 

I don’t  know  of  my  own  knowledge  of  any  traffic  on  the  river, 
only,  I said,  what  I thought  was  evidence  of  it.  I lived  in  Chan- 
nahon  about  a year  or  such  a matter  along  in  ’43,  and  I used  to 
see  cordwood  piled  up  on  the  banks  of  the  river  on  that  ford, 

1248  that  I know  must  have  been  landed  there,  I think  from  some 
boat,  because  there  was  no  timber  anywhere  around  there. 

This  cordwood  was  not  brought  there  by  boats  to  my  knowledge, 
but  it  must  have  been  brought  there,  because  there  was  no  timber 
near  the  fordt.  I know  the  people  of  Channahon  cut  their  wood 
at  the  lake.  I know  a man  was  drowned  in  the  lake,  in  crossing 
the  lake,  in  the  spring  of  the  year,  while  he  was  cutting  wood 
there  at  the  lake.  I think  on  the  left  bank  of  the  river  the  wood 
was  cut  there  generally.  There  was  good  heavy  timber  there. 
This  wood  must  have  been  carried  away  in  boats,  I think. 

Mr.  Munroe.  I object  to  the  rambling  of  this  witness. 

Witness.  I never  seen  any  boats  or  anything  like  that  carry 
any  merchandise,  but  have  seen  the  floating  of  logs,  rafts,  etc. 
That  occurred  before  the  canal  was  opened,  and  I know  that. 

1249  Cross-Examination  hy  Mr.  Munroe. 

I came  from  New  York.  I came  directly  from  Ohio  here. 
I came  up  through  Vandalia.  I was  in  my  7th  year  when  I got 


490 


liere,  in  1837.  I was  up  in  Chicago,  I think,  two  or  three  years 
before  the  Canal  was  opened.  I got  there  with  the  horse  team. 
I met  people  on  the  road,  going  and  coming.  There  was  quite  a 
traffic  betwixt  these  places  and  Chicago  at  that  time.  There  was 
not  any  other  way  of  getting  goods  between  these  places  and  Chi- 
cago except  by  team,  that  I know  of, — nor  any  that  I ever  heard  of. 
I have  been  to  Channahon  on  the  road.  I lived  in  Chicago  between 
1 and  2 years. 

1250  There  was  no  wood  near  this  ford  in  the  vicinity  of  Smith’s 
bridge.  On  the  opposite  side  of  the  river  from  the  Channa- 
hon side,  I think  there  was  timber. 

Q.  Do  you  not  remember  that  there  was  also  a bluff  on  the  west 
side  of  the  river,  that  is  to-day  heavily  wooded?  A.  It  must 
have  grown  up  since  then.  Well,  there  was  a little  timber,  I think 
along  the  DuPage  Eiver  at  that  time  from  Channahon  down.  I 
never  heard  of  a boat  being  on  the  Desplaines  Eiver,  carrying 
freight  or  merchandise. 

I never  lived  in  Lockport.  Well,  I lived  in  Joliet,  in  a house  that 
stood  pretty  near  where  the  Eock  Island  station  is  now.  I didn’t 
know  that  since  1839  the  State  Legislature  passed  an  Act  declar- 
ing that  portion  of  the  Desplaines  Eiver  navigable  which  extends 
from  the  upper  basin  of  the  Illinois  and  Michigan  Canal  to  the 
Wisconsin  State  line.  I never  heard  of  that. 

1251  Q.  When  the  people  treated  or  discussed  the  river  as  a 
navigable  river,  do  you  know  whether  or  not  they  had  in  mind 

that  Act  of  the  Legislature  wdiich.  declared  that  river  navigable? 
You  don’t  know^  whether  they  did  or  not?  A.  But  it  was 
generally  considered  by  the  people  here  at  that  early  date, — not 
only  they  considered  it,  themselves,  but  the  Government  consid- 
ered it  a navigable  river. 

Q.  All  you  know  about  that  is  what  you  heard  the  Govern- 
ment claim?  A.  Yes.  It  was  discussed  here  and  talked  about 
by  the  people. 

These  rafts  that  I saw  were  along  from  where  I lived,  gen- 
erally. I lived  for  a time  on  Bluff  street,  and  had  a good  view 
of  the  river,  and  I think  it  was  not  a great  ways  from  Cass  street 
that  I saw  these  rafts  or  logs,  north  of  Jackson  street. 


491 


Well,  I know  I saw  these  logs  before  the  opening  of  the 

1252  canal,  because  I was  not  as  familiar  with  the  river  after  the 
opening  as  I was  before.  I didn’t  move  awa}^  from  the  river, 

but  I didn’t  have  occasion;  I was  not  sometimes  steady  in  town. 
I worked  in  the  country  sometimes  after  the  canal  opened.  I didn’t 
have  any  occasion  to  haul  any  produce  or  supplies  from  Joliet 
south,  or  from  points  south  of  Joliet  north.  I did  not  know  that 
goods  coming  from  St.  Louis  came  as  far  as  Ottawa  and  then 
were  hauled  by  teams  from  Ottawa  to  Joliet.  I never  heard  of 
it.  I never  heard  of  anything  coming  from  the  south,  excepting 
apples,  peaches  and  things  like  that.  They  were  fetched  here  in 
wagons,  not  from  Ottawa,  but  from  the  farms  down  south, — down 
from  the  central  part  of  the  state,  the  southern  part  of  the  state. 

Q.  Do  you  remember  that  the  stones  for  the  locks  at  Marseilles 
were  hauled  from  Swahn’s  quariy  in  Joliet  to  Marseilles!  A. 
No,  I don’t  recollect  that  particular.  T recollect  Swalm’s  quarry 
at  the  time  it  was  opened.  I recollect  Swalm’s  doing  busi- 
ness here. 

1253  All  the  business  I knew  of  was  between  Joliet  and  Chicago, 
and  the  teams  were  coming  and  going  every  day  all  the  year 

around. 

Mr.  Muxroe.  I desire  to  otfer  on  behalf  of  the  defendant  the 
testimony  of  Mr.  William  McGowan,  who  has  heretofore  been 
called  as  a witness  of  the  defendant;  unless  there  is  some  objection 
to  his  testimony  being  taken  at  this  time  on  the  part  of  the  coun- 
sels for  the  state. 

Counsel  for  Complainant.  No,  I know  of  no  olijection. 

John  McCowan, 

a witness  for  the  defendant,  testified  as  follows: 

Direct  Examination  hy  Mr.  Munroe. 

Q.  Your  name  is  William  McCowan!  A.  No,  John.  ' 

I have  been  called  as  a witness  in  this  case  before.  I testified 
in  my  former  examination,  I believe,  that  I live  near  the 

1254  wide  water,  in  the  Township  of  Channahon.  I went  to 
Channahon  Township  the  28th  day  of  May,  1835.  I knew 


492 


all  the  neighbors  in  the  township  shortly  after  I came  there, — all 
that  were  anywhere  near  Channahon.  Of  course,  I heard  of  the 
others : The  Linebargers ; there  was  the  Trite,  and  the  Eibses, 

Jessups,  Morehouse,  Schermerhorn,  Knapp  and  the  two  Tryon 
brothers.  That  is  all  that  I knew, — there  might  have  been  some 
others.  I knew  John  and  Edwin  Jessup.  Mr.  Prior  was  a cousin 
of  John  and  Edwin;  I was  9 and  he  was  18,  and  I think  the  Jessup 
brothers,  that  is,  the  two  older  brothers,  were  a year  or  two  older 
than  he  was.  I ainT  certain  about  their  ages.  I knew  them 

1255  well  and  intimately.  Often  went  to  their  house  and  often  met 
them.  The  Jessups  lived  in  a log  house  when  I came  to 

Channahon  in  1835.  I could  not  state  just  how  long  they  lived  in 
that  log  house,  as  it  was  quite  a number  of  years. 

My  father  built  the  first  sawed  lumber  house  in  the  Township 
of  Channahon;  it  was  a small  house,  but  it  was  a house;  and  Judge 
AVilliam  D.  Beck, — his  name  is  mentioned  in  ^‘Woodruff’s  History 
of  Will  County,” — those  two  buildings  were  the  first  sawed  lumber 
houses  in  the  Township  of  Channahon.  The  lumber  that  went  into 
those  houses  came  from  Jack’s  mill,  about  four  miles  north  of 
the  village  of  Channahon,  on  the  HuPage  Eiver,  and  on  the  east 
bank  of  it.  These  houses  were  built  in  1835,  and  that  mill 

1256  was  in  operation  at  that  time.  The  Jessups  had  a log  house, 
and  in  the  rural  communities  they  wasn’t  in  no  great  hurry 

about  getting  lumber  houses,  and  I cannot  say  just  exactly  when 
they  built  their  house.  This  old  man  Jessup’s  house,— Isaac 
Jessup’s  house, — him  and  his  two  sons,  or  four  sons  rather,  lived 
there  together  in  this  log  house;  and  how  long  they  lived  in  the 
log  house,  before  the  farm  house,  or  board  house,  or  whatever 
you  have  a mind  to  call  it,  I don’t  know;  that  is,  I don’t  remem- 
ber. 

The  lumber  that  the  Jessup’s  built  their  house  of,  part  of  it 
came  from  Chicago.  That  was  a soft  wood  lumber  they  hewed 
the  sills  out.  The  soft  wood  lumber  came  from  Chicago  and  the 
hardwood  lumber,  the  same  as  the  joists  and  studding,  in  the  old 
house, — the  Isaac  Jessup  house, — the  first  house  east  of  what  is 
called  the  Lewis  house, — came  from  Jack’s  mill. 

1257  I know  the  Jessup’s  didn’t  own  any  boat;  I could  not  say 
about  a skiff,  because  most  everybody  had  a skiff,  or  Indian 


493 


canoe  hewed  out  of  a log,  but  they  didn’t  have  any  kind  of  a boat 
that  you  could  carry  lumber  on.  They  didn’t  ever  carry  any  lumber 
for  any  of  the  mills  in  the  vicinity  of  Channahon  that  I ever  heard 
of. 

Q.  Mr.  W.  W.  Stevens  has  testified  that  Mr.  Jessup  told  him  in 
1855  that  they  owned  a boat  and  made  frequent  trips  to  saw  mills 
in  AVilmington  in  order  to  get  lumber  to  build  houses  for  the  early 
settlers  in  Channahon.  Do  you  know  whether  that  is  true  or 
not?  A.  I know  they  never  had  a boat  to  do  that  kind  of  work. 

I could  not  say  whether  Channahon  was  settled  before  AVilming- 
ton  was  settled.  There  might  have  been  a little  hamlet  there. 
Of  course,  I didn’t  know  anything  about  Wilmington  until  about 
1840.  There  was  not  any  house  built  there  before  the  canal  with 
lumber  from  Wilmington.  I know  every  house  that  was  built 
there  within  a radius  of  four  or  five  miles  of  me,  and  the 

1258  stuff  came  from  Jack’s  mill  and  from  Chicago.  When  they 
brought  it  from  Chicago,  they  brought  it  sometimes  with 

ox-teams,  and  some  had  horses  and  then  they  brought  it  with 
horse-teams. 

Q.  Mr.  W.  W.  Stevens  has  also  testified  that  a man  by  the 
name  of  Fish  had  a saloon  near  Au  Sable,  and  got  his  whiskey 
down  from  Chicago  by  boats.  A.  I never  saw^  anything  at  all  at 
Au  Sable  until  Mr.  McNillis  built  a distillery  there. 

That  was  about  the  time  of  the  opening  of  the  Illinois  and 

1259  Michigan  Canal.  There  was  whiskey  and  such  things 
brought  down  from  Chicago  to  Joliet.  I brought  down  two 

barrels  at  one  time  with  a yoke  of  oxen.  It  must  have  been  about 
1844,  because  that  was  the  year  we  bought  our  horse  team;  and 
teams  were  going  back  and  forth  between  Joliet  and  Chicago, — 
not  every  day  because  they  only  went  when  the  farmers  wanted 
to  carry  their  produce,  and  then  the  Joliet  merchants  got  them  to 
bring  stuff  down.  There  was  no  store  in  Channahon  in  them  days. 
You  had  to  go  to  Joliet  for  your  provisions.  Joliet  was  the 

1260  staple  town.  No,  I don’t  think  people  went  to  Wilmington 
to  get  supplies,  because  Joliet  was  closer. 

There  was  another  saw-mill  on  the  DuPage  Elver  besides  Jack’s 
saw-mill  at  an  earl}^  day,  but  not  so  early  as  Jack’s.  That  was 


494 


located  about  a mile, — no,  about  three-quarters  of  a mile  down 
the  DuPage,  from  the  road  from  where  the  broken  bridge  is. 

I testified  that  I took  my  crop  of  corn  in  the  year  ’35  to  a grist 
mill  at  Treat’s  Island  to  be  milled.  I cannot  say  when  the  saw- 
mill was  built  at  Treat’s  Island;  that  ain’t  fixed  in  my  mind;  I 
know  it  was  quite  a while  after  that, — that  is  after  ’35. 

Cross-Examination. 

I came  to  that  community  in  1835.  I was  84  years  old.  I was 
not  here  before  that.  I came  from  York  State  out  there. 

1261  The  Jessup  family  which  I mentioned  lived  in  a log  house.  I 
did  not  see  the  log  house  built  because  it  was  built 

previous  to  1835.  They  lived  in  it  to  1834.  Jessup  and  More- 
houses  came  here  in  ’34,  and  old  Judge  Peck  came  from  Point  Hook 
Landing.  The  Jessups  and  Morehouses  came  from  Sho'dick’s 
Landing.  It  was  common  talk  all  through  the  community.  The 
community  was  not  very  large.  There  was  the  Shermerhorn, 
Morehouse  and  Jessup  families  came  from  Shodick’s  Landing. 
Quite  a number  of  log  houses  were  built  after  I came  to  that  point. 
I saw  some  of  them  built  and  saw  them  after  they  were  built.  The 
logs  came  from  the  woods.  There  were  plenty  of  woods  all  around 
there.  They  went  to  the  timber  and  cut  them  down  and  hauled 
them  where  they  wanted  them  and  rolled  them  up.  These  logs 
were  not  transported  on  the  water,  nor  transported  on  wagons 
part  of  the  way  and  water  part  of  the  way.  They  were  cut  right 
in  the  timber  and  transported  where  they  were  wanted.  Some 

1262  of  them  were  transported  by  wagons  and  some  of  them  by 
log  chains  with  cattle  on, — twm  or  three  yokes,  depending  on 

the  length  of  the  log.  I’ve  seen  three  yoke  of  cattle  on  a log.  A 
great  many  of  the  logs  were  chopped  right  in  the  timber  that 
surrounded  the  mill.  There  was  two  or  three  hundred  acres  of 
good  timber  land,  but  they  did  not  happen  to  have  much  walnut 
ill  that  grove, — black  walnut;  it  was  principally  oak  and  bass 
wood.  T^ogs  were  brought  from  a distance,  from  our  place,  which 
was  just  about  two  miles  above  the  village  of  Channahon. 

None  of  these  logs  were  transported  by  being  floated  on  the 
water.  1 stated  that  pine  lumber  came  from  Chicago.  1 said 


495 


pine  lumber;  basswood  is  a soft  wood,  l)ut  that  did  not  come 
from  Chicago.  Pine  lumber  came  from  Chicago  because  there  was 
no  pine  in  this  country,  nor  even  in  Chicago,  that  was  shipped 
down. 

1263  The  24th  day  of  May,  1835,  there  was  a raft  of  pine  logs 
brought  down  along  the  lake  shore,  a mile  and  a quarter  long, 

and  they  had  to  cut  it  in  pieces  before  they  could  get  it  up  in 
the  Chicago  Eiver.  I did  not  stop  to  see  what  became  of  it,  be- 
cause I left  there  the  26th.  I presume  it  was  hauled  out  on  the 
beach.  There  were  no  wharves  and  no  docks;  but  I suppose  they 
had  teams  that  hauled  them  out  when  they  got  them  loose  and 
they  hewed  them  up.  I didn’t  state  tliis  from  positive  knowl- 
edge, but  I seen  the  raft  come  there  and  I seen  them  commence 
to  pull  them  out  with  teams,  but  I didn ’t  see  them  manufacture  it. 

I am  familiar  with  the  Desplaines  Eiver  from  points  nearby, 
July,  1835,  to  the  present  day.  I didn’t  ever  see  any  rafts  or  logs 
either  in  large  quantities  or  small  quantities  floated  down  the 
river;  never  saw  any  such  thing,  because  there  was  no  necessity 
for  it.  There  was  heavy  timber,  and  they  even  got  saw-mills, 
steam  saw-mills,  to  saw  the  logs  up, — that  is,  in  the  later  days,  andt* 
there  was  no  necessity  for  timber  to  be  floated  on  the  river,  be- 
cause the  mills  were  built  near  the  timber. 

1264  I have  seen  skiffs  on  the  Desplaines  Eiver  which  carried 
equipments.  These  skiffs  would  probably  carry  two  men 

and  probably  carry  four  or  five  hundred  weight.  I have  never 
seen  any  boats  on  the  river  larger  than  those  skiffs.  It  would 
be  impossible  for  them  to  go  a great  ways  from  1835  until  the 
drainage  fioated  the  water  down  here  from  Chicago  and  from 
Lake  Michigan.  I didn’t  ever  see  any  boats  larger  than  those 
skiffs  go  short  distances. 

L.  F.  CONANT, 

1265  a witness  for  complainant,  testified  as  follows: 

Direct  Examination . 

My  name  is  L.  F.  Conant.  My  age  is  73.  I live  in  the 
Town  of  Troy.  I have  lived  here  since  1846,  two  years  before  the 
canal  was  finished'. 


49G 


I am  somewhat  acquainted  with  the  Desplaines  River. 

1266  Of  course,  I have  never  been  around  it  much.  I have  never 
been  a hunter  or  fisher. 

I have  an  uncle  by  the  name  of  J.  Goodnough.  I couldn’t  tell 
you  the  year  my  uncle  came  to  Illinois.  It  was  somewhere  either 
before  I was  born  or  after  I was  born,  that  he  was  here,  but  I 
have  heard  him  fell  the  story  a number  of  times  about  his  journey 
from  the  east  to  St.  Louis.  I can  tell  you  the  story  as  I heard  it, 
just  as  my  uncle  told  it  to  me. 

He  said  that  he  came  to  Chicago  and  on  their  way  to  St.  Louis 
he  was  a saddle  maker  and  thought  he  could  go  into  business 
there,  he  found  out  at  Chicago  that  by  taking  the  Desplaines 
River  he  could  go  down  to  St.  Louis,  and  there  was  two  other 

1267  men  with  him  and  they  either  got  a boat  there  or  at  the 
river,  I couldn’t  say  which;  and  they  went  down  through 

here.  He  described  going  through  Joliet,  and  down  at  Morris; 
he  described  a stream  going  in  on  the  west  side,  south 
side  of  the  river  I would  say,  and  just  below  that  an  island,  and 
south  of  the  island  was  prairie;  that  was  Morris.  He  said  it  was 
as  near  as  fifty  or  seventy  miles  from  Chicago,  as  he  could  remem- 
ber, where  this  island  was  located. 

He  said  they  saw  some  Indians  on  the  prairies  close  by  thd 
river,  and  when  they  got  down  there  the  Indians  wanted  them  to 
stop  but  they  kept  on,  and  the  Indians  shot  at  them,  and  they 
laid  down  and  drifted  on  the  other  side  of  the  island,  but  the  In- 
dians didn’t  follow  them.  They  had  no  trouble  the  rest  of  the 
journey.  They  came  on  the  boat  all  the  way.  I couldn’t  say  how 
big  it  was,  but  big  enough  so  they  carried  their  camping  utensils 
and  the  three  men  and  provisions  for  the  entire  journey.  I 
couldn’t  remember  the  dimensions  of  the  boat,  I remembered  it 
because  I have  heard  the  story  told  so  many  times,  and 

1268  after  I went  to  Morris  I called  my  mother’s  attention  to  it 
as  he  des/*ribed  it,  and  she  says,  ‘'Yes,  that  is  just  as  he  de- 
scribed it.  ” 

I couldn’t  say  where  they  got  the  boat,  I am  sure,  either  in 
Chicago  or  else  they  bought  it  of  the  Indians  there  on  the  river. 
They  started  their  journey  from  a point  west  of  Chicago.  They 
found  out  by  going  west  from  Chicago  to  the  river  they  could  go 


497 


down  the  river  all  the  way  to  St.  Louis.  I never  lieard  my  uncle 
say  that  they  encountered  any  difficulties  in  having  the  boat  go 
over  that  distance.  I suppose  if  they  had  lie  would  have  men- 
tioned it. 

Cross-Examination. 

I came  to  Buffalo  on  the  canal  boat  from  Utica,  and  from  Utica, 
or  Buffalo,  to  Chicago,  on  the  steamboat  Illinois,  Captain  Blake, 
and  from  Chicago  by  wagon  to  New  Lenox.  That  was  in  76 — 46. 
There  were  not  any  railroads  at  that  time  down  in  this  territory; 
that  was  two  years  before  the  Illinois  and  Michigan  Canal  was 
built. 

1269  Q.  How  did  it  happen  that  you  came  all  the  way  from 
Chicago  by  wagon  to  New  Lenox!  A.  There  was  no  other 

way. 

Q.  Did  you  inquire  if  there  was  any  other  way  to  get  down 
there!  A.  No,  my  brother-in-law  met  us  there  in  Chicago  with 
a team. 

Q.  How  did  you  know  there  was  not  any  other  way  going  down 
except  by  wagon!  A.  I couldn’t  sa}"  as  to  that. 

Q.  But  your  understanding  was  there  was  no  other  way  to 
get  into  this  country  except  by  wagon!  A.  We  didn’t  have  to 
have  any  other  way,  because  they  met  us  there. 

We  met  teams  on  the  road  to  New  Lenox  going  to  Chicago 
with  grain.  After  we  stopped  at  New  Lenox,  I went  to  Belvidere, 
Boone  County,  and  I was  there  a year.  I came  back  here  after  be- 
ing there  a year.  I staid  in  New  Lenox  a year.  I didn’t  go  to 
Chicago  for  years  after  that.  I think  the  first  time  I went  to 
Chicago  was  at  the  time  this  Eock  Island  Kailway ’s  first 

1270  passenger  train  ran  over.  I couldn’t  tell  you  when  the 
Eock  Island’s  first  train  ran  into  Chicago,  along  in  the 

’50s  somewhere.  That  was  the  first  railroad  that  went  through 
this  section  of  the  country.  I was  living  in  what  is  called  Spencer 
Station  on  the  cut-off  railroad.  The  cut-off  railroad  was  not 
built  at  the  time  I got  there.  Some  of  my  neighbors  did  go  to 
Chicago  while  I was  there  that  year.  They  went  with  a wagon 
mostly,  and  horses  and  oxen.  They  carried  their  produce  into 
Chicago  by  wagon. 


Q.  And  tliey  brought  their  supplies  and  things  hack  from  Chi- 
cago? A.  Well,  if  you  can  let  me  tell  it  as  I know  it — 

1271  Q.  Yes,  yes,  you  tell  it?  A.  They  used  to  go  to  Chicago 
with  grain  from  New  Lenox,  and  they  fetched  back  goods, 

salt  and  other  things.  That  was  all  the  market  they  had  that 
time. 

Q.  Did  you  ever  hear  of  any  of  them  going  to  Chicago  by  boat 
with  grain  or  other  produce?  A.  No,  not  until  after  the  canal 
was  built. 

(<).  Did  you  ever  hear  of  any  of  them  bringing  supplies  by  boat? 
A.  No. 

I have  been  on  the  Desplaines  Liver  with  parties  fishing.  I 
don’t  think  I ever  saw  any  boats  in  the  Desplaines  Liver  carry- 
ing freight  or  merchandise.  I didn’t  ever  hear  of  any. 

I couldn’t  say  how  long  my  uncle  has  been  dead,  because  when 
we  came  away  from  New  York  State,  we  heard  nothing  from 
them  until  years  afterwards.  I had  another  uncle  there  that 
wrote  of  his  death,  but  what  time  1 couldn’t  say.  I saw  my  uncle 
that  went  down  to  St.  Louis  the  last  time  just  before  we  came  to 
Illinois  in  ’4(i.  I was  twelve  or  thirteen  years  old  then. 

1272  I have  heard  my  uncle  tell  this  story  I have  narrated  two 
or  three  times,  and  also  my  mother  told  it  afterwards,  because 

it  was  a great  thing  in  that  section  of  the  country  to  take  such  long 
trips  as  he  had.  He  went  down  to  Cairo  and  up  the  Ohio  Liver, 
and  around  home  that  way.  The  folks  thought  that  he  was  dead 
because  he  wjis  gone  so  long. 

1 couldn’t  say  where  he  put  his  boat  in  the  Desplaines  Liver 
when  he  left  from  Chicago.  It  was  near  Chicago  where  they  put 
the  boat  in.  I couldn’t  say  the  distance.  He  didn’t  say  the  dis- 
tance in  his  statement  that  he  told  about  ^lorris.  He  said  as  near 
as  he  could  judge  it  was  fifty  to  seventy-five  miles  to  where  the 
Indians  shot  at  them.  He  said  they  went  down  the  river 
127M  all  the  way  from  where  they  got  the  boat.  T couldn’t  say 
whether  he  got  the  boat  at  Chicago  or  west  at  the  river.  1 
don’t  know  as  he  ever  stated  that.  He  said  Joliet  was  here. 
He  said  he  could  see  something  of  a ford  on  the  bluff.  There 
were  some  planks  sticking  there  when  I came  here,  up  here  where 


499 


Mr.  Marsh  lives.  There  was  a ford  here.  I presume  the  folks 
that  lived  here  built  it.  He  didn’t  tell  me  there  were  any  dams 
in  the  river.  I couldn’t  tell  what  year  he  went  down  to  St. 
Louis.  It  was  sometime  either  before  I was  horn  or  shortly  after- 
wards that  he  took  this  trip.  He  didn’t  tell  me  in  particulai' 
because  I was  small,  but  I heard  him  tell  the  story  so  many 
1274  times,  and  especially  about  the  Indians.  I couldn’t  tell  you 
what  year  it  was.  I was  born  in  ’85  or  ’86. 


James  H.  Herrtss, 

1 

a witness  for  complainant,  testified  as  follows: 

Direct  Excnnination. 

My  name  is  elames  H.  Ferriss.  I live  in  Joliet.  I have  lived 
there  a little  over  thirty  years,  thirty-two.  I heard  of  Mr.  Henry 
Fish  selling  whiskey  at  Aux  Sable.  I suppose  it  was  a sa- 

1275  loon.  In  those  old  days  grocery  stores  sometimes  sold  liquor. 
Most  of  the  grocery  stores  in  the  old  days  sold  liquor.  That 

is  all  I ever  knew  about  it.  I have  heard  that  repeated  a num- 
ber of  times,  and  it  was  generally  known  through  this  community 
that  liquor  was  sold  through  that  point.  It  was  before  I came 
to  the  town.  I don’t  know  how  far  back  it  was.  I know  it  was 
a good  ways  back.  My  impression  would  be  that  it  was  after 
the  canal  was  dug,  but  I don’t  know  whether  it  was  at  the  time 
of  the  digging  or  not.  I suppose  it  was  way  back  in  the 

1276  early  days  of  the  canal  at  least.  I couldn’t  tell  within  a dozen 
years.  I suppose  I have  heard  it  mentioned,  but  I don’t  re- 
member now.  I wasn’t  particularly  interested  in  it,  of  course. 

C ross-Exa  m i nation. 

Mr.  Fish  was  one  of  the  early  settlers.  He  wasn’t  the  first 
but  he  was  a very  early  settler.  He  was  the  father  of  Charles 
Fish,  who  resides  here  in  Joliet. 

I am  the  editor  of  the  Joliet  Daily  News.  I have  been  fa- 
miliar with  the  Desplaines  River  since  about  ’88  or  ’84.  I have 
been  up  and  down  it  a number  of  times  and  along  its  banks  and 
observed  the  river,  as  I have  seen  it  walking  up  and  down  its 
banks.  I have  never  seen  any  boats  on  the  river  carrying  freight 
or  merchandise. 


500 


Q.  Did  you  ever  hear  of  any  boats  carrying  freight  or  mer- 
chandise on  the  Desplaines  Eiver!  A.  Well,  in  that  time,  I never 
have.  I have  heard  of  it  before  that,  of  course,  in  the  early 
period,  that  is,  voyageurs  going  up  and  down.  I have  heard 

1277  that  voyageurs,  missionaries  and  explorers  have  gone  up 
and  down  the  river.  It  seems  to  me  that  I heard  that  Fish 

carried  some  whiskey  down  in  a boat.  I don’t  remember  who 
told  me  that,  that  is  since  this  case  came  up.  By  this  case  I 
suppose  I refer  to  the  case  of  the  People  of  the  State  of  Illinois 
against  the  Economy  Light  & Power  Company.  There  may  have 
been  other  cases.  I am  not  very  well  posted  in  this  case.  I 
don’t  know  who  I am  testifying  for  or  what  the  case  is  about. 
One  of  the  boys  attends  to  this  affair. 

Be-direct  Examination. 

I have  heard  from  general  points  there  were  voyageurs  up  and 
down  the  river  in  the  early  days.  I meant  the  early  explorers, 
Marquette  and  La  Salle. 

Chables  Dimmick, 

1278  a witness  for  complainant,  testified  as  follows : 

Direct  Examination. 

My  name  is  Charles  Dimmick.  I live  at  Lockport.  I am  em- 
ployed on  the  Illinois  and  Michigan  Canal.  I am  assistant  super- 
intendent under  Mr.  McDonald,  and  worked  on  the  canal  since 
the  fall  of  ’71.  I was  off  during  the  Altgeld  administration 
and  once  for  about  three  years.  I am  acquainted  with  the  various 
parts  of  the  canal.  I am  acquainted:  with  the  Kankakee  feeder.  I 
have  done  work  at  the  point  where  the  Kankakee  feeder  joins  the 
canal.  I did  work  there  before  ’88,  in  the  year  1888.  In  ’87  I done 
some  work.  Well,  I don’t  know  that  I can  fix  any  work  I 

1279  done  on  there,  except  to  go  and  look  at  the  locks  and  then 
up  at  the  head  of  the  feeder.  I have  an  old  memorandum 

that  I used  to  keep  of  items  of  work  that  I done  from  day  to  day 
with  my  men.  I was  foreman  on  the  canal  at  that  time.  I made 
these  entries  in  my  records  showing  the  date  and  what  work  I 
done  at  what  point,  and  a description  of  the  nature  of  the  work.  I 
made  them  in  my  regular  course  of  business  from  day  to  day. 


501 


and  made  entries  of  the  actual  business  conducted  that  day,  so  that 
T could  remember  them  myself,  with  sufficient  detail  and  accuracy 
that  I could  rely  on  them  perfectly,  and  the  dates  are  correct. 

Thereupon  counsel  for  complainant  offered  said  books  in  evi- 
dence. 

(Objected  to  on  the  ground  that  it  had  not  been  shown 
any  part  of  the  book  kept  by  Mr.  Dimmick  was  material 
to  this  inquiry.) 

1280  I did  work  at  that  point  a number  of  times  and  this  work  that 
I did  I made  a memorandum  of  in  the  books  which  I have 

mentioned. 

Water  does  not  now  run  from  the  Kankakee  Feeder  to  the  canal, 
but  it  did  at  one  time.  The  feeder  was  blocked  up  and  closed  up  at 
its  junction  with  the  canal. 

Q.  Eefresh  your  memory  by  anything  that  you  have? 

It  was  on  April  3rd,  1888,  I closed  it  myself  with  my  men.  I 
built  a dam  across  the  mouth  of  the  feeder  where  it  empties  into 
the  canal  to  shut  off  the  water  from  the  canal  going  into  the  feeder, 
and  also  tore  up  some  planks  at  the  other  end  of  the  feeder  to  let 
the  water  that  seeped  in  there  run  into  the  river;  that  was  on 

1281  Tuesday.  And  on  the  5th  I was  working  below  Morris  tak- 
ing out  a dam  they  had  in  the  canal  in  the  aqueduct  there, 

and  got  word  from  Mr.  Layton,  who  was  superintendent  there; 
or  Mr.  Brown,  the  commissioner,  that  the  dam  at  the  feeder  was 
leaking,  and  I w^ent  back  and  repaired  it.  That  was  two  days  after. 
That  makes  it  April  5th,  1888.  Before  this  feeder  was  blocked,  the 
tow-path  was  cut  by  it.  It  passed  through  the  tow-path  at  that 
point  at  a bridge  over  the  feeder,  making  a continuous  path  for  the 
tow-path  walker.  After  I closed  up  the  feeder,  I just  built  a little 
dam  in  front  there,  and  shortly  afterwards  Mr.  Keough  tore  it  out. 
I have  not  that  date  that  he  tore  that  out,  although  I had  some  men 
working  there  at  the  time  with  him.  I took  the  stone  that  was  in 
there  and  tore  that  down  and  put  ’it  on  the  banks  of  the  canal  as 
riprap  afterwards,  down  as  far  as  the  level  of  the  tow-path  on  each 
side  and  tilled  in  between  the  abutments  so  that  the  tow-path  is 
now  one  continuous  tow-path.  The  bridge  over  the  feeder  was  re- 
moved so  that  after  tilling  in  there  was  no  water  flowing  over  from 


502 


the  canal  to  the  feeder  or  from  the  feeder  to  the  canal,  that  being 
made  solid  by  what  I filled  in.  I did  this  in  pursuance  of  instruc- 
tions from  the  superintendent,  J.  M.  Layton,  in  1888.  There  was 
water  running  in  the  feeder. 

On  Wednesday,  August  10th,  ’87,  I put  a load  of  manure  in  the 
aqueduct  at  the  feeder  to  stop  the  leaks  in  there.  Of  course,  the 
water  was  running  at  that  time.  Then  on  November  7th,  ’87,  on 
Monday,  I drove  up  to  the  head  of  the  Kankakee  Feeder  by  instruc- 
tions from  Mr.  Layton.  I examined  the  lock  and  lock  gates  at  the 
head  of  the  feeder  and  found  they  badly  needed  repair.  The  stream 
of  water  at  the  point  where  it  joined  the  canal  at  the  time  there 
was  water  flowing  to  the  canal  before  filling  in  was  about  five  feet 
or  eight  feet  deep  and  I should  judge  about  fourteen  to  sixteen 
feet  wide.  There  was  a square  opening  there  at  the  canal; 

1283  it  was  not  wider  at  the  top  than  at  the  bottom.  It  was  on  the 
days  that  I did  the  work  that  I made  that  memorandum  of  the 

work,  in  the  evening  always. 

Counsel  for  Complainant.  I want  to  put  in  evidence  the  par- 
ticular book  which  shows  the  evidence  of  these  transactions  which 
Mr.  Dimmick  conducted  there. 

Mr.  Munroe.  I will  object  to  putting  them  in  evidence  and  in- 
struct the  witness  he  is  not  obliged  to  give  up  any  of  his  papers  in 
this  case. 

Witness.  I don’t  care  to.  I have  little  items  on  here  and  I don’t 
care  to  go  all  through  them. 

Counsel  for  Complainant.  You  keep  the  custody  of  these  books. 

Witness.  I will  keep  the  custody  of  them,  yes,  sir. 

Up  to  1887,  when  I went  up  there  to  examine,  there  was  water 
in  the  feeder  and  she  was  feeding  into  the  canal.  I was  down  there 
with  my  repair  boat  that  I brought  my  men  on.  In  the  spring  of 
the  year,  I always  ran  down  with  men,  wagons  and  teams  and 
cleaned  out  the  bars,  and  at  that  time  I built  that  dam,  and  a few 
days  later  I got  my  boat  at  Channahon  and  got  into  it.  Up  to 

1284  the  time  that  I built  this  dam  cutting  off  the  feeder  from  the 
canal,  the  water  hadn’t  run  that  spring,  hut  there  was  noth- 
ing to  ])revent  it  from  running.  There  was  no  embankment  that 
had  been  built  at  that  time  to  sto})  it  from  running  into  the  canal. 


rm 


I also  put  in  a little  dam.  I cut  a hole  through  the  bank  of  the 
feeder  above  the  aqueduct  and  put  in  a box  there  to  carry  in  the 
I'ain  or  fall  water  that  happened  to  come  down  there  in  the  head  of 
the  feeder,  so  that  it  could  run  out  into  the  river  without  pouring 
into  the  aqueduct. 

Cross-Examination  hy  Mr.  Munroe. 

The  aqueduct  across  the  Desplaines  liiver,  which  was  supi)orted 
on  piers  that  are  now  in  the  river,  is  entirely  gone  and  was  taken 
out  during  Altgeld’s  administration.  I don’t  know  just  the 

1285  date  that  was  taken  out.  It  was  taken  out  by  the  canal  au- 
thorities. It  would  require  considerable  repairs  on  the  ])iers 

to  sup])ort  an  aqueduct  now  if  one  was  desired  to  be  replaced. 

Q.  Is  it  not  a fact  they  are  leaning  and  out  of  pluinl)  and  dis- 
integrated, so  that  if  the  aqueduct  was  even  constructed  the  piers 
would  have  to  be  rebuilt!  A.  That  I do  not  know. 

I have  not  examined  them  with  that  in  view.  It  is  not  necessary 
to  feed  the  canal  from  the  Kankakee  Eiver  now.  We  have  water 
in  great  abundance  for  all  purposes  of  the  canal  from  the  Channa- 
hon  level  and  the  Du  Page  River.  We  have  had  that  for  a great 
many  years.  The  guard  lock  that  existed  between  the  Desplaines 
River  and  the  canal  on  the  north  side  of  the  aqueduct  was  built  of 
timbers.  It  was  a timber  lock.  It  was  intended  for  locking  boats. 
I had  used  that  years  before,  although  I went  up  with  a repair 
boat  to  the  head  of  the  Kankakee  River  and  repaired  that  dam  be- 
fore this,  and  I have  heard  that  boats  ran  up,  that  is  to  boat  stone 
from  the  quarry  up  there  and  ran  up  as  far  as  Wilmington. 

1286  I never  saw  that.  That  was  before  my  time.  I didn’t  ever 
see  a regular  canal  boat  on  the  canal  feeder.  I have  seen 

other  repair  boats  on  the  feeder  and  other  freight-carrying  boats. 
They  used  to  boat  tile  up  there  on  little  freight  boats.  If  they  ever 
desired  to  use  the  Kankakee  Feeder  in  order  to  make  it  feed  into 
the  canal,  I don’t  know  for  sure  what  would  be  necessary  to  be 
done,  but  I should  think  the  Kankakee  dam  would  have  to  be  re- 
built entirely,  and  I don’t  know  whether  the  locks  would  have  to 
be  rebuilt,  but  new  gates  would  have  to  be  put  in  anyhow.  I have 
not  examined  the  abutments  of  the  dams  and  the  locks  that  were 
formerly  at  the  head  of  the  feeder  of  late  years.  I don’t  know 


504 


wlietlier  they  are  all  tumbled  down  and  ruined  or  not.  You  would 
practically  have  to  build  a lock  on  the  north  side  of  the  aqueduct 
to  go  into  the  canal  in  case  the  feeder  w^as  ever  opened  for  naviga- 
tion. On  the  north  side  of  the  Desplaines  Eiver  between  the  Des- 
plaines  River  and  the  canal  that  lock  is  all  tore  out.  There 
1287  inay.be  some  old  timbers  in  the  bottom.  From  time  to  time, 
it  was  taken  out,  a good  deal  of  it,  by  the  tow-path  walker, 
and  I guess  some  of  the  canal  men  took  out  some  of  the  gates  and 
saved  the  iron.  The  tow-path  walker  there  took  out  the  planks 
and  the  old  lock  there  seven  or  eight  years  ago.  I donT  know  the 
condition  of  the  feeder  now.  I think  there  are  some  fences  across 
it.  I have  heard  there  were.  I didn’t  see  them. 

Whereupon  the  taking  of  depositions  was  adjourned  to  April 
15th,  1908,  at  10:30  A.  M. 

Here  follows  a separate  oath  for  each  witness  as  follows : A.  C. 
Clement,  W.  W.  Stevens,  H.  H.  Spoor,  Urias  Bowers,  Isaac  M. 
Johnson,  Mikarl  Anderson,  Gr.  S.  Wightman,  James  R.  Flanders, 
George  W.  Raymond,  Obadiah  Hicks,  F.  P.  Belz,  Henry  R.  Pohl, 
George  A.  Parrent,  George  Abbott,  Edward  D.  Brockway,  Eliza 
P.  Jones,  S.  W.  Jones,  B.  W.  King,  Charles  Hoy,  Frank  Paddock, 
Eugene  Daly,  Charles  Clay,  Joseph  Countryman,  Jacob  Blaess, 
Samuel  Gatons,  John  W.  Taylor,  L.  F.  Conant,  Charles  Dimmick, 
Riley  Tanner,  William  Found. 

Here  follows  certificate  of  Commissioner. 

DEFENDANT’S  DEPOSITIONS. 

(Filed  April  21,  1908.) 

Notice  of  taking  of  depositions,  venue:  Caption  of  cause. 

1304  Notice  addressed  to  complainant’s  counsel  that  on  Thursday, 
January  16th,  1908,  at  9 A.  M.,  before  Fred  A.  Hill,  a Master 

in  Chancery  of  the  Circuit  Court  of  Will  County,  Illinois  in  Joliet. 
Depositions  of  witnesses  named  will  be  taken,  said  taking  of  said 
de]msitions  to  be  continued  from  day  to  day  until  completed.  De- 
fendant deems  testimony  of  said  witnesses  necessary  in  said 

1305  cause.  Witnesses  names:  W.  S.  Myers,  and  Stephen  Dowse, 
residents  of  Lockport,  Illinois,  Stephen  Bedford,  resident  of 

Cbannahon,  Illinois,  Navier  Munch,  David  Layton,  lYilliam  Burt, 


505 


N".  L.  Cook,  Eiiben  KiOmer,  Jacob  Adler,  Adam  Comstock,  Charles 
Kerclieval  and  W.  W.  Stevens  and  other  witnesses.  Dated:  Chi- 
cago, Illinois,  January  4,  1908.  Signed  by  defendant,  l)y  his  soli- 
citors. Acknowledgment  of  receipt  of  notice  by  Alerritt  Starr, 
Special  Counsel  for  Complainant  in  above  entitled  cause. 

1307  Commissioners^  Introduction. 

Depositions  of  George  Alexander,  Stephen  J.  Williams,  William 
S.  Myers,  George  F.  Gurner,  Xavier  Munch,  James  Boa^ne, 
Louis  K.  Stevens,  Jacob  Adler,  William  S.  Burt,  David  Lay- 
ton,  John  P.  King,  Adam  Comstock,  James  C.  Keen,  Enos 
Field,  Urias  Bowers,  Oliver  S.  Chamberlain,  Seneca  Ham- 
mond, Peter  O’Brien,  Franklin  Collins,  John  ]\[cCowan  and 
R.  W.  Killmer,  produced,  sworn  and  examined  on  their  oaths  on 
January  16,  1908,  and  thereafter  on  days  to  which  hearing  was 
continued,  on  agreement  of  parties  at  the  office  of  Frederick  A. 
Hill,  Master  in  Chancery  of  Will  County,  Illinois,  pursuant  to  at- 
tached notice  in  above  entitled  suit.  Said  witnesses  being  first 
duly  sworn,  testified  and  deposed  as  follows: 

1309  Stipulation. 

Title  of  cause. 

It  is  hereby  stipulated  by  and  between  counsel  that  the  mas- 
ter before  whom  depositions  are  to  be  taken  under  attached  notice, 
may  cause  testimony  to  be  taken  in  shorthand,  by  stenographers 
and  typewritten  from  notes;  that  witnesses  need  not  sign 

1310  their  testimony;  that  stenographers’  fees  may  be  taxed  as 
part  of  the  costs,  as  the  court  may  allow,  to  apply  only  to  the 

official  copy.  This  stipulation  shall  not  be  a waiver  of  the  objec- 
tion  made  by  complainant  to  the  taking  of  de])ositions  before  an- 
swer filed. 

J.  C.  Fitch  and 
Walter  Reeves, 

For  Complainant. 
IsHAM,  Lincoln  & Beale, 

W.  E.  Porter, 

Solicitors  for  Defendant. 

1311  Counsel  for  Complainant.  We  object  to  the  testimony 


506 


of  any  ^Yitnesses,  because  no  answer  is  filed  to  the  bill,  and 
therefore  no  issue  is  made. 

George  Alexander, 

1312  a witness  called  on  behalf  of  the  defendant,  testified  as  fol- 

lows : 

Direct  Examination. 

My  name  is  George  Alexander. 

(Objection  by  counsel  for  complainant  to  the  taking  of  depo- 
sition of  said  Alexander,  on  the  ground  that  his  name  was 
not  included  in  the  notice.) 

1 live  in  the  Township  of  Ohannahon,  in  Will  County;  have  lived 
there  from  the  fall  of  1838.  I was  one  year  old  at  that  time;  my 
father  moved  there  then.  I have  lived  there  ever  since,  except  when 
out  in  business  through  the  country. 

My  home  was  about  forty  rods  from  the  Desplaines  Kiver  on  the 
south  side. 

1313  That  was  in  the  vicinity  of  what  was  known  as  Smith’s 
Bridge.  I recollect  when  that  bridge  was  put  up.  There  were 

two  or  three  bridges  before  that. 

When  I first  came  there  my  father  was  engaged  in  the  building 
of  this  Illinois  and  Michigan  Canal.  He  was  foreman  of  a quarry 
in  Section  21.  I own  part  of  that  section  now.  I think  he  was  fore- 
man about  a year  or  so  after  he  came  there.  That  stone  quarry 
was  right  where  I live,  about  ten  miles  from  Joliet  down  the  river. 
My  home  is  about  four  miles  from  the  site  of  the  dam  which  the 
Economy  Light  & Power  Company  is  constructing  near  the  mouth 
of  the  Desplaines  River;  that  is,  if  you  take  the  road  zigzag,  on  the 
river. 

1314  My  father  did  not  own  the  farm  at  this  homestead  at  that 
time.  He  bought  it  right  soon  after.  They  had  paid  off  the 

work  with  Canal  Scrip,  and  he  bought  some  more  and  paid  them  in 
Canal  Scrip;  33  cents  on  the  dollar  it  was  worth. 

1 guess  he  got  the  farm  property  near  the  time  the  canal  opened, 
about  1848;  1 won’t  swear  to  that,  but  that  is  my  opinion. 

He  bought  forty  acres  first;  bought  a piece  in  Section  15,  another 


80  in  22  and  that  piece  on  Smith’s  in  21.  That  split  that  quarter 
section  line. 

The  bridge  is  on  the  quarter-section  line. 

He  died  a young  man  in  September,  1856.  Up  to  the  time  of  his 
death  he  cultivated  the  land  some;  was  generally  on  public  work; 
helped  to  build  this  feeder  to  the  Illinois  and  Michigan  Canal. 
Since  his  death,  I have  occupied  that  land  and  cultivated  it. 

1315  I raised  corn,  hogs  and  cattle.  I do  not  think  my  father 
shipped  any  grain  to  the  Chicago  market  while  he  was  on 

that  farm.  Kailroads  were  not  running  much  at  that  time.  He 
hauled  wheat  with  three  or  four  yoke  of  oxen  and  sold  it  at  37^ 
cents  a bushel ; hauled  it  down  through  the  country  there. 

After  his  death  in  1856,  I shipped  grain  to  the  Chicago  market. 
When  I was  quite  a young  lad,  I fed  up  and  bought  a good  deal  and 
shipped  on  the  Alton  and  Santa  Fe;  that  was  later  of  course. 

I never  shipped  any  produce  from  that  farm  to  Chicago  by  boat 
over  the  Desplaines  River.  I guess  nobody  else  ever  did,  that  I 
saw  go  up  there. 

I have  lived  all  my  life  on  this  river.  Am  familiar  with  it  from, 
say  Lockport,  to  its  mouth.  I swam  horses  through  every  mile 
from  Lockport  to  the  mouth  of  the  Illinois  River,  where  the  Des- 
plaines and  Kankakee  go  together — pretty  near  every  mile  to  cross 
the  river.  We  had  to  get  across  the  best  way  we  could.  We  had  to 
jump  in  and  swim. 

1316  I was  familiar  with  the  condition  of  the  river  before  the 
construction  of  the  Illinois  and  Michigan  Canal.  I was  not 

so  well  acquainted  right  in  Lockport  at  that  time,  because  I was  a 
young  kid. 

I remember  when  they  took  out  the  stone  for  the  Channahon 
locks,  out  of  this  quarry  around  Section  21. 

I was  familiar  with  the  river  from  Joliet  down  to  its  mouth. 
We  used,  when  we  were  young  fellows,  to  go  out  fishing  nights,  and 
would  go  up  these  riffles  and  pull  away  and  go  over. 

There  are  rapids  between  Joliet  and  the  mouth  at  Treat’s  Island. 
There  is  a little  island  there,  and  a pretty  strong  current.  There 


508 


Alexander, — Direct  Exam.— Continued. 


was  shallow  water  there.  Little  row  boats  could  go  over  these 
rapids,  take  the  oars  and  ride  down,  in  ordinary  water. 

1317  Before  the  canal  was  constructed,  right  down  at  this  side 
at  Smith’s  Bridge,  there  was  IJ  feet  of  water  in  the  deepest 

l)art,  right  on  my  land,  right  on  his  farm  and  mine  together.  During 
the  summer  season  we  had  freshets,  back  snows  up  north  that  would 
come  down  the  river  here. 

They  used  to  have  a gorge  the  same  as  at  the  mouth  of  the 
Kankakee,  and  that  would  back  the  water  up  on  us. 

This  bridge  was  finished  in  December,  1865,  and  in  February, 
1867,  I think,  there  was  a gorge  down  there  and  this  bridge  was  not 
anchored  and  the  water  came  up  enough  to  go  over  the  piers. 

Not  during  my  recollection  was  it  ever  possible,  before  the  con- 
struction of  the  canal,  to  run  boats  up  and  down  at  the  point  where 
the  Smith  Bridge  is  located;  boats  for  commerce,  carrying  passen- 
gers or  freight. 

Q.  Has  there  ever  been  a time,  Mr.  Alexander,  when  boats  for 
purposes  of  commerce  ever  actually  ran  up  and  down  -that  river, 
l^etween  Joliet  and  the  mouth  of  the  river,  within  your  recollec- 
tion! 

(Objected  to  by  counsel  for  complainant  as  calling  for  an  opin- 
ion and  being  immaterial,  incompetent  and  irrelevant.) 

1318  A.  No,  sir.  No  boat  running  up  there,  and  nobody  else 
has. 

Q.  You  never,  in  your  lifetime,  saw  any  boats  running  up  and 
down  the  river  between  Joliet  and  its  mouth  or  between  Lockport 
and  its  mouth,  for  the  purpose  of  commerce,  carrying  freight  and 
passengers ! 

(Objected  to  by  counsel  for  complainant,  for  same  reasons  as 
last  previous  objection.) 

A.  No,  sir,  I never  seen  it  and  nobody  else  has. 

Q.  From  your  knowledge  of  the  river,  was  it  ever  possible  to 
run  ])oats  up  and  down  that  river  between  Lockport  and  its  mouth 
for  commercial  purposes? 

(Objected  to  by  counsel  for  complainant  as  irrelevant,  incom- 
petent, immaterial  and  calling  for  the  opinion  of  the  wit- 
ness.) 


509 


A.  Not  in  the  Desplaiiies  Kiver,  no,  sir.  Kan  l)oats  in  the 
canal. 

The  Witness.  There  is  a riffle  above  Smith’s  bridge;  it  was 
not  possible  for  boats  to  go  over  that  during  summer  season,  un- 
less they  made  some  improvement.  T have  never  seen  it  only  in 
seasons  of  high  water. 

1319  According  to  my  best  recollection,  that  is  true  also  of  the 
riffle  and  rapids  at  Treat’s  Island.  Hunters  used  to  go  down 
there  in  skiffs  and  camp;  put  up  tents.  There  were  no  boats  that 
went  up  and  down  it. 

There  is  another  riffle  in  the  Desplaines  down  below  Smith’s 
bridge,  at  Whitmore’s  place.  No  water  down  there  over  two  or 
three  feet  at  any  time.  The  mouth  of  the  DuPage  runs  into  the 
Desplaines  right  there.  The  water  was  pretty  swift  at  that  point. 
It  took  a good  man  to  pull  a boat  up  stream.  It  could  be  done 
in  stages  of  high  water.  I pulled  a skiff  over  there;  of  course  it 
was  pretty  hard  work.  We  would  go  up  there  hunting  ducks. 

Q.  Was  it  ever  possible  to  take  boats  up  there  for  commercial 
purposes,  carrying  produce  or  passengers  over  that  riffle  at  any 
time ! 

(Objected  to  by  counsel  for  complainant  as  incompetent,  ir- 
relevant and  immaterial,  and  calling  for  the  opinion  of  a 
witness  who  had  not  been  qualified  so  as  to  base  an  opinion.) 

A.  No,  sir;  not  in  my  recollection,  never  was. 

The  Witness.  I never  in  my  lifetime  saw  a boat  or  knew  of  a 
boat  carrying  passengers  or  produce  from  market  going  up  that 
river. 

Never  heard  of  any  such  boat  going  down  the  river,  outside 
of  what  I told  you  of  the  men  going  out  for  a little  time  in  the 
boat  and  float  down  the  river.  That  was  just  a skiff — boats  going 
out  for  pleasure  purposes;  at  certain  times  the  skiff  could  only 
go  in  certain  places  in  tlie  river. 

In  the  summer  'time  during  ordinary  stages  of  water  a well- 
loaded  skiff  could  not  go  over  those  riffles. 

They  had  a stage  route  from  Chicago  down  through  La  Salle. 
They  used  to  make  stands  there  at  Channahon. 


510 


A I exa  u d er, — D i rect  Exa  m, — C onthnied. 


1321  I do  not  think  supplies  that  were  used  by  the  farmers 
in  that  vicinity  that  were  obtained  at  Chicago,  were  obtained 

over  that  stage  route. 

They  drove  teams.  Had  a little  wheat  or  something  and  took 
it  to  Chicago  and  traded  it  off  for  supplies  and  brought  it  home 
with  teams. 

I never,  in  my  life,  heard  of  any  supplies  or  produce  being 
brought  from  Chicago  down  to  that  vicinity  in  boats  on  the  river. 

I remember  the  aqueduct  that  is  located  down  near  the  mouth 
of  the  river,  at  the  point  where  the  old  Kankakee  feeder  is.  They 
built  it  right  about  the  time  they  finished  up  the  canal ; if  I remem- 
ber right,  the  canal  was  navigable  in  the  fall  of  1848. 

It  was  somewhere  in  that  neighborhood  that  the  canal 

1322  began  operations.  I remember  that  some  large  stone  were 
used  in  the  construction  of  that  aqueduct.  They  came  off 

of  this  piece  of  land  that  Smith  and  I own,  in  Section  21,  belonging 
to  the  canal  at  that  time,  off  Smith’s  farm. 

There  are  big  quarries  on  the  side  right  west  of  me  in  Section 
21.  I saw  them  hauling  them;  rode  on  the  teams  that  hauled  the 
stone  down  to  the  An  Sable.  Those  stones  were  conveyed  down 
to  the  aqueduct  by  horse  teams  and  ox  teams ; any  way  to  get  them 
there.  Forded  the  river  above  the  Smith  bridge.  I rode  on  the 
wagon. 

To  my  knowledge,  none  of  the  stones  were  conveyed  down  the 
aqueduct  by  boat. 

1323  Q.  AVould  it  have  been  possible  to  have  conveyed  them 
down  there  by  boats,  from  your  knowledge  of  the  river? 

(Objected  to  by  counsel  for  complainant  as  incompetent,  ir- 
relevant and  immaterial  and  calling  for  the  opinion  of  the 
witness.) 

A.  Xo,  sir.  Xot  without  a great  deal  of  work  and  improve- 
ment there. 

The  Witness.  In  that  state,  the  river  as  it  was  then,  it  would 
not  have  been  i)ossible.  I am  pretty  sure  that  not  any  of  the 
stones  used  in  the  building  of  that  aqueduct  came  from  Joliet. 

I say  they  did  not;  that  is  right. 

There  were  a few  stones  picked  at  the  mouth  of  Prairie  Creek 


that  runs  into  the  Kankakee,  but  the  majority  of  the  stones  came 
from  our  quaries  ^wliere  Prairie  Creek  goes  into  the  Kanka- 
kee. 

1324  There  was  a quarry  started  there,  and  they  used  a great 
deal  of  the  stone  when  they  built  tlie  dam  across  at  the 
mouth  of  Prairie  Creek,  40  rods  below  the  mouth,  and  there  was  a 
few  stone  used  in  building  that  lock  there. 

I remember  dams  in  the  river  when  I was  a young  l)oy.  I do 
not  think  that  I know  of  any  prior  to  1848  l)efore  the  completion 
of  the  Illinois  and  Michigan  Canal,  but  there  is  a dam  right  near 

Mr.  Mills. 

There  was  a dam  kind  of  west  of  where  the  Economy  is  now 
constructing  a dam;  the  dam  they  ran  their  mill  with.  I saw  that 
dam  over  there,  across,  below  it.  That  extended  clear  across  the 
river.  There  were  not  any  locks  in  that  dam.  They  had  a race 
there  so  they  could  get  power  for  the  mill.  It  Avas  a closed  dam 
all  the  way  across. 

.1325  I do  not  remember  when  it  was  l)uilt.  My  father  and  me 
went  down  there.  I would  not  say  that  I remembered  the 
existence  of  that  dam  prior  to  1848.  I do  not  know  whether  it 
was  there  before  1848  or  not.  I was  born  in  1837.  In  1848  I was 
11  years  old. 

I remember  the  dam  that  was  on  the  north  branch  of  Treat’s 
Island.  They  had  a race  right  across  there  that  ran  into  the 
mill  there.  That  was  on  the  north  channel.  That  was  pretty 
much  a closed  dam  clear  across  the  channel.  It  Avas  not  a very  big 
dam.  There  was  no  provision  for  any  boats  to  go  through 
there. 

1326  I do  not  remember  about  the  time  when  the  dam  at  Treat’s 
Island  was  constructed.  It  Avas  before  1848  though,  l)ecause 
I kneAv  they  had  a corn  grinder  there  and  we  used  to  take  corn 
from  home  and  go  there  and  have  it  ground.  I think  I saAv  that 
dam  at  Treat’s  Island  before  1848. 

I do  not  remember  any  other  dam  in  the  river  prior  to  1848, 
besides  the  Beard’s  dam  and  Treat’s  Island  dam. 

I do  not  remember  the  existence  of  a dam  in  Joliet  right  aboA^e 


512 


Alexander , — Direct  Exam. — Continued. 


the  J efferson  street  bridge,  prior  to  1848,  but  they  had  that  dam  to 
back  the  water  to  run  down  and  feed  the  canal. 

They  had  that  dam  for  the  levels  of  the  canal  to  cause  the 
water  to  run  down. 

1327  The  dam  has  been  there  since  my  earliest  recollection. 

I do  not  remember  the  existence  of  any  other  dam  in  Joliet 
prior  to  1848. 

I remember  there  was  a dam  called  Haven’s  Dam,  near  Wal- 
lace street.  It  was  a grist  mill. 

I remember  the  existence  of  a dam  in  Joliet  where  the  plant 
of  the  Economy  Light  & Power  Company  is  now.  I saw  it  there — 
I do  not  remember  when  they  built  it.  It  was  built  there  at  an 
early  date. 

Q.  You  know  it  was  there  from  an  early  date;  that  is  at  Jack- 
son  street  in  Joliet,  that  is  called  dam  number  1,  was  there  a dam 
at  that  point  where  dam  number  1 is  now,  since  your  earliest  rec- 
ollection! A.  Well,  I told  you  I was  a young  lad.  I did  not  have 
much  business  around  Joliet.  I was  around  the  vicinity,  I remem- 
ber, and  knew  what  was  going  on,  but  I think  there  was  a dam 
below  where  there  used  to  be  a grist  mill. 

Witness.  I do  not  know  what  they  called  it.  They  used  to 
grind  corn  and  make  flour  there. 

Prior  to  1848  the  people  had  to  go  across  the  river  the  best 
way  they  could.  Some  places  they  could  ford  it,  and  when  they 
could  not,  they  went  over  in  boats. 

1328  There  was  not  any  bridge  in  Joliet  until  you  struck  Mor- 
ris and  the  bridge  at  Morris  was  over  the  Dlinois  River. 

Between  Joliet  and  the  mouth,  I have  forded  the  river  prior  to 
1848.  I drove  a hundred  head  of  cattle  across  and  swam  the 
horses  after  them. 

Prior  to  1848,  before  any  bridges  were  constructed,  there  was  a 
ford  down  where  Brandon’s  bridge  is.  It  was  not  a very  good 
one.  It  was  not  a very  safe  ford,  and  you  could  ford  it  there  at 
Treat’s  Island;  go  across  the  south  branch  and  go  across  the 
island  and  ford  the  north  branch,  and  then  they  used  to  ford 
across  where  the  DuPage  runs  into  this  branch.  That  is  all  there 


51:^, 

was  over  there.  Then  that  ford  in  tliis  Beard’s  dam;  below 
Beard’s  dam. 

I do  not  recollect  any  bridges  across  the  river  below  Joliet  prior 
to  1848. 

1329  We  put  up  a bridge  there  where  Smith’s  Bridge  is,  as  you 
call  it — a frame  bridge.  It  was  not  there  a great  while  be- 
fore it  went  down  with  a load  of  grist  and  a pair  of  horses,  and 
we  put  in  another  bridge  and  then  in  ’65  w^e  let  the  contract  to 
F.  E.  Hinkley  and  they  built  this  covered  bridge  there,  that  is 
Smith’s  bridge. 

The  first  bridge  built  there  I think  was  built  along  in  the  50 ’s — 
1852,  somewhere  along  in  there. 

That  was  about  the  first  bridge  across  the  river,  below  Joliet, 
that  I recollect.  I do  not  remember  when  it  was  put  up.  I do 
not  know  exactly  what  year  it  was  put  np.  There  may  have 
been  some  bridges  in  Joliet  before  that  time. 

These  early  dates  I cannot  give  as  correct  as  what  happened 
later. 

1330  The  several  fords  that  I have  mentioned  hack  before  1848 
could  be  used  at  all  times  during  reasonable  water  in  the 

summer  time,  except  during  a freshet.  Were  two  fords  at  Mills- 
dale,  and  one  across  by  Mills  House;  another  one  of  them  on  the 
north  branch  struck  the  Island,  and  there  was  one  at  the  foot  of 
the  island. 

This  bridge  that  was  built  at  the  point  where  Smith’s  bridge  is 
now. 

The  first  bridge  built  at  that  point  was  not  a swinging  bridge  so 
that  steam  boats  could  go  through  it. 

I am  familiar  with  the  various  bridges  that  have  been  built  in 
recent  years  across  the  river  between  Joliet  and  the  mouth  of 
the  river.  I do  not  think  any  of  them  are  closed  now.  They  are 
not  swinging  bridges,  all  iron  bridges  now. 

. When  I said  closed  bridges,  I referred  to  whether  they  were 
covered  or  not. 

The  one  we  built  in  1865  w^as  a covered  bridge,  sided  up  and 
roofed  over.  It  stood  there  until  about  6 or  7 years  ago;  the 


514  Alexander, — Direct  Exam. — Continued. 

abutments  began  to  fail.  It  would  have  been  standing  there  yet  if 
it  was  let  alone. 

1331  I remember  that  on  this  Davidson  property  the  river  was 
fenced  clear  in,  and  there  was  across  that  bridge,  over  Bran- 
don’s bridge,  right  across  Brandon’s  bridge  on  the  river,  I re- 
member there  was  a fence  laid  clear  down  on  the  river  quite  a 
ways,  but  I did  not  pay  much  attention  to  it.  That  was  at  the 
south  end  of  Joliet. 

I do  not  remember  that  there  was  a fence  for  many  years  across 
both  channels  of  the  river  at  Treat’s  Island. 

I know  Treat’s  Island  was  fenced  because  otherwise  cattle 
would  cross  over  in  there  and  eat  the  crops. 

The  fence  on  Treat’s  Island  was  right  around  there  so  as  to 
keep  the  cattle  from  crossing  the  river  and  getting  on  the  island 
and  eating  up  the  crops. 

A considerable  part  of  the  land  that  my  father  owned  and  that 
I now  own,  was  on  the  bank  of  the  river.  It  ran  down  to  the 
river. 

1332  I did  not  fence  the  land  down  to  the  river,  because  the 
part  where  we  owned  was  in  a bog.  There  is  quite  a little 

lake  around  there  before  you  come  down  to  my  place  and  the 
water  was  deep  and  the  cattle  very  seldom  swam  through  and  we 
did  not  put  any  fence  along  the  river. 

Our  fence  at  right  angles  to  the  river  ran  out  in  the  water 
a ways. 

I do  not  think  the  farmers  all  along  the  river  below  Joliet 
fenced  their  lands  in  the  same  way. 

At  Whitmore’s  there  is  a regular  fence  along  there;  that  used 
to  be  all  opened,  and  they  fenced  up  the  DuPage.  When  the  far- 
mers did  have  fences  at  right  angles  to  the  river,  they  ran  them 
down  to  the  water’s  edge  and  out  into  the  water  a piece  so  stock 
could  not  go  around. 

There  were  very  few  fences  there  in  1848. 

The  land  along  the  river  in  Section  15  and  this  piece  in 

1333  21  and  a quarter  section  in  22,  we  got  hold  of.  I think  Mr. 
Glynn,  an  uncle,  came  there  soon  after  that.  !My  father  got 


515 


killed  in  1856,  and  I fenced  the  land  in  myself  shortly  after  my 
father’s  death. 

1334  We  used  to  have  old  log  canoes  and  boats  out  of  the  sid- 
ing and  some  ont  of  plank — skiffs  carrying  2 to  6 men.  We 
used  to  have  these  little  Indian  canoes,  just  to  carry  two  in,  if  we 
would  sit  still.  Those  were  used  for  transportation  of  people 
that  had  no  other  way  of  going  across ; did  not  have  horses. 

1334  Cross-Examination . 

I was  born  on  the  27th  day  of  October,  1837,  seventy  years  old 
last  October.  I have  lived  right  in  the  vicinity  of  Channahon, 

1335  during  all  that  time.  It  is  built  on  a line  between  Sections 
22  and  15.  That  is  the  farm  that  I have  described  in  my  tes- 
timony. When  I was  a year  old,  my  father  moved  there;  have 
lived  there  ever  since.  Have  been  travelling  around  a little  bit, 
but  that  was  my  home.  I have  been  a jack  of  all  trades,  from 
farming  I have  been  a stock  raiser,  and  raised  hogs,  cattle  and 
horses,  and  buy  and  sell  most  anything  that  comes  along.  My 
business  has  taken  me  along  a course  of  the  Desplaines  River 
quite  a good  deal.  I had  control  of  three-quarters  of  a mile  of 
it,  from  this  bridge  of  Smith’s  ujd  to  the  next  neighbor’s  farm 
above  me,  and  the  river  runs  nretty  near  in  a southwesterly  course 

from  my  lands,  and  next  it  a little  longer,  I guess.  I have 

1336  been  over  it  hundreds  and  hundreds  of  times,  thousands  and 
thousands  of  times  from  myj)lace  to  Joliet,  down  to  Morris 

and  all  along  the  line.  Of  course  when  I go  to  Morris,  I go  out 
of  the  Desplaines  River  latitude.  I don’t  know  a great  deal  about 
the  Desplaines  River  above  Joliet.  I drove  cattle  to  Chicago 
forty-five  or  fifty  years  ago  this  last  fall,  before  the  Alton  railroad 
or  the  Rock  Island  railroad  was  built.  I forded  the  river  above 
Joliet  and  Lockport  and  through  that  country.  Aside  from  the 
occasional  fords,  I have  not  been  on  the  river  to  amount  to  any- 
thing. I was  not  so  much  acquainted  around  Lockport,  but  from 
Joliet  down  to  the  mouth  of  the  Illinois  River,  I was  well  ac- 
quainted with  it.  I forded  there  above  Lockport,  but  I was 

1337  not  up  there  all  the  time.  The  testimony  I have  given  in  my 
examination  in  chief  refers  to  the  river  below  Joliet  to  the 

mouth. . I would  know  more  about  that  than  I did  further  up.  I 
was  not  so  much  acquainted,  being  a young  fellow  at  that  time. 


516 


Of  course  my  business  would  not  call  me  up  there.  My  only 
experience  with  the  Desplaines  Eiver  between  Joliet  and  its  mouth 
has  been  that  I have  crossed  it  occasionally  with  cattle  at  the 
fords,  and  crossed  with  boats  and  other  ways.  I know  right  below 
my  house,  where  there  is  a kind  of  a little  lake  from  Mill’s  Island 
down  to  this  bridge  of  Smith’s,  I went  out  there  and  took  a 

1338  rope  and  sounded  it  down  there,  and  we  got  14  feet  of  water 
in  one  spot.  That  was  right  opposite  my  land  up  above  the 

house,  and  then  you  go  down  80  rods  and  you  could  walk  it  with 
good  high  boots. 

AVe  used^to  go  in  a boat  at  night  and  catch  a lot  of  fish,  at  the 
places  where  we  found  the  depth  of  the  water  varied  a good  deal, 
some  places  a foot  and  a half  and  some  places  six  feet.  I can’t 
say  that  I know  how  deep  the  water  has  got  to  be,  in  order  to 
get  navigation  for  commercial  purposes.  I know  it  depends  a 
little  on  the  size  of  your  vessel,  and  how  you  load  it.  It  has  to  be 
6 or  7 feet  on  the  Mississippi  Eiver.  I shipped  down  there  to 
St.  Louis  and  Memphis  and  Cairo.  It  is  my  opinion  that  in 
order  for  the  stream  to  be  navigable  for  commercial  purposes,  the 
water  must  be  6 or  7 feet  deep.  I am  not  giving  this  as  an 

1339  authority,  because  I am  not  an  expert  on  it.  I was  basing 
my  answers  as  to  the  navigability  of  the  Desplaines  on  what 

was  asked  me.  I was  asked  if  I saw  a boat  carrying  anything,  and 
I said  I did  not  and  nobody  else  did  round  that  country. 

They  commenced  using  the  canal  in  1848.  Between  the  date  of 
my  birth  and  that  time,  I was  digging  around  trying  to  make  a 
living  the  best  I could.  I drove  the  first  repair  boat  on  the  Illinois 
and  Michigan  Canal  down  below  Channahon.  There  was  a slide 
sloping  off  to  the  river.  They  had  a lot  of  stone  right  down  across 
the  river.  They  kept  sloping  it  down  and  have  repaired  it  for 
years,  but  I guess  they  have  got  it  solid  now.  Trees  are  growing 
through  it. 

1340  My  father  did  not  spend  much  time  farming.  I ran  a 
few  months  on  the  repair  boats,  and  drove  team.  My  father 

was  boss  on  there,  but  as  soon  as  I got  a little  bit  bigger  he  put 
me  on  the  farm  and  I run  the  farm.  He  went  down  on  the  Iron 
^Mountain  Eailroad.  He  built  twenty  miles  of  that  through  8t. 
Louis.  The  first  railroad  built  through  this  country  was  the  Alton. 


I guess  it  was  built  along  in  ’58  or  ’60.  I drove  oxen  for  a fellow 
through  Hampton,  below  El  wood,  over  the  land  where  they  put 
the  railroad  through.  I didn’t  do  any  work  on  the  Illinois  and 
Michigan  Canal  before  1840.  I ran  errands  for  the  boys  before  the 
canal  was  finished.  I did  not  in  1840,  I was  only  three  years  old 
then.  I commenced  that  .sort  of  work  when  the  canal  started 

1341  up  the  second  time,  I think  about  1843.  They  shut  the  canal 
down  once.  I used  to  run  errands  when  they  were  working 

in  the  quarry.  They  would  send  me  over  to  Channahon  for  to- 
bacco or  some  other  thing,  and  I used  to  wade  the  river.  I was 
about  seven  or  eight  years  old  at  that  time.  I commenced  to  work 
on  the  canal  under  my  father  about  1850,  I guess.  The  canal  was 
running  at  that  time.  It  commenced  to  run  in  1848.  It  was  in 
operation  at  the  time  I was  working  on  it.  I know  they  used 

1342  to  ford  the  river  and  haul  stones  across  to  the  Channahon 
locks,  and  from  the  DuPage  River,  haul  them  to  the  Aux 

Sable  locks.  They  built  those  locks  out  of  stone.  The  stone  was 
taken  down  by  horses,  I guess  a team,  hauled  down  by  wagons.  A 
part  of  the  stone  in  the  Aux  Sable  locks  came  from  Smith’s.  I 
know  practically  where  it  all  came  from.  The  biggest  end 

1343  of  the  stone  came  out  there  at  the  aqueduct  and  was  hauled 
from  some  place  down  there.  All  kinds  of  stone,  one  ledge 

that  was  4 feet  thick  and  some  that  was  lighter.  It  is  not  a fact 
that  the  locks  at  Aux  Sable  and  the  aqueduct,  are  built  from  sand- 
stone taken  from  quarries  near  Aux  Sable,  and  if  it  was,  it  was 
built  from  sandstone  that  came  out  of  a little  ridge  at  Solomon 
Creek.  That  is  the  only  sandstone  works  around  there  that  I 
know  of,  but  those  Aux  Sable  locks  had  to  be  torn  down,  and  they 
brought  stone  from  Joliet  and  rebuilt  them,  not  a great  many 
years  ago.  I said  that  none  of  the  stone  used  in  these  various  im- 
provements down  there  at  Aux  Sable,  or  at  any  other  point  be- 
low Joliet,  came  from  the  Joliet  quarries.  I know  that  because 
the  Joliet  stone  is  a different  kind  of  stone  from  what  they  used- 
there.  I have  been  right  there  when  they  were  building  the  locks 
and  saw  the  stone  hauled.  I was  about  5 or  6 years  of  age 
1334  at  the  time  this  stone  was  taken  down.  You  could  notice  the 
stone  for  forty  years  afterwards.  The  stone  showed  for 
itself.  I base  my  knowledge  that  they  did  not  use  any  stone  from 
the  Joliet  quarries  there,  upon  the  fact  that  the  stone  is  not  of 


518 


Alexander , — Cross-Exam. — Continued. 


the  same  character  as  the  stone  that  comes  from  the  Joliet  quar- 
ries, and  upon  my  experience.  I have  been  along  there  when 
they  were  doing  all  this  work  when  I was  a ^‘kid.’’  Prairie 
.1343  Creek  is  right  up  the  Kankakee  Eiver  towards  Wilmington 
in  a southeasterly  course.  I did  not  say  that  part  of  the 
stone  used  in  improvements  at  Aux  Sable  come  from  there.  There 
might  have  been  a few  stones  put  in  the  aqueduct,  I mean  the 
aqueduct  at  Dresden  Heights ; the  abutments  are  there  yet  I guess. 
Of  the  rapids  in  the  Desplaines  Kiver  between  Joliet  and  the 
mouth,  there  is  one  at  Brandon’s  Bridge,  one  at  Treat’s  Island, 
one  where  the  DuPage  enters  into  the  Desplaines.  The  one  at 
Whitmore’s  farm  and  the  mouth  is  all  together  where  the  DuPage 
runs  into  the  Desplaines.  There  is  a good  strong  river  at  the 
mouth  of  the  Desplaines.  There  are  five  rapids  between 

1346  Joliet  and  the  mouth  of  the  Desplaines  River.  Sometimes 
the  water  in  those  rapids  is  deeper  than  at  others.  Some- 
times if  you  had  a good  pair  of  boots,  you  could  ford  it  without 
getting  your  feet  wet.  That  would  be  in  July,  August  and  Sep- 
tember may  be.  Three  months  it  would  be  so  shallow  that  you 
could  wade  across  it  with  your  boots  on,  a little  more  than  a foot. 
There  would  be  spots  in  there  maybe  a foot  and  a half  deep.  The 

current  always  drifted  to  the  south  side  of  the  river,  that  was 

1347  the  deepest  chanel.  I should  think  there  in  the  deepest  part 
of  it,  at  all  times  of  the  year,  there  was  as  much  as  18  inches 

of  water  in  the  channel  at  that  rapids  opposite  my  place.  I think 
the  channel  would  be  pretty  near  40  feet  wide  there.  The  north 
side  of  the  river  sloped  off,  it  is  smoother,  goes  out  gradually.  At 
the  lowest  stage  of  water,  at  the  rapids  at  my  place,  on  my  side  of 
the  river,  there  was  a channel  about  40  feet  wide,  with  an  average 
depth  of  18  inches,  somewhere  along  about  that.  Down  at 

1348  Whitmore’s  Bridge,  it  was  a little  deeper  than  at  my  place, 
2 or  3 feet,  or  2h  As  near  as  I can  guess,  in  the  channel  it 

would  be  that  deep.  At  Whitmore’s  the  channel  would  be  all  of 
forty  feet,  1 got  the  feed  from  the  DuPage  River  there.  At  every 
one  of  the  rapids  mentioned,  with  the  exception  of  Treat’s  Island, 
there  was  a channel  of  a width  of  about  40  feet,  with  as  much  as 
18  inches  of  water  all  the  way  across  it  at  the  lowest  stage  of  water 
in  the  Desplaines  River.  I think  that  is  about  right.  Treat’s 


Island  with  reference  .to  1113^  place,  is  about  a mile  and  a half  or 
two  miles  northeast.  At  Treat’s  Island  I i^eneralh^  went  on  hoi-se 
back  when  I forded  it.  I waded  it  a few  times.  It  might  vaiy 

1349  as  much  as  a foot  and  a half  in  the  deepest  part  of  it.  I 
think  there  was  a foot  of  water  there.  I don’t  know  as  I can 

tell  you  if  there  would  be  a j)eriod  of  six  or  eight  months  of  the 
year  in  which  the  water  on  all  of  these  rapids,  would  l>e  over  two 
feet  in  the  channel.  I did  not  keep  track  of  it,  but  some  seasons 
it  kept  a good  deal  lower  than  at  others.  It  depends  on  the 
weather.  I think  there  was  alwa^^s  18  inches  of  water  in 

1350  all  of  these  rapids,  excepting  at  Treat’s  Island, — for  a short 
distance  of  course.  This  depth  of  water  of  18  inches  on  all  of 

these  rapids,  for  a distance  of  40  feet  in  the  channel,  at  the  lowest 
stage  of  water  of  the  Desplaines  Eiver,  existed  prior  to  and  after 
1848.  At  Treat’s  Island  there  at  the  foot,  I should  sa^^  the  length 
of  the  rapids  up  and  down  the  river,  was  about  40  rods.  At  the 
upper  end  of  the  island,  there  were  two  branches.  IVe  crossed  one 
branch  and  got  over  to  the  island,  and  crossed  the  other  branch 
and  got  over  to  the  other  side.  The  rapids  came  out  on  each  side 
of  the  island.  There  was  a channel  on  both  sides  of  the 

1351  island,  and  there  was  not  much  difference  in  depth.  On  the 
south  branch  the  water  would  be  as  deop,a.s  2 feet  for  four  or 

five  months  of  the  year,  this  before  1848,  but  I guess  the  north 
branch  would  not  go  that  depth.  The  channel  in  the  south  branch 
would  be  40  feet.  I think  prior  to  1848,  there  was  a channel  in  the 
south  branch  of  the  rapids  at  Treat’s  Island  40  feet  wide,  and  con- 
taining as  much  as  2 feet  of  water  for  a period  of  five  months 

1352  in  the  3-ear.  There  are  places  there  in  the  Desplaines  between 
Joliet  and  its  mouth,  where  it  was  not  deep  enough  to  run 

much  of  a boat ; they  had  to  get  along  there  with  a light  boat.  The 
water  was  deeper  at  all  places  between  Joliet  and  the  mouth  of  the 
river,  than  it  was  at  the  rapids  I have  mentioned,  a little  kind 
of  locks  formed.  It  was  wider  and  deeper. 

Brandon’s  dam  that  I spoke  of  was  outside  of  the  mouth  of  the 
Desplaines  Eiver,  I think  six  rods  may  be.  That  was  put  in  there 
a long  while  ago.  I think  it  was  put  in  after  the  Illinois  & Mich- 
igan Canal  was  built.  L ain’t  going  to  swear  to  that,  one  way 


520 


Alexander, — Cross-Exam. — Continued. 


or  the  other.  I think  the  canal  had  been  in  operation  before 

1353  Brandon’s  dam  was  built.  Anyway  it  was  built  about  the 
same  time.  The  next  dam  that  I mentioned  was  at  Treat’s 

Island.  There  was  a little  dam  put  across  the  north  branch.  Had 
a race  to  run  the  water  down  to  run  the  saw  mills.  It  was  only 
a temporary  fixing  across  the  south  channel.  They  put  a good 
dam  across  the  north  branch.  I don’t  think  that  was  built  after 
Brandon’s  dam  was  built,  as  long  as  I can  recollect.  Mr.  Treat 
l)uilt  it.  The  next  dam  up  the  river,  I thing  Malcolm  run  this 
across, — the  mill  below  McDonough  street.  I don’t  know  when 
that  was  built.  They  had  a wheat  mill  there  and  had  wheat 
ground,  when  I was  quite  a chunk  of  a boy.  If  it  was  built 
after  the  Illinois  and  Michigan  Canal,  it  was  quick  after  it.  I 
know  I took  grist  there  when  I was  about  ten  years  old,  and  I am 
now  about  seventy.  I don’t  know  how  long  it  had  been  built 

1354  then.  Malcolm  run  it.  According  to  my  memory,  the  next 
dam  up  the  river,  was  right  here  at  Joliet.  I don’t  know  when 

that  was  built.  I know  they  had  it  built  before  the  canal  was 
in  operation,  because  they  had  to  have  a feeder  to  have  this  water 
come  down  here.  I think  it  must  have  been  built  about  the  time 
that  canal  was,  because  the  canal  crossed  the  river  and  comes 
over  on  the  other  side.  I suppose  it  was  built  for  the  purpose 
of  supplying  the  canal  with  water  and  power.  Norden  & Company 
built  this  dam  here  where  the  electric  power  is  now.  I don’t  know 
what  year  that  was  built  in.  I think  it  was  built  after  the  canal 
was  in  operation.  I am  not  positive  about  it,  but  my  opinion 
is  it  was.  It  was  my  father  ship])ed  the  grain.  He  hauled  it 
up  with  yoke  teams  somewhere  in  the  40 ’s,  about  ’48  or  ’50,  some- 
where in  there.  I don’t  know  that  it  was  after  the  canal  wms  in 
operation.  They  run  grain  up  the  canal  pretty  quick  after  they 
got  it  open.  When  I came  to  operating  the  farm,  I usually  shii^ped 
grain  to  Chicago  by  railroad  mostly.  I fed  most  of  the  grain  I 
raised  for  many  years  and  then  bought  a good  deal.  I never  saw 
boats  pass  over  the  Desplaines  Kiver  prior  to  1848.  I know  ever 
since  I wms  big  enough  and  got  along  the  river  hunting  ducks 
and  the  like  of  that,  there  was  no  boats  running  in  my  time 
135b  after  I got  big  enough  to  get  out.  I guess  I wouldn’t  re- 
member what  occurred  on  the  river  from  1837  up  till  1845. 


I don’t  know  that  no  boats  ever  did  go  down  the  Desplaines 
River  carrying  feed  prior  to  1848.  I know  enough  old  settlers 
around  there  and  could  get  information  about  the  matter,  and  as 
an  individual  I could  see  them  going  down.  But  they  did  not  go 
down,  and  you  can’t  produce  a man  in  this  state  that  ever  saw 

1357  one  go;  that  is  my  opinion.  I don’t  remember  as  I ever  saw 
a fence  across  the  l)es])laines  River.  The  fences  ex- 
tended dowm  into  the  river  a piece,  and  did  not  lain  ])arallel 

with  it.  They  did  not  run  all  that  way  across  it.  Wherever 

1358  the  water  was  any  depth  among  the  riffles,  they  had  fences 
along  the  river  bank,  I mean  parallel  with  the  river.  At 

Glidden’s  on  that  farm  where  Mills  is  now,  they  had  a piece  on 
the  south  side  of  the  river  that  had  a fence  all  along  so  the  stock 
could  not  go  across.  That  wuis  to  prevent  stock  wading  and 
crossing  the  river  and  getting  into  the  crops  of  the  other  farmers 
there. 

Re-direct  Examination. 

The  locks  at  Channahon  were  rebuilt  somewhere  about  12  or  15 
years  ago  I should  judge,  and  the  locks  at  Aux  Sable  were  also 
rebuilt  about  10  or  15  years  ago.  At  the  time  these  locks  were 
rebuilt,  Joliet  stone  were  used.  They  brought  them  down  a 

1359  canal.  When  I testified  that  the  locks  wmre  built  from  stone 
taken  of  Section  21,  I referred  to  the  original  construc- 
tion before  the  canal  started  at  all.  I have  taken  a boat  up  the 
channels  that  I spoke  of  where  the  rapids  were.  Sometimes  I 
would  row  it  up,  but  most  of  the  time  I would  push  it  up  when 
we  were  fishing  nights,  go  out  and  push  them  right  along  ahead 
of  us.  The  boats  that  were  taken  up  those  rapids  were  taken 
up  that  way  most  of  the  time,  unless  it  was  low  or  when  the  cur- 
rent was  very  strong.  I have  been  up  through  the  rapids  at 
Treat’s  Island.  I have  rowed  a boat  up  through  there  after  I 
got  over  the  wmrst  patch.  There  is  a little  ])iece  in  that  lock  very 
swift  for  a while  and  then  they  ease  up  a while,  but  after  we  got 
to  the  bend  of  the  island  there  was  forty  rods  over  there  that  was 

real  swift.  A¥e  pushed  the  boat  up  part  of  the  way  and 
1J60  rowed  it  up  the  remainder  of  the  way.  We  did  not  go  there 
a great  deal  to  fish.  We  would  go  where  it  was  full,  and  if  so, 
we  would  get  all  we  wanted.  It  would  be  one  trip  up  and  back. 


522 


Where  these  channels  were  in  the  rapids,  there  were  these  nigger- 
head  stones  all  along  in  different  places.  I nsed  to  pick  them 
np  and  carry  them  to  the  place  where  I forded.  We  used  to  pick 
them  up  and  fill  them  pretty  well  up,  so  we  would  have  to  clear 
that  out  once  or  twice  a year.  Down  at  our  place  it  was  not 
quite  possible  to  step  from  stone  to  stone  without  getting  the  feet 
wet.  There  was  space  where  there  was  a big  channel  you  could 
not  quite  step  over.  At  these  various  channels  where  there  were 
rapids,  I saw  it,  a good  sized  stone  would  he  sticking  up  out  of 
the  wmter  and  some  sticking  up  and  some  under.  I did  not  mean 
at  these  rapids  there  were  channels  forty  feet  wide  that  were  en- 
tirely clear  from  stones,  so  that  boats  could  go  up  and  down 

1 361  without  hindrance.  Could  not  go  up  there,  stones  all  the  way, 
a tough  match  to  get  a skiff  up. 

Q.  These  channels  were  filled  with  stones,  some  sticking  out 
of  the  water  and  some  under  it,  so  it  would  be  impossible  to  nav- 
igate it;  isn’t  that  true! 

(Objected  to  by  counsel  for  complainant  as  leading.) 

A.  Yes,  sir,  that  is  true. 

Hearing  adjourned  until  January  16,  1908,  at  2 o’clock  p.  m. 

Stephen  J.  Williams, 

a witness  on  behalf  of  the  defendant,  testified  as  follows: 

Direct  Examina ti o n . 

Counsel  for  Complainant.  I object  to  the  taking  of  the  testi- 
mony of  this  witness  because  we  have  not  been  served  with 
notice  of  the  taking  of  the  deposition. 

Euling  on  said  objection  by  trial  court. 

Counsel  for  Defendant.  It  was  afterwards  stipulated 
that  we  neither  of  us  need  to  give  the  names  of  the  witnesses 
in  our  notice. 

Objection  overruled. 

(Said  ruling  on  said  objection  occurs  on  Trans,  p.  4031.) 

1362  Direct  Examination . 

My  name  is  Stephen  J.  AVilliams.  I reside  right  opposite 
Eomeo  in  the  Township  of  DuPage.  Eomeo  is  the  next  station 
above  Lockport  on  the  Desplaines  Eiver.  If  I live  until  next  Sep- 
tember, I have  Jived  there  about  63  years,  I think.  I am  going 


on  63-64  years.  I was  born  in  that  same  place.  My  father 
lived  there  before  me.  He  was  one  of  the  contractors  on  the  Illi- 
nois and  Michigan  Canal  a long  while  ago  in  ^36.  He  lived  there 
long  years,  I don’t  know  how  many,  I think  53.  He  lived  there 
until  he  died.  I think  I heard  him  say  he  moved  there  in  ’34. 
My  business  is  farming  and  raising  horses  and  cattle.  I have 
about  six  or  seven  hundred  acres.  I think  Romeo  is  about  three 
miles  from  Lockport,' about  seven  miles  from  Joliet.  I am  not 
familiar  with  the  Desplaines  down  to  its  mouth  from  my  home.  I am 
familiar  wdth  it  right  around  in  our  country  there.  I never  went 
very  much  south  down  that  way.  My  business  did  not  call  me 
that  way,  but  from  Lockport  up  I know  all  about  the  Desplaines 
River.  I am  not  familiar  with  the  Desplaines  River  any  further 
than  Joliet.  I never  went  down  that  way.  I went  down  to 
Channahon  to  buy  a few  cattle,  never  paid  any  attention  to  the 
river.  My  going  back  to  the  early  days  when  I was  a youiiii: 
boy,  there  were  no  stones  in  the  river  in  our  country.  I don’t 
know  anything  about  the  dams,  only  about  the  river  up  in  our 
country.  To  my  knowledge  the  river  up  in  our  country  has  never 
been  navigated  by  boats  carrying  freight  or  passengers,  never  to 
my  knowledge.  I do  not  know  of  any  navigation  of  the  river  up 
above  Lockport  for  commercial  purposes.  My  home  was  right 
on  the  bank  of  the  river.  The  cattle  used  to  run  back  and  forth 
across  there  all  the  time.  I never  heard  of  any  boats  going  up 
and  down  the  river  at  any  time  with  passengers  or  freight. 

1365  Q.  From  your  familiarity  with  the  river  above  Lockport,  I 
wdll  ask  you  if  it  wmuld  be  possible  for  boats  carrying  freight 
or  passengers  to  be  navigated  up  or  down  that  river  during  ordi- 
nary seasons  of  the  year? 

(Objected  to  by  counsel  for  complainant  as  calling  for  the 
opinion  of  a witness.) 

A.  I don’t  see  how  a boat  could  come  up  that  river.  It  wasn’t 
deep  enough. 

The  biggest  boat  that  I ever  saw  on  the  river  in  my  life  is, 
sometimes  we  used  to  get  a boat  to  row  around  and  spear  some 
fish;  two  or  three  of  the  hired  men  used  to  go  down  there  and 
spear  fish  there;  that  is  the  only  kind  of  boat  I ever  saw  on  the 
river. 


524  S.  J.  Williams, — Direct  Exam.— Continued. 

Q.  Were  there  any  rapids  in  the  river  above  Lockport  that  you 
are  familiar  with!  A.  No,  I am  familiar  with  the  whole  river 
from  Lockport  up,  hut  there  was  never  no  place  the  water  wasn’t 
dee23  enough. 

The  Witness.  There  were  fords  in  the  river  above  Lockport. 
We  used  to  cross  at  Romeo  and  there  is  a ford  there  yet.  You 
could  ford  any  place  there.  The  water  was  not  deep.  Some 
1366  parts  of  the  summer  you  could  walk  across  without  wetting 
your  shoes;  in  the  spring  it  is  dee^ier  during  the  flood  sea- 
son, but  since  they  turned  the  water  the  other  way  by  digging 
this  canal,  the  Sanitary  District  canal — it  has  made  the  river  a 
little  deeper,  but  then  we  cross  all  the  same.  Before  the  time 
the  Sanitary  Canal  was  built,  it  was  a good  deal  shallower  than 
it  is  now.  Lots  of  riffles  we  could  cross  up  above  Lockport  during 
the  summer  season  without  getting  our  feet  wet. 

Q.  You  don’t  think  it  would  be  possible  during  that  season 
of  the  year  to  run  boats  up  and  down! 

(Objected  to  by  counsel  for  complainant  as  being  argu- 
mentative.) 

A.  AYell,  in  the  summer  time,  you  couldn’t  get  a jilank  down 
there. 

The  Witness.  It  was  a pretty  good  current  there  when  it 
run.  I don’t  know  of  any  dams  in  the  river  above  Lockport  or 
at  Lockport. 

1366  Q.  Did  you  know  of  the  Daggett  mill  at  LoclqDort! 

(Objected  to  by  counsel  for  conq^lainant  as  suggestive 
and  savoring  of  cross-examination.) 

1367  A.  Why,  certainly.  We  used  to  take  our  flour  down  there ; 
take  our  wheat  down  there  to  get  it  ground. 

It  was  that  mill  then.  Dr.  John  F.  Daggett. 

They  had  water  power  there.  The  water  that  they  used  there 
to  run  that  mill  looked  to  me  as  if  it  was  always  coming  out 
of  the  canal  from  Norton’s  mill.  The  water  from  the  mill  that  he 
had  in  Lockport,  right  down  there,  and  they  had  a race. 

That  is  the  way  it  looked  to  me,  although  I never  took  much 
pains  to  look  that  over. 


I do  not  believe  there  was  ever  a fence  across.  Desplaines 
Kiver,  above  Lockport,  within  my  recollection,  but  it  seems  to 
me  that  Mr.  Alderman  ])ut  a fence  across  there  once,  but  I would 
not  be  positive.  We  were  going  to  put  a fence  across  there. 

(Objection  by  counsel  for  complainant,  to  the  witness  stat- 
ing what  they  were  going  to  do.) 

1368  The  Witness.  You  see,  in  the  spring  of  the  year  when 
the  water  raised  there  for  a while,  it  would  take  the  fence 

away;  that  is,  the  ice  would  take  the  posts  away.  We  could  noi 
put  any  posts  there  because  it  is  all  rock  bottom,  unless  you  would 
drin  a hole  down  in  the  stone,  and  we  thought  we  had  better  not 
put  a fence  there,  because  when  the  river  broke  up  in  the  spring, 
the  ice  would  lodge  on  the  posts  and  destroy  the  fence. 

This  fence  that  may  have  been  built  by  Mr.  Alderman  was  not  a 
bit  further  than  my  land  runs.  There  is  a jog  there  in  the  section, 
and  Alderman  owns  east  of  me  on  the  north. 

It  was  just  above  mj  place,  only  the  fence  between  me  and 
him;  only  you  know  his  land  protruded  further  east  than  mine. 

I could  not  state  positively  whether  fences  on  my  own  land, 
or  on  my  neighbor’s  land,  or  on  any  farms  above  that  ran  down 
to  the  river,  were  built  at  right  angles  to  the  river  and  ran  on 
down  to  the  river  into  the  water. 

The  wires  were  stretched  across  the  river. 

1369  The  fences  were  put  there  before  the  Sanitary  District 
built  that  ditch  there;  that  is  what  I think,  I would  not  be 

positive,  but  it  seems  to  me  that  that  was  the  case.  There  is  no 
fence  there  now.  There  is  a bridge  across  the  river  running  to 
Romeo.  We  had  to  drive  across  the  river  last  year  and  had  lo 
ford  the  river  with  the  grain  and  everything.  I do  not  remember 
any  bridges  across  the  river  there,  or  elsewhere,  above  Lockport, 
dating  forty  or  fifty  years  back;  no  bridges  at  all.  I recollect 
only  one  bridge  in  that  vicinity  and  that  was  the  Illinois  and 
Michigan  Canal  bridge  at  Romeo. 

When  I was  a boy  ten  or  twelve  years  of  age,  produce  was 
shipped  from  the  farm  to  Chicago  by  boats  on  the  canal.  The 
first  railroad  was  the  Chicago  & Alton.  That  was  built  a good 
while  after  that.  I cannot  tell  exactly  when  it  was  built. 


526 


1370  Before  the  railroad  was  built  and  after  the  canal  was  in 
operation,  we  traveled  between  Chicago  to  Joliet  on  packets 

on  the  canal.  There  were  two  lines  of  packet  boats  runninp*. 
back  and  forth:  one  line  they  called  the  ‘^Eed  Bird’’  and  the 
other  the  Green  Bird”  line  of  packets. 

Cross-Examination. 

I was  born  in  1846,  on  the  22nd  day  of  September,  right  on 
the  same  place  where  I live  to-day;  across  from  Borneo,  in  the 
Township  of  DuPage,  right  across  the  line  from  the  Lockport  line, 
which  separates  that  town  from  BuPage  Township,  within  80  rods 
of  where  I live,— all  in  Will  County. 

By  ocupation  I have  been  a farmer,  stock  raiser,  and  dealer. 

1371  That  is  what  I have  always  done.  My  home  is  about  200  rods 
from  the  Desplaines  Biver  in  Section  34. 

I do  not  know  any  of  the  gentlemen  interested  in  the  Economy 
Light  & Power  Company.  I said  that  in  certain  seasons  the  water 
in  the  Desplaines  Biver  was  very  low,  so  that  in  places  where  the 
riffles  are  you  can  step  from  one  cobble  stone  to  another  and  across, 
without  getting  wet.  That  is  just  right.  In  other  seasons  of  the 
year,  it  was  pretty  deep,  speaking  of  the  water  on  these 

1372  riffles.  Take  it  along  about  the  time  of  the  breaking  up 
of  the  ice,  the  latter  part  of  March,  it  might  be  for  a couple 

of  weeks  shallower,  and  then  other  times  a good  deal  higher,  but  it 
would  soon  go  down ; it  would  not  last  long.  On  those  riffles  for  a 
while  after  that  it  would  be  up  to  the  horses’  knees,  may  be  a 
little  bit  higher.  By  that  I mean  one  and  one-half  feet,  or  two 
feet,  along  there,  about  that,  on  the  riffles. 

It  was  lowest  along  in  the  fall,  July,  August  and  September. 
would  not  be  very  deep  on  the  riffles  in  the  winter,  or  when  the 
ice  was  formed,  a couple  of  feet.  I think,  if  I recollect,  the 

1373  riffles  were  ordinarily  the  shallowest  places.  The  way  it  was, 
the  shallowest  places  would  be  supposed  to  be  right  here  (in- 
dicating), there  would  be  a place,  probably  reaching  so  (indicai- 
ing)  that  would  be  deeper,  and  then  would  come  up  again  and 
go  to  low  water  again  and  be  another  hole  in  there  in  the  river. 
Where  the  riffles  were  was  the  lowest  sheet  of  water.  The  other 
])art,  where  the  riffles  were  not  did  not  amount  to  so  much.  It 


was  in  holes.  We  used  to,  when  I was  young,  take  the  horses  down 
there  and  wade  them  in  the  deepest  places  and  wash  them  off, 
and  I know  some  of  the  holes  used  to  come  up  to  the  horses  ’ 

1374  sides.  That  would  he  four  or  five  feet  deep.  I do  not  know 
the  river  below  Joliet. 

I never  saw  boats  on  the  river  up  there;  I mean  boats  that 
would  carry  merchandise  or  passengers.  I mean  boats  that  people 
would  want  to  take,  the  lumber  from  Chicago.  I have  seen  lots 
of  boats  that  would  hold  a couple  of  men  around  there  that 
would  be  fishing,  but  I never  saw  any  boats  bigger  than  that. 
They  were  fishing  around  the  holes.  They  would  take  their 

1375  fishing  hooks  and  sit  there  and  fish.  I saw  that  a good  deal. 
We  waded  in  when  I was  a boy.  The  hired  man  went  down 

there.  They  had  gotten  hold  of  what  they  called  a jack  and  had  it 
filled  with  some  kind  of  bark  and  lit  it  and  I went  along  and  carried 
the  fish.  Every  one  of  them*  waded  along  the  river  and  speared 
fish,  and  we  stayed  there  until  12  or  1 o’clock  at  night. 

Q.  How  deep  water  is  necessary  in  your  judgment  for  naviga- 
tion for  commercial  purposes?  A.  Now,  sir,  I just  give  up  that 
job.  I know  mighty  well  that  it  would  not  carry  much  of  a ship 
up  there.  I think  an  ocean  liner  'would  have  no  use  there  at 
all.  I think  Evans  would  have  no  use  up  there. 

Suppose  a boat  was  30  feet  long  and  10  feet  wide,  carrying 

1376  five  tons  of  freight, — I have  not  got  the  least  idea  in  my 
mind  how  much  water  it  would  take  to  float  that  kind  of  a 

boat ; I do  not  know  how  much  it  would  require ; that  is  not  in  my 
business. 

As  to  how  far  back  my  memory  serves  me,  I recollect  the  day  my 
father  went  to  California,  in  1850.  I was  born  in  1846  and  was 
four  years  old  them.  I would  not  recollect  about  boats  passing  up 
and  down  the  river  at  that  age,  but  I recollect  the  packets  be- 
cause they  used  to  blow  the  horn  for  Jim  Templeton  to  open 

1377  the  locks.  The  packets  ran  on  the  canal  as  long  ago  as  I 
can  recollect.  I do  not  know  when  the  old  canal  was  finished 

and  ready  for  operation.  I think  there  is  more  water  now  than 
there  used  to  be.  I refer  to  the  water  thrown  in  from  the  Drain- 
age Canal.  It  is  confined  to  the  west  more,  it  used  to  be  spread 
more.  The  river  used  to  be  wider  than  it  is  now;  that  is  in  the 


528  S.  J.  Williams, — Cross-Exam. — Contimied. 

spring,  when  the  freshets  would  come,  it  used  to  be  wider.  Now  it 
is  in  the  regular  channel. 

There  is  an  island  right  where  I live  and  the  river  spreads,  and 
goes  to  each  side  of  this  island,  and  the  main  river  there,  after 
it -goes  past  the  island,  I should  think  it  must  be  150  feet. 

1378  I do  not  think  it  is  350  feet  wide.  I know  the  Drainage 
Canal  in  the  rock  region,  up  here  in  Lockport.  The  channel 

there,  I think  it  is  100  feet  wide.  I think  the  river  was  about  one 
and  one-half  times  as  big  as  that;  and  if  it  turned  out  that  the 
Drainage  Canal  is  160  feet  wide,  and  the  river  was  a half  wider, 
that  would  make  it  240  feet.  I never  measured  it.  I am  just 
speaking  of  what  it  seems  to  me.  Years  ago,  before  the  canal 
was  dug  there,  to  the  north  of  me,  it  was  a good  deal  wider.  It 
was  spread  over  more  territory,  because  the  river  used  to  spread 
toward  the  east,  and  this  water  came  down  there.  I think  now  is 
just  about  the  way  it  used  to  be. 

They  dug  the  channel  along  there  and  the  drainage  bed  is  right 
in  the  middle  of  the  river,  to  keep  it  from  spreading.  I think  at 
this  time  that  since  the  Sanitary  District  has  put  in  the  Drainage 
Channel,  and  throws  the  water  in  the  Desplaines  River,  the  river 
now  is  about  the  same  width  as  it  used  to  be  in  the  early  days. 

1379  I do  not  think  that  the  amount  of  water  is  the  same.  I think 
it  is  a little  deeper  now.  I would  think  it  was  probably  8 or 

10  inches. 

I said  in  the  first  instance  that  I knew  of  no  fences  across 
the  river.  I think  that  there  was  one  fence  in  there.  I am 
not  quite  clear  about  that,  I would  not  be  positive.  My  father 
had  a fence  right  alongside  the  river,  running  parallel  with  the 
river,  I should  judge  two  rods  or  so  from  the  river.  It  might 

1380  have  been  a little  bit  more.  That  is  the  only  fence  I have 
any  distinct  recollection  about.  That  did  not  cross  the  river. 

I am  not  at  all  sure  of  any  fences  crossing  the  river.  I know 
about  other  people  have  fences  within  two  or  three  or  four  rods 
away  from  the  river,  running  along  with  the  river.  I know  of 
other  fences  that  were  two  or  three  or  four  rods  or  more  away  from 
the  river.  The  fences  would  run  for  a number  of  yards  in  a straight 
line  and  then  the  direction  would  change  a little  for  several  rods 
again,  in  a sort  of  meandering  way  along  the  edge  of  the  river. 


529 


None  of  them  pretended  to  follow  the  water  line,  just  followed 
as  near  the  river  as  they  dared  to  go.  My  father’s  fence  I 
1381  think  was  built  about  war  time,  along  about  1861.  That  is 
the  only  fence  that  was  there,  and  Chris.  Corrals  adjoined  our 
land.  He  built  a fence.  Those  are  the  only  ones  I know  of.  It 
might  be  there  was  one  above  that,  but  I am  not  certain. 

1381  That  was  the  state  of  affairs  about  1860  or  1861.  The 
fences  got  dilapidated  when  the  ice  formed  and  took  away 

the  posts  and  wires,  and  we  had  to  stop  it.  I am  talking  of  the 
fences  that  ran  along  the  river  the  same  way  the  river  runs;  that 
ran  lengthwise  with  the  river  on  the  bank.  The  two  fences  that  I 
have  mentioned  are  the  only  ones  that  I have  any  recollection  of. 
I never  knew  of  any  more,  at  that  time. 

Re-di  red  Exa  m in  at  ion. 

1382  Those  fences  were  built  along  the  river  to  keep  our  cattle 
in  pasture;  otherwise  they  would  have  strayed  away  and  got 

on  the  land  of  somebody  else  across  the  river. 

These  riffles  that  I talked  about  in  the  river  above  Lockport, 
I did  not  -say  that  in  them  the  water  during  the  low  season,  or 
when  it  was  at  its  lowest,  would  run  over  one  foot  to  two  foot  in 
depth.  The  lowest  in  some  places  you  could  walk  across  in  your 
slippers  without  wetting  your  feet.  That  was  along  in  the  fall 
there.  I do  not  know  as  I could  tell  how  it  would  average 

1383  during  the  entire  summer,  after  April  to  September.  Some 
times  the  water  was  not  in  any  place  except  in  those  holes. 

You  could  look  between  the  stones  and  see  the  water  running 
down.  That  would  not  be  the  condition  of  things  during  the 
entire  summer.  Sometimes  both  channels  would  be  running.  There 
are  two  channels  there ; one  on  the  east  and  one  on  the  west.  These 
two  would  run  some  of  the  time,  and  there  would  be  eight  or  ten 
inches  of  water  in  them,  and  after  awhile  they  would  dry  up. 
There  would  be  more  than  eight  or  ten  inches  of  water  in  the 
shallow  places,  sometimes  in  May.  In  July,  August  and  Septem- 
ber it  was  dry  time,  but  sometimes  there  used  to  come  up  a big 
thunder  shower  up  north  where  there  would  be  more  water  come 
down  just  for  a short  time.  It  only  lasted  two  or  three  days. 

1384  After  that  it  would  come  down  to  the  old  thing.  When  the 
water  was  high,  you  could  not  see  any  rocks  there.  There  was 


530 


one  rock  right  near  the  bridge.  When  this  high  water  came  on, 

I could  not  see  that  rock.  I watched  that  rock,  and  could  see  the 
water  come  down  along  the  side  of  it.  There  are  not  so  many  big  - 
rocks  there.  There  is  once  in  a while  a big  boulder,  but  there  are 
only  a few  boulders. 


William  S.  Myees, 

1385  a witness  for  defendant,  testified  as  follows : 

Direct  Examination. 

My  name  is  William  S.  Myers.  I live  in  Lockport.  Have 
lived  there  since  the  18th  day  of  May,  1841.  Was  born  October 
29th,  1815.  Mlien  I came  to  Lockport  I clerked  for  a Mr.  Norton, 
before  I went  into  the  mercantile  business  myself,  in  1843,  and 
went  out  in  1859.  Since  then  I have  been  dealing  in  real  estate, 
somewhat.  I live  right  near  the  city  of  Lockport.  Have  lived 
there  since  1841.  Was  in  St.  Louis  about  four  years  in  business 
for  my  brother-in-law.  The  Hesplaines  Eiver  runs  at  or  near  the 
outskirts  of  Lockport.  I have  seen  the  Hesplaines  Eiver  very 

1386  frequently.  Never  swam  across  it.  Have  never  been  on  the 
river  in  boats.  Have  seen  nothing  bigger  than  little  row  boats 

there.  Never  saw  any  freight  boats,  or  boats  carrying  passengers. 
To  my  knowledge,  no  boats  used  for  commerce  ever  ran  up  and 
down  that  river.  Never  heard  of  any  boats  used  in  commerce 
running  up  and  down  the  river.  Never  heard  of  anybody  navigat- 
ing the  river  down  to  the  mouth  from  Lockport.  In  1841  people 
got  into  Lockport  from  Chicago  by  four-horse  stage.  That  was 
the  only  public  conveyance  until  the  canal  was  finished.  I do  not 
know  the  name  of  the  stage  line.  It  did  not  have  any  special 
name.  Produce  was  brought  from  Chicago  by  wagons  and  sleighs. 
If  produce  went  from  Lockport  to  Chicago,  it  went  by  wagons 
and  sleighs. 

1387  I am  not  familiar  with  the  different  shallows  and  riffles 
in  the  river. 

There  was  a dam  in  the  river  there  at  the  mills,  and  Mr.  Nor- 
ton, for  whom  I clerked,  had  a mill  there  at  that  time.  There  was 
no  provision  in  the  dam  for  boats  to  go  up  and  down.  I do  not 
know  when  the  dam  was  built.  Mr.  Norton  had  been  there  some 
years  before  I came.  Shortly  after  I came  to  Lockport,  merchan- 


531 


dise  was  brought  from  St.  Louis  up  to  Ottawa  by  water  and  hauled 
from  Ottawa  to  Lockport  by  wagons.  The  first  merchandise  I 
bought,  I sent  to  St.  Louis  for.  Went  down  to  Ottawa  in  two-horse 
wagon,  took  the  steamboat  at  Ottawa,  bought  all  the  goods  I wanted 
in  St.  Louis,  got  it  shipped  on  the  steamboat  and  came  back 
to  Ottawa  and  from  there  to  Lockport  they  were  hauled  by  wagon. 
That  was  the  method  that  all  dealers  in  Lockport  used  to 

1388  get  their  goods  from  St.  Louis.  The  only  method  that  I know 
of.  That  was  in  the  spring  of  1843. 

I do  not  remember  any  dam  in  the  river  in  1841  besides  the 
Norton  dam  at  Lockport.  There  might  have  been  some  in  Joliet, 
but  I do  not  know  anything  about  them.  There  was  a bridge 
across  the  river  from  Lockport  over  to  the  bluff  on  the  other 
side;  that  was  existing  when  I came  there.  Bridges  have  been 
built  since  then.  The  bridge  that  was  there  when  I came  did  not 
have  any  provision  for  opening  so  that  boats  could  pass 

1389  through.  I do  not  think  any  of  the  other  bridges  that 
have  been  built  there  since  have  any  such  provision  in  them. 

I think  the  bridges  that  are  there  now  are  high  enough  for  an 
ordinary  boat  wuth  an  ordinary  mast  to  it,  to  pass  along.  I do 
not  think  that  any  boats,  except  skiffs  pass  under  it.  There  is  only 
one  bridge  now  in  Lockport  crossing  the  river. 


Cro  ss-Exam  inati  o n . 

I have  seen  skiffs  on  the  river  there  occasionally.  My  youngest 
son  has  a boat  as  big  as  I ever  saw  on  the  Desplaines  at  Lock- 
port.  It  is  just  an  ordinary  skiff.  It  was  given  to  him  by  some 
parties  that  were  working  on  the  big  drainage  ditch,  and  it  is  in  my 
barn  now.  I mean  to  say  that  I never  saw  any  boats  on  the 
river.  I do  not  think  there  ever  was  any.  I cannot  say  that 
1390  there  never  were  any  but  I say  I never  heard  of  any  or  saw 
any.  I never  knew  of  a boat  on  the  river  propelled  by  sails 
or  drawn  along  by  ropes  along  the  side  of  the  river. 


George  F.  Gurney, 

1391  a witness  for  defendant,  testified  as  follows: 

Direct  Examination. 

(Testimony  of  this  witness  was  objected  to  by  counsel 
for  complainant  on  the  ground  that  no  notice  had  been  given 
of  his  proposed  examination.) 

1 live  in  Joliet.  Have  lived  there  since  ’94;  before  that  I 
lived  in  the  town  of  Jackson,  in  Will  County.  That  is  eleven 
and  a half  miles  southeast  of  Joliet.  It  is  seven  or  eight  miles 
from  the  Desplaines  River.  I lived  there  over  thirteen  years ; 
came  there  in  ’64  or  5.  I lived  in  Wilton,  a town  southeast  of 
that,  before  I went  there;  first  came  to  Will  County  in 

1392  1845.  I am  75  years  old.  I lived  in  Florence  a couple  of 
years;  it  is  a town  southeast  of  Jackson;  there  isn’t  much 

difference  in  its  distance  from  the  Desplaines  River.  I have  lived 
continuously  in  Will  County  since  1845,  excepting  a short  time,  six 
months  or  less,  when  I lived  in  Grundy  County,  on  the  Mazon. 
My  business  has  been  farming.  I have  a farm  in  Jackson  and 
Wilton  in  Will  County.  I was  thirteen  years  old  when  4 

1393  came  to  Will  County.  The  farmers  in  Will  County,  in  1845, 
used  to  haul  their  products  to  market  by  wagon,  to  Chicago ; 

they  got  supplies  in  Chicago  at  that  time.  Some  were  brought 
here,  to  Joliet.  M came  to  Will  County  in  a boat  from  Butfalo  to 
Chicago ; from  Chicago  to  Will  County  by  team.  I think  I have 
been  more  or  less  familiar  with  the  Desplaines  River  running 
through  Will  County  since  I came.  I never  knew  of  boats  com- 
ing down  from  Chicago  with  merchandise  and  produce  and  carry- 
ing passengers,  along  the  Desplaines  River.  Never 

1394  heard  of  such  a thing;  never  heard  of  any  commerce  of  any 
kind  being  conducted  on  the  Desplaines  River  by  boats, 

eitlier  in  high  or  low  water.  I came  from  Chicago  to  Will  County 
in  March.  I think  I know  whether  it  was  possible  at  that  time 
to  come  down  the  Desplaines  River  by  boat.  The  fact  is,  you 
couldn’t;  no  way  of  getting  over  the  dam.  There  was  a dam 
here  in  Joliet,  and  the  rifiles  up  from  Romeo  would  break  any 
boat.  I know  of  other  riffles  in  the  river  right  below  Joliet  closer 
than  Treat’s  Island.  There  were  riffles  below  that  clear 

1395  down  to  Channahon;  what  you  call  Channahon  bridge.  They 
might  call  it  Smith’s  bridge  now;  that  is  the  only  bridge 


south  of  there;  below  that  there  were  not  any  riffles  or  shoals 
in  the  river;  there  was  considerable  rather  dead  water  there. 
When  I first  came  here  to  Will  County,  there  was  a little  dam 
here  in  Joliet  north  of  the  Jackson  street  bridge.  Below  Joliet 
there  was  a dam  at  Malcolm’s  mills  and  at  Treat’s;  there  was  a 
little  dam  there;  they  had  a kind  of  saw  mill.  I do  not  know 
whether  there  was  another  dam  in  the  river  below  that;  there 
was  a bii-nd  of  a dam  near  the  mouth  of  the  river  there,  but  I 
do  not  know  whether  it  was  recognized  as  a dam  or  not.  In  those 
dams  that  I know  of,  there  was  not  any  provision  made  for  locks 
so  that  boats  could  go  through  them  back  and  forth;  not  in 

1396  any  of  them.  I think  there  was  a dam  at  Lockport  when 
I came  to  Will  County;  I do  not  know  to  what  extent;  I saw 

it,  but  of  course  had  no  particular  object  to  remember  it.  The 
bridge  at  Lockport  was  the  only  bridge,  when  I first  came  to 
Will  County.  There  was  some  timbers  laid  across  there  at  Jef- 
ferson street  in  Joliet.  There  was  no  provision  in  the  Lockport 
bridge  for  turning  the  bridge  so  that  boats  could  go  through.  I 
had  occasion  to  cross  the  river  hundreds  of  times  during  my 
early  life.  I forded  it  at  Treat’s  Island,  and  below  Joliet,  and 
at  Smith’s  bridge,  as  you  call  it.  Those  fords  were  at  riffles  in 
the  river;  very  little  water  there  in  the  summer  time. 

1397  You  could  not  walk  across  it  without  getting  your  boots  wet. 
I could  go  across  without  getting  my  feet  wet,  but  I would 

get  my  shoes  wet;  go  from  one  stone  to  another. 

I have  hauled  produce  to  the  Chicago  market  from  Will  County, 
two  or  three  times;  three  times  at  the  outside;  that  was  before 
the  Illinois  and  Michigan  Canal  began  operations;  between  1845 
and  1848.  The  roads  were  not  good.  When  a man  with  a load 
got  in  a rut,  he  stayed  there;  it  was  difficult  transportation.  I 
hauled  produce  back  from  Chicago  every  way. 

1398  I recollect  Haven’s  mill  in  Joliet.  McKay  built  the  mill 
on  the  side  of  the  dam  near  Jefferson  street.  The  Malcolm 

mill  is  where  the  Haven  is.  I worked  for  Haven’s  at  this  mill 
on  the  logs.  The  logs  were  hauled  to  the  mill  from  anywhere. 
Never  heard  of  floating  logs  down  the  Desplaines  Eiver  to  that 
mill.  They  would  run  the  water  off  in  the  spring;  in  the  fall 
they  had  plenty  of  water  to  run.  In  the  summer  they  had  to 


534 


run  the  water  off,  and  then  start  up  again.  There  was  enough 
water  to  run  the  mill  only  at  periods  in  summer;  they  would  shut 
down,  probably  every  year,  for  lack  of  water. 

1399  I ought  to  be  familiar  with  the  old  aqueduct  that  was 
built  across  the  river  down  near  its  mouth,  because  I hauled 

their  lumber  there.  I do  not  know  that  I could  place  the  year;  I 
think  about  ’46  or  ’47 ; I hauled  lumber  there  at  the  time  it  was  be- 
ing constructed.  My  recollection  is  that  the  stone  to  build  the 
abutments  for  that  aqueduct  was  hauled  there  from  Alexander’s 
quarry.  I never  hauled  any  for  that  aqueduct,  but  they  had 
pretty  tine  stone,  and  that  is  my  impression.  When  I speak  of 
Alexander’s  quarry,  I mean  the  quarry  on  the  land  that  is  now 
owned  by  Mr.  George  Alexander;  his  father  owned  it;  it  was 
probably  50  or  60  rods  from  the  Smith’s  bridge.  That  bridge 
was  at  a point  probably  about  a mile  and  a half  below  Treat’s 

1400  Island. 

I helped  haul  stone  from  Alexander’s  quarry  to  the  aque 
duct  at  All  Sable.  I think  some  of  the  stone  was  used  on  the  aque- 
duct where  the  Kankakee  feeder  is ; probably  not  all  of  it.  They 
had  a quarry  there  below,  but  I was  never  down  there  to  examine 
it,  because  I had  no  occasion  to.  Some  said  it  was  good  stone; 
some  said  it  was  not.  There  was  a quarry  below  on  the  Illinois 
Eiver,  just  above  the  mouth  of  the  Desplaines.  I never  heard  of 
any  stone  coming  down  the  river  by  boats  for  the  aqueduct  on 
the  Desplaines  or  An  Sable.  From  my  knowledge  of  the  river  it 
might  have  been  possible  to  have  brought  stone  from  Joliet  down 
to  those  aqueducts.  Sometimes  they  could  have  floated  a little 
stone  now  and  then.  I do  not  know  where  they  could,  from  any 
place  in  Joliet,  get  them  to  the  river;  they  could  not  get  them 
through  Haven’s  dam,  or  the  other  dam  in  Treat’s  Island.  With 
high  water  they  might  have  floated  over,  but  they  could  not 

1401  get  it  in.  I do  not  recall  ever  seeing  any  fence  across  the 
river  below  Joliet;  there  were  fences  along  the  river;  there 

were  fenced  pastures  the  Smiths  made.  Folks  made  fences  down 
into  the  river  where  the  stock  could  not  go  around  in  deep  water. 
They  built  the  fences  into  the  water  a little  distance,  so  the  stock 
could  not  get  around.  Sometimes,  but  not  very  often,  it  was  pretty 
safe  to  put  them  in  there  and  keep  them  in  there.  The  distance 


the  fence  would  be  built  into  the  winter  depends  upon  the  condi- 
tion of  the  ground,  and  the  depth  of  the  water. 

1402  Cross-Examination. 

In  building  these  fences  into  the  river  they  would  go  as  far 
as  where  they  would  have  to  hold  up  their  heads,  2 or  3 and  some- 
times 3 and  4 feet  of  water.  Sometimes  they  would  be  right 
close  to  the  edge  of  the  water,  6 or  10  or  15  feet  out,  sometimes 
20,  sometimes  more.  The  quarry  I was  speaking  of  above  the 
conjunction  of  the  Desplaines  and  IluPage  Eivers  was  above 
where  the  aqueduct  is  built.  It  is  right  near  the  conjunc- 

1403  tion  of  the  Kankakee  and  Desplaines  Rivers.  Sometimes  one 
could  cross  the  Desplaines  River  at  the  riffles  with  shoes 

without  getting  their  feet  wet  by  stepping  from  stone  to  stone,  I 
could  not  tell  you  what  portions  of  the  seasons.  Sometimes  we 
would  have  a long  dry  spell  and  then  it  would  be  a good  long 
spell  you  could  do  it.  That  place  I am  speaking  about  now,  the 
station  of  the  Santa  Fe  road  is  right  opposite.  It  is  above  Treat’s 
Island.  Occasionally  could  do  it  here  in  Joliet.  In  high  water 
there  might  be  7 or  8 feet,  sometimes  5 to  10  feet.  It  would 

1404  not  be  much  wider  than  the  river  is  now,  but  it  was  on  the 
flat  lands.  It  is  a quarter  of  a mile  wide,  probably,  some- 
times; on  the  lowlands  the  river  would  flow  out  at  times;  there 
would  be  a depth  maybe  of  a foot  or  6 inches,  maybe  2 or  3 feet. 
The  channel  where  the  depth  was  5 to  10  feet  during  certain 

seasons  of  the  year  I think  would  be  200  feet  probably,  maybe 

1405  not;  I cannot  flx  it  well.  I would  not  think  the  bridge  at 
Channahon’s  is  300  feet  wide,  barely  possible  it  is  200. 

Could  not  tell  you  how  deep  water  would  be  required  to  float  a boat 
say  30  feet  long  by  10  feet  wide,  3 to  5 feet  probably,  I don’t 
know.  Take  it  on  these  riffles  where  it  is  rock,  there  would  not 
be  anything  to  cover  those  rocks  and  if  a boat  struck  the 

1406  rocks  she  wmuld  be  there  sure.  Aside  from  the  rocks,  if 
there  were  no  rocks  to  interfere  I think  from  3 to  5 feet  of 

water  would  carry  a boat  such  as  I have  described.  I do  not 
know  anything  about  their  having  carried  freight  from  Chicago 
or  from  the  portage  near  Chicago  on  the  Desplaines  River  down 
the  Desplaines  River  and  around  to  Kankakee  on  the  Kankakee 


536 


Gurney, — Cross-Exam. — Continued. 


Kiver.  I have  lived  on  the  Kankakee  Eiver  and  the  Desplaines 
from  ’52  or  ’53;  I lived  right  close  to  the  Kankakee  at  Wilming- 
ton; that  is  below  Kankakee  City;  they  call  it  something  like 

1407  25  miles.  I lived  there  two  different  times,  the  first  time 
from  fall  to  spring,  the  second  time  probably  a year.  Dur- 
ing the  first  time  I lived  there  sometimes  it  was  frozen  and  some- 
times it  was  not.  They  used  to  ford  the  Kankakee  with  teams 
at  Wilmington.  I think  I forded  there  and  it  was  four  feet 
deep.  I could  not  tell  you  the  depth.  Sometimes  it  would 
be  bare  rock  and  then  you  would  go  into  a hole,  maybe  a 
foot  or  two  of  water,  while  other  places  would  be  dry.  I think 
it  was  ’46  that  I hauled  stone  to  the  aqueduct  across  Au  Sable 

Creek.  There  might  have  been  a saloon  a quarter  of  mile  or 

1408  less  from  the  river  on  Au  Sable  Creek;  I don’t  know  whether 
there  was.  There  was  two  gangs  of  men  working  on  the 

canal,  one  they  called  ‘ffar-downs”  and  the  other  ^‘Tipperary’s.” 
When  they  got  together  I saw  them  get  to  fighting.  That  hap- 
pened frequently  when  tliej^  got  whiskey.  They  would  come  to 
Joliet  and  get  it.  Au  Sable  Creek  may  be  20  miles  or  more  from 
Joliet.  I am  sure  that  there  were  not  some  stone  taken  down 
from  somewhere  there  in  a boat ; I am  sure  there  was  not  because 
they  could  not  get  them.  There  was  no  place  to  load  it  on. 
There  was  a stone  quarry  below  the  dam  in  Joliet.  There  was 
no  way  of  getting  them  across  from  the  quarry,  is  the  reason  I 
think  there  was  none  taken.  I know  where  the  first  riffle  in  the 
Desplaines  Eiver  was  about  the  mouth;  I can’t  place  the  dis- 

1410  tance.  It  would  not  be  2 miles  there ; it  might  be  half  a mile, 
more  or  less.  I could  not  tell  you  how  deep  the  water  was  on 

that  riffle  in  low  water  season.  The  second  riffle  above  the  mouth 
is  at  Alexander’s;  my  impression  is  it  would  be  about  3 miles 
from  the  mouth.  You  could  cross  it  stepping  from  one  cobble- 
stone to  another.  In  deep  water  probably  there  was  10  feet  there. 
I remember  one  place  the  depth  of  the  river  above  the  mouth  of 
the  Desplaines  and  Kankakee,  I would  say  it  would  be  15  feet, 

1411  once  in  1848.  The  depth  of  water  on  those  two  riffles  I speak 
of  was  after  the  dam  was  put  in  here  at  Joliet.  There  is  a 

third  riffle  above  the  mouth  of  the  river  before  you  get  to  Joliet, 
at  Treat’s.  I have  seen  the  water  run  up  the  river  there  from 


537 


the  Kankakee.  I am  speaking  of  one  crossing  place  they  call 
the  cut-off.  The  water  went  through  the  Kankakee  Kiver  through 
the  cut-off,  then  ran  up  the  Desplaines,  or  hacked  up,  whatever 
way  you  wmnt  to  say  it.  It  ran  up  the  current  pretty  nearh^ 
as  fast  as  I can  run.  That  was  quite  a big  body  of  water. 

1412  I could  not  tell  you  how  deep,  a big  volume ; I should  say  it 
would  be  as  much  as  10  feet,  a big  wave  going  right  up, 

2 or  3 feet  of  a wave.  I say  it  run  up  10  or  12  feet  deep.  All 
this  was  after  the  dam  at  Joliet  was  built.  There  would  be  an- 
other riffle  down  there  at  Brandon’s  Bridge.  It  is  about  2 miles 
down  from  the  heart  of  Joliet,  from  Jefferson  street. 

1413  I have  crossed  that  riffle  hundreds  of  times;  sometimes  it 
struck  my  knees,  sometimes  it  was  a foot  and  a half  deep.  I 

did  not  stop  to  measure  it.  I got  across;  never  swam  a foot  in 
my  life;  I have  sat  on  my  horse  and  let  him  go  when  he  had  to 
swim.  I should  think  the  riffle  at  Treat’s  was  a couple  of  miles 
up  and  'down  the  river.  The  others  were  not  so  long. 

1414  This  one  at  Joliet  was  all  the  way  from  there  down  to  Bran- 
don’s bridge  from  the  Jefferson  street  bridge  down.  I esti- 
mated that  at  a couple  of  miles,  more  or  less.  I have  crossed 
the  places  a number  of  times;  sometimes  I might  have  taken  off 
my  shoes  and  waded  across.  One  place  I speak  of  having  crossed 
is  right  here  below  Haven’s  mill.  I could  not  tell  how  much  water 
was  there  at  that  time;  it  was  quite  wide.  Some  places  there 

would  be  considerable  and  some  you  could  jump  across, 

1415  sometimes  2 feet  probably,  when  I jiimped  from  stone  to 
stone.  I never  thought  anything  particularly  about  dis- 
tances. I should  think  there  is  more  water  there  since  the  water 
from  the  Sanitary  channel  has  been  put  in.  In  my  judgment,  it 
has  raised  the  water  above  what  it  was  before  about  3 feet. 

R e-di rect  Examination. 

I said  that  I helped  haul  stone  from  Alexander’s  quarry  to 
the  Aux  Sable  aqueduct;  it  is  on  the  south  side  of  the  Des- 

1416  plaines.  The  quarry  was  on  a different  side  of  the  river 
from  the  aqueduct.  We  just  dumped  the*  stone  at  the  aque- 
duct. We  loaded  our  wagons  at  the  quarry,  hauled  the  stone 
over  to  the  aqueduct,  had  to  cross  the  Desplaines,  crossed  it  at 


538 


Chamialion’s ; there  was  no  bridge  in  those  days.  We  did  not  take 
it  over  in  boats,  drove  our  team  and  wagon  right  through 
the  river.  While  we  were  hauling  that  stone  across,  the  water 
would  he  up  to  the  front  wheel  of  the  wagon ; that  would  be 

1417  something  over  three  feet,  three  and  a half  may  be.  During 
the  summer  months  over  these  stretches  I have  mentioned 

there  was  barely  no  water.  Sometimes  we  would  have  very  severe 
storms  in  August  and  have  very  high  water;  that  would  last  a 
week  and  then  go  down.  In  the  spring  under  normal  conditions 
anybody  could  go  anywheres  along  these  places,  across  in 

1418  buggies  or  wagons.  There  have  always  been  x^astures  and 
fences  there  within  my  recollection.  There  was  enough  of 

a dam  at  Beard’s  near  the  mouth  of  the  river,  to  prevent  boats 
coming  up  the  river.  A boat  couldn’t  get  over  it  or  couldn’t 

1419  go  around  it.  We  had  a flood  there  in  ’60,  but  in  ’48  was 
the  time  when  there  was  a flood  on  account  of  the  ice.  This 

time  in  ’60  something,  was  in  August.  Sometimes  those  floods 
take  a couple  of  days  to  run  down.  There  was  never  a time  along 
the  river  when  the  water  was  4 or  5 feet  deep  continuously  for 
two  or  three  months  except  since  the  Drainage  Channel  has  been 
built. 

Re-cross  Examination, 

This  dam  that  I sxoeak  of  at  Treat’s  was  only  on  one  branch 
of  the  river,  the  lower  branch  where  the  water  ran,  about  in 
the  middle  of  the  stream;  the  water  was  swift  on  the  other  side 
of  the  channel;  I don’t  know  how  rapid,  I never  tried  to  run  as 
fast  or  walk  as  fast;  I never  had  any  particular  object  to 

1420  know  how  fast  it  would  run.  It  was  in  the  summer  season 
in  ’46  or  ’47  I hauled  stone  down  for  the  aqueduct  at  Au 

Sable,  I could  not  remember  what  month;  it  was  in  low  season  of 
water  when  we  could  ford  it. 

Re-re-direct  Examination. 

I do  not  know  as  I could  state  the  year  the  state  built  the  dam 
in  Joliet  at  'Jefferson  street;  that  was  not  built  before  T 
3421  came  to  AVill  County.  There  was  a dam  there  when  I first 
came  to  Joliet.  I could  not  remember  when  the  state  built 


tlie  dam  at  wliat  is  known  as  Jefferson  street.  It  must  have  been 
’48  or  ’50,  through  there,  before  ’50. 

Xavier  Munch, 

1422  a witness  for  defendant,  testified  as  follows: 

Direct  Examination . 

My  name  is  Xavier  Munch.  I live  at  North  Hickory  in  Will 
County,  near  Joliet;  came  here  in  1839;  have  lived  here  pretty 
much  ever  since,  not  all  the  time.  I was  out  west  about  a year 
and  a half,  but  other  times  I lived  around  here.  My  business 
is  farming.  I had  a farm  in  Will  County.  I bought  one  in  1848 
or  something  like  that,  and  another  in  ’59.  It  will  be  two  years 
in  February  that  I sold  the  last  one.  During  the  time  that 

1423  I had  them  I cultivated  the  farms.  I was  born  the  last 
day  of  July,  1823.  I came  here  first  wdth  my  father  on  the 

canal.  That  was  in  1859.  M^e  landed  first  at  Lemont,  then  in 
the  fall  made  up  our  minds  it  was  a kind  of  a lonesome  place,  so 
we  came  to  Joliet.  M^e  came  to  Lemont  from  Chicago,  walked  out 
afoot;  came  from  Lemont  to  Joliet,  drove  down  in  a wagon.  We 
used  to  have  to  go  to  Chicago;  we  could  not  sell  produce 

1424  here ; go  with  oxen  or  horses ; came  back  the  same  way ; 
never  came  back  empty,  always  had  a load,  lumber,  coal, 

hardware,  salt  and  such.  I have  been  considerably  familiar  with 
the  Desplaines  since  I came  to  Joliet  in  1839;  we  used  to  go  fish- 
ing in  the  river.  I have  crossed  the  river  a good  many  times 
since  1839;  had  occasion  to  go  across  frequently  with  teams.  I 
was  down  in  Peru  twice  after  sugar  and  molasses  in  1839  and 

1425  ’40.  At  that  you  could  not  get  any  flour  by  the  sack ; maybe 
go  to  the  mill  and  buy  a sack;  otherwise  folks  would  have  to 

clean  their  wheat  and  take  it  up  to  the  mill  and  get  it  ground.  Mer- 
chandise dealers  in  Joliet  got  their  supplies  mostly  from  Chicago; 
all  came  by  wagon;  none  came  by  boat  that  I know  of;  never 
heard  of  supplies  being  brought  down  from  portage  near  Chicago 
by  boat  or  Desplaines  Eiver.  I have  seen  some  small  boats,  4 or 
5 men,  and  they  would  have  supplies,  guns  and  tents,  to  go  hunt- 
ing; boats  with  paddles.  I never  saw  boats  plying  up  and  down 
the  Desplaines  Eiver  carrying  passengers  or  freight;  never 

1426  heard  it  that  I know  of.  I never  knew  of  any  boat  that  went 
up  the  river,  but  have  seen  some  boats  come  down.  They 


540 


Mun cli, — Di rect  Exam . — C ontimied. 


would  get  to  a dam,  pull  the  boat  out  on  land  and  bring  it  around 
and  drag  it  along  and  put  it  in  the  water  again — row  boats  with 
paddles.  I did  not  follow  them  to  the  riffles.  When  I came  down 
here  there  was  a dam  on  Jefferson  avenue,  a temporary 

1427  dam  of  wood.  There  was  a grist  mill;  that  was  condemned 
by  the  state  for  making  the  canal.  Down  below  about  six 

miles  there  was  a fellow  had  a saw-mill  and  a wooden  dam,  at 
Treat’s  Island;  that  was  clear  across  the  north  channel  when 
they  run  the  saw-mill.  I do  not  remember  any  other  dam  be- 
low that.  I do  not  remember  a dam  at  the  place  we  called  Dres- 
den, when  I came  here  in  1839;  I passed  through  at  different 
times  hut  I didn’t  see  a dam  there.  I could  not  possibly  say 
whether  there  was  any  other  dam  above  Joliet  in  the  Des- 

1428  plaines  in  1839,  but  I believe  there  was  one  at  Lockport,  a 
temporary  dam  for  a grist  mill.  There  was  another  dam  op- 

imsite  the  penitentiary  just  above  Joliet  that  I know  of.  There 
was  one  at  Jackson  street  after  1839;  that  was  built,  I guess,  in 
1840,  built  by  the  state  for  the  canal;  it  was  run  clear  across 
the  river.  There  is  a lock  and  dam  above.  The  dam  extends  the 
full  width  of  the  river.  On  Jefferson  street  when  they 

1429  made  the  dam  they  built  a lock  in  order  for  the  boats  t(* 
go  through.  The  boats  did  not  go  up  through  the  dam  at 

Treat’s  Island  before  1848.  I never  saw  any  going  up;  never  heard 
of  any  boats  carrying  freight  and  passengers  going  up  and  down 
the  river.  In  1839  there  were  dozens  of  places  where  you  could 
get  across  the  river,  I mean  in  the  spring  of  the  year;  you  could 
ford  it  just  below  Jefferson  street  bridge;  but  the  spring  of  the 
year  if  you  had  small  boats  you  could  get  across.  During  the 
summer  season,  from  the  first  of  May  until  the  first  of  October 
you  could  get  across  right  above  the  Jackson  street  bridge,  ex- 
cept during  the  high  freshets ; we  used  to  drive  through  the  river 
there ; the  water  was  possibly  hardly  knee  deep,  solid  bottom,  and 
through  here  on  Jefferson  street  there  is  where  the  walking  was 
most  any  time  except  in  the  spring  when  the  water  was  very 
high.  I crossed  at  Treat’s  Island;  it  was  pretty  shallow  at  the 
time  I went,  it  was  in  the  fall  of  the  year,  1842;  I went  across 

1430  with  a threshing  machine.  Could  cross  there  at  almost  any 
time  except  during  the  s])ring  floods.  I crossed  at  Treat’s 


541 


Island  different  times  with  a team,  dragged  some  logs  down  to  the 
mill,  the  mill  of  a man  named  Treat  who  had  a saw-mill.  Took 
logs  from  Mount  Flathead,  that  is,  near  Rock  Run.  There  was  some 
canal  timber  there  and  the  man  bought  a lot  of  timber  from  Pres- 
cott; I don’t  know  whether  he  got  it  for  himself.  He  hired  me  and 
my  father,  and  we  sawed  the  logs  and  hauled  them  out  on  the  river 
and  rafted  them  down  to  Treat’s  mill;  that  must  have  been  two  ^ 
and  a half  miles  from  the  mill.  I never  saw  any  fences 

1431  across  the  river;  I saw  some  of  them  part  of  the  way  out, 
fences  in  there  where  the  cattle  run,  but  not  across  the 

river.  That  was,  I guess,  before  ’48.  I had  to  do  with  the  con- 
struction of  the  aqueduct  at  Au  Sable  Creek.  1 hauled  timbers  out 
there  for  Brandon  for  the  aqueduct,  40-foot  sticks.  I do  not  re- 
member seeing  stone  being  hauled  for  that  aqueduct;  it  was  in 
the  winter  time  when  1 hauled  the  logs,  hauled  them  from  the  Au 
Sable  grove,  along  the  Au  Sable,  mostly  l)urr  oak.  I do  not  remem- 
ber the  construction  of  the  aqueduct  at  the  Kankakee  feeder,  but 
I know  where  elohn  Treat  had  a little  place  right  across  the  Kan- 
kakee, because  I -hauled  a great  deal  of  timber  out  of  the  Dresden 
timber  for  the  canal  and  locks.  I did  not  see  any  dam  John 
Treat  had  there  at  that  time.  Part  of  the  time  between 

1432  Lemont  and  Joliet,  when  I moved  to  Joliet  there  was  a good 
road.  There  was  a time  you  could  hardly  get  along,  whether 

you  went  on  horseback  or  not.  After  I came  here  I went  to  Chicago 
by  road.  When  we  had  any  grain  to  sell  we  couldn’t  sell  it 
here  and  had  to  go  to  Chicago.  I took  oats  to  Chicago  and  sold 
them  for  11  cents  a bushel.  There  were  no  boats  running.  I 
don’t  know  that  I would  know  if  there  were  any  boats  running 
up  the  river  to  the  portage  near  Chicago  if  there  had  been  boats. 

I never  examined  it  all  together  clear  up  to  Chicago,  but  many 
times  I drove  up  there.  One  time  I went  up  to  Chicago  from 
Joliet  with  a load  of  wheat  and  had  to  follow  a trail  the  same  as 
a railroad;  you  could  not  get  out.  The  other  road  was  cut  up 
so  that  you  would  break  your  wagon  down  if  you  would  get  out, 
and  you  would  just  have  to  follow  one  after  another  to  Chicago, 
and  you  would  see  now  and  then  a loaded  wagon  laid  aside  of 
the  road  and  a dead  ox  or  horse.  I never  saw  any  farmer  tak- 
ing grain  up  to  Chicago  by  boat  before  1848;  these  hunting  boats 


542 


are  all  I ever  saw;  they  were  Imnters,  had  guns  and  tents.  Peo- 
]:)le  came  from  Chicago  to  Joliet  either  with  ox  team  or  horse  and 
team.  There  was  a stage;  that  was  here  when  I came.  I could  not 
tell  you  the  name  of  the  line.  The  stage  master  was  a big,  heavy 
man,  I can’t  think  of  his  name  now;  I guess  he  is  not  living.  I 
could  not  tell  you  exactly  how  often  that  stage  ran.  I went  up 
and  drove  four  yoke  of  oxen  to  Ottawa  with  store  goods 

1434  from  Chicago,  and  coming  back  I thought  I would  get  in  the 
stage  and  ride.  I went  to  the  stage  hall,  and  he  says  ‘‘About 

7 o’clock  this  evening  they  have  one  going  out.”  I says,  “How 
much  will  you  charge  me  to  take  me  to  Joliet?”  He  said,  “$2.50.” 
Well,  I had  hired  out  to  take  these  yoke  of  oxen  down  and  I was 
only  getting  50  cents  a day;  I only  got  $2.25,  you  see,  and  he 
wanted  $2.50  to  ride  on  the  stage,  and  I went  back  to  the  shop  and 
bought  me  a pound  of  crackers  and  paddled  for  home  again  o:^ 
foot.  This  stage  line  ran  on  down  to  Ottawa  and  Peru,  through 
all  those  places.  There  was  no  other  convenience  for  people 
wanting  to  go  to  Chicago  from  Ottawa.  That  was  in  about  ’44 
when  I went  down  with  my  ox  team. 

Cross-Examination. 

1435  It  must  have  been  about  1844  that  that  man  down  the  river 
who  had  the  sawmill  hired  me  and  my  father  to  tie  up  a lot 

of  logs.  We  hauled  them  out  on  the  river,  on  the  ice,  in  order  to 
fasten  them  together  on  the  ice;  then  when  the  ice  went  away  we 
ran  the  raft  down  to  Treat’s  mill.  That  was  on  the  south  corner 
of  Mount  Flathead.  Pock  Pun  runs  right  into  the  river  on  the 
north  side;  I should  judge  it  was  about  two  miles  or  two  and  a half 
above  Treat’s  mill.  We  hauled  the  logs  together  and  laid  them 
side  by  side  and  fastened  them  together  and  made  a raft. 

1436  There  must  have  been  about  30  logs  I guess.  Some  were  3 
feet  and  some  3-1/2  feet  thick.  When  we  took  the  logs  down, 

the  water  in  the  river  might  have  been  7 or  8 feet  deej).  That  was 
mostly  in  the  fall  and  through  the  winter.  When  we  had  done 
with  the  farm  we  would  go  to  the  woods  and  haul  wood  and  logs. 
We  crossed  the  river  at  Brandon’s  Bridge.  Sometimes  the  water 
was  about  knee  deep,  and  others  I crossed  it  when  I was 

1437  ])retty  near  drowned.  By  knee  deep  I mean  a foot  and  a half 
or  15  inches.  It  must  have  been  40  or  45  feet  cicross.  At  the 


time  I crossed  with  the  rails  I guess  it  must  have  l)een  100 
.1438  feet  wide.  In  high  water  it  might  have  been  60  rods  wide;  in 
low  water  I don’t  think  it  was  over  40  or  45.  I think  the 
bridge  there,  Brandon’s  Bridge,  is  120  feet  long;  where  I crossed 
the  river  it  was  not  as  wide  as  that  bridge  is  long.  I said  the  stage 
line  went  on  down  to  Ottawa  and  Peru,  I don’t  know  how  far 
through.  I went  dowm  to  Peru,  that  is  as  far  as  I ever  w^ent 

1440  with  a wagon;  I could  not  tell  you  if  it  went  to  Peru.  There 
was  not  any  dam  down  there  at  Dresden  Heights  in  the  early 

days  that  I recollect.  I hauled  teams  there  in  the  early  days;  was 
in  Channahon  over  a week;  that  must  have  l)een  ’45.  I boarded  at 
Dresden  and  Morris.  There  might  have  been,  but  1 paid  no  atten- 
tion to  it,  unless  I was  wondering  whether  tlie  three  rivers  ran  so 
closely  together.  I saw  Beardstown  and  three  large  buildings,  and 
so  I was  surprised  that  that  fellow  was  across  the  river  all 
alone  by  himself.  I say  I saw  boats  in  Joliet  going  down  the  river 
at  the  old  mill  where  they  changed  routes ; four  or  five  young 

1441  men  in  the  boat.  I saw  some  tents,  trunks  and  boxes  wdiere 
they  had  provisions,  and  guns.  The  boat  must  have  been 

about  20  feet,  maybe  22,  from  one  end  to  the  other,  on  top  I guess 
in  the  middle  about  4 feet  wide.  I don’t  know  how  much  water  it 
would  take  to  carry  a boat  30  feet  long  and  10  feet  wide,  with  five 
tons  on  it.  I was  fishing  on  the  river  down  at  Brandon’s  Bridge, 
and  when  I got  on  the  riffles  I could  hardly  go  with  two  in  the 

1442  boat.  That  was  in  the  spring  of  the  year,  al)out  April, 
ploughing  time.  The  boats  I said  I saw  came  from  Chi- 
cago they  said;  they  w^ent  down  the  river;  I couldn’t  tell  you  how 
far  they  went.  I could  tell  you  pretty  near  what  year  that  was; 
that  was  in  1840.  I saw  where  folks  had  made  a fence  on 

pastures;  I never  saw  any  fence  across  the  river;  saw  the 

1443  fences  built  down  to  the  river,  about  10  or  12  feet  into  the 
river.  They  built  out  far  enough  so  the  water  would  not 

give  away,  so  that  they  would  not  have  any  wmter  at  all.  Those 
were  little  pens  out  into  the  river  for  cattle  to  get  water  in  the  river 
in  summer  time.  The  place  where  I crossed  the  river  near 

1444  Brandon’s  Bridge  was  about  40  rods  down;  I crossed  about 
100  feet  above  the  bridge  near  Christmas  time,  crossed 

through  the  wmter.  At  that  time  the  water  was  two  feet  and  a half 


544 


deep.  I crossed  at  Treat’s  Island  in  threshing  time,  in  September; 
took  a threshing  machine  across.  That  was  in  1842.  They  had 
threshing  machines  here  in  1842;  just  a thresher  and  three  men 
with  a rake  and  fork  to  get  the  straw.  It  was  on  a wagon. 
1445  We  had  a common  wagon  they  were  laid  on  and  hauled  it 
across  that  way.  The  water  might  have  been  15  inches.  That 
was  about  in  September;  August  is  most  too  early  to  thresh;  I 
think  it  was  in  September. 

Re-direct  Examination. 

Farmers  crossed  when  they  had  occasion  there  at  Treat’s  Island; 
there  was  no  bridge  there.  Dowm  at  Smith’s  Bridge  they  hauled 
many  a cord  of  wood  off  the  timber,  crossing  the  river  there.  That 
was  used  all  summer  for  that  purpose,  any  time  you  wanted  to,  at 
Treat’s  Island  and  Brandon’s  Bridge.  Transportation  less  than 
twenty-five  or  thirty  hundred  I hauled  across  there.  That  point 
we  put  the  logs  in  for  the  Treat’s  mill,  from  that  down 
to  the  middle  is  what  is  known  as  Lake  Joliet;  that  is 
1447  on  the  end  of  the  lake.  These  people  that  had  the  boat  pulled 
it  out  on  the  land  to  get  it  around  the  dam  and  put  it  back  into 
the  river;  they  could  not  get  over  the  dam.  They  didn’t  take  the 
contents  and  packages  out.  There  were  three  or  four  men,  all  had 
a hand  in  it;  had  to  drag  it  only  a few  feet.  That  was  the  dam  at 
Jefferson  street.  There  was  no  dam  down  where  the  Haven  dam 
is  at  that  time.  Philly  Haven  started  the  sawmill  and  he  used 
stone  out  of  the  canal  to  make  a dam.  If  you  should  show  me 
that  that  dam  was  built  in  1839  I would  not  believe  it.  I think 
Haven  built  his  dam  in  1840  and  used  stone  that  Mr.  Beemer  had 
taken  out  of  the  canal  to  make  that  dam;  it  was  later  than  1840.  I 
worked  in  1840  for  Beemer  on  the  canal  and  this  must  have  been 
in  1841.  I think  I saw  this  boat  in  1840.  I was  not  in  Joliet  sooner 
than  1840.  I never  saw  a dam  above  Joliet  opposite  the  peni- 
1449  tentiary.  I said  that  at  the  crossing  at  the  point  now  known 
as  Brandon’s  Bridge  the  river  was  about  45  feet  wide  in  the 
summer  time.  I meant  feet,  not  rods. 


545 


Re-cross  Examination, 

I hauled  this  threshing  machine  across  below  Treat’s  mill.  The 
water  was  shallow.  Go  anywhere  over  there,  there  was  no  bridge, 
only  to  be  looking  for  the  nigger-heads,  not  to  run  against  them. 

James  Boyne, 

a witness  for  defendant,  testified  as  follows: 

Direct  Exa m ination. 

(Objection  by  counsel  for  complainant  on  the  ground  that  no 
notice  of  the  taking  of  deposition  of  said  witness  had  been 
given.) 

My  name  is  James  Boyne;  live  in  Joliet;  have  lived,  there  about 
60  years.  Was  born  the  2nd  of  August,  1835.  I think  I was  10  or 
13  years  old  when  I came  here.  I came  from  Cornwall,  Upper 
Canada,  by  boat  across  Lake  Michigan  to  Chicago  and  from  Chi- 
cago down  to  Joliet.  To  Joliet  we  came  by  wagon  or  boat,  I 

1451  forget  which.  I came  from  Canada  in  1834.  I came  to  Joliet 
I think  about  ’34  or  ’35,  I can’t  remember;  my  memory  is 
bad. 

1452  Q.  1844  or  ’5!  A.  1844  or  ’5.  I am  73  or  74  years  old. 
I have  lived  here  in  Joliet  about  60  years.  My  business  since 

I lived  here  has  been  wood  turning.  I am  familiar  with  the  Des- 
plaines  Eiver.  I have  been  up  as  far  as  Chicago  and  down.  I have 
been  as  far  down  as  Treat’s  Island.  I came  from  Chicago  to 
Joliet  by  wagon.  There  were  not  any  boats  plying  the  Desplainesi 
Eiver  at  that  time  that  I know  of.  I did  not  hear  of  any  boats 
carrying  passengers  or  freight.  The  first  two  boats  that  came 
on  the  canal  were  the  General  Ply  and  the  General  Trenton. 

1453  I never  knew  of  a boat  on  the  river  except  skiffs.  The  dams 
in  the  river  when  I came  were  Treat’s  and  Haven  and  the 

upper  bridge  here,  Jackson  street,  and  there  was  one  at  Lockport. 
I do  not  remember  one  being  opposite  the  penitentiary.  In  the 
early  days  the  dealers  got  their  produce  by  wagons  from  Chi- 

1454  cago.  I do  not  remember  any  coming  from  St.  Louis.  It 
could  not  come  down  the  river.  I have  been  over  the  river 

thoroughly.  I have  waded  across  it  for  miles  up  and  miles  down. 
I have  been  up  and  down  from  Lockport,  but  the  depth  of  river 


546 


there  I don’t  know  anything  about.  I am  familiar  with  it  as  far 
as  Haven’s  dam  thoroughly,  but  I would  not  say  I was  familiar 
with  it  from  there  down  to  Treat’s.  In  the  summer  months  it  was 
very  dry;  at  other  times  there  was  plenty  of  water;  in  the  early 
]^art  of  the  year  there  was  plenty  of  water,  but  there  was  a great 
deal  of  dry  time.  When  I worked  down  at  Haven’s  dam,  I worked 
there  I think  about  eight  years,  the  water  used  to  be  so  low 

1455  that  I could  not  run,  and  then  it  would  be  so  that  it  bothered 
us.  There  would  be  freshets  during  the  summer  months, 

when  the  water  would  be  high;  that  would  last  along  perhaj)s  a 
week,  a couple  of  weeks  at  a time.  I considered  the  general  con- 
dition of  the  river  during  the  summer  months  from  May  1st  to 
October,  with  the  exception  of  freshets,  was  low.  I could  wade 
across  it  below  Jefferson  street  bridge.  There  was  not  a number 
of  fords ; I do  not  remember  the  ford  at  Haven’s  dam.  I could  cross 
there  at  Bush’s  where  the  bridge  is  now.  There  was  an  island 
there.  I could  wade  across  there  and  below  quite  a distance;  that 
is,  just  below  where  the  Jefferson  bridge  now  is.  I do  not  think 
there  was  a regular  ford  there  where  teams  crossed.  I 

1456  think  there  was  a bridge.  I never  saw  any  boats  used  for 
commercial  purposes  come  up  and  down  the  river;  I never 

heard  of  any  for  that  purpose. 

Q.  Skiffs  could  not  be  taken  clear  up  and  down  the  river  with- 
out portaging  them! 

(Objection  by  counsel  for  complainant  to  the  question  as  lead- 

ing.) 

A.  No,  sir. 

Witness.  From  my  familiarity  with  the  river  a man  could  not 
always  take  a skiff  all  the  way  up  the  river.  'When  I could  wade  it, 
it  would  be  about  16  or  18  inches,  and  you  could  not  run  a very 
heavy  boat  over  that,  and  you  would  be  off  and  on  the  rocks ; you 
would  have  to  stop  and  carry  the  boat.  A small  skiff  might 

1457  run.  I waded  the  river  time  and  again  from  one  bank  to  the 
other.  The  canal  commenced  long  before  we  came  here.  It 

had  stopped  then.  When  it  commenced  the  second  time  we  were 
in  Lockport. 


Cross-Exambiation, 

I would  be  72  years  old — I could  not  be  positive  wliat  my  age  is; 
my  memory  is  very  bad.  Going  back  to  tlie  early  days, 
1458  some  things  I remember  and  some  things  I do  not.  I remem- 
ber the  Irish  riot  with  the  Orangemen,  such  things  as  that. 
I was  able  to  wade  this  river  different  times ; as  a general  thing  the 
water  was  about  18  inches  then,  and  you  would  run  across  a hole 
about  15  feet  deep;  there  I would  not  try  to  wade  it.  When  I said 
that  this  river  was  not  navigable  and  is  not  to-day  I meant 
3458  that  there  is  not  five  .or  six  feet  of  water  in  it.  There  is  at 
places.  I would  not  like  to  consider  a river  navigable  unless 
it  had  four  or  five  feet  of  water;  that  is  what  I mean  when  I say 
this  river  is  not  navigable.  When  the  water  was  very  low  in  the 
river  it  would  run  from  a foot  and  a half  to  two  feet.  I am  accu- 
rate about  a great  deal  of  this,  but  there  may  be  some  things  that  I 
may  not. 

Re-direct  Examination. 

When  I said  the  river  was  not  navigable  I meant  that  I never 
knew  of  it  being  navigated. 

1460  Re-cross  Examination. 

There  may  have  been  boats  coming  down  from  Chicago  toward 
Lockport.  If  a boat  could  get  along  on  2-1/2  or  3 feet  of  water  it 
could  have  come  down  this  way,  but  a loaded  boat  would  not  be  apt 
to  do  that. 

Adjournment  to  7 :30  P.  M.,  January  16,  1908. 

1461  Lewis  K.  Stevens, 

a witness  for  defendant,  testified  as  follows : 

Direct  Examination. 

My  name  is  Lewis  K.  Stevens. 

(Objection  by  counsel  for  complainant  because  notice  of  ex- 
amination of  said  witness  by  deposition  had  not  been  served 
the  witness.) 

I live  at  203  Oneida  street,  with  Charles  L.  Stevens,  my  son,  in 
Joliet.  I was  born  here,  right  over  east;  have  lived  here  since 
1836.  At  present  I have  been  in  mining  in  the  west.  For  the  last 


548 


eight  or  ten  years  I was  farming  and  working  in  the  stone 

1462  quarries,  and  all  that  kind  of  work;  contracting  a good  deal 
through  Joliet.  I have  been  living  here  you  might  say  con- 
tinuously all  my  life.  I would  be  away  off  and  on  business  and 
back  again,  but  it  has  been  my  home.  I don^t  live  now  in  the  same 
place  where  I was  born.  I am  living  on  the  west  side.  The  E.  J. 
and  E.  yards  are  our  farm  where  I was  born. 

I remember  merchandise  and  produce  was  brought  to  Joliet 
prior  to  1848  with  teams,  as  a general  thing.  I don’t  know  of  any 
other  way  to  get  it  here.  I know  of  produce  being  hauled  between 
Joliet  and  Chicago  at  that  time. 

I was  12  years  old  in  1848.  You  understand  that  I am  speaking 
now  of  the  time  of  the  commencement  of  the  operation  of  the 

1463  Illinois  and  Michigan  Canal.  People  would  travel  in  wagons 
in  those  days  between  Joliet  and  Chicago.  There  was  not  any 

other  usual  or  customary  method  of  travel  between  Chicago  and 
Joliet  in  those  early  days.  There  was  wagon,  and  stage  and  horse- 
back. There  was  a stage  line  running  through  on  the  west  side  of 
the  river  down  from  Chicago.  It  came  down  and  went  through  to 
Ottawa.  I don’t  know  whether  it  went  further  south  than  Ottawa. 
I didn’t  travel  on  that  line,  or  the  stage;  had  our  own  teams. 

First  time  I ever  went  to  Chicago  was  in  1843.  Went  with  a 
wagon  load  of  wheat,  and  brought  back  some  salt  and  a little  lunv 
ber  and  other  things  that  father  wanted  at  that  time.  I went 

1464  with  my  father.  I went  there  a number  of  times,  every  once 
in  a while,  with  our  team.  After  they  commenced  to  operate 

the  canal  there  was  not  a great  deal  of  teaming.  There  was  some 
even  then,  but  the  canal  would  do  most  of  the  freighting.  Before 
the  commencement  of  the  operation  of  the  canal  there  was  some 
teaming  to  points  on  the  Illinois  Eiver, — not  a great  deal.  They 
brought  goods  from  the  other  way.  There  was  stuff  brought  from 
St.  Louis  clear  to  Joliet.  Before  the  canal  it  was  brought  with 
teams  exclusively,  as  far  as  I recollect. 

I didn’t  personally  know  of  any  merchandise  or  commercial 
articles  having  been  brought  up  from  the  Illinois  Eiver  to  eloliet 
along  the  Desplaines  Eiver.  I never  heard  of  any  boats  plying 
along  the  river  south  of  Joliet  and  used  for  commercial  purposes. 


549 


either  in  the  transportation  of  freight  or  passengers,  along  the  Des- 
plaines  Eiver;  nor  of  any  plying  between  Joliet  and  Chicago.  I 
never  personally  knew  of  any  snch  boats  being  operated  on  the 
river.  Never  heard  from  anybody  in  whom  I had  confidence,  or 
from  old  settlers  who  lived  there  that  there  was  any  boats  used 
up  and  down  the  river  for  commercial  purposes.  I am  personally 
familiar  with  the  river  through  Joliet  and  a little  below  Joliet  and 
up  to  Lockport  and  Chicago.  I have  crossed  the  river  a number  of 
times  and  been  up  and  down  it  on  the  banks. 

1466  I know  the  general  condition  of  the  river  in  different  sea- 
sons and  the  current;  knew  the  condition  before  1848.  The 

condition  generally  of  the  water  of  the  river  during  the  summer 
months  between  May  1st  and  October  1st,  as  to  the  amount  of 
water,  would  vary  a great  deal.  Some  seasons  that  I have  known, 
the  river  you  would  not  know  that  the  water  run.  You  could  walk 
over  the  rocks ; it  would  seep  through ; almost  dry  in  places.  There 
would  be  very  little  water  in  the  river  at  times,  and  then  wet 
seasons  there  would  be  water  and  floods,  and  there  would  be  a 
great  deal  of  it  coming  down  from  the  side-hills  all  along  up  and 
down  the  river.  I don’t  remember  any  season  when  the  water  of 
the  river  was  high  all  during  the  season. 

1467  There  were  several  places  we  forded  the  river;  when  we 
went  in  about  Washington  street,  here,  and  crossed  the 

river  on  the  island  and  went  through  there, — ^that  is  here  in  Joliet. 
Up  a little  this  side  of  Lockport,  there  was  one.  We  owned  that; 
owned  the  old  Norman  property  there.  I have  forded  the  river 
there  a good  many  times.  We  had  250  acres  of  land  in  the  town 
of  Lockport.  I forded  it  a number  of  times  right  west  of  Lock- 
port.  There  it  was  very  shallow.  At  Lockport  they  drove  right 
through.  The  one  up  there  at  Norman’s  was  only  teams  going 
in  for  wood.  The  one  here  at  Joliet  was  a regular  ford  for 

1468  teams, — a regular  wagon  road  across  the  river.  There  was 
not  very  heavy  loads  drawn  in  those  days.  That  was  the 

only  means  of  crossing  the  river  prior  to  1848,  until  they  built  an 
old  bridge  at  the  island.  They  had  a bridge  there  before  that 
time, — kind  of  an  old  wooden  bridge.  This  ford  was  commonly 
used  during  the  entire  summer  season, — quite  a little  traffic  over 
it.  There  was  not  much  current.  There  would  be  places  there 


550  Lewis  K.  Stevens, — Direct  Exam. — Continued. 

where  there  would  be  rilffles,  but  there  was  not  fall  enough  to. 
make  any  great  current.  There  was  not  fall  enough  from  the 
Chicago  down  here  to  make  any  current, — never  was.  The 

1469  water  will  stand  along  in  pools  and  run  slow.  There  would 
be  a little  current  where  the  riffles  were,  but  nothing  very 

swift, — only  in  high  water, — then  it  will  rush  down.  From  here 
up,  there  was  but  very  little  current.  There  was  a little  from 
Lockport  down,  but  take  above  there,  there  was  hardly  any  cur- 
rent; in  fact  the  water  would  run  back  the  other  way  sometimes, 
— when  the  water  got  high  in  the  flats  and  the  heavy  water  would 
flow  into  the  lake. 

Where  those  riffles  were,  the  normal  depth  of  the  water  dur- 
ing the  entire  summer  season  would  be  from  4 inches  to  2 feet. 
I have  driven  right  through  where  the  riffles  were  and  ridden 
through  on  horseback;  never  walked  across.  I could  have  gone 
through  because  at  some  places  it  would  not  be  over  three  or  four 
' inches  deep.  These  places  were  at  the  riffles.  The  one  at 

1470  Lockport  there  might  have  been  four  or  five  rods  wide, — 
about  four  or  five  rods  up  and  down.  That  one  at  Joliet  near 

where  Washington  street  is  was  shorter.  It  dropped  down  a little 
ways  and  then  there  would  be  holes  there, — that  is,  where  the 
island  stood.  There  were  some  riffles  below,  but  I was  never  fa- 
miliar with  them. 

I know  of  riffles  down  near  where  Brandon  ^s  Bridge  is.  It  was 
not  very  extensive  in  length, — 10  or  15  feet  long,  I guess.  That 
was  a place  where  they  crossed  there.  At  that  time  it  was  called 
a regular  road.  Of  course,  there  was  not  so  much  travel  there. 
They  did  not  use  it  much. 

1471  I never  traveled  much  through  there  where  Treat’s  Island 
is.  I never  paid  much  attention  to  that.  It  was  out  of  my 

range.  I never  saw  any  boats  going  up  and  down  the  river  over 
these  riffles.  It  was  not  possible  for  boats  to  go  up  and  down 
over  those  riffles  and  float  all  the  time.  You  would  have  to  drag 
them  in  places.  I never  saw  any  boats  of  any  kind  in  the  river, 
except  little  row  boats,  that  they  dragged  down  and  went  fishing 
in.  lYe  had  to  drag  it  out  around  the  dams  and  places  of  that 
kind. 

Prior  to  1848  there  was  a dam  in  the  river  here  at  Jefferson 


551 


street  in  Joliet.  The  old  Malcolm  dam  down  below  here  remained 
there  until  the  Drainage  Canal  took  it  out,  bought  it  of 

1472  Adam,  and  took  it  away.  That  is  the  dam  that  is  spoken 
of  as  the  Haven  Dam.  I guess  it  is  just  south  of  the  city 

limits  of  Joliet. 

There  was  a mill  at  that  dam.  There  was  another  dam 
at  Lockport  just  west  of  there.  The  Norman  Dam  was  this  side 
of  there.  That  was  the  old  Daggett  Dam.  Daggett  got  it  after- 
wards. It  was  Norton’s  mills.  The  Norman  Dam  was  situated 
on  the  property  father  and  Goodspeed  got  of  Norton  afterwards. 

The  Norman  Dam  was  in  the  Township  of  Lockport,  about  a 
mile  above  the  prison,  on  what  was  the  old  Sanger  farm.  They 
were  all  in  the  river  before  1848. 

1473  I don’t  know  there  was  a dam  at  Treat’s  Island,  only 
from  hearsay.  I never  saw  a dam  there.  I never  was  down 

the  river  near  the  mouth,  at  the  place  called  Dresden  Heights  in 
the  early  times.  I was  there  somewhere  along  in  ’62  or  ’3.  I 
don’t  know  of  my  own  knowledge  that  there  was  ever  a dam  down 
there.  I have  heard  that  there  was;  that  is  only  from  hear- 
say. 

1474  All  these  dams  that  I speak  of  being  in  the  river  before 
1848  were  clear  across  the  river.  There  was  not  any  way 

whatever  in  which  boats  could  go  up  through  those  dams.  There 
were  very  few  skiffs  used  in  the  river  before  1848  that  I know.  of. 
Some  young  people  would  go  fishing  or  hunting,  or  something  of 
that  kind.  That  is  the  only  purpose  I ever  knew  it  to  be  used 
for. 

I was  up  at  this  island  between  Joliet  and  Lockport  a-fishing 
and  hunting  there.  We  had  a boat.  We  were  up  the  river  at 
what  they  call  Lillicache  above  Lockport,  and  part  of  the  tinie  at 
this  island  above  the  old  Norman  property.  I paddled  around 
a little  there,  fished  some  and  killed  ducks  in  the  early  days.  I 
never  did  much  of  that.  I was  generally  busy  on  the  farm,  I was 
not  much  of  a hunter  or  fisher. 

I have  never  known  of  the  river  being  navigated  by  boats  for 
commercial  purposes  since  1848.  It  could  not  be,  on  account 

1475  of  the  dams.  It  would  not  be  possible  for  any  boats  used  for 
commercial  purposes  to  have  gone  over  these  riffles  during 


552 


the  summer  season,  at  the  normal  stage  of  water.  If  there  had 
been  no  dams  there,  it  would  have  been  impossible  in  my  judg- 
ment to  have  navigated  the  streams. 

We  had  a fence  across  the  river  at  the  old  Norman  place.  We 
had  wire  stretched  across  and  boards  hung  down  in.  My  father 
and  Judge  Goodspeed  owned  the  land  on  both  sides  of  the  river. 
I don’t  remember  the  section  but  it  was  in  the  Township  of  Lock- 
port  right  above  the  town  line,  and  took  in  the  island.  There 
was  250  acres.  It  was  this  side  of  the  Lockport  Dam;  must 

1476  have  been  a couple  of  miles.  It  was  the  Norman  property. 
There  was  part  of  the  dam  left  there,  but  not  very  much.  It 

was  only  across  one  branch  at  the  head  of  the  island. 

The  fence  crossing  the  river  was  below  the  dam  and  then  it 
ran  around  up  to  the  dam.  The  fence  was  put  there  just  to  keep  a 
little  stock  in  there.  I cannot  say  exactly  when  it  was  constructed. 
I remember  father  sent  me  up  there  one  time  to  look  after  peo- 
ple that  were  stealing  timber  off  of  it.  That  must  have  been  be- 
tween 1845  and  1846.  I was  quite  a boy.  There  was  a kind  of  a 
fence  there  then,  mostly  brush  fence, — except  across  the  river, — 
just  enough  to  keep  stock  in  there.  There  was  some  of  the 

1477  old  remnants  of  the  fence  there  then.  I think  it  remained 
there  some  fifteen  years  afterwards.  It  was  fenced  in 

around  there  on  that  flat, — in  fact  has  been  fenced  more  or  less 
from  that  day  to  this.  There  would  be  times  that  they  had  wires 
across  the  river.  I don’t  know  but  there  may  be  wires  there  yet. 
I don’t  know  of  either  one  or  two  other  fences  there.  Of  late 
years  there  has  been  more  at  the  pastures  up  through  there  by 
Allen’s  property  and  Fitzpatrick’s,  that  was  this  side  and  the 
other  side  of  Lockport  Eoad,  which  runs  right  west  of  Lock- 

1478  port.  These  other  fences  that  I spoke  of  were  between 
Joliet  and  Lockport,  and  I think  there  is  a fence  or  two 

above  the  road  on  the  other  side  of  Lockport. 

I cannot  remember  any  special  fence, — only  the  one  on  our 

1479  own  land  there.  The  fences  were  put  in  there  after  the  canal 
was  built.  It  must  have  been  in  1848  or  1849.  I was  up  there 

last  year,  and  there  were  some  fences,  scattered  through  there  then 
across  the  river.  This  is  where  the  old  river  used  to  be  there  then. 
Since  tlie\^  have  o])ened  the  Drainage  Canal, — the  river-l)ed  was  on 


the  west  side  of  the  canal ; — that  is  where  the  fences  are  across  the 
bed  of  the  river.  You  see  it  is  not  the  present  bed  of  the  river. 
They  are  on  the  west  side  of  the  bed  of  the  river  now,  but  the  old 
river-bed  used  to  be  west  of  that.  They  have  changed  that  since 
They  have  cut  the  Drainage  Canal  through  and  left  the  old  river- 
bed on  the  west.  The  fences  established  on  my  father’s  land 

1480  was  where  the  river  ran  in  olden  times,  not  where  the  river 
runs  now.  The  fences  other  than  the  fences  on  my  father’s 

land  were  across  an  old  abandoned  bed  of  the  river  after  they 
started  this  Drainage  Channel  through  there,  but  when  the  fences 
were  built  it  was  the  river.  The  fences  were  maintained  up  to 
the  present  time  because  there  is  no  channel  there.  The 

1481  channel  was  not  changed  until  they  built  the  Drainage  Canal; 
that  was  about  1899.  These  other  fences  were  maintained 

across  the  stream  where  it  was  flowing  prior  to  3899,  ever  since  I 
can  remember. 

C ross-Examination, 

I have  never  seen  any  commercial  navigation  on  any  part  of  the 
Desplaines  Eiver.  Have  not  seen  anything  hauled  up  or  carried 
on  boats  on  the  river,  or  any  stone  taken  down  the  Desplaines  River 
on  any  boat,  to  be  used  for  improvements. 

I am  not  the  gentleman  who  made  a statemenf  here  a few  days 
ago  concerning  what  I have  seen  hauled  on  the  river.  I made 

1482  a statement  that  I had  seen  a dock  below  here,  but  what  it  is 
for,  I don’t  know;. but  not  any  boat  or  any  stone  on  a boat. 

They  asked  me  if  I had  seen  a dock,  and  I would  have  sworn  to  it 
in  Mr.  Chaney’s  office.  I thought  of  it  afterwards  what  that  dock 
was  built  for.  That  dock  was  down  at  Brandon’s  bridge.  It  was 
some  stuff  thrown  up  there  that  looked  like  a dock,  but  in  my 
inquiries  since,  they  would  cut  wood  and  throw  it  on  to  that  place 
and  draw  it  away  in  the  summer  time.  When  the  lake  was 
frozen  down  there,  they  would  run  the  wood  across  and  pile  it  up. 
This  was  down  near  Brandon’s  bridge,  a mile,  or  a little  over,  below 
Joliet. 

I don’t  know  anything  else  I said  in  that  statement  I swore 

1483  to  the  other  day ; only  I had  seen  a dock  there.  I told  them  I 
had  never  seen  a boat  or  craft  of  that  kind.  I think  I know 


554  Lewis  K.  Stevens, — Cross-Exam. — Continued. 

what  a dock  is.  That  was  not  what  yon  call  a dock  now. 
It  was  what  yon  called  a dock  in  those  days.  A dock  in 
early  days  wonld^  he  a log  thrown  down  any  place  to  tie  a 
boat  to.  Its  proportions  were  not  such  as  to  meet  the  ideas 
of  a dock  to-day.  There  was  no  snubbing  post  or  anything  of 
that  kind  where  a boat  could  be  tied.  They  could  tie  it  to  the  logs 
that  lay  there.  It  could  be  used  for  a dock,  but  you  would 

1484  not  call  it  a dock  at  the  present  day.  I said  it  could  be  called 
a dock,  but  I did  not  say  it  was  one.  I do  not  think  it  was  a 

dock.  I did  not  testify  the  other  day  that  it  was  a dock.  I 
said  it  was  some  stutf  piled  up  there  that  looked  like  a dock. 

1485  I did  not  state  in  my  affidavit  that  it  was  a dock.  What  they 
put  there  I don’t  know.  I told  them  plainly  that  it  looked 

like  a dock.  They  read  the  affidavit  over  to  me.  I did  not  have  my 
glasses.  I cannot  think  of  the  man  who  prepared  the  affidavit.  He 
was  in  Chaney’s  office.  Claire  took  the  affidavit.  It  was  not 
Stevens.  I think  it  was  Purkheiser.  I did  not  go  there  and  tell 
him  what  the  facts  were.  They  asked  me  and  quizzed  me  in  every 
way,  and  I told  them  jilainly  that  I knew  nothing  about  any- 

1487  thing  of  the  kind.  They  asked  me  if  I could  make  an  affidavit 
that  I had  seen  something  like  a dock  there,  and  I told  them 

that  I could  do  that  if  there  was  something  thrown  in  there.  I 
talked  very  plainly  to  them, — just  as  I am  talking  to  you;  that  I 
thought  it  was  outrageous  to  think  of  a boat  being  there;  that 
they  had  lived  there  just  like  myself,  and  I had  never  seen  a 
boat  going  up  and  down  the  river.  I told  those  gentlemen  all  the 
things  that  I have  just  now  been  relating  in  regard  to  the  boats, 
and  things  of  that  kind,  and  the  dockage.  I did  not  say  in 
that  affidavit  that  stone  were  taken  down  the  river  in  a boat.  I 
told  them  plainly  I never  had  seen  a boat  on  the  river.  I did 
not  on  the  occasion, — when  I talked  to  those  gentlemen  in  Mr. 
Chaney’s  office  and  when  the  affidavit  I have  mentioned  was  pre- 
pared and  signed, — state  to  them  that  in  1835  rock  was  loaded  on  a 
boat  and  sent  down  the  river.  I did  not  state  to  those  gentlemen 
on  that  occasion  that  stones  were  quarried  near  the  river  and 

1488  loaded  on  a boat  and  sent  down  the  river.  The  names  of  the 
gentlemen  present  in  Mr.  Chaney’s  office  on  the  occasion  1 


000 


made  the  affidavit  I referred  to,  were  Mr,  Chaney,  Mr.  Reiley 

1489  and  Mr.  Purkheiser,  I think.  Those  gentlemen  were  all  pres- 
ent when  I said  on  that  occasion  whatever  I did  say, — 

all  except  Chaney.  He  came  in  to  take  the  affidavit.  I might  have 
said  some  things  when  he  was  out.  The  others  were  there  when 
I went  in  and  after  I went  away.  IVhat  I stated  to  those  gentle- 
men was  true  as  far  as  I am  concerned.  It  was  true  the  way 

1490  I understood  it.  I have  not  taken  any  interest  in  this  law- 

1491  suit.  Yesterday  was  the  first  time  I ever  was  introduced  to 
Mr.  Munroe.  I had  just  a few  words  with  Mr.  Munroe  yes- 
terday; no  talk  at  all;  simply  if  I could  testify  in  regard  to  the 
river  being  navigable.  I told  him  I could  testify  to  what  I knew 
about  it. 

I had  a little  talk  with  Kercheval,  my  cousin,  al)out  what  I 
was  going  to  testify  here;  Charles  Kercheval, — I talked  with  him 
the  da}^  before  yesterday  first.  I don’t  know  anything  about 

1492  his  taking  some  interest  in  behalf  of  Mr.  Munroe  or  the  de- 
fendant in  this  case.  Only  he  telephoned  me  and  wanted 

to  know  if  he  could  see  me,  and  he  asked  me  about  it.  We  talked 
over  about  the  river.  He  and  I agreed.  I did  about  as  much 
talking  as  he  did.  He  did  most  of  the  talking.  He  asked  me  what 
I knew  about  it,  and  I told  him.  He  asked  the  questions  and 
I answered  him.  I know  he  and  I agreed  because  in  talking  it 
over  we  agreed  on  those  points  in  regard  to  the  river  and  the 
boats.  I did  not  agree  anything  with  him  what  my  testimony 
should  be  to-day.  He  did  not  ask  me  if  I would  testify  here  to 
these  matters.  He  telephoned  me  and  asked  me  if  I could 
1492A  be  a witness  in  this  case.  He  did  not  ask  me  if  I would 
testify  to  any  particular  things. 

In  regard  to  the  navigability  of  the  rivers,  he  asked  me  if 
I could  testify  to  them,  and  I told  him  I could  most  certainly, 
what  I knew  about  it.  There  was  not  any  suggestion  made  by 
either  of  us  what  the  answers  would  be. 

^ We  talked  about  the  riffles  and  dams,  and  things  of  that  kind. 
He  mentioned  some  of  them  first,  and  I mentioned  some  of  them. 
We  were  comparing  notes,  how  it  was  in  past  times.  I remem- 
bered some  and  he  remembered  some,  and  I have  testified  to  all 
that  I remembered  and  all  that  he  remembered. 


556  Lewis  K.  Stevens, — Cross-Exam.— Continued. 

I was  born  right  here  east  of  Joliet,  abont  a mile  and 

1493  a half.  I am  in  my  72nd  year.  I did  not  do  mnch  fishing 
and  hunting  in  my  time;  was  generally  busy  on  the  farm. 

Never  even  ran  a row-boat  myself.  Did  not  do  a great  deal  of 
business  on  the  water. 

The  fences  I spoke  about  that  was  across  the  river  at  my 
father’s  farm,  was  a wire  stretched  across  and  then  some  boards 
hanging  down  from  the  wire.  That  constituted  the  fences.  The 
wire  was  perhaps  two  or  three  feet  above  the  water.  It  would 
perhaps  not  be  more  than  a foot  above  high  water.  The  water 
has  a wide  scope  in  there.  The  river  was  not  so  wide,  but 

1494  the  lowlands  were  a mile  wide  there.  The  river  there  was 
perhaps  6 or  8 rods  wide.  That  would  be  from  100  to  139 

feet.  This  wire  was  stretched  across  there.  The  boards 
suspended  from  the  wire  were  little  poles  and  hung  down  there. 
I could  not  say  how  long  they  were, — perhax)s  6 or  8 feet,  per- 
haps 10  feet. 

This  wire  was  stretched  at  high  water  perhaps  a foot  above 
the  water;  in  very  high  water  it  might  run  over.  They  did  not 
reach  to  the  bottom  of  the  river.  They  hung  along  length- 
1494A  wise,  and  the  water  would  swing  them  back.  If  those  poles 
were  from  6 to  8 or  10  feet  long  and  from  1 to  2 feet  above 
the  water,  the  water  must  not  necessarily  have  been  from  4 to 
6 or  7 or  8 feet  deep.  The  water  down  below  is  not  so  very  deep. 
It  was  perhaps  a couple  of  feet  deep.  "When  it  raised  it  would 
be  deeper.  In  low  water,  the  water  was  probably  2 feet  deep ; in 
high  water  it  probably  would  have  been  over  the  top  of  the  wire. 
In  low  water  it  was  perhaps  4,  perhaps  5 feet  above  the  sur- 

1495  face  of  the  water.  As  near  as  I can  remember,  it  is  right 
that,  in  ordinary  high  water,  it  would  be  within  a foot  of  this 

wire,  and  in  low  water  when  the  water  was  only  about  2 feet 
deep,  the  wire  would  probably  be  about  5 feet  above  the  surface 
of  the  water. 

I have  answered  that  boats  could  not  have  gone  up  and  down 
the  river  because  of  these  dams.  It  was  because  of  the  water 
also.  I don’t  think  there  would  be  water  enough  in  places.  At 
somy  times  and  in  some  places,  I don’t  think  there  would  be  water 
enough, — I mean  riffles.  I have  seen  the  time  right  here  in  Joliet 


557 


that  the  water  would  stay  back  and  would  not  run  over  for  a week. 

I think  for  commercial  navigation  that  there  should  not 
1496.  be  less  than  4 feet  of  water.  I think  you  could  not  navigatd 
a river  with  less  than  4 feet.  I say  in  going  on  the  river 
there  would  not  be  enough  water  there, — I say  it  on  that  account — 
not  above  4 feet.  But  vdien  we  have  6 inches,  I have  seen  the 
river  when  there  was  not  more  than  6 inches,  and  I know 

1497  it  could  not  be  done  in  6 inches.  I mean  on  the  riffles  all 
along  the  river.  I don’t  mean  literally  ‘^all  along  the 

river,” — I mean  where  the  boats  would  have  to  go  through  in  the 
river. 

It  is  true  that  in  a good  many  places  the  water  is  10  or  12  feet 
deep  on  this  river.  It  is  also  true  in  certain  seasons  on  the  riffles 
it  goes  down  to  6,  or  8 or  10,  or  12  inches,  and  where  it  don’t 
run  at  all.  It  runs  underground,  seeps  through.  I literally 

1498  mean  that  it  don’t  run  above  the  surface  at  all.  I mean  it 
runs  between  the  rocks  wherever  there  would  be  holes.  I 

have  seen  that  kind  of  a thing  in  places  where  the  water  was  2 
feet  deep.  It  would  be  where  you  had  rocks  and  gravel.  If  there 
was  rocks  piled  up  and  the  water  two  feet  deep,  it  might  be 
a lot  of  little  rocks  and  gravel.  I mean  to  say  that  in 

1499  the  Desplaines  Kiver  gravel  and  rock  were  piled  up  by  na- 
ture, washed  tKiere,  so  that  they  would  constitute  a riffle. 

The  water  runs  through  pretty  deep  sometimes.  There  would  be 
gravel  and  stone, — no  telling  what  kind  of  a riffle  there  would  be. 

I mentioned  three  fords  in  the  river:  one  right  west  of  Lock- 
port,  one  near  here  on  the  Norman  property,  and  also  at 

1500  Washington — Jefferson  St.  Take  Brandon’s  bridge,  I forded 
there  some.  In  the  summer  time  when  I went  through  there 

I crossed  when  the  water  would  be  about  18  inches  deep, — prob- 
ably a foot  to  18  inches.  Lockport,  I went  there  when  it  was  not 
more  than  6 inches  deep  over  the  ford;  the  two  other  places  down 
there  perhaps  a little  deeper.  It  might  have  been  two  feet  deep 
in  the  deepest  places  at  Washington  street.  At  Norman’s  we 
went  through  there  and  there  was  no  regular  road  across  the 
river  any  place  there.  It  would  be  a foot  to  18  inches  in  the  sum- 
mer time,  at  low  water  stage.  There  was  no  regular  ford  there,— 
that  was  our  land.  We  would  just  go  across  ourselves. 


558  Lewis  K.  Stevens, — Cross-Exam. — Continued. 

1501  I said  there  were  perhaps  a dozen  times  I went  fishing. 
There  was  a number  of  times,  perhaps  a dozen  times  in  my 

life.  I was  with  some  parties  at  one  time,  and  we  had  a skitf 
np  there,  a little  row  boat,  a paddle  boat, — pushed  and  paddled 
down  and  shoved  it  along.  I said  I did  not  remember  how  many 
times,  several  times, — perhaps  a dozen  times.  I do  not  know 
what  I said  in  my  direct  examination.  T said  there  was  not  much 
current  in  the  river.  I am  referring  to  the  current  above. 

1502  I said  there  was  more  current  below  than  there  was  above. 
It  dropped  sometimes, — say  go  for  several  rods  and  then 

it  would  drop  6 or  8 inches.  It  did  not  drop  very  much. 

I mean  by  the  current,  where  the  water  descends  a little,  where 
there  is  a descent  in  the  river;  that  is  what  makes  the  current. 
It  is  the  moving  of  the  water, — the  speed  of  the  water  in  the 
river.  The  current  was  very  low  on  the  riffles  because  there  was 
not  flow  enough  to  make  it.  It  was  not  very  swift, — pretty  slow. 
I never  figured  on  the  mileage  or  anything  of  that  kind. 

1503  I don’t  know  if  it  was  running  15  miles  an  hour, — perhaps 
about  a mile  an  hour.  There  were  places  where  it  might 

have  been  a little  faster  than  that, — I would  say  at  the  rate  of 
two  or  three  miles  an  hour,  but  not  very  swift. 

The  ford  above  Lockport  is  above  the  dam, — above  the  Lock- 
port  mill.  It  is  perhaps  one-half  a mile.  The  dam  is  not  more 
than  four  feet  high, — four  or  five,  I don’t  know  what  it  is  now. 
At  that  time  it  was  about  four  or  five  feet.  At  the  ford  above  the 
dam  the  water  is  clear  down  up  there  in  the  summer  time.  It 
would  not  be  six  inches.  The  water  was  not  backed  half  way  up  to 
the  road.  It  was  backed  up  one-fourth  of  a mile,  so  the  ford  is 
clear  above  in  back  water  from  the  dam. 

1504  There  is  a dam  at  Jefferson  St.  just  a little  above  the 
ford  at  Jetferson  street  in  Joliet.  I think  it  was  ])erhaps 

th]-ee  or  four  hundred  feet.  There  was  no  regular  ford  there 
at  Norman’s, — just  rode  through  the  river  at  different  places. 

The  fords  I mentioned  in  direct  examination  were:  one  at 

Lockport  and  the  other  at  Norman’s  this  side  of  Lockport,  a 
cou])le,  or  three  miles  below  Lockport.  This  one  was  not  a i*egu- 
lar  ford.  Two  of  them  were  regular  fords;  and  then  the  one 


559 


down  at  Brandon’s  Ijridge  was  a rognlar  ford.  At  T.ock- 

1505  port,  I don’t  think  I ever  saw  it  at  liigli  water,  over  five 
feet  above  the  low  water  mark.  Those  other  places  it  would 

be  a little  more.  I have  seen  it  when  it  broke  down  through  here; 
it  would  raise  6 or  8 feet  here  in  Joliet.  I don’t  know  that  I 
stated  anything  that  one  month  at  a time  during  the  summer  time 
there  was  deep  water.  I have  not  any  s|)ecific  recollection  of  the 
year  187G.  I was  living  in  Chicago,  went  up  and  down  here.  I 
knew  there  was  considerable  floods  here.  J)uring  the  summer 
months, — May,  June,  July  and  August  of  that  year,  I am  of  the 
opinion  that  the  river  could  not  have  been  very  high.  There 
might  have  been  ])lenty  of  water  in  it,  Imt  spread  around  a 

1506  good  deal.  I knew  there  were  times  that  the  river  did  flow 
out  of  its  banks,  run  around  through  Spring  Creek  down 

over  our  farm.  I don’t  just  have  in  mind  what  time  it  was.  There 
was  more  water  in  the  river  as  a general  thing  during  that  whole 
summer  season  up  to  September.  I cannot  say  in  regard  to 

1507  whether  there  was  four  or  five,  or  six  or  seven  or  eight  feet 
there  in  that  year. 

It  was  along  in  the  spring,  in  elune,  I think,  the  times  that  I 
was  fishing  in  a boat  up  there.  AVe  went  out  into  the  ponds  into 
the  river;  the  ponds  through  the  river.  We  took  the  l)oat  in  a 
wagon  wdien  we  went  up  there, — just  fished  around  there  where 
we  thought  there  was  fish.  AVe  hunted  deep  places  in  the  river 
to  fish.  The  water  was  five  or  six  feet  deep  where  we  were.  That 
was  below  the  Lockport  dam, — perhaps  a couple  of  miles,  this 
side  of  it;  and  another  time  this  side  of  the  dam  up  above  Lilli- 
cache.  It  was  this  side  of  the  Norton  dam  below  it.  I was  close 
to  the  old  Norman  Dam,  was  up  a ways. 

Re-direct  Examination. 

1508  AVhen  we  went  fishing  and  took  the  boat  in  the  wagon,  we 
took  it  from  Joliet.  AA"e  could  not  take  it  up  the  river 

very  well.  We  could  drive  it  down  to  where  we  wanted  to  fish 
and  get  out  on  the  pond.  We  took  the  boat  back  on  the  river 
sometimes.  That  must  have  been  after  the  canal  was  built.  That 
must  have  been  in  1849  or  1850. 

1509  My  testimony  that  the  current  was  not  very  swift  over 
the  riffles  applies  to  that  part  of  the  river  above  the  dam 


560 


and  below  the  dam;  where  the  water  was  running  that  would 
give  it  a momentum.  The  water  coming  right  over  the  dam  might 
run  at  the  rate  of  40  miles  an  hour.  It  was  swifter  below  Joliet 
than  it  was' above.  When  I was  down  at  Treat’s  Island  it  was 
swifter  a little  down  there  than  it  was  this  side.  There  was  a 
place  down  near  where  Smith’s  bridge  is  now  that  was  pretty 
swift.  I never  noticed  the  current  much  below  there. 

1510  I spoke  of  poles  that  were  attached  to  the  wire  fence  across 
the  river  at  my  father’s  farm.  There  would  be  a wire  across 

and  then  they  would  hang  some  light  poles  on,  and  the  poles  would 
liang  down  below  the  bottom  of  the  water.  When  the  water  would 
run  it  would  swing  them  up.  The  poles  were  loose  at  the  bot- 
tom to  keep  the  cattle  from  going  in. 

I did  not  mean  to  say  that  I agreed  to  testify  to  what  Kerche- 
val  remembered.  What  I have  testified  here  is  what  I remem- 
bered myself.  Kercheval  asked  me  my  remembrance  on  things 
that  I would  remember.  He  would  talk  just  as  any  man  would 
about  the  circumstances  of  the  river  at  that  time.  Of  course,  it 
brings  things  to  your  remembrance  that  you  would  not  remem- 
ber if  you  had  not  talked  about  it. 

Re-cross  Examination. 

1511  Where  I said  the  poles  went  down  below  the  bottom  of 
the  water,  I did  not  mean  that  I meant  down  below  the  bot- 
tom of  the  wire.  It  went  down  below  the  top  of  the  wire  in  high 
water  and  below  the  water  always. 

This  skitf  that  we  went  fishing  in  was  a little  boat  that  we  put 
on  the  wagon.  It  was  10  or  12  feet  long.  It  would  weigh  about 
as  much  as  a common  wagon  box.  Two  of  us  would  be  in  at  a 
time  of  a fishing  expedition.  Our  taking  it  in  a wagon  was 

1512  simply  an  expedient  way  of  doing  it.  We  put  it  in  the 
wagon  and  drove  it  to  the  fishing  grounds.  That  is  what  we 

did  it  for. 

I think  I said  the  river  at  the  place  where  the  wire  stretched 
across  it  was  from  four  to  six  rods  wide. 

Q.  Did  you  not  say  six  or  eight  rods,  and  I reduced  it  to  feet, 
and  you  said  100  to  130  feet?  What  is  the  truth  about  it?  A. 
You  said  about  100  feet,  if  I remember  right. 


5G1 


Jacob  Adler, 

a witness  for  defendant,  testified  as  follows: 

Direct  Exainination. 

1513  My  name  is  Jacob  Adler.  I reside  at  Joliet.  It  will  be 
70  years  next  spring  since  I came  here  the  17th  of  March. 
I will  be  72  next  March.  I came  when  I was  two  years  old.  I 
have  not  lived  in  Joliet  continuously.  I lived  up  at  Hickory  three 
years  after  we  came  here.  That  is  what  was  New  Lenox,  in  AYill 
County,  six  miles  from  Joliet.  Then  we  moved  from  there.  I 
bought  a place  down  next  to  what  we  call  the  edge  of  the  lake, — 
Brandon’s  Koad  as  you  probably  know  it, — on  top  of  the  blutf, 
about  two  miles  south  of  Joliet  I guess.  During  tliis  entire  seventy 
years  I have  lived  in  Will  County  at  these  three  places. 

I was  a farmer  until  I was  20  or  21.  After  that  I went  to 
Pike’s  Peak  in  1859,  then  T came  back  and  started  a butcher  busi- 
ness in  Joliet,  that  was  in  1860.  I have  been  in  business  ever 
since.  I have  retired.’  I am  with  the  boys,  but  I don’t  do  any- 
thing much, — only  go  and  see  the  pasture  and  cattle,  and  some- 
times I go  out  and  buy.  That  was  my  father’s  farm  where  I 
farmed  up  to  the  time  I was  21.  It  was  about  two  miles  south 
of  this;  south  of  where  we  lived",  down  near  by  the  river, — that 
is  south  of  Brandon’s  Eoad. 

1515  The  first  farm  where  we  lived  was  along  the  river,  part 
of  it  was  to  the  river.  In  the  early  days  we  das  sent  go  on 

the  prairie  because  there  were  so  many  sloughs.  We  could  not 
get  to  town,  there  was  no  bridges.  At  that  time  none  of  the 
farm  lands  laid  on  both  sides  of  the  river;  since  that  time, — I 
think  about  1860,  I bought  one  and  a half  miles  along  the  river 
on  one  side.  I rented  some  on  the  other  side, — about  a mile  I 
think  it  was,  sometime  in  1865  or  1866.  I still  own  some  of  the 
land  that  I bought,  but  I sold  some  of  it.  , I pastured  some  of 
that  land  after  I went  into  the  butcher  business. 

I have  known  the  Desplaines  ever  since  I was  six  years  old, 
when  we  moved  there,  and  I have  known  it  ever  since.  I had 
pastures  that  I bought  there  somewhere  along  in  the  ’60 ’s.  I 
was  familiar  with  the  river  ever  since  and  before  that.  1 

1516  lived  I guess  within  80  or  100  rods  from  the  river.  I was 
familiar  with  the  river  before  the  canal  commenced  opera- 


562 


Adler, — Direct  Exam. — Continued. 


tions  in  1848.  In  1848,  I don’t  know  of  any  more  dams  than  up 
town  here.  I was  driving  cattle  up  to  Lockport,  and  I saw  the 
dam  there,  that  they  called  the  ‘^Old  Daggett  Dam.”  The  dams 
that  were  built  in  the  City  of  Joliet  were  built  before  1848. 

I think  there  was  what  yon  call  the  Haven  dam,  and  the  dam 
at  Jefferson  street,  and  the  upper  dam.  The  upper  dam  is  80  rods 
above  this  dam  here  on  Jefferson  street.  It  extended  clear  across 
the  river.  There  were  no  mills  on  those  dams,  but  at  that  time 
there  was  a mill  down  here  that  we  called  the  Havens  mill.  There 
was  a dam  there.  I think  that  was  first  a sawmill  and  then  after 
while  they  built  a grist  mill.  I saw  a dam  at  the  north  end  of 
Treat’s  Island;  I could  not  say  when  I saw  it  first.  I was  a 
1517  boy  and  we  went  down.  Onr  cattle  ran  that  way  sometimes 
in  the  spring  of  the  year,  and  we  went  down  and  I saw  the 
dam  there.  I think  that  was  before  1848.  I don’t  know  that  there 
was  any  dam  further  down  the  river  nearer  its  mouth  in  those 
days.  At  Washington  street  there  was  an- island  there,  and  there 
was  a bridge  from  one  island  to  the  other,  and  then  over  to  the 
other  side.  At  that  time  it  raised  it  over  the  canal.  That  was  some 
time  when  I was  8 or  9 years  old, — I guess  that  was  before  1848. 

There  was  a bridge  down  there  at  Brandon’s,  what  they  called 
the  Brandon  road;  I forget  when  that  was  built.  There  were  piers 
in  the  middle  of  the  river,  and  then  there  were  logs  on  it  and  boards. 

and  we  went  over  it.  I don’t  know  when  that  was  built. 
!1518  These  dams  that  I have  spoken  of  were  not  so  constructed 
that  it  was  possible  for  boats  to  go  throngh  them.  I was  not 
familiar  with  the  river  above  Joliet  in  those  days,  more  than  some- 
times I went  up  there  to  get  cattle. 

I think  what  yon  call  the  Daggett  dam  was  there  before  1848. 
It  is  southwest  of  Lockport.  I don’t  remember  a dam  called  the 
Xorman  dam  near  the  penitentiary,  where  the  penitentiary  now  is. 

My  parents  came  to  Joliet  or  Will  County  driving  with  a team. 
We  moved  from  Chicago  in  the  spring  to  Indiana,  and  the  same 
summer  we  moved  with  the  team  up  here  between  Lockport  and 
Joliet.  During  my  youthful  days  I had  occasion  to  go  to  Chicago 
from  Joliet.  Went  by  ox  team.  Went  up  there  to  sell  our  wheat 


563 


or  corn  and  then  we  would  bring  provisions  back.  That  was 

1519  the  customary  method  of  the  farmers  at  that  time  in  taking 
produce  to  Chicago.  There  was  not  any  other  method  that 

1 heard  of  or  know  of. 

I never  knew  of  any  boats  being  navigated  up  the  Desplaines 
River  from  Joliet  to  Chicago  carrying  produce,  merchandise  or 
freight.  Never  saw  a boat  on  the  Desplaines  operate  for  the  pur- 
poses of  commerce.  I never  saw  any  boat  on  the  Desplaines  other 
than  a skitf.  Never  heard  of  any.  Never  heard  of  any  freight  or 
merchandise  or  produce  being  brought  from  points  on  the  Illinois 
River  to  Joliet  by  boat  along  the  Desplaines  River.  Not  more  than 
what  I heard  said. 

Q.  What  did  you  hear  about  that? 

1520  (Objection  by  counsel  for  complainant.) 

A.  I have  heard  them  say  that  they  came  up  as  far  as 
LaSalle,  and  the  time  they  were  building  the  canal  that  they 
brought  stuff  over  that  way  along  the  canal  with  teams. 

The  Witness.  I heard  that  at  the  time  they  were  building  the 
canal.  I never  heard  of  their  coming  over  Jo  Joliet  that  I know  of. 
When  I was  a boy  it  was  not  possible  to  navigate  boats  up  and  down 
the  Desplaines  River  between  its  mouth  and  Chicago. 

In  1870,  or  something  like  that,  they  pumped  in  the  water  from 
Chicago.  The  water  came  down  the  river  and  made  it  bigger.  Be- 
fore that  water  came  down,  the  main  river  was  very  little,  when 
there  were  dry  times.  Then  there  was  a little  water  running  over 
the  stone  in  the  riffles.  After  they  pumped  that  water  down  the 
river  got  bigger  on  both  sides  and  the  brush  and  trees  died 

1521  from  that  water,  and  it  was  pretty  near  all  brush  on  both 
sides,  so  that  the  boats,  if  they  would  come  up  the  main  stream 

when  the  river  was  high,  would  run  over  on  this  corner,  and  then 
after  a while  run  over  on  the  other  corner,  and  run  through  the 
brush.  There  was  no  boat  could  go  up  in  these  riffles,  even  in 
high  water,  and  the  currents  would  strike  and  go  straight  across 
through  these  trees  and  brush.  You  could  not  go  down  the  river. 
If  you  would  have  a boat  go  down  the  river  it  would  run  on  this 
brush. 

In  my  boyhood  days  w^e  got  across  the  river  by  fording  it.  The 


564 


Adler, — Direct  Exam. — Continued. 


main  ford  was  about  one-fourtli  of  a mile  at  the  edge  of  the  lake, 
what  they  call  Joliet  Lake,  at  Brandon’s  bridge.  There  was 

1 522  a ford  that  came  down  and  went  over  the  river  that  way  and 
went  up  across  the  other  side  where  the  bridge  is  now.  There 

was  no  road.  That  ford  was  the  regular  road.  Later  all  those 
Truman  folks  down  there  used  to  drive  over  that  way  to  Joliet. 
We  have  taken  heavy  loads  across  there.  Brandon  used  to  cut 
their  timber  on  this  side.  They  used  to  tee  across  that  ford.  When 
there  was  a freshet  there  they  could  not  go  across.  They  pumped 
that  water  into  the  canal  and  sent  it  down.  If  it  rained  a good  deal 
the  river  was  big,  and  if  it  did  not  rain,  in  a few  days — a week  or 
two — the  river  would  be  low.  At  that  time  the  river  was  not  wide, 
but  when  it  was  big  it  flowed  over,  probably  a half  mile  wide. 
When  it  was  dry  it  was  probably  100  feet  wide. 

1523  In  the  summer  seasons  when  there  was  no  freshet,  usually 
you  could  walk  across  it  on  the  riffles  with  your  boots  on 

the  stones.  It  just  seeps  through.  That  was  before  this  water 
came  down  where  they  pumped  it  in.  There  was  one  riffle  right 
above  Brandon’s  bridge.  I suppose  it  was  probably  100  or  200 
feet.  There  was  one  right  next  to  the  lake  there  we  used  to  go 
over  with  our  boots  on  in  low  water;  that  is,  just  below  Brandon’s 
bridge  where  they  forded. 

I have  known  other  riffles  down  near  the  point  where 

1524  Smith’s  bridge  is.  I crossed  there.  There  was  a riffle  below 
Treat’s  Island,  which  might  have  been  two  or  three  hundred 

feet.  I drove  cattle  across  back  and  forth.  There  was  a regular 
wagon  road  across  there.  I think  there  was  a riffle  above  Treat’s 
Island  next  to  the  lake.  There  was  a ford  just  below  the  bridge 
that  went  up  on  the  towpath.  That  is  the  bridge  now  known 

1525  as  the  Jefferson  street  bridge.  They  drove  backwards  and 
forwards  there. 

I have  been  on  the  river  in  a skiff, — a little  canoe  boat  fishing. 
We  wmuld  not  drag  it  over  the  riffles;  we  would  just  stay  on'  that 
side  and  walk  below,  if  we  wanted  to  fish.  It  was  not  possible  to 
navigate  even  a rowboat  across  these  riffles  without  you  got  out 
and  pulled  it.  During  the  summer  season,  while  the  river  was  in 
its  normal  condition  you  could  not  navigate  a rowboat  over 

1526  these  riffles.  I am  talking  about  way  back  in  1848. 


The  water  was  turned  in  here  first  about  1871.  I am  talk- 
ing about  the  condition  before  that  time.  When  I was  a l)oy  I 
walked  along  the  river, — went  after  cattle.  We  could  see  the  river 
from  the  house,  see  the  whole  of  it,  up  as  far  as  the  lake  and  Bran- 
don’s bridge.  There  was  a dam  there,  but  below  that  there  was 
not.  Before  1871,  as  I said  before,  you  could  not  navigate 

1527  the  river  in  high  stages  because  the  river  would  run  through 
this  brush  and  timber. 

I do  not  recollect  any  fences  being  built  across  the  Desplaines 
Kiver  when  I was  a boy.  Everything  laid  there  in  common.  Cattle 
ran  backwards  and  forwards,  and  there  was  nothing  fenced  up.  I 
put  a fence  across  just  a little  above  Brandon’s  bridge,  and  at  the 
city  limits  of  Joliet,  that  was  on  the  land  that  I owned  and  leased. 
Mr.  Sanger  had  one  side  and  I had  the  other.  I put  that  up  some 
time  in  1860,  or  1866;  I ain’t  certain  now.  It  remained  there  until 
about  fifteen  years  ago, — from  1865  to  1893,  somewhere  along 
twenty-eight  years.  I don’t  know  as  it  is.  I leased  that  on 

1528  the  other  side.  I sold  that  place  to  a syndicate  down  there, 
and  did  not  pay  any  further  attention  to  it.  That  was  on 

either  Section  20  or  21. 

Q.  Will  you  look  at  this  map,  Mr.  Adler,  and  then  tell  us  if  you 
can,  what  section  it  was  that  that  fence  was  on?  A.  (Looking  at 
the  map)  21,  that  is  right. 

Q.  Then  it  was  Section  21,  Township  35  North,  Eange  10  East 
of  the  Third  Principal  Meridian,  in  Will  County  in  Joliet  Township. 
Is  that  right?  A.  Yes,  sir.  That  fence  was  above  Brandon’s  ford. 
I think  it  was  about  10  or  15  rods  above  Brandon’s  bridge. 

1530  There  was  a fence  up  next  to  the  city  limits.  South  street 
of  Joliet.  I built  that,  it  might  be  in  1866  or  1867.  I know 

I bought  it  in  that  neighborhood,  and  when  I bought  it,  I fenced  it. 
That  fence  remained  there  as  long  as  the  other.  I built  both 

1531  of  those  fences  at  the  time  I bought  the  land.  If  I bought 
that  land  before  1865,  I fenced  it  before  that ; and  if  I bought 

it  after,  I fenced  it  after.  Sometimes,  when  I did  not  forget  it,  I 
would  go  and  take  these  fences  up  in  the  fall  of  the  year ; if  I forgot 
it  I would  put  them  up  in  the  spring,  but  took  them  down  in  the 
fall,  so  that  the  ice  would  not  carry  them  away.  I fenced  that  be- 


566 


cause  I leased  of  Sanger  that  land  on  the  other  side,  and  it  saved 
me  the  trouble  of  fencing  all  around  it. 

The  distance  between  the  upper  fence  and  the  lower  fence,  Idt-a- 
corner  across,  was  about  160  acres,  I should  judge.  I don’t  know 
of  any  other  fences  down  there  across  the  river  at  any  time.  I saw 
fences  above  Joliet.  I sold  some  cows  to  Sanger.  I went  there 
and  bought  some  in  pasture,  and  I saw  fences  across  the  river 

1532  there.  It  was  a little  above  the  state  prison,  two  miles,  or  a 
mile  and  a half  above  what  is  known  as  the  Sanger  property. 

T saw  these  fences  there  about  1865,  along  there.  I don’t  know  that 
I saw  them  after.  Yes,  I did.  I went  back  and  forth  across  the 
river  to  see  cattle,  and  I would  see  fences  there.  I cannot  recollect 
how  many  years. 

I don’t  know  of  any  fences  across  the  river  below  Joliet  except 
the  two  fences  I put  in  there  myself.  I know  of  fences  that  ran 
into  the  river  at  right  angles  to  the  river.  I built  fences  of 

1533  that  kind  myself,  on  my  own  land.  That  was  later ; I cannot 
tell  what  time  it  was.  I could  not  remember  the  years ; some 

time  after  I bought  the  land.  lYe  generally  built  them  extending 
into  the  water,  so  that  the  cattle  could  not  go  around.  Other 
farmers  and  land  owners  had  fences  of  that  kind.  I had  a piece  of 
land  below  there,  about  a mile,  and  I used  to  run  the  fence  in  quite 
a ways.  There  are  other  fences  run  in  the  river  there.  The  river 
is  deep  there. 

1531-  Cross-Examination. 

Those  fences  which  I built  across  the  river  were  built  many 
years  after  the  canal  was  in  operation.  I understand  the  Illinois 
and  Michigan  Canal  was  put  in  operation  about  1848.  Those  fences, 
l)uilt  down  into  the  river,  were  built  to  keep  the  cattle  from  getting 
out  where  the  water  was  too  deep  for  them  to  go  around.  I built 
the  fences  out.  Sometimes  the  water  was  four  or  five  feet  deep.  I 
built  them  so  that  the  cattle  would  not  wade  around. 

At  the  fords  I have  spoken  of  before  they  let  in  the  water  from 
Chicago,  in  the  summer  time,  the  riffles  sometimes  were  al- 
1535  most  dry,  and  then  where  the  water  was  standing  it  was 
deeper.  At  some  seasons  of  some  years  there  would  be  very 
little  water  running  over  the  riffles,  and  at  other  seasons  it  would 


567 


flood  the  whole  country.  Sometimes  they  forded  it  when  it  was 
three  feet  deep,  and  occasionally  even  deeper  than  that. 

I donh  think  there  was  a bridge  down  near  Brandon  ^s  Bridge 
where  it  is  now,  in  the  early  days.  The  bottom  of  the  river  was 
stone  and  hard,  so  that  you  could  haul  a load  across.  There 

1536  was  too  much  water  there  to  ford  in  flood  times,^ — there  was 
in  the  spring  of  the  year. 

The  water  in  the  river  when  there  was  freshets  would  run  off 
quick.  It  would  go  if  it  stopped  raining.  After  an  extremely  hard 
rain,  and  if  it  did  not  rain  for  a day  or  two,  it  would  go  in  two  or 
three  days.  There  were  enough  times  when  they  could  not  ford  the 
river,  so  that  they  built  the  bridge.  When  the  river  was  big,  it 
would  come  and  run  around  this  way  (indicating),  and  this  way 
(indicating).  The  rains  would  come  right  through  the  main  stream. 
It  ran  through  the  timber  half  a mile. 

1537  When  the  river  was  low  it  stayed  within  its  natural  banks, 
and  when  it  was  very  high,  it  went  out  over  the  bottom  lands. 

1538  There  was  not  any  bank  for  it  to  strike  when  it  went  out  of 
its  banks.  It  was  pretty  level  all  the  way  through.  There  is 

a little  bank  when  the  river  is  low,  but  not  much.  In  the  high 
water,  the  canal  bank  was  one  bank,  and  then  the  bluff  on  the  other 
side  was  another.  There  was  a bank  on  both  sides.  This  river 
is  pretty  flat,  and  when  the  water  is  high  it  don’t  lag  at  any 

1539  of  the  banks,  but  goes  through  the  brush  and  everything. 
After  it  went  on  southwest  across  the  bottoms  it  came  into 

the  lake,  and  then  there  was  a bank  on  each  side.  When  the  river 
was  high  and  ran  across  the  bottoms,  it  went  until  it  came  to  a 
bank  of  some  size  or  other,  and  then  it  turned  the  other  way 

1540  again  across  the  river.  That  is  true  of  all  rivers.  When  the 
river  ran  over  the  bottoms  that  did  not  cause  the  old  chan- 
nel to  be  emptied,  it  was  also  full. 

1541  In  the  old  channel  the  thing  to  hinder  a boat  from  going 
up  and  down  when  it  was  high  was  the  riffles  which  were 

so  strong  it  could  not  go  up.  I am  not  an  expert  on  what  a boat 
can  do  in  water,  more  than  to  run  a skiff.  You  could  row  across 
the  river  straight  on  one  side,  and  probably  go  down  to  about 
one-half  or  one-fourth  of  a mile.  You  could  not  go  up  it  when  it 


568 


Adler, — Cross-Exam— Continued. 


was  liigli.  I don’t  think  a sail  boat  could  have  gone  up  and  down. 
It  might,  hilt  I don’t  see  as  it  could. 

I have  seen  a steamboat  on  the  Mississippi  where  the  current 
was  very  rapid.  I have  seen  some  very  rapid  currents  on  the 
Mississippi.  Sometimes  the  boats  would  run  across  a log  or  brush, 
at  other  times  they  would  go  right  on  where  they  wanted  to.  This 
current  here  was  a little  stiffer  than  in  the  Mississippi,  I think,  a 
little  more  rapid.  I went  from  St.  Louis  to  Leavenworth.  I 
1543  think  it  was  on  the  Mississippi.  No,  it  was  on  the  Missouri. 

It  was  in  the  Missouri  that  I saw  the  rapids.  I don’t  know 
as  the  current  there  was  stronger  or  not  stronger.  I never  saw 
a boat  try  to  go  up  the  Desplaines  on  these  rapids.  In  these  times, 
of  this  great  current,  the  river  was  spread  out  probably  half  a 
mile  wide,  and  probably  it  was  five  or  six  feet  deep, — somewhere 
around  there,  on  the  riffles.  I don’t  know  as  it  was  more  than 
four.  I never  was  on  it  when  it  was  high  to  measure  it.  This 
water  that  I referred  to  being  pumped  into  the  Illinois  and  Michi- 
gan canal  was  the  water  pumped  in  at  the  Stock  Yards,  Chicago. 
It  ran  into  the  river  here  at  the  upper  basin, — that  is,  right 

1545  here  by  the  State’s  Prison.  Some  of  it  ran  in  at  Lockport. 

I think  it  is  according  to  how  heavy  the  trade  is,  how  deep 
water  is  necessary  for  commercial  traffic.  I think  if  you  have 

1546  8 or  10  feet,  it  would  run  a good  skiff  across  it.  I should 
think  that  the  water  ought  to  be  not  less  than  10  feet  in  the 

river  in  order  that  it  may  be  navigated  for  commercial  purposes. 
Probably  it  can  run  at  8 feet,  or  7 feet.  I am  not  positive  on 
that, — only  just  what  I see. 

I think  my  fences  built  across  the  river  were  15  or  20  rods 

1547  above  Brandon’s  Bridge;  that  is  the  lower  one,  the  one  fur- 
1550  ther  down  the  river.  (The  witness  was  here  shown  a map, 

previously  referred  to,  and  indicated  the  lines  of  his  land 
thereon.) 

Witness  (continuing)  : — Instead  of  its  being  10  or  15  rods,  I 
think  it  was  80  rods.  I see  now,  between  this  road  and  that  section 
line  is  Davidson’s.  I didn’t  own  the  land  shown  on  the  map  there, 
marked  ^‘Pioneer  Stone  Company’s  land”,  brft  the  fences  ran 
right  along  up  to  the  canal.  It  was  undoubtedly  in  Sction  21. 


5G9 


1551  Q.  Then  undoubtedly  it  (referring  to  the  land  fenced  hy 
witness)  was  in  Section  21.  A.  Yes,  if  I was  studying  on  it 

and  had  been  looking  at  it,  I could  tell  better  than  I could  at  ran- 
dom when  I don’t  know  anything  about  it. 

Q.  Do  you  know  as  a matter  of  fact  whether  it  was  in  Section 
20  or  21  f A.  Well,  it  was  in  Section  20. 

Counsel  fok  Defendant.  21. 

A.  21.  It  was  in  Section  21. 

Re-direct  E xa  m in  at  ion. 

1552  It  is  a fact  that  the  lower  fence  that  I built  on  my  land 
• was  in  Section  21. 

1553  Q.  After  I called  your  attention  to  the  fact  that  it  was 
Section  21  a few  minutes  ago,  you  looked  at  the  map  and 

said  yes,  it  was  Section  21. 

(Objection  by  counsel  for  complainant  on  the  ground  that 
the  question  was  telling  the  witness  what  to  say.) 

A.  Yes. 


1554  William  S.  Bukt, 

a witness  for  defendant,  testified  as  follows : 

D i rec t Examinatioi i . 

My  name  is  William  S.  Burt.  I live  at  No.  708  Prairie  Avenue, 
Joliet.  It  will  be  eight  years  in  March  since  I moved  in  here  this 
last  time.  I lived  21  miles  northwest  of  Lockport  before  I came 
to  Joliet.  That  was  in  Will  County.  I moved  there  in  1865.  I 
lived  there  continuously  from  1865  up  to  eight  years  ago;  about 
35  years.  Before  ’65  I lived  in  different  places  around  Lock- 

1555  port  and  Joliet.  I was  born  in  the  State  of  New  York  in 
1830.  I came  to  Chicago  the  1st  of  October,  1850,  and  came 

to  Will  County  the  next  day,  and  have  lived  here  continuously  since 
1850,  except  for  a few  months’  time. 

I farmed  quite  a little  bit  when  we  first  came  to  the  country.  I 
was  boatman  on  the  canal  for  five  years.  I was  living  in  town  up 
in  the  ’60s,  keeping  a saloon  here  in  Joliet.  When  I left  town  in 
’65,  I went  out  on  a farm.  Before  that  time  I had  a farm  for  three 


570 


Burt, — Direct  Exam. — Continued. 


or  four  years,  east  of  Lockport,  away  back  in  1858  or 

1556  ’59.  I managed  tlie  farm  all  the  years  I lived  there. 
Before  I came  here  in  1850,  I was  on  the  canal,  on 

the  Erie  Canal  in  the  State  of  New  York.  I was  employed  there 
about  eight  years.  My  duties  were  everything  from  driver  up.  On 
the  Illinois  & Michigan  Canal,  in  the  first  place  I was  on  the  packet 
boats  one  3^ear  and  a share  of  another  year.  After  that  I was 
running  a boat  from  Lockport  for  a Mr.  Martin  a couple  of  years, 
and  then  a boat  from  Lemont,  a steamboat.  I am  familiar 

1557  with  the  kind  of  boats  they  have  used  on  the  Illinois  & Michi- 
gan Canal.  The  boats  were  I think,  about  105  feet  long,  and 

they  must  have  been  about  15  to  18  feet  wide.  They  were  allowed 
to  load  them  down  to  3 feet  and  a half.  Of  course  they  could  load 
deeper  than  that,  but  that  was  as  deep  as  they  could  be  sought,  on 
account  of  the  depth  of  the  water  in  the  canal  in  places.  The 
water  in  the  canal,  I presume,  was  something  like  4 feet  deep. 

Counsel  foe  Complainant.  I want  to  object  to  each  and  every 
question  concerning  the  navigation  and  depth  of  water  in  the  Illi- 
nois & Michigan  Canal. 

Q.  Please  state  where  the  shallow  places  were  in  the  canal  be- 
tween Joliet  and  Chicago.  A.  There  .was  a place  a mile  or 

1558  such  a matter  from  Willow  Springs.  There  was  a little  creek 
in  there  of  shallow  water,  that  was  the  only  place  I knew 

between  here  and  Chicago. 

I have  been  familiar  with  the  Desplaines  Eiver  since  1850,  going 
fishing  sometimes,  something  of  that  kind,  I never  was  on  it  on  the 
boats,  rides  or  anything  of  that  kind. 

From  here  to  Lemont  the  Desplaines  River  runs  pretty  near  the 
canal.  Below  here,  after  you  get  below  Brandon  Bridge,  it  is  not 
so  close,  nor  above  Lemont.  I never  knew  that  below  Channahon 
the  canal  turned  in  near  the  river  and  run  along  close  by 

1559  the  river  up  a ways.  I never  noticed  it.  I was  on  the  Des- 
plaines River  fishing.  I don’t  know  the  first  time  I went 

fishing.  It  is  pretty  hard  to  tell.  I never  was  much  of  a fisher- 
man, just  go  occasionally.  But  I don’t  think  when  we  first  came 
to  the  river  I went  fishing  for  four  or  five  years.  AYlien  I first 
came  to  the  river,  it  was  customary  to  cross  the  river  at  Lock- 
]oort  Bridge,  a wooden  low  bridge,  and  at  Romeo,  I won’t  say 


571 


whether  there  was  any  bridge  or  not.  I did  not  cross  any  i^lace 
only  at  Lockport.  Below  Borneo  I jnst  walked  across.  There  was 
no  bridge  at  Borneo  near  1850.  There  was  no  bridge  till  you 

1560  get  to  Lockport.  I don’t  know  anything  about  how  the  farm- 
ers hauled  their  loads  across  the  river  below  Joliet.  In  1850 

there  was  a dam  at  Lockport  that  stretched  clear  across  the  river. 
It  was  known  as  Daggett’s  Mill.  There  was  a dam  here  at  Jackson 
street,  another  at  Jefferson  street,  another  one  down  here,  I guess 
they  call  it  Adam’s  dam.  There  were  three  dams  at  Joliet  that 
stretched  clear  across  the  river.  This  dam  I speak  of  as  the  Adam’s 
dam,  is  sometimes  referred  to  as  the  Haven’s  dam,  and  at 

1561  other  times  as  the  Malcolm  dam.  That  was  situated  some- 
where near  McDonough  street.  The  one  at  Jackson  street 

was  substantially  at  the  place  where  the  Economy  Light  & Power 
Company  dam  now  is,  known  as  Dam  No.  1.  I do  not  know  of 
any  other  dams  that  were  in  the  river  at  that  time.  I had  no  op- 
portunity to  observe  the  river  below  Joliet.  I don’t  know  anything 
about  the  dam  at  Treat’s  Island.  I never  was  at  Treat’s  Island 
but  once.  I didn’t  notice  any  dam  then.  I do  not  know  whether 
there  ever  was  a dam  at  the  place  called  Dresden  Heights. 

1562  These  three  dams  at  Joliet  were  so  constructed  that  boats 
could  not  go  out  through  them.  There  was  a lock  for  the 

canal  boats  on  the  side.  There  were  no  locks  in  the  dam  at  Lock- 
port. 

Q.  Now,  from  your  familiarity  with  the  river,  will  you  please 
state  what  was  the  normal  condition  of  the  river  with  respect  to 
depth  of  water  during  the  summer  season,  say  beginning  about 
the  first  of  May,  and  ending  about  the  first  of  October? 

Counsel  foe  Complainant.  I object  to  his  question,  because 
the  witness  has  not  qualified  himself  to  answer.  What  he  has 
given  of  his  knowledge  of  the  river  does  not  qualify  him  to  answer 
these  questions. 

A.  Why,  the  depth  of  the  river  in  some  places  varies  very  much. 
In  some  places  there  wasn’t  more  than  a foot  or  so  of  water. 

1563  Of  course  there  were  riffles  and  there  were  places  with  water 
2 or  3 feet  deep  in  deep  places;  very  many  places  where 

you  could  walk  right  across  by  step]hng  on  the  stones  without  get- 
ting your  shoes  in  the  water. 


572 


Bn rt, — Direct  Exa m . —Continii ed. 


Q Was  that  the  general  and  usual  condition  throughout  the 
entire  slimmer  season  of  every  year  ? I mean  by  usual  conditions, 
normal  conditions,  when  there  was  no  freshet  or  flood. 

(Objected  to  as  leading  and  suggestive.) 

A.  Yes,  sir. 

Q.  State  whether  or  not  there  were  a good  many  shallow  places 
in  the  river,  or  rapids  or  riffles. 

(Objected  to  as  leading  and  suggestive.) 

A.  Yes,  sir. 

Take  it  from  Lockport,  between  Lockport  and  Komeo,  there 
Avere  more  places  you  could  walk  across  the  river  than  there  was 
where  there  was  a depth  of  ivater,  so  you  could  not.  This  side  of 
Lockport,  there  seemed  to  be  a little  more  water.  Of  course  they 
got  some  water  from  the  canal  there  through  the  mill  race.  That 
was  after  1871.  Before  1871  I wasn’t  so  much  acquainted 

1564  with  the  river  beloiv  Lockport.  Some  of  these  rapids  would 
be  15  or  20  rods  long,  some  of  them  not  so  long.  Some  of 

them  would  be  only  just  in  small  places  a few  rods.  I crossed  oA'er 
the  river  at  this  point  a good  many  times. 

Q.  Was  it  possible  to  naAugate  boats  up  through  these  rapids 
or  river  without  getting  out  there  and  bringing  the  boats  with  you? 

(Objected  to.) 

A.  No,  sir. 

Q.  Was  it  possible  to  navigate  even  a low  boat  or  a skiff  up 
through  those  rapids  in  the  ordinary  and  normal  condition  during 
the  summer  season? 

(Objected  to.) 

A.  No,  sir. 

T never  knew  of  any  boat  or  boats  used  upon  the  Desplaines 
Liver  at  any  time  for  purposes  of  commerce;  that  is,  transporta- 
tion of  freight  or  passengers. 

1565  Q.  If  there  had  been  any  such  boat  or  boats  used,  Avould 
you  have  known  it? 

(Objected  to.) 

A.  It  seems  as  though  I would. 


Q.  Did  YOU  ever  know  or  liear  of  any  boat  or  l)oats  of  any  kind 
used  for  commercial  purposes,  l)eing  on  tlie  river  l)elow  Joliet? 

(Objected  to.) 

A.  No,  sir. 

It  was  customary  at  the  time  I first  came  to  this  country  for 
farmers  to  take  their  produce  to  the  Chicago  market  by  the  canal. 
I did  not  even  hear  or  know  of  any  farmers  in  Will  County  taking 
their  i)ro'duce  to  the  Chicago  market  by  way  of  boat  on  the  Des- 
plaines  Biver.  I never  heard  of  any  ‘merchandise  being 
f56()  brought  up  the  Desplaines  River  from  the  south  by  boat. 

The  packet  l)oats  that  plied  upon  the  canal  at  the  time  I was 
employed  there,  carried  mostly  passengers.  They  had  sleeping 
and  eating  accommodations.  They  used  the  regular  cabin  for 
dining  room  at  meal  times.  At  other  times  they  used  the  regular 
cabin  for  lounging  rooms.  The  boats  would  carry  better  than  100 
passengers.  These  passengers  were  going  to  LaSalle  to 

1567  take  the  steamers  from  there.  To  make  the  trip  from  Chi- 
cago to  LaSalle  by  way  of  the  canal  boat,  would  take  about 

24  hours  by  a passenger  boat  ; by  a freight  boat,  about  four  days. 
I have  known  in  late  years  of  fences  being  constructed  across  the 
Desplaines  River,  wire  fences,  something  of  that  kind.  I don’t 
remember  any  fences  across  the  river  in  1850.  I think  the  first 
fences  that  I could  ever  be  positive  about,  is  since  ’65.  I lived  not 
far  from  the  river,  and  I had  occasion  to  go  to  the  river  quite  a 
good  deal.  There  were  fences  across  the  river  then.  That  was  two 
miles  and  a half  northwest  of  Lockport.  There  were  two  fences 
right  here.  There  was  a lane  that  ran  down  from  the  main  road, 
and  we  used  to  have  to  put  our  cattle  there  to  water  a great 

1568  deal  in  the  summer,  because  we  had  no  water  in  the  summer. 
I know  there  was  a fence  each  side  of  that  lane  there  at  the 

river.  It  was  a wire  fence  that  stretched  clear  across  the  river. 

It  remained  there  for  33  years  that  I was  there,  except  when  the 
high  water  or  something  of  that  kind  would  carry  it  away.  The 
fence  was  rebuilt  from  time  to  time  during  that  period.  One  side 
of  the  fence  was  kept  up  by  a man  named  Whitman.  His  land  was 
on  the  north  side  of  this  lane,  and  I think  the  other  side  was  kept 
up  by  Fitzpatricks.  There  was  another  fence  about  a mile  above 


574 


the  Lockport  road,  running  between  Mr.  Allen’s  and  Fitzpat- 

1569  rick’s.  That  was  above  Lockport  about  half  a mile.  There 
was  just  one  fence  there.  I noticed  it  soon  after  ’65.  It  is 

there  yet  so  far  as  I know.  I saw  it  frequently  up  to  five  years  ago. 
I don’t  think  of  any  other  fences.  I think  I could  locate  the  number 
of  the  section  upon  which  the  first  two  fences  were  con- 

1570  structed  by  looking  at  the  map. 

Mr.  Munkoe.  V/hat  township  is  it  in? 

Counsel  foe  Complainant.  I object  first  to  the  question,  be- 
cause there  is  no  proof  that  the  map  is  in  any  sense  correct,  and 
second  I object  to  counsel  or  to  Munroe  furnishing  the  map  and 
the  page  with  the  section  indicated  to  the  witness. 

Mr.  Munroe.  What  township  is  it  in  ? 

A.  I think  36  Lockport. 

(AVhereupon  the  witness  examined  the  map.) 

Mr.  Munroe.  Here  is  Romeo 'up  here. 

A.  I think  here  is  one  fence  I speak  of  between  Allen’s  and 
Fitzpatrick’s;  I think  the  other  fence  is  here,^  but  iHwas  not  up 
there  next  to  Alexanders’.  It  seemed  as  though  it  must  have  been 
here  some  place  in  Section  15  according  to  that.  It  must  have  been 
Section  15,  Township  36.  It  must  have  been  on  the  section 

1571  line.  My  place  is  on  the  north  section  line  of  Section  15. 
The  other  fence  was  two  rods  below  it.  The  third  fence  was 

between  Sections  15  and  22. 

Cross-Examination. 

1572  One  of  the  fences  would  be  on  the  north  side  of  Section  15; 
another  one  was  about  2 rods  south  of  that  in  Section  15,  and 

tlie  third  would  be  on  the  south  side  of  Section  15,  between  it  and 
the  section  line  south  of  it,  which  would  be  22.  There  were 

1573  two  strands  of  wure.  I have  not  been  on  the  river  so  very 
much.  For  the  first  five  years  I did  not  go  fishing  at  all,  and 

have  gone  very  few  times  after  that.  I used  to  have  to  drive  my 
stock  to  the  river  to  water  ])i*etty  much  when  I was  on  the  farm  in 
the  Slimmer  time.  That  constitutes  the  fishing  that  I was  speaking 
of,  and  crossing  the  river  and  driving  my  cattle  to  the  river  con- 
stitutes tlie  sum  and  total  of  my  time  on  the  river.  The  power  of 


575 


the  packets  that  run  on  the  canal  was  motive  power.  The  packets 
go  about  5 miles  an  hour.  The  horses  went  a slow  trot.  While  I 
think  there  was  a limit  of  speed;  that  is,  they  could  not  run  so 
fast  as  to  throw  the  water  over  the  banks  to  endanger  them.  From 
Lockport  to  Borneo,  it  is  3 miles,  to  Lemont,  8 miles.  I said  I was 
able  to  cross  the  river  there  stepping  from  stone  to  stone.  T 

1575  refer  to  the  low  water  times.  There  were  times  when  the 
water  wouldn’t  be  6 inches  deep.  That  would  be  quite  a dry 

time.  In  ordinary  stages  of  water,  it  would  be  a foot  or  a foot  and 
a half,  and  those  were  the  shallow  places  in  the  river,  and  in  high 
water  it  would  go  up  to  5 or  6 feet. 

In  high  water  between  Borneo  and  Lemont,  the  river  would  be  a 
mile  wide  nearly;  3/4  of  a mile  anyway  sometimes.  It  might  be 
4 or  5 feet  deep  or  6 in  the  channel.  The  channel  between  Lemont 
and  Borneo  would  be  30  or  40  feet  wide.  I have  a good  idea 

1576  of  what  30  or  40  feet  would  be.  Of  course  where  those  places 
were,  there  likely  would  be  islands.  The  channel  was  di- 
vided; part  of  it  was  on  one  side  and  part  of  it  on  the  other. 
There  were  mostly  flat  stones  in  the  river,  a kind  of  limestone. 
They  varied  in  size,  sometimes  as  much  as  a man  would  want  to 
lift.  Sometimes  they  wouldn’t  l)e  any  bigger  than  your  hand. 
You  could  pass  sometimes  over  the  stones  without  getting  your 
feet  wet  at  all. 

1 5 7 7 David  L ayto n , 

a witness  for  defendant,  testified  as  follows : 

Direct  Examination. 

I live  in  West  Linden  avenue  112,  in  Joliet,  Illinois.  I have  lived 
in  the  city  proper  for  twenty-five  years.  Before  that  I lived  u]) 
here  in  the  Town  of  New  Lenox.  That  is  the  last  place  I lived  on 
farms,  but  I was  raised  out  here  about  two  miles  from  town.  I 
was  not  born  in  Will  County.  I was  nine  years  old  when  1 
came  to  lYill  County.  I was  born  in  1828.  When  I first  came  to 
Will  County,  I lived  out  here  about  two  miles  southeast  of 

1578  Joliet  on  a farm.  My  father  managed  the  farm;  we  did  not 
live  there  many  years.  My  father  did  not  own  any  land  at 

that  time,  and  we  lived  right  round  in  the  neighborhood.  After 
that  we  lived  on  Deacon  Scott’s  farm  near  Joliet  about  3 miles: 
lived  there  2 years. 


576  Layton, — Direct  Exam. — Continued. 

After  that  we  lived  down  here  at  Joliet  Mounds  in  Will  County. 
I have  not  lived  in  Will  County  continuously  since  I first  came 

1579  here.  I was  gone  about  10  years — from  1869  to  1880,  when 
I moved  to  western  Missouri.  AVith  that  exception  I have 

lived  here  continuously. 

Part  of  the  time  I kept  a grocery  store  in  Joliet.  Well,  I ought 
to  be  familiar  with  the  Desplaines  Eiver.  I have  travelledi  up  and 
down  it  a good  deal  fishing  and  so  on.  Between  ’37  and  ’48  I was 
familiar  with  it.  During  those  years  I frequently  was  fishing  in  it, 
half  a dozen  times  or  so  from  the  head  of  Lake  Joliet  up  as  far 
as  Joliet.  Sometimes  I was  up  as  far  as  Komeo.  In  1837  I 

1580  think  there  was  a dam  at  the  Haven  saw  mill.  That  was  just 
below  the  Eock  Island  bridge.  The  Haven  mill  was  between 

McDonough  street  bridge  and  the  Eock  Island  bridge.  That  dam 
was  sometimes  known  as  the  Malcolm  dam,  and  sometimes  the 
Adams  dam.  There  was  no  way  in  which  boats  could  go  up  and 
down  from  that  dam.  I cannot  tell  you  when  I first  saw  it,  prob- 
ably 1840,  the  first  that  I remember  seeing  it.  There  was  a dam 
at  the  Jefferson  street  bridge  here  in  Joliet.  In  ’48  I think  the 
Canal  Commissioners  built  the  dam.  McKay  had  a small  dam 
there;  that  is,  in  ^37,  there  was  a small  dam  called  the  Mc- 

1581  Kay  dam,  near  the  place  which  is  now  known  as  the  Jefferson 
street  dom.  That  dam  which  was  built  by  the  Canal  Com- 
missioners is  the  dam  known  as  Dam  No.  2,  and  is  not  in  existence 
now.  There  is  no  dam  there.  This  street  dam  was  built  to  make  a 

basin,  so  that  boats  could  come  from  the  canal  down  there 

1582  along  the  warehouse.  The  McKay  dam  was  taken  out  of  the 
river  about  1842  or  ’43.  Then  afterwards  the  state  built  a 

dam  near  the  same  site  across  the  river.  I cannot  tell  the  year 
that  was  taken  out.  It  was  vdien  the  Drainage  Canal  started  oper- 
ations. 

I cannot  think  of  any  other  dam  in  the  river  at  the  time  I 
first  came  to  Joliet.  The  dam  at  Hyde’s  mill  was  built  after- 
L583  wards,  I think.  That  is  just  about  above  the  Jackson  street 
bridge,  about  the  place  where  the  dam  of  the  Economy  Light 
& Power  Company  now  is.  I don’t  remember  the  dam  known  as 
the  Norman  dam  at  Lockport.  I know  there  was  a dam,  but  I can- 
not say  what  kind  it  was  there.  There  was  an  old  mill  just  west  of 


Lockport,  but  they  had  a temporary  dam.  It  was  not  across  the 
river  either  really.  I was  familiar  with  the  river  below  Joliet.  I 
think  there  was  a dam  at  Treat’s  Island.  There  was  not  a mill 
there  while  I knew  it.  I know  that  the  dam  was  there,  but  the  mill 
was  gone. 

There  was  a dam  this  way  down  we  used  to  call  the  Aqueduct, 
there  was  a dam  there  that  was  close  to  Dresden  Heights. 

1584  That  is  sometimes  referred  to  as  Beardstown.  I saw  that 
dam  when  I first  came  here.  There  was  not  a mill  there  at 

the  time  I was  there.  The  mill  had  gone.  It  was  not  possible 
when  I saw  the  dam  for  boats  to  go  up  through  it  and  go  down  the 
river  to  it. 

I know  there  were  rapids  or  riffles  in  the  river.  I cannot  tell 
where  all  of  them  were  exactly  now.  There  was  one  below 

1585  where  they  built  the  tinplate  mill  at  the  mouth  of  Hickory 
Creek.  I walked  across  that  many  times.  That  is  near  the 

south  limits  of  Joliet.  I could  not  tell  you  the  extent  of  those 
rapids  in  length.  I have  carried  a boat  round  them  several  times, 
but  I don’t  know  the  distance. 

Q.  Was  it  impossible  to  get  the  skiff  through  them!  A.  Not 
any  time  it  wasn’t. 

There  was  another  rapid  at  Brandon’s  bridge  at  the  head  of 
Lake  Joliet.  The  extent  of  these  rapids  in  length  was,  I suppose, 
20  rods. 

Q.  Was  it  possible  in  ordinary  seasons  to  navigate  a boat  over 
those  rapids!  A.  Oh,  no. 

Q.  What  other  rapids  do  you  recollect  being  in  the  river!  A. 
Well,  I cannot  tell  you  exactly  how  many;  there  were  several. 

Q.  Do  you  remember  of  observing  the  rapids  at  Treat’s  Island! 
A.  Yes,  sir. 

1586  I have  had  occasion  to  cross  there.  It  was  not  possible 
to  navigate  a boat  over  those  rapids.  That  was  15  to  20 

rods  long.  I don’t  know  the  extent  of  the  rapids  at  Smith’s  bridge. 
I remember  observing  the  rapids  down  at  Beardstown.  I don’t 
know  how  long  they  were,  but  I know  they  were  very  rapid.  They 
ran  pretty  rapid  across  there  when  the  water  was  up.  It  was  not 
possible  to  navigate  a boat  over  those  rapids,  either  up  or  down. 


578  Layton, — Direct  Exam. — Continued. 

I remember  that  there  were  rapids  above  Joliet,  but  I cannot  locate 
them  just  now  just  where  they  were,  because  I fished  there  years 
ago  clear  up  as  far  as  Eomeo  in  the  deep  places.  I had 

1587  occasion  in  my  boyhood  days  to  cross  the  river  a great  many 
times.  The  customary  crossing  was  down  below  the  mouth 

of  the  Hickory  Creek,  and  another  one  down  at  what  we  call  Bran- 
don’s bridge.  There  was  regular  wagon  roads  crossing  the  stream 
at  this  point.  I don’t  remember  that  there  was  any  wagon  road 
right  in  the  City  of  Joliet  crossing  the  stream. 

Q.  Don’t  you  remember  that  there  was  a ford  in  the  City  of 
Joliet! 

(Objected  to  as  leading  and  suggestive.) 

A.  I don’t.  There  wasn’t  much  sediment  up  there  in  them 
days. 

1588  In  the  flood  seasons  there  was  considerable  water  in  the 
Desplaines  Eiver.  As  to  the  normal  condition  of  the  river 

with  respect  to  depth  of  water  during  the  entire  summer  season, 
beginning  with  May  1st  and  ending  we  will  say,  October  1st,  except- 
ing as  I say  the  pool  places,  there  was  sometimes  considerable 
water,  but  in  these  riffles  and  shallow  places,  there  wasn’t  any 
Avater  at  all  hardly,  just  very  little,  excepting  when  there  were 
freshets.  These  freshets  would  last  2 or  3 days,  but  the  water 
would  soon  run  down,  because  it  was  very  rapid.  It  was  not  pos- 
sible to  navigate  a row  boat  up  and  down  the  rHer  over  those 
various  rapids  and  riffles  during  the  ordinary  and  normal  state  of 
the  water  at  any  time,  excepting  when  there  were  freshets.  It  was 
not  possible  because  the  water  ran  so  rapid. 

1589  There  were  a good  many  rocks  and  boulders  in  the  river 
at  the  point  where  these  rapids  were.  As  I say,  I have  walked 

across  and  not  wet  my  feet  at  those  places  just  below  the  mouth  of 
Hickory  Creek  in  summer  time.  Sometimes  there  was  not  over 
two  inches  of  water  in  some  of  these  rapids,  and  sometimes  it 
would  be  more.  It  did  not  range  much  deeper  than  that. 

I have  never  seen  any  boats  carrying  freight  or  passengers,  or 
used  for  commercial  purposes  navigating  up  and  down  the 

1590  Desplaines  EiA^er,  at  any  place,  at  any  time.  I never  heard 
of  any  being  navigated.  I never  heard  of  any  merchandise 


579 


or  produce  being  transported  up  from  the  Illinois  lliver.  They 
used  to  haul  merchandise  by  team  from  Ottawa  to  Joliet.  It  could 
not  come  up  any  further  than  Ottawa  before  the  canal,  and 

1591  we  used  to  go  down  there  and  bring  it  up  by  teams.  Mer- 
chandise and  produce  between  Chicago  and  Joliet  was 

brought  always  by  team.  I hauled  wheat  up  to  Chicago  when  I 
was  fifteen  years  old,  in  1843.  I hauled  grain  three  or  four  times 
after  that.  I never  brought  back  anytliing. 

Between  1837  and  1848,  it  was  customary  for  farmers  in  this 
vicinty  to  get  their  grain  or  produce  to  the  Chicago  market  by 
team.  The  road  was  not  very  good, — in  same  places,  that 

1592  is  sure.  It  was  swampy.  My  father  came  to  Joliet  in  1837 
by  team  from  Indiana. 

I saw  at  one  time  there  was  a wire  fence  across  the  Besplaines 
River  below  the  mouth  of  Hickory  Creek.  That  Avas  about  1852, 
or  1853;  I could  not  tell  exactly  the  date.  I saw  it  there 

1593  one  summer, — that  is  all.  I was  fishing  down  there.  I don’t 
know  how  long  it  stayed  there.  I never  saw  any  other  fences 

across  the  river.  When  I went  fishing,  we  put  in  our  boat  at 
the  head  of  Lake  Joliet  generally,  and  we  did  not  use  the  boat 
without  it  was  to  spear  in  the  night.  We  kept  the  boat  at  home. 
We  hauled  the  boat  by  team  and  put  it  in  the  stream  at  the  near- 
est point  to  our  home.  When  we  came  to  the  rapids  or  riffles 
we  carted  it  around.  We  usually  fished  near  here  from  the  head 
of  the  lake.  In  fishing  from  the  head  of  Lake  Joliet  to  the  City 
of  Joliet  we  would  have  to  carry  our  boat  around  the  rapids 
three  or  four  times. 

1594  In  some  places  there  might  be  water,  but  it  would  be  so 
swift  that  we  could  not  row  it  up.  In  other  places  there 

would  not  be  water  enough.  We  usually  fished  about  the  middle 
of  May.  The  water  then  would  be  a little  higher  than  it  would 
be  in  the  later  summer  months. 

Q.  So,  as  I understand  you,  the  only  place  where  you  could 
navigate  your  boat  properly  was  in  the  pools  or  ponds  that  oc- 
curred from  place  to  place  in  the  river.  A.  Yes,  sir. 

I remember  when  the  Kankakee  Feeder  was  being  con- 

1595  structed,  but  I had  not  been  down  there  yet  at  the  time  it 
was  done.  My  home  where  I live,  just  south  of  Joliet  was 


580 


about  a mile.  We  lived  less  than  that,  but  the  last  place  we  lived 
before  my  father  died  was  mayhe  one  and  a half  miles. 

C ross-Examination. 

The  roads  from  Joliet  to  Chicago  were  common  prairie  dirt 
roads,  and  in  that  early  day  people  had  not  worked  them  much, 
so  that  it  was  just  a road  or  path,  or  trail  across  the  prairie;  and 
in  the  condition  that  the  prairie  roads  in  this  region  were  at 
that  time, — sometimes  good,  sometimes  bad. 

1596  We  never  teamed  any  in  the  muddy  times, — in  the  spring 
time.  In  the  summer  times  the  roads  were  pretty  good.  At 

the  place  where  I spoke  of  crossing  the  river  by  stepping  from 
stone  to  stone,  the  water  might  have  been  three  or  four  inches, — 
maybe  more.  It  would  just  run  between  the  stones.  It  was  not 
a foot.  Wlien  I did  that,  I can  not  recall  the  years;  it  was  be- 
fore 1848. 

1597  The  fences  that  I spoke  of  was  in  1852  or  1853,  after  the 
canal  was  built  and  in  operation.  We  crossed  that  place 

below  Hickory  Creek,  where  the  water  was  three  or  four  inches 
deep  from  spring  to  fall.  We  lived  below  there.  That  was 
our  regular  road.  The  teams  went  there  in  the  summer 

1598  months.  I don’t  remember  the  condition  in  1876.  I was 
not  here  at  that  time.  When  the  river  was  at  high  flood,  it 

spread  over  considerable  land  down  here.  I could  not  tell  you 
how  wide  it  would  be, — probably  80  rods,  that  would  be  one-fourth 
of  a mile.  I could  not  tell  you  how  deep  it  was,  because  I never 
measured  it.  It  might  be-  four  or  five  feet.  I did  not  measure 
it  at  high  time,  or  low. 

1599  The  ford  at  Hickory  Creek  was  a mile  below  the  dam, — a 
mile  down  the  river.  There  were  no  dams,  except  what  you 
call  Malcom  and  Haven  Dams. 

1600  Q.  You  said  in  your  direct  examination,  did  you  not,  and 
it  is  true  also,  is  it  not,  that  sometimes  in  places  where  you 

took  your  boat  out  and  carried  it  around  the  rapids  was  because 
the  current  was  so  strong  that  you  could  not  handle  the  boat  in 
it?  A.  I said  they  could  not  handle  the  boat. 

Q.  In  the  current.  A.  When  the  water  was  high.  If  the 


581 


boulders  had  been  out  of  the  way  in  the  shallow  places,  you  could 
not  have  taken  your  boat  up  in  dry  times.  At  such  times  the 
river  might  have  been  10  rods,  or  15  rods  wide.  I could  not 
tell  you  exactly,  because  I never  measured  it. 

1601  I don’t  know  for  certain  whether  the  fence  I spoke  about 
went  clear  across  the  river  or  not.  I suppose  it  was  put  in 

to  turn  stock  in  it.  It  was  the  only  fence  I remember  about. 

John  P.  King, 

1602  a witness  for  defendant,  testified  as  follows: 

Direct  Examination. 

I have  lived  in  Joliet;  I have  lived  here  41  or  42  years.  I 
have  lived  in  Will  County  about  73  years,  with  the  exception  of 
12  years,  when  I was  in  California.  I came  here  in  1834.  I was 
born  in  1832.  My  parents  came  to  Will  County  by  means  of  a 
wagon  and  oxen  from  Indiana. 

1603  Up  to  the  time  I was  about  23  years  old  I was  on  a farm, 
farming,  and  after  that  I went  to  California  and  stayed 

twelve  years,  and  when  I came  back,  I went  into  the  lumber  busi- 
ness, and  have  been  in  the  lumber  business  ever  since,  in  and 
about  the  City  of  Joliet.  I was  16  years  old  in  1848. 

The  method  before  1848  of  transporting  grain  and  produce  and 
merchandise  between  Chicago  and  Joliet  was  by  team  only,  till 
after  they  got  the  canal  going.  I didn’t  know  or  hear  of  any 
grain  being  transported  between  Chicago  and  Joliet  by  boat  on 
the  Desplaines  Eiver.  Before  1848  I didn’t  know  or  hear  of 
any  freight  or  merchandise  being  transported  up  and  down  the 
Desplaines  River  below  Joliet  by  boat  on  the  river.  In  the  days 
before  1848  there  was  a good  deal  of  merchandise  brought 

1604  up  to  LaSalle  on  the  boat  and  from  there  hauled  by  teams. 
I never  knew  of  any  boat  being  navigated  on  the  Illinois 

River  up  and  down  for  commercial  purposes  before  1848  or  after. 
I never  heard  of  any  such  boat  being  operated  or  navigated  on 
the  Desplaines  River  at  any  time.  I am  familiar  with  the  river. 
I had  occasion  to  go  on  it  and  across  it  before  1848.  The  method 
before  1848,  of  crossing  the  river  with  teams,  hauling  loads  was 
to  cross  the  riffles.  There  was  regular  wagon  roads  crossing  the 
river  in  those  days.  There  was  one  down  here  at  Brandon’s 


582 


King, — Direct  Exam . — Continued. 


bridge.  There  was  one  at  Treat’s  Island.  They  crossed  the  island 
and  forded  the  two  streams.  Part  of  the  river  goes  down  on 
one  side  and  part  on  the  other.  There  was  a road  across  both 
of  those  channels.  The  farmers  and  everybody  else  who  wanted 
to  go  across  the  river  had  to  go  that  way.  There  was  no  other 
way.  They  crossed  there  at  any  time  of  the  year  except  in  high 
water.  There  was  no  other  ford  at  Smith’s  bridge.  There 
1606  is  a regular  wagon  road  across  there.  I don’t  remember 
any  other  fords  except  here  in  Joliet  before  they  got  bridges. 
For  a short  time  they  forded  the  river  in  Joliet,  bnt  it  was  not 
a very  good  ford.  They  built  a regular  log  bridge, — a cheap  con- 
cern. There  was  a ford  at  Lockport  that  was  commonly  used  by 
the  farmers  in  hauling  loads. 

I was  on  the  Desplaines  Kiver  in  a boat  down  in  Lake  Joliet. 

I have  been  along  the  Desplaines  Elver  above  and  below  Joliet, 
but  not  in  a boat.  When  the  water  was  high  on  the  river,  it  was 
generally  too  swift  and  dangerous  for  a boat,  and  if  it  was  not, 
it  was  too  low, — ^you  could  not  get  along.  There  were  a few 
boats  used  on  the  river  before  1848  for  fishing  and  canoeing. 

Q.  You  are  familiar,  are  you  Mr.  King,  with  the  river,  gen- 
erally speaking,  from  Lockport  down  to  its  mouth.  A.  Well, 
yes.  I have  been  along  it  all  the  ways  pretty  much.  During  the 
summer  seasons  it  was  sometimes  pretty  low,  and  on  the  riffles 
if  you  would  pick  your  steps  you  could  cross  on  the  stones. 

1608  You  could  almost  cross  most  of  the  time,  and  sometimes 
you  could  cross  it  dry-footed.  The  first  of  the  rapids  was 

this  side  of  Brandon’s  bridge,  below  the  Jetferson  street  bridge. 

The  rapids  don’t  start  much  until  after  you  get  pretty  near 
out  of  the  city  limits  of  Joliet.  I would  not  undertake  to  say 
exactly  how  long  the  rapids  are  at  Treat’s  Island,  but  I think 
they  are  a mile.  The  river  down  near  the  mouth  is  pretty  rapid, 

• — that  is  near  Beardstown,  or  what  is  known  as  Dresden 
Heights.  Those  rapids  must  run  up  one-half  mile.  There  is 
a good  swift  fall  from  the  head  of  Treat’s  Island 

1609  down  to  the  mouth.  I could  not  tell  you  how  swiff  the  cur- 
rent is  there, — is  pretty  swift.  A skiff  could  not  be  navi-  • 

gated  below  Treat’s  Island.  I have  seen  the  river  at  flood  stages 
when  it  would  be  very  dangerous  to  cross  it.  It  would  not  have 


583 


been  possible  in  flood  time  to  navigate  a skiff  or  row  boat  in  that 
part  of  the  river  above  Lake  Joliet,  near  and  above  Adams 
Dam.  I saw  that  part  of  the  river  frequently  before  and  after 
1848.  A skiff  or  row  boat  could  not  be  navigated  up  that  part 
of  the  river  during  flood  season,  because  the  water  is 

1610  too  swift.  If  you  wanted  to  take  the  chance  of  getting 
drowned,  you  could  navigate  a skiff  down  the  river  between 

those  points  during  flood  season;  I would  not  want  to  do  it. 

I was  not  so  familiar  with  the  river  up  above  Joliet.  Still,  it 
had  a good  current  in  there  when  there  was  high  water.  I have 
seen  the  river  when  it  was  not  possible  to  navigate  a skiff;  you 
would  get  out  and  pull  it  along  between  the  rocks. 

Q.  Well,  I am  taking  the  river  at  its  usual  stage,  Mr.  King, 
when  there  was  no  freshet  on.  Would  it  be  possible  at  any  time 
during  the  summer  season  to  have  navigated  a boat?  A.  You 
mean  all  the  time,  when  there  was  no  freshet  on? 

Q.  Yes.  A.  Well,  they  might  possibly  go  down  some  of  the 
time,  but  not  all  the  time. 

1611  You  might  possibly  float  it  down  most  of  the  time,  but 
you  could  not  get  up  very  well.  It  was  not  possible  during 

any  time  of  the  summer  season  to  navigate  a boat  up  and  down 
the  river  for  commercial  purposes. 

I heard  them  say  there  was  a dam  at  BeardstoTTu.  I don’t 
remember  personally. 

Before  the  canal  was  in  operation  in  1848,  there  was  a dam 
here  at  Joliet.  There  was  one  at  Malcolm’s  mill.  The  Havens 
put  in  a dam  there,  they  had  a sawmill.  That  is  called  the  Mal- 
colm Dam,  sometimes  the  Haven  Dam  and  sometimes  the  Adams 
Dam.  Before  1848  there  was  a dam  right  here  on  the  north  side 
of  Jefferson  street.  That  was  known  as  the  McKee  Dam.  There 
was  a dam  where  Jackson  street  now  is  in  Joliet.  I don’t  know 
whether  that  was  prior  to  1848,  or  not.  I don’t  remember  the 
existence  of  any  dam  in  Joliet  prior  to  1848.  I think  there  was 
a grist  mill,  below  Lockport  they  had  a dam  there. 

I have  seen  fences  in  the  river  to  let  the  stock  drink.  I think 
right  below  town  there  is  a fence  across  the  river  between  here 
and  Brandon’s  bridge.  The  fence  was  clear  across  the  river. 


584 


That  was  when  I was  a boy.  I don’t  know  how  long  it  stayed 
there.  I saw  it  often.  It  might  have  been  there  a good 

1614  many  years.  I am  not  positive  of  that.  The  other  fences 
that  I remember  were  fences  which  the  farmers  built  down 

into  the  river  for  a short  distance,  so  as  to  prevent  their  cattle 
from  wading  around. 

If  the  river  had  ever  been  navigated  by  boats  for  commercial 
purposes,  I think  I would  have  known  of  it.  There  is  no  navi- 
gation in  the  river  now  for  commercial  purposes. 

Before  1848  I did  have  occasion  to  go  to  Chicago  with  grain. 
I hauled  it  by  team.  I never  was  up  there  very  much  myself.  I 
might  when  I was  just  big  enough  to  drive  an  extra  team  with  a 
load,  when  my  father  would  go.  He  used  to  haul  his  grain 

1615  there  and  get  supplies  from  there.  The  other  farmers  in 
Will  County  got  their  grain  there  the  same  way.  That  was 

the  principal  market  for  farmers  in  this  vicinity.  I did  not  ever 
hear  of  any  grain  being  taken  up  to  Chicago  on  the  Desplaines 
Elver  before  1848.  There  was  a stage  line  running  which  brought 
passengers  from  Chicago  to  Joliet.  They  had  a station  here  and 
it  ran  down  as  far  as  Peru  or  LaSalle.  It  ran  only  about  three 
times  a week.  The  name  of  that  stage  line  was  Frink  and  Walker. 
I didn’t  ever  hear  of  anybody  coming  down  from  Chicago 

1616  to  Joliet,  and  down  the  river  from  Joliet  by  boat.  I don’t 
think  anybody  teamed  it  back  and  forth  regularly  carrying 

produce  and  merchandise  for  the  farmers. 

Cross-Examination. 

When  I spoke  of  crossing  the  river  from  May  to  October,  I 
meant  from  the  first  of  April  up  until  the  fall.  The  spring’ 

1617  floods  come  in  always  along  the  last  of  March.  The  river 
would  be  at  its  lowest  stage  in  May,  June,  July,  Au- 
gust, September  and  October.  The  river  is  not  generally  pretty 

high  in  May.  I have  seen  it  in  high  water  when  you  could 

1618  not  cross  the  river  or  ford  it.  It  would  be  just  as  true  to 
say  that  you  can  ford  the  river  in  low  water,  as  to  say  you 

cannot  ford  it  in  high  water.  If  it  was  too  high,  you  could  not 
ford  the  river.  They  used  to  ford  the  river  when  there  were  two, 
three  or  even  three  and  a half  feet  of  water  at  the  fords. 


585 


In  order  for  a river  to  be  navigated  for  commercial  purposes 
carrying  freight  and  things,  the  water  necessary  would  depend 
upon  how  heavy  freighting  you  wanted  to  he  done.  If  it  was 
light  you  would  not  require  much  water. 

To  conduct  a commercial  traffic  on  the  river  with  boats,  in 
order  to  make  it  profitable  you  ought  to  have  a depth  of  three  or 
four  feet  of  water. 

Q.  And  when  you  have  spoken  about  it  not  being  possible 
to  have  commercial  navigation  on  this  river  for  want  of 

1619  water  you  meant  because  there  were  not  at  least  three  or 
four  feet  of  water  in  the  river!  A.  If  it  was  rapids  it 

would  need  a great  deal  more  than  three  or  four  feet,  and 
then  it  would  not  make  navigation. 

Q.  It  would  depend  upon  the  character  of  the  rapids!  A. 
Yes,  sir. 

Q.  The  other  things  that  you  had  in  mind  were  those  rapids, 
and  some  boulders  and  stones  in  the  river,  was  it  not;  the  other 
things  you  meant  would  interfere  with  commercial  traffic!  A. 
Yes,  sir. 

Re-direct  Examination. 

When  I could  cross  the  river  at  the  riffles  or  rapids  without 
getting  my  feet  very  wet  was  perhaps  two  or  three  months  in 
the  driest  part  of  the  season. 

1620  Probably  five  or  six  months  of  the  year  the  river  would  be 
at  such  a stage  of  water  that  it  would  be  impossible  to  navi- 
gate row  boats  up  and  down  over  the  riffles  without  dragging  the 
boats. 

Re-cross  Examination. 

That  five  or  six  months  includes  the  time  when  there  was  not 
* enough  water  on  the  one  hand ; and  then  when  there  was  too  much, 
and  the  current  too  great.  During  five  or  six  months  of  the  year 
the  water  was  not  sufficient  for  that  kind  of  navigafion.  The 
other  six  months  would  include  the  winter  when  the  water 

1621  would  be  very  low  too.  There  would  not  be  more  than  two 
or  three  months  in  the  whole  year  when  they  could  get  over 

the  rapids,  and  then  they  would  have  to  take  'chances.  What  I 


586 


mean — the  water  would  be  Ioav  at  least  nine  months  out  of  the 
year.  Ordinarily  the  water  over  the  rapids  on  those  low  places 
would  be  a foot  or  a foot  and  a half  deep;  and  in  some  places 
three  or  four  inches. 

1622  Adam  Comstock, 

a witness  for  defendant,  testified  as  follows: 

Di rect  Examination. 

My  full  name  is  Adam  Comstock.  I reside  in  Joliet.  My  par- 
ents came  here  in  1836.  In  1837  they  moved  out  onto  a farm  about 
five  miles  out,  bordering  on  Lake  Joliet.  In  1841  they  came  back 
to  Joliet  and  that  has  been  my  home  since.  I was  horn  in  1827. 
My  business  has  been  surveying  and  railroad  engineering;  have 
been  in  that  business  since  about  1851.  I commenced  on  the  sur- 
vey of  the  Eock  Island  Eoad  here.  Afterwards  I have  been  county 
surveyor  and  city  engineer  and  city  surveyor,  and  have  been  en- 
gaged on  railroads  in  Wisconsin,  Illinois,  Kentucky,  Mississippi, 
Arkansas,  Missouri,  Kansas  and  Colorado.  MJien  my  par- 

1623  ents  first  came  to  Joliet  they  came  from  Detroit  with  a team. 
I remember  the  days  before  1848  there  was  a dam  here  we 

called  the  McKee  dam.  I recollect  our  fording  the  river  just  a 
little  ways  below  the  dam.  From  1841  to  1848  I was  very  familiar 
with  the  Desplaines,  used  to  go  hunting  down  along  the  river  and 
wade  across  it  at  different  places.  From  here  down  to  its  mouth 
I was  familiar  with  it,  not  so  much  above  Joliet.  Before  1848  I 
was  not  in  business,  only  hunting  took  me  along  the  river.  I do 
not  recollect  going  on  the  river  in  a boat  prior  to  1848,  hunting  or 
fishing.  As  to  the  depth  of  the  water  in  the  river  between 

1624  ’41  and  ’48,  I could  wade  across  it  without  going  over  my 
boots.  That  would  be  in  the  latter  part  of  the  season,  from 

the  time  ducks  came  along  in  September  up  to  the  time  the  river 
froze.  May  first  the  river  would  be  high  probably,  the  spring- 
freshet.  It  would  last  a long  time,  June,  may  be,  that  the  water 
would  be  rather  above  the  normal.  Then  from  June  to  Novem- 
ber the  usual  normal  condition  with  respect  to  the  depth  of  water 
was  about  as  I said.  The  water  might  be  a little  deeper  along  in  the 
first  part  of  the  summer,  would  not  get  its  lowest  maybe  till  along 
after  July.  During  the  summer  season  the  water  over  the  rapids 


587 


and  riffles  would  be  less  than  a foot  and  a half.  I am  fam- 

1625  iliar  with  the  rapids  and  riffles  in  the  river  below  Joliet.  The 
first  riffles  were  along  about  the  islands  below  town,  just 

below  South  street,  before  you  get  down  to  the  head  of  the  lake. 
Some  part  of  the  way  it  was  more  shallow  and  rapid  than  in  other 
places.  Practically  the  entire  distance  down  to  the  head  of  Lake 
Joliet,  about  a mile,  I would  call  rapids  or  riffles.  West  of  the 
second  island  there  was  a slight  ])ool  for  maybe  seven  or  eight 
hundred  feet,  and  then  at  the  foot  of  a second  island  there  was  a 
sharp  rapid  there  and  then  down  where  the  first  bridge  is  there 
was  quite  a sharp  rapid.  The  last  ])lace  I mention  is  where  Bran- 
don’s bridge  now  is;  that  is  included  within  the  mile  of  rapids  that 
I speak  of.  Below  these  rapids  was  a rapid  at  the  head  of  Treat’s 
Island  and  one  at  the  foot,  and  one  at  the  mouth  of  the  DuPage. 
That  at  the  head  of  Treat’s  Island  was  not,  I should  judge,  more 
than  a thousand  feet  long.  Then  there  was  a pool  along 

1626  the  middle  of  the  island  and  at  the  lower  end  was  a rapid 
perhaps  600  feet  long.  Below  Treat’s  Island,  at  the  mouth 

of  the  DuPage,  there  was  quite  a sharp  rapid,  not  very  long,  and 
then  down  at  the  mouth  of  the  river  there  were  rapids  at  the  place 
sometimes  called  Dresden  Heights  and  sometimes  called  Beards- 
town.  I could  not  tell  the  extent  of  those  rapids,  about  a mile, 
maybe.  I could  not  tell  the  velocity  over  these  various  rapids 
below  Joliet.  Personally  I know  that  from  South  street  through 
to  the  head  of  the  lake  there  was  a 10-foot  fall  in  about  a little 

1627  over  a mile.  I do  not  know  what  the  fall  is  from  below  the 
head  of  Lake  Joliet  to  the  mouth.  Personally  I do  not  know 

anything  about  the  fall  of  the  river  between  Lake  Joliet  and  its 
mouth. 

Q.  Do  you  know  from  your  personal  observation  that  there 
was  a considerable  fall  of  the  river  from  Lake  Joliet  to  the  mouth! 
A.  Oh,  yes;  these  rapids  indicate  that. 

1628  Witness.  The  normal  and  usual  condition  of  the  river 
upon  these  various  rapids,  as  to  depth  of  water,  was  that  it 

would  vary  from  something  like'a  foot  and  a half  to  maybe  six  or 
eight  feet.  The  foot  and  a half  stage  would  prevail  three-quarters 
of  the  year,  probably;  the  remaining  quarter  the  river  would  be 
flooded.  When  the  water  was  a foot  to  a foot  and  a half  over 


588 


Comstock, — Direct  Exam. — Continued. 


these  rapids,  they  would  worry  skiffs  along  over  them  by  pulling 
them  over  the  rapids  going  down.  They  would  have  a hard  matter 
getting  up.  They  might  worry  them  along  and  they  might  have  to 
push  them  along,  or  get  out  and  pull  them  along.  A skiff  that 
could  go  into  shallow  water,  they  could  probably  row  along 

1629  right  close  to  the  edge  of  shore  and  keep  within  the  current, 
and  they  would  take  their  chances  of  going  down  in  the  high 

water.  They  would  have  to  be  pretty  skillfully  handled  or  they 
would  be  apt  to  capsize.  A skiff  I should  say  could  come  along  up 
the  river  in  high  water  and  keep  close  to  shore.  I do  not  know  of 
anybody  rowing  a skiff  up  the  river  from  its  mouth  to  Joliet  dur- 
ing the  high  water  season.  I did  not  hear  of  anybody  having  done 
it  or  having  taken  a skiff  down  to  the  mouth  during  the  high  water 
season.  There  were  not  many  skiffs  or  row  boats  in  the  river  in 
1848.  There  were  not  any  boats  used  for  other  purposes  than 
hunting  and  fishing  and  pleasure  boats.  I never  knew  of  any  boats 
used  in  the  Desplaines  Eiver  for  purposes  of  commerce  such  as 
carrying  freight  or  passengers.  I never  heard  of  any  such  boats 
before  1848  or  afterwards. 

Q.  If  there  had  been  any  such  boats  in  existence  here  you 
would  have  known  it! 

1630  (Objection  by  counsel  for  complainant.) 

A.  Most  assuredly  I would.  It  would  have  been  a matter 
of  general  interest  to  people  if  there  was  any  commercial  naviga- 
tion on  the  river.  I do  not  remember  that  in  the  early  days  of 
my  experience  I talked  with  old  residents  with  reference  to  the 
previous  condition  of  the  river.  I was  acquainted  with  many 
old  settlers,  but  do  not  remember  ever  discussing  that  subject 
with  them.  In  my  boyhood  days  there  were  bridges  across  the 
river,  a couple  of  bridges  built  before  1840.  I do  not  remember 
about  them.  That  was  when  we  were  living  on  the  farm.  After 
that,  there  was  a bridge  built  across  at  the  little  Island  just  below 
Jefferson  street.  The  usual  method  of  crossing  the  river  in  those 
days,  prior  to  1848,  was  fording  or  using  these  bridges.  There 
were  regular  wagon  roads  across  at  the  fording  places.  It  was 
customary  for  the  farmers  to  haul  loads  across.  The  canal 

1631  was  built  along  here  about  1840.  That  shut  off  everything 
except  where  the  bridges  were.  There  was  only  one  bridge 


580 


then,  the  one  at  the  little  island  just  below  Jefferson  street.  There 
was  a bridge  across  the  canal  right  where  the  present  bridge  is.  I 
do  not  remember  about  crossing  the  river  previous  to  1841.  I do 
not  remember  crossing  previous  to  1848.  There  was  a ford  down 
at  the  head  of  the  lake  and  there  was  a ford  across  Treat’s  Island, 
another  just  below  Treat’s  Island,  and  one  down  not  far  below  the 
county  line  where  the  old  mill  stood.  I have  crossed  at  all  these 
fords.  During  the  summer  time  at  these  fords  the  water  would 
be  a foot  and  a half  or  less.  At  Treat’s  Island  and  at  the  islands 
below  down  and  at  the  head  of  the  lake  I have  waded  across 

1632  without  getting  my  feet  wet.  There  was  a ford  just  below 
that  we  call  Brandon’s  bridge,  right  at  the  head  of  the  lake, 

that  used  to  be  used  before  there  was  ever  a bridge  built.  I re- 
member there  was  a dam  in  the  river  down  near  Beardstown,  about 
a mile  this  way.  I remember  the  old  mill ; I have  been  down  there 
when  the  old  mill  was  standing,  but  I haven’t  any  recollection 
whether  the  dam  was  there  then  or  not,  or  whether  it  had  gone  out. 
I saw  a mill  there  that  had  been  operated  by  means  of  water  power. 
The  mill  and  surroundings  were  in  such  condition  that  I knew  a 
dam  had  been  there.  I think  it  must  have  been  about  1847  or  ’48 
that  I first  saw  that.  I haven’t  any  recollection  of  the  dam.  My 
impression  is  that  the  ends  of  the  dam  showed  where  the  dam  had 
been.  I was  never  informed  when  the  dam  was  built.  I have 

1633  seen  the  abutments  and  ends  of  the  dam. 

Q.  And  you  know  that  there  must  have  been  a dam  there 
on  account  of  the  mill  1 

(Objection  by  counsel  for  complainant,  on  the  ground  that 
the  question  is  leading.) 

A.  Yes,  sir;  on  account  of  the  mill  there  must  have  been  a 
dam. 

Witness.  There  was  a dam  across  one  branch  of  the  river  at 
Treat’s  Island,  then  there  was  the  Haven  dam  in  town,  and  dam 
Yo.  2 and  No.  1,  the  State  dams.  There  was  a dam  at  Lockport 
previous  to  1848.  I have  seen  the  remains  of  an  old  mill  near 
where  the  penitentiary  now  is,  but  it  was  not  in  operation.  I do 
not  remember  any  particulars  about  the  dam.  As  to  those  dams 
that  I do  remember,  those  three  dams  in  Joliet  and  the  dam  at 
Lockport,  these  were  constructed  clear  across  the  river.  It  was 


590 


Comstock, — Direct  Exam. — Continued. 


not  possible  for  boats  to  go  up  and  down  tlirougii  those  dams. 
There  was  a lock  here  at  Dam  No.  1 after  that  was  built ; that 

1634  was  not  a lock  into  the  canal,  which  crossed  the  river  here. 
The  canal  and  the  river  were  together  then.  The  canal  and 

the  river  were  the  same  above  the  dam  and  the  canal  and  the  river 
were  together  below  the  dam.  That  was  down  to  Dam  No.  2.  There 
was  no  chance  to  get  through  No.  2 near  the  Haven  dam.  The 
water  above  No.  2 was  turned  into  the  canal.  Before  the  canal 
commenced  to  operate  in  1848  farmers  got  their  produce  to  the 
Chicago  market  with  teams.  People  traveling  down  this  way  came 
either  by  stage  or  their  own  teams.  I do  not  know  that  consider- 
able merchandise  in  those  days  was  brought  from  points  on 

1635  the  Illinois  Eiver  up  to  Joliet.  This  stage  line  from  Chicago 
must  have  gone  down  to  LaSalle  and  there  was  a line  to 

Springfield  and  St.  Louis.  It  would  not  have  been  possible  to 
operate  boats  for  commercial  purposes,  carrying  freight  and  mer- 
chandise or  passengers  up  the  river  through  these  various  rapids 
that  I have  mentioned,  even  if  the  dams  were  not  there.  They  say 
jokingly  about  these  little  stern-wheel  boats  that  they  can  run  up 
on  a heavy  dew,  but  they  could  not  one  of  them  run  up  on  these 
rapids.  Produce  was  brought  from  away  down  beyond  this,  wheat 
I think.  I have  seen  teams  come  along  here  that  were  said  to 
have  come  from  away  down  near  Bloomington,  going  to  Chicago. 
I never  heard  it  claimed  prior  to  1848  that  the  Desplaines  Elver 
was  navigable  in  fact.  I never  knew  of  any  commerce  being  car- 
ried on  prior  to  1848  over  the  Desplaines  Elver  by  boat,  and  I 
haven’t  Imown  any  since.  The  dam  sometimes  called  the  Adam 
dam,  sometimes  called  the  Haven  dam  and  sometimes  called  the 
Malcolm  dam,  was  constructed  while  we  were  on  the  farm, 

1636  between  1837  and  1841.  I do  not  know  when  the  McKee  dam 
was  constructed;  it  was  there  when  we  came  to  town  in 

1836.  I do  not  remember  when  that  dam  was  taken  out  the  river 
and  Dam  No.  2 was  constructed  by  the  State.  Let’s  see,  the  State 
failed  some  time  along  in  the  ’40s  and  the  work  was  not  finished. 
The  canal  l)anks  were  built  through  here  in  ’41  when  we  came  back 
to  town.  I know  the  banks  were  finished  and  the  dams,  some  of 
the  masonry  was  not  done  until  later  on,  1845,  ’6  and  ’7.  The  dam 
was  gone  when  we  came  back  from  the  farm  in  1841.  I do  not  re- 


591 


member  when  the  Kankakee  feeder  across  the  river  near  its  inoutli 
was  being'  constructed.  I do  not  know  where  they  got  stone  to  build 
the  abutments  for  that  feeder;  do  not  know  where  they  got  the 
stone  from  that  was  used  to  build  the  Au  Sable  locks;  I 

1637  haven’t  noticed  the  stone  down  there  particularly.  I never 
knew  of  any  stone  being  transported  down  the  river  by  boat 

for  the  construction  of  that  feeder;  there  could  not  have  been 
without  my  knowing  it.  The  quarries  that  were  used  in  building 
those  locks  and  dams  were  situated  above  here  in  what  they  called 
North  Joliet,  above  Dam  No.  1,  and  if  they  had  ever  quarried  those 
stone  up  at  those  quarries  and  hauled  them  clear  down  below 
Haven  dam  I would  have  known  it.  They  couldn’t  have  hauled 
them  down  without  my  knowing  it.  The  only  stone  quarries  in 
Joliet  at  that  time,  before  1848,  was  above  what  is  known  as  Dam 
No.  1,  and  there  would  be  no  way  of  getting  that  stone  onto  boats 
except  by  carrying  them  around  the  Adam  dam.  I know  there 
was  no  stone  taken  from  that  Joliet  quarry  for  use  down  the 

1638  river.  I have  seen  wires  stretched  across  the  river  up  above 
here  about  two  miles  and  half ; it  has  been  since  the  canal  was 

opened.  I do  not  remember  but  just  one  place  where  there  was 
some  wires.  I do  not  remember  whether  that  fence  remained 
there  for  a long  time  or  for  a short  time.  The  river  bottom  at  the 
places  where  these  rapids  and  riffles  were  that  I have  testified  to 
was  stony,  gravel  and  boulders  most  generally.  There  were  some 
large  boulders.  When  I was  engaged  on  the  canal  a party  was 
sent  to  Chicago  twice  with  a team. 

1639  Cross-Examination. 

These  dams  that  I have  spoken  about  are  the  ones  at  Jack- 
son  street  and  Jefferson  street.  Dam  No.  1 and  Dam  No.  2.  The 
Haven  dam  was  a third  of  a mile  down  further.  Those  other  dams 
are  the  ones  about  which  I have  spoken. 

Re-direct  Examination. 

I noticed  there  was  a strong  current  that  passed  over  these 
rapids  and  riffles;  that  is  all  I can  say.  A stern- wheel  steamer 
would  be  the  smallest  boat  that  could  be  used  for  commercial  pur- 
poses, in  my  opinion,  and  I do  not  think  it  would  be  possible  for 


592 


one  of  those  stern-wheelers  to  get  up  that  current  in  the  river  in 
high  water.  'You  could  have  got  a flat  boat  up  by  doing  what 
1640  they  call  cordelling.  Take  a long  rope  up  and  hitch  it  to  a 
tree  and  pull  up  on  the  rope.  That  would  not  be  a com- 
mercial success.  A man  could  not  afford  to  do  that  for  the  money 
he  could  get.  I have  never  heard  of  anybody  trying  to  do  that. 

Re-cross  Examination. 

Cordelling  is  to  take  a long  rope  ahead  and  hitch  it  to  a tree 
and  then  a lot  of  men  on  the  boat  pull  on  the  rope.  A rope  ferry 
goes  clear  across  the  river  and  a pulley  block  hitched  to  it  that 
they  pull  on.  It  has  a j^ulley  block  that  is  put  on  the  rope,  and 
then  there  are  two  ropes,  one  here  and  one  there,  and  a windlass 
in  the  middle,  so  they  could  turn  that  windlass  and  set  the  boat 
for  one  way,  and  when  they  want  to  put  the  boat  the  other  way 
set  it  that  way,  and  the  current  shoves  it  right  across.  I have 
seen  in  rope  ferries  where  there  was  no  windlass.  This  little  wind- 
lass shortens  one  rope  and  lengthens  the  other.  What  they  call 
cordelling  is  that  they  hitch  one  end  of  the  rope  to  a boat  and 
the  other  end  to  a tree  up  the  river,  and  then  move  the  boat  by 
pulling  the  rope  end  over  end.  I have  seen  those  stern- wheel  boats 
on  the  Mississipi,  not  on  the  upper  Mississippi,  though.  I 

1643  never  saw  them  on  the  rapids  above  St.  Paul;  I have  seen 
them  down  at  Cairo.  The  boats  I saw  there  got  along  all 

right ; the  current  is  not  so  strong  there,  I have  seen  these  stern- 
wheel  boats  on  the  Mississippi  that  stuck  so  that  they  could  not  get 
up  through  the  river  on  account  of  the  current.  I saw  that  at  Rock 
Island,  saw  them  stuck  there  for  half  an  hour ; you  could  not  hardly 
see  them  move,  and  they  kept  paddling  away  and  they  would  go 
over  the  rapids;  they  Anally  got  over  it.  Going  down  the  river 
where  there  is  a rapid  current  with  a stern-wheel  boat,  they 

1644  could  hold  the  boat  back  as  well  as  they  could  push  it  through 
the  heavy  current.  If  there  was  power  enough  to  push  it 

through  the  current,  then  tiie  same  power  would  hold  it  from  going 
down  through  the  current,  but  that  would  not  help  it  turn  a corner.  I 
do  not  think  I could  get  one  around.  I was  crossing  Treat’s  Island 
a day  or  two  ago  and  I happened  to  notice  just  below  the  bridge 
that  there  was  a quick  turn  there  and  the  water  run  pretty  near 


593 


straight  across.  I thought  that  was  a place  they  could  not  handle 
a boat. 

1645  Re-re-direct  Examination. 

I think  just  above  Brandon ^s  bridge  there  was  a pretty  bad  turn. 
I do  not  think  of  anything  else  on  this  subject. 

1646  James  C.  Keen, 

a witness  for  defendant,  testified  as  follows: 

Direct  Examination. 

(Objection  by  counsel  for  complainant  on  the  groimd  that 
complainant  had  not  been  notified  of  the  taking  of  this  witness’ 
deposition.) 

My  name  is  James  C.  Keen.  I am  living  in  Plainfield  now,  but 
T lived  a great  many  years  in  this  town.  When  T first  came  here 
T went  there,  came  from  Chicago  to  Plainfield.  Plainfield  is  in 
"Will  County,  ten  miles  from  here,  between  here  and  Aurora.  I 
was  born  in  ’24,  came  to  Will  County  in  ’43.  I lived  west  awhile 
in  Nebraska,  about  seventeen  years.  Lived  in  Will  County  from 
’43  to  ’85,  then  went  to  Nebraska  for  seventeen  years.  I was 

1647  in  Washington  near  Spokane  about  a year,  that  was  a couple 
or  three  years  ago.  With  these  exceptions,  I have  lived  in 

Will  County  all  the  time.  I came  here  with  my  parents.  We  came 
to  Buffalo  by  canal,  took  the  boat  from  there  to  Chicago,  then  came 
by  wagon  from  Chicago  to  Plainfield.  We  didn’t  come  down  the 
Desplaines  because  we  came  the  other  way.  We  didn’t  know  any- 
thing about  any  Desplaines  Kiver  at  that  time.  I first  served  my 
time  at  blacksmithing,  then  I went  into  gunmaking.  I carried  on 
gunmaking  a good  many  years  on  Bluff  street  of  this  town.  We 
came  here  in  ’43  and  I went  back  east  after  being  here  a year 
and  was  gone  two  years  and  came  back  here  in  ‘46.  I left  there  and 
came  to  Joliet  in  ’50.  From  1850  to  about  1885  I have  lived  in 
Joliet. 

I don’t  know  as  I am  familiar  with  the  Desplaines  River.  J 
have  been  up  and  down  it  a good  deal  hunting  and  fishing; 

1648  been  up  and  down  it  in  row  boats  at  different  places,  not  so 
very  much  above,  but  I have  below.  I have  hunted  more 

through  Joliet  Lake  and  down  through  there.  Never  was  much 


594 


Keen , — Direct  Exa m . — Contin u ed. 


below  the  foot  of  the  lake.  We  went  afoot  bunting  deer  and  such 
tilings  as  that.  Sometimes  the  water  would  be  pretty  low  in  the 
river,  especially  where  there  were  what  we  call  rapids  or  riffles, 
but  in  the  lake  there  was  always  water  until  we  got  to  the  foot  of 
the  lake  and  after  that  it  would  be  just  the  same  I suppose  as  it 
was  above,  that  is  Lake  Joliet.  The  north  end  of  that  lake  would 
lie  right  here,  just  below  the  bridge  that  comes  across  the  river, 
Brandon’s  bridge,  and  then  the  lower  end  of  the  lake  would  be 
above  Treat’s  Island.  In  that  lake  there  were  places  that 

1649  didn’t  know  anything  about  any  bottom  at  all  down  all  the 
way  through. 

The  condition  of  the  river  as  to  depth  of  water  would  be  that 
there  would  be  times  when  there  was  plenty  of  water  and  then  times 
there  would  not  be  so  much.  Most  all  the  time  it  would  be  that 
there  would  be  only  a little  water  in  the  river  over  the  rapids  and 
riffles.  Of  course,  there  were  times  when  there  would  be  plenty 
of  water,  especially  when  we  had  our  freshet.  I don’t  know  that 
I could  tell  how  much  of  the  time  during  the  year  there  would  be 
floods  and  freshets,  some  years  more  than  others,  generally  speak- 
ing there  would  be  places  when  you  could  not  float  a boat  as  large 
as  a skiff.  There  would  be  times  again  when  the  water  would  be 
very  high.  There  would  be  three  months  out  of  the  year  when  there 
would  be  quite  a good  deal  in  the  stream.  It  would  be  in 

1650  the  summer  that  there  would  be  a small  amount  of  water  in 
the  dry  parts,  but,  of  course,  in  the  winter  and  fall  and  spring 

there  would  be  water.  During  the  seasons  of  the  year  when  there 
were  no  freshets  the  condition  of  the  river  as  to  depth  of  water 
would  be  that  there  would  not  be  very  much  water.  I have  seen  it 
when  you  could  walk  across  the  river  below  where  the  old  Malcolm 
dam  used  to  be, — you  could  go  across  on  stones.  That  was  onl}^  in 
the  driest  parts  of  the  season.  It  might  be  possible  in  the  normal 
and  usual  condition  of  the  water  when  there  were  no  floods  ’and  no 
freshets  to  navigate  rowboats  up  the  river  over  these  riffles  and 
rapids  I have  spoken  of.  You  would  have  to  pick  your  channed  to 
do  that.  You  couldn’t  go  any  place  in  the  river  at  that  time.  By 
going  around  you  could  possibly  come  up.  The  rapids  there  oppo- 
site Davidson  (piarry  you  couldn’t  row  up  it  at  all,  you  might  pull 
up. 


595 


I have  pushed  a skiff  up  and  down  from  the  upper  end  of  Lake 
Joliet  to  the  Town  of  Joliet,  had  a man  with  me  to  paddle  the  boat. 
That  is  at  the  head  of  the  lake.  There  was  enough  water  in  the 
river  to  get  the  boat  up  over  the  riffles.  We  pulled  it  up, 

1651  couldn’t  paddle  it  very  well.  I never  went  out  when  the  river 
was  not  flooded,  the  water  would  be  too  rapid.  It  might  have 

been  possible  to  take  a boat  up  the  river  during  flood  season,  but  I 
wouldn’t  want  to  try  it.  There  was  no  trouble  about  going  down 
the  riyer  in  flood  season.  I have  gone  down  during  flood  season 
over  the  riffles  and  rapids. 

It  might  be  dangerous,  I never  knew  of  any  boat  plying  up  and 
down  the  river  for  commercial  purposes,  never  heard  of  any  such 
boats  being  used  or  of  any  merchandise  or  produce  being  carried 
up  the  river  on  boats  to  Chicago.  I never  knew  of  any  such 

1652  boats  being  placed  on  the  river. 

I have  been  down  the  river  to  the  foot  of  the  lake.  I have 
been  down  to  the  mouth  of  the  river  upon  the  river,  but  I have 
never  hunted  down  there.  There  was  a dam  in  the  river  at  the 
lower  end  of  the  lake  at  Treat’s  Island.  I think  it  was  stone  that 
was  hauled  in  there  mostly,  but  whether  it  washed  out  or  how  it 
went  out  I couldn’t  tell. 

When  I came  to  Joliet  in  1850,  there  was  a dam  above  in  the 
river  and  that  stone  dam  up  there  and  the  one  at  Jefferson  street. 
The  stone  dam  I refer  to  is  the  one  now  knowm  as  Dam.  No.  1 where 
the  Economy  Light  & Power  Company  is.  There  was  a dam 

1653  here  at  Jefferson  street  too.  I don’t  know  whether  there 
was  any  other  dam  in  the  river  in  1850,  or  not.  There  was  the 

Adams  mill  there,  the  old  grist  mill  and  saw  mill,  there  was  a dam 
there.  Those  dams  stretched  clear  across  the  river.  You  couldn’t 
take  boats  up  because  there  were  no  locks  to  lock  them  through. 

Just  this  side  of  Brandon’s  road  there  were  riffles  and  right  oppo- 
site the  bridge  in  the  river,  just  as  you  strike  the  head  of  the  lake, 
there  was  a little  riffle  there.  There  were  stones  in  the  river  there, 
different  kinds,  what  they  call  boulders,  and  they  were  on  this 
rapids  down  opposite  this  Davidson  quarry. 

1654  I have  crossed  the  river  a great  many  times  at  that  point. 
I have  waded  across.  There  was  a road  across.  They  used 


596 


to  ford  there.  Didn’t  haul  very  heavy  loads.  You  couldn’t  haul 
very  much  of  a load  up  the  river  there  very  well. 

Prior  to  1848,  I couldn’t  tell  you  much  about  how  the  farmers 
got  their  grain  to  market  because  I was  in  Plainfield.  We  got  pro- 
duce and  grain  from  Plainfield  by  wagon  and  team. 

During  the  summer  season  when  we  waded  across  these  fords 
the  water  would  be  up  to  our  knees  or  over  sometimes.  I should 
not  think  it  was  possible  in  those  days  to  navigate  a boat  for  com- 
mercial purposes  up  and  down  that  river.  I think  there  were  fences 
stretched  across  the  river,  but  I am  not  positive. 

1655  Cross-Examination. 

These  places  where  I say  the  water  was  up  to  my  knees,  where 
I waded  across,  that  was  on  the  rapids.  I know  the  road  that  went 
down  to  where  the  grade  is  built  opposite  Davidson  quarry  at  the 
head  of  the  lake.  It  was  cut  up  showing  a good  deal  of  travel. 

1 656  I was  in  the  office  of  Mr.  Stevens  here  in  the  city  day  before 
yesterday. 

Q.  Now  at  that  time,  did  you  make  this  statement  or  this  in  sub- 
stance. Did  you  say  that  you  were  now  in  your  eighty-fourth  year 
of  age — ? A.  I am. 

Q.  Wait  a minute.  I want  to  read  a little  statement  to  you  to 
see  if  you  said  it  and  I will  let  you  know  when  I have  finished. 
Did  you  say  you  were  now  in  your  eighty-fourth  year  of  age,  and 
that  you  came  to  this  country  in  1843 ; that  you  resided  in  the  county 
continuously  since  that,  except  from  1885  to  1902  when  you  were 
in  Nebraska ; that  you  were  always  fond  of  hunting  and  fishing  and 
indulged  in  these  sports  at  all  seasons  of  the  year  and  for  many 
years  after  coming  to  the  county;  that  you  have  been  well  ac- 
quainted with  the  Desplaines  River,  having  been  up  and  down 
it  many  times;  and  that  without  the  least  difficulty,  except  in  the 
very  driest  season  of  the  year,  there  were  at  least  six  months  of 
each  year  when  boats  of  good  size  would  come  up  and  down  said 
river  from  what  was  known  as  Haven’s  dam  in  Joliet  to  the  mouth 
of  the  river,  the  only  trouble  being  the  swift  water  at  times  on  the 
rapids  at  the  foot  of  Lake  Joliet;  that  you  remember  the  old 

1657  road  leading  from  the  canal  near  and  opposite  Davidson 
quarry  to  the  head  of  said  lake  and  that  the  same  was  deep 


rutted  as  though  the  same  had  been  used  for  a long  time  and  that 
heavy  loads  had  been  drawn  over  it;  that  said  road  ended  at  the 
west  bank  of  said  river  at  the  head  of  Lake  Joliet;  that  there  was 
a stone  quarry  on  the  east  side  of  said  lake  near  the  head  where 
good  stone  was  obtained  at  an  early  date  and  which  may  have  been 
hauled  to  said  river  and  loaded  upon  boats  there ; that  the  bluff  or 
bank  up  through  said  quarry  and  right  east  of  it, — that  no  loads 
could  be  hauled  up  it  in  those  days!  A.  I didn’t  say  no  loads. 
The  biggest  part  of  that  I didn’t  say  at  all. 

Q.  Wait  a minute.  What  I want  to  ask  you  now  is,  did  you 
say  that  or  that  in  substance  to  Mr.  Stevens  day  before  yesterday, 
that  being  the  15th  day  of  January,  1908,  at  his  office  in  Joliet? 
Now  answer!  A.  Now  are  you  ready! 

Q.  Yes.  A.  I didn’t  say  a good  many  of  those  things  because 
T never  knew  anything  about  any  road  leading  to  the  head  of  Lake 
Joliet.  The  head  of  the  lake  is  some  little  ways  below  where  the 
bridge  is  now,  must  be  sixty  or  eighty  rods,  a quarter  of  a mile  be- 
low the  bridge.  I never  crossed  any  road  except  that  road  we  used 
to  ford  there.  There  was  an  old  wooden  bridge  at  one  time  a great 
deal  lower  than  the  one  is  now  and  it  was  washed  away,  and  it  was 
built  up  higher,  and  put  in  a higher  bridge.  I said  when  you  got 
on  the  east  side  of  the  river  it  would  be  almost  impossible  to  haul 
much  of  a load  before  all  those  roads  were  fixed. 

1658  Re-direct  Examination. 

Any  kind  of  boats  would  not  be  able  to  go  up  and  down  the  river 
from  what  is  known  as  the  old  Haven  dam  to  the  mouth  of  the 
river;  might  have  a flat  boat  and  go  up  and  down.  Until  we  got 
this  water  from  the  lake  the  river  got  very  low;  since  this  water 
has  come  in  there  would  be  water  enough  to  run  in  between  the 
Haven  dam  and  the  mouth  of  the  river.  As  to  the  current 

1 659  of  the  river  I should  say  it  would  be  very  rapid.  I have  not 
been  up  and  down  any  since  the  water  came  in ; I do  not  know 

of  anybody  having  run  up  and  down. 


598 


1660  Enos  Field, 

a witness  for  defendant,  testified  as  follows : 

Direct  Examination. 

(Objection  by  counsel  for  complainant  on  ground  that  notice 
of  the  taking  of  the  deposition  of  this  witness  has  not  been 
given  complainant.) 

I live  at  223  Gold  street  in  Joliet;  have  lived  here  two  years 
this  last  time ; lived  in  Joliet  before  that,  in  1871  to  1880.  I came 
to  the  State  of  Illinois  in  1847 ; landed  at  Ottawa.  Between  Ottawa 
and  here  I have  been  the  balance  of  my  life,  except  one  year  in 
Kansas.  I was  bom  in  1834.  I came  to  Ottawa  by  boat.  I was 
])orn  on  the  other  side  of  the  Catskill  Mountains  in  New  York.  In 
1837  my  father  moved  from  there  to  Ohio.  We  canalled  from  Al- 
bany to  Buffalo;  from  Buffalo  came  across  the  lake  to  Cleveland, 
and  from  Cleveland  to  Columbus.  We  went  there  in  1844  and  went 
to  Portsmouth,  Ohio;  from  there  we  went  down  on  the  Ohio  Eiver 
to  Cincinnati.  I stayed  there  for  three  years  and  learned  a trade 
and  I started  from  there  in  the  fall  of  1847  and  came  to  Ot- 

1661  tawa  by  boat,  all  excepting  from  Peru.  We  got  off  at  Peru. 
They  were  teaming  from  LaSalle  through  to  Chicago  any- 
where you  wanted  to  go.  I did  not  come  by  Chicago  to  Ottawa.  I 
have  followed  the  I.  & M.  Canal  from  1854  up  to  ^81 ; was  employed 
on  the  canal.  After  ’81  I ran  a saloon  down  in  Wilmington  11 
years ; that  is  on  the  Kankakee  Elver.  Then  I went  to  Morris  and 
put  in  an  electric  light  plant  down  there  and  ran  that  for  eight 
years,  and  lived  there  without  doing  anything  only  fishing.  Dur- 
ing the  time  I was  employed  on  the  canal  I was  boating  up  and 
down,  carrying  grain.  I ran  two  or  three  years  from  Seneca  on 
what  they  called  the  Northern  Transportation  boats.  They  ran 
through  from  Chicago  to  St.  Louis.  Have  been  as  far  as  Nashville, 
Tenn.  Took  boats  down  the  canal  from  Chicago  into  the  Illinois 

Eiver  and  back  up  again.  I was  up  the  Cumberland  Eiver 

1662  to  Nashville  in  1864.  In  those  }^ears  I became  familiar  with 
the  Desplaines  Eiver,  no  more  than  to  see  it  as  we  went  by; 

never  traveled  it.  Since  I quit  boating  I did  not  fish  in  this  river; 
it  was  too  muddy.  I did  not  see  it  any  more  between  ’47  and  ’51 
than  to  see  fellows  catching  fish  while  I was  going  along.  I had 
o]iportunity  to  observe  the  river  between  here  and  Brandon’s 


599 


bridge,  going  up  and  down.  In  1849,  the  time  they  were  going  to 
California,  there  were  five  steamboats  loaded  at  Ottawa.  They 
fetched  up  a hogshead  of  sugar,  coffee  and  such  stuff,  unloaded  it 
there.  There  was  one  boat  went  to  Marseilles.  At  that  time  there 
was  a dam  at  Marseilles.  They  could  not  go  any  further.  There 
is  no  doubt  in  my  mind  there  was  water  enough  to  boat  then  to  the 
Kankakee.  I do  not  know  as  there  was  any  freight  brought 

1663  up  to  Chicago  from  Marseilles.  There  were  teamsters  run- 
ning from  Peru,  which  was  considered  the  head  of  naviga- 
tion, and  in  fact  when  I landed  there  we  put  our  freight  in  a wagon 
and  came  up  to  Ottawa  with  it,  and  there  were  teams  there  to  go 
wherever  you  wanted.  Some  of  them  would  take  passengers 
through  to  Chicago  and  some  were  going  down.  I could  not  say 
anything  about  whether  it  was  a frequent  thing  to  send  merchan- 
dise from  the  Illinois  River  by  means  of  teams  prior  to  1849.  Grain 
that  was  raised  there,  we  got  up  to  Chicago  either  that  way  or  send- 
ing it  to  Peru,  going  down  to  IJtica.  That  was  considered  the 
head  of  navigation  at  that  time.  Boats  used  to  come  up  from  Utica 
and  take  wheat  from  there.  I never  heard  of  any  produce  or 
freight  or  grain  coming  up  the  Desplaines  River  to  Chicago  or 
from  any  point  on  the  Desplaines  River,  or  of  any  boats  transport- 
ing merchandise  or  freight  of  any  kind  down  the  Desplaines  to 
Chicago  or  from  any  point  on  the  Desplaines.  I will  give  a little 

history.  Up  here  from  Summit  this  is  what  I have  seen. 

1664  The  river  up  there  run  both  ways  in  high  water.  Old  Ogden 
up  there  in  Chicago  dug  a ditch;  it  was  called  the  Ogden  Ditch. 

I suppose  this  drainage  ditch  has  that  from  Bridgeport  down,  and 
he  dug  it  into  the  Desplaines  River.  That  brought  the  water 
from  the  Desplaines  down,  and  the  State  made  him  put  a dam  in 
there  because  the  high  water  wmuld  run  it  right  out  into  the  lake. 
It  was  for  boats  going.  I never  saw  even  a skitf  in  the  Desplaines 
River.  There  was  a dam  where  this  trouble  dam  is,  an  old  dam. 
I can  give  you  a little  history  on  that.  That  dam  must  have  been 
put  in  in  1833.  There  was  a man  here  by  the  name  of  Beard,  two  of 
them.  They  laid  out  a town  there  and  the  old  man  and  his  wife 
died  the  same  day  in  1847,  but  they  have  a nephew  that  is  out  in 
Michigan  here;  he  was  telling  me  about  this.  He  told  me,  this 
nephew,  that  his  uncles  were  offered  $40,000  for  their  right  in 


600 


Field, — Direct  Exam. — Continued. 


point  in  there,  for  the  mill  and  all.  I don^t  know  what  the  mill  was. 
There  was  nothing  bnt  a flume  there  when  I commenced  boating- 
in  1854,  but  the  old  dam  is  there,  part  of  it.  The  appearance  of 
that  old  dam  was  there  in  ’54. 

1665  (Motion  by  counsel  for  complainant  to  exclude  the  answer 
of  the  witness  because  it  was  manifestly  hearsay.) 

I got  this  pretty  straight  from  a nephew;  his  mother  was  a 
sister;  she  died  down  in  Morris  102  years  old.  They  called  the 
nephew  Doc  McKeon.  I don’t  know  where  he  lives  in  Michigan. 
He  has  got  a son  down  in  Morris  married  to  Storey  Madison’s 
daughter.  I guess  I have  seen  the  rapids  in  the  river  below  Joliet, 
sometimes  observed  the  stage  of  water  in  the  river.  We  were  always 
looking  over  there  as  we  were  going  down  the  canal,  from  there 
down  to  Brandon’s  bridge.  Sometimes  the  turtles  took  the  catfish 
over  from  one  depot  to  another;  it  was  terribly  low;  the  Kankakee 
was  bigger  than  this;  I have  seen  the  Kankakee  you  could 

1666  cross  it  without  getting  your  feet  wet  and  have  a pair  of 
shoes  on.  Generally  speaking,  the  result  of  my  observation 

during  all  the  years  I was  in  this  vicinity  is  that  it  has  been  very 
low.  There  used  to  be  a guard  lock  here  and  they  would  open  all 
the  gates  and  go  right  through.  There  was  not  water  enough  to 
supply  the  canal.  They  have  a feeder  up  at  Sag  Bridge  and  a feeder 
down  at  Lemont  from  the  Calumet  Diver. . It  was  not  possible  to 
navigate  boats  up  and  down  the  river  at  any  time  that  I know  of. 
I heard  of  a boat  down  here  two  or  three  years  ago,  three  fellows 
going  down  fishing.  They  came  down  by  Morris,  floating.  They 
were  drowned  down  below  here,  in  the  lake ; the  boat  was  sunk  or 
something.  They  found  it  sticking  in  the  mud.  There  was  one  or 
two  of  them  could  swim  good,  but  they  never  knew  they  were 
drowned  until  they  were  catched  down  at  Morris.  It  was  only 
^ 667  a few  years  ago.  The  Drainage  was  in  then.  There  was  a dam 
down  here  in  the  river  when  I first  came,  one  on  Jefferson 
street  and  one  up  there,  the  old  Haven  Dam,  and  one  where  the 
Economy  Light  & Power  Company  is  now.  I don’t  remember 
there  being  a dam  at  Treat’s  Island.  I see  a dam  up  at  Lockpoit, 
this  side  of  Lockport ; Korton  had  it  in  there.  I nevei  paid  anv 
attention  to  it.  I saw  there  was  a dam  there,  that  was  all.  ^e\ei 
had  occasion  to  ford  the  river  at  all.  I think  I have  seen  a stake- 


GOl 


and-rail  fence  np  here  between  here  and  Lockport.  It  ran  pretty 
nearly,  across  the  river. 

C ross-Exa  mm  a ti  on. 

1668  Thirty  inches  of  water  would  he  recjuired  to  navigate  a 
boat  say  10  feet  wide  by  30  feet  long  carrying  say  hve  tons 

of  freight,  with  a flat  bottom;  if  she  is  built  out  of  oak  will  draw 
30  inches  of  water,  and  when  made  of  pine  wall  draw  about  26  or  24. 
We  calculated  the  carrying  about  a little  over  100  bushels  of  corn 
to  the  inch.  We  drew  4 feet  8 inches  of  water.  I don’t  know  of 
any  rule  for  calculating  the  carrying  capacity  of  a boat.  I do  not 
know  whether  it  is  the  rule  or  not  that  the  capacity  of  a flat  bot- 
tomed boat  drawing  a foot  and  a half  of  water  is  90  pounds  to  the 
square  inch.  We  used  to  carry  a little  over  100  bushels  to  the 

1669  inch.  Our  boats  were  100  feet  long  by  174  feet  wide.  The  canal 
boats  I operated  were  100  feet  long  and  18  feet  wide  on  deck. 

1670  They  would  carry  6,200  bushels.  The  boats  would  draw  4 feet 
8 inches  of  water.  I will  take  my  oath  they  gave  us  4 feet  8 

inches  of  water  in  the  canal.  There  was  4 feet  4 one  time  and  one 
time  they  didn’t  measure  it  at  all.  That  load  would  carry  on  4 feet 
8 inches  of  wmter  on  the  sized  boat  I have  mentioned. 

1671  Urias  Bowers, 

a witness  for  defendant,  testified  as  follows: 

(Objection  by  counsel  for  complainant  on  the  ground  that 
notice  of  the  taking  of  his  deposition  had  not  been  served  on 
complainant.) 

My  name  is  Urias  Bowers;  I live  in  eloliet.  The  last  time  I have 
lived  here  a little  over  a year.  I have  made  Joliet  my  home  ever 
since  1844,  but  I have  been  away  occasionally  a whole  summer. 
First  came  to  Will  County  in  1844,  in  May.  I was  horn  in  1833; 
was  about  11  years  old  when  I came;  have  lived  here  in  Joliet 
except  for  the  absences  mentioned.  Have  followed  the  water  for  a 
living  most  of  my  lifetime.  My  business  was  mostly  boating  along 
the  river  and  canal,  along  the  I.  & M.  Canal  and  along  the 

1672  Illinois  Eiver.  I have  made  a good  many  trips  along  the 
Illinois  Eiver  from  Chicago  to  St.  Louis.  I won’t  undertake 


G02 


Bowers, — Direct  Exam. — Continued. 


to  say  how  many,  but  for  40  years.  I had  charge  of  canal  boats 
plying  up  and  down  the  canal.  The  first  boat  I had  charge  of  was 
in  ’69 — ’60  I think  it  was,  spring  of  ’60.  Before  that  I was  em- 
ployed on  the  canal;  I did  a little  on  it  in  1849.  In  ’50  and  ’51 
I was  main  hand  on  deck;  after  ’60  had  charge  of  a boat  myself. 
I ran  a boat  a conple  of  years  after  the  Chicago  fire,  I think  about 
’73.  Since  ’73  have  run  boats  on  the  Illinois  Eiver;  used  to  go  from 
Chicago  to  St.  Louis  on  canal  boats;  carry  lumber  and  flour 

1673  back.  Since  I left  the  canal  in  about  ’73  I tended  lock  eight 
years,  Lock  10  and  Lock  12  on  the  I.  & M.  Canal — both  at 

Alarseilles,  two  locks  close  together.  After  I quit  tending  lock 
I came  up  here  and  went  out  on  a little  farm  out  of  town  here  about 
two  miles  and  a half.  Have  been  there  ever  since  until  a year  ago 
last  fall.  I am  familiar  with  the  Desplaines  Eiver  as  much  as  I am 
along  the  canal;  it  runs  right  along  the  canal  pretty  much  all  the 
way  from  Chicago  to  the  head  of  the  Illinois  Eiver;  we  could  see 
it  most  all  the  way  down.  There  are  very  few  places  you  could 
not  see  the  river  from  the  canal  from  Chicago  down  to  the  head 
of  the  Illinois  Eiver.  I never  was  fishing  or  hunting  much 

1674  along  the  river.  I never  made  it  my  business  to  go  along  the 
canal  to  examine  the  water  in  the  river.  I have  been  along  the 

shores  at  different  places,  on  and  off.  Have  fished  in  the  Illinois 
Eiver  and  some  in  the  Desplaines  Eiver,  and  some  in  the  Kanka- 
kee Eiver,  but  not  much  in  the  Desplaines.  From  here  down  two 
or  three  miles  as  far  as  Treat’s  Island,  my  father  used  to  do  a good 
deal  of  fishing.  I used  to  go  with  him  when  I was  a boy.  I could 
tell  you  more  about  the  quantity  of  water  that  went  over  these  dams 
than  about  the  condition  of  the  river  as  to  depth  of  water  in  general 
before  1848.  I have  seen  the  water  over  this  Jefferson  street  dam 
here  when  it  varied  from  an  inch  to  two  feet  in  a season.  I have 
seen  two  feet  of  water  on  that  dam  and  I have  seen  it  when  the 
water  did  not  run  over  it  at  all.  As  far  as  I have  had  any 

1675  experience  we  always  had  less  water  in  the  summer  time. 
We  would  have  a freshet  in  the  spring.  Dry  seasons  we  had 

scarcity  of  water  most  all  the  time  on  the  canal.  We  used  to  have 
factories  in  Joliet  that  got  their  water  out  of  the  canal.  When  the 
water  got  scarce  they  used  to  shut  down.  I remember  lots  of  times 
it  used  to  l)e  a rule  that  when  these  mills  run  until  the  water  quit 


603 


running  over,  the  dams,  then  they  were  shut  down.  There  was  no 
water  to  spare  for  them  only  what  the  canal  wanted  to  use  to  keep 
its  regular  stage  of  water.  I remember  the  Jefferson  Street  Dam 
down  here  when  I first  came,  in  1844.  I remember  that  the  dam 
built  before  the  present  Jefferson  Street  Dam  ran  cater-cornered 
across  the  channel  from  northeast  to  southwest.  I never  saw  the 
dam  because  it  was  always  covered  with  water,  but  I have  seen 
the  shape  of  it  when  they  dug  out  the  Drainage  Channel.  I 

1676  have  been  aground  on  the  dam  with  a canal  boat.  When  I 
first  came  here  there  was  no  dam  where  Dam  No.  1,  the  pres- 
ent Economy  Light  & Power  Company's  Dam  is.  They  commenced 
building  that  in  ‘45  or  ’46  I think.  I was  employed  on  the  con- 
struction of  that  dam;  carried  grub  around  for.  the  boys.  I was 
what  they  called  “grub  boy.”  There  was  a dam  below  here  called 
Malcolm’s  or  Haven’s  Dam  when  I first  came,  in  1844;  that  is  quite 
a little  ways  this  side  of  McDonough  street;  that  dam  was  clear 
across  the  river;  so  was  the  Jefferson  Street  Dam.  No  boat  could 
go  up  either  one  of  these  dams.  There  was  no  lock  in  the  old  Adam 

Dam.  There  was  a space  over  on  the  west  side  of  that  dam 

1677  that  was  probably  12  feet  wide,  built  out  of  stone,  where  they 
planked  up  in  there  to  keep  the  water  from  running  through, 

probably  put  there  to  put  a wall  some  day.  No  boats  could  get 
over  these  dams  up  stream.  They  might  have  gone  down  in  high 
water  over  the  dam.  I never  saw  anything  of  that  kind.  I never 
knew  of  any  boats  navigating  the  Desplaines  Elver,  carrying  freight 
and  merchandise  or  passengers  from  Joliet  down  to  its  mouth; 
never  heard  of  any;  never  knew  of  anything  more  than  a 

1678  skiff  or  something  like  that  navigating  the  part  of  the  Des- 
plaines Eiver  above  the  point  where  the  canal  comes  in.  Never 

heard  or  knew  of  any  boats  on  the  Desplaines  Eiver  used  for  com- 
mercial purposes.  When  I first  came  to  Will  County  in  1844,  both 
freight  and  passenger  traffic  was  conducted  by  teams;  carried 
passengers  with  teams  and  hauled  out  stone  from  here  to  Chicago 
by  wagon.  Farmers  would  take  their  grain  to  Chicago  by  teams. 
My  father  made  it  a business  of  teaming  between  here  and  Chi- 
cago. I have  seen  as  high  as  a hundred  teams  between  Lockport 
and  Chicago,  along  about  1845  and  ’46.  I used  to  go  with  my  father 
with  a team.  We  used  to  mostly  haul  merchandise  from  Chicago 


G04 


Boivers, — Direct  Exam. — Continued. 


^ here,  and  passengers.  Father  used  to  carry  passengers  from  here 
to  Chicago  for  a dollar;  start  from  here  in  the  morning  and  guar- 
antee them  to  get  to  Chicago  so  as  to  get  an  evening  boat  to  go 
out  on  the  lake;  if  he  didn’t  get  them  there  he  didn’t  charge  them. 
Father  came  from  Ohio  here  by  team.  Some  places  I had  occasion 
to  observe  the  rapids  and  ripples  in  the  Desplaines  Eiver.  We 
used  to  ford  the  river  down  at  the  Kankakee  where  father  lived, 
just  below  the  aqueduct,  down  where  Beard’s  Dam  was.  His  farm 
was  on  the  west  side  of  the  river,  down  near  Beard’s  Dam. 
1680  That  was  not  when  I first  came  to  this  part  of  the  country. 

Father  lived  here  over  20  years  before  he  went  down  there. 
There  was  a place  there  that  we  always  called  Beard’s  Dam,  the 
-boys  that  were  younger  than  I ; I have  been  there  with  them  fishing. 
They  would  say,  ‘‘Let’s  go  down  to  the  dam.”  There  was  part  of  the 
old  timbers  sticking  out  of  the  water.  There  was  no  remnant  of 
an  old  mill  that  I ever  saw.  I do  not  know  when  I v^^as  first  down 
there  where  Beard’s  Dam  was;  I could  not  tell.  I commenced  boat- 
ing down  there  along  in  the  ’60s. 

Q.  Did  you  ever  hear  that  there  was  at  one  time  a dam  clear 
across  the  river  known  as  Beard’s  Dam,  and  also  a mill  there! 

(Objected  by  counsel  for  complainant.) 

A.  AVell,  I have  heard  that  but  I never  saw  the  mill. 

Q.  And  the  evidence  down  there  showed  you  when  you  were 
there  that  there  had  been  a dam  there  at  one  time! 

(Objection  by  counsel  for  complainant  to  the  question  as 
leading  and  suggestive.) 

A.  Oh,  yes,  there  had  been  a dam  there;  I did  not  hear  when 
that  was  first  constructed. 

Q Xow,  from  your  experience  along  the  Desplaines  Eiver  was 
it  ever  possible  to  navigate  up  and  down  that  river  for  purposes  of 
commerce ! 

(Objection  by  counsel  for  complainant.) 

A.  Xo,  I don’t  think  it  was;  I know  it  was  not.  You  might  take 
a boat  down  but  I do  not  see  how  it  would  ever  be  possible  to  get 
it  up. 

Q.  You  couldn’t  take  a very  large  boat,  could  you! 


G05 


(Objection  by  counsel  for  complainant  to  the  cpiestion  as 
leading  and  suggestive.) 

A.  Well,  I don’t  know;  there  has  been  water  enough  to  carry  a 
pretty  good  sized  boat,  but  then  that  was  only  just  in  freshets  in 
the  spring  time. 

Witness.  I should  think  it  would  be  dangerous  to  take  a l)oat 
down,  a boat  that  had  any  kind  of  freight  on  it  that  was  dam- 
ageable; I never  heard  of  its  being  done;  never  saw  a boat  that 
carried  anything  up  and  down  the  river,  anything  that  was 
carried  for  any  purposes,  as  grain  and  lumber.  I have  seen 

1682  small  boats  go  down  the  river,  fishing  and  hunting  and 
trapping  and  such  things;  but  they  seldom  came  up.  I re- 
member once  myself  and  two  fellows  took  a skiff  and  went  down 
the  canal  from  here  to  Channahon.  There  we  put  it  into  the  Du 
Page  Eiver  and  went  down  into  the  Desplaines  as  far  as  tlie 
aqueduct.  Then  we  pulled  her  out  and  went  over  to  Goose  Lake, 
hunting.  We  had  to  drag  the  skiff  over  the  rapids  going  down. 
I only  remember  one  place,  that  was  right  after  we  got  her  out 
of  the  canal;  close  to  where  the  Du  Page  enters  into  the  Des- 
plaines, there  was  quite  a rapids  there,  about  a quarter  of  a 
mile  below  Channahon.  We  put  the  skiff  back  into  the  canal; 

could  not  have  got  it  back  up  the  river  because  there  was  a 

1683  good  many  rapids  along  the  river,  and  we  knew  them,  and 
rather  pull  her  over  the  rapids  we  might  as  well  walk  back, 

because  we  would  have  to  walk  back  over  half  the  way  anyway. 
So  we  put  her  into  the  canal  and  came  back  that  way.  I never 
that  I know  of  saw  any  fences  across  the  Desplaines  River.  I 
have  seen  them  fence  into  the  water  10  or  12  feet  to  keep  cattle 
from  going  from  one  man’s  land  to  the  other  where  they  had  pas- 
ture, but  don’t  remember  seeing  any  fences  stretched  clear  across. 
It  was  along  about  1858  or  ’9  that  I was  in  the  skiff  with  the  two 
other  people,  fishing,  and  took  the  boat  back  by  way  of  the  canal. 


606 


Oliver  S.  Chamberlix^ 

1684  called  as  a witness  on  behalf  of  the  defendant,  testified  as 
follows : 

My  name  is  Oliver  S.  Chamberlin. 

(The  testimony  of  this  witness  was  objected  to  because 
complainant  had  no  notice  of  his  intended  examination.) 

I live  at  1112  Cass  street  on  the  bank  of  Spring  street  here  in 
Joliet.  I have  lived  here  about  12  years.  I lived  in  Will  County 
7 years  at  the  12-mile  Grove,  and  then  I lived  in  Cook  County 
7 years  at  Blue  Island  and  I lived  18  years  up  on  the  farm  and 
about  12  years  here.  The  farm  where  I lived  18  years  was  about 
5 miles  and  a half  east  on  Maple  street  in  Will  County.  I first 
came  to  this  part  of  the  country  in  tlie  fall  of  1837,  and 

1685  have  lived  at  these  -various  places  ever  since.  I have  not 
been  away  from  this  general  country  here.  I was  born  in 

1825.  I did  not  come  by  the  way  of  Chicago ; we  came  around  the 
Lakes.  I was  about  12  years  old  when  I arrived  here;  it  was 
1837  when  I first  came  to  Will  County.  I did  not  become  so 
very  familiar  with  the  Desplaines  Eiver  in  the  years  between 
1837  and  1848.  I remember  seeing  how  it  looked  down  here  be- 
low the  town,  and  up  beside  the  Sanger  farm  towards  Lockport. 
I had  some  horses  on  the  Sanger  farm,  and  I used  to  no- 

1686  tice  the  river  along  there. 

As  to  the  usual  depth  of  water  along  there,  at  the  southern 
part  of  the  Sanger  farm,  it  was  not  deep.  It  ran  pretty  lively 
and  a little  deeper  on  up.  I do  not  know  that  I ever  went  into 
it  with  a skiff,  or  measured  it  for  anything.  The  Sanger  farm 
is  up  above  Joliet  some  distance;  I guess  about  three  miles.  I 
liad  in  those  years,  occasion  to  observe  the  river  down  below  the 
Town  of  Joliet.  I can  remember  coming  down  to  the  Davidson 
(piarry,  and  I could  look  off  into  the  river  where  it  was  pretty 
wide  and  pretty  shallow.  I did  not  have  occasion  to  see  the  river 
very  frequently  during  different  seasons  of  the  year,  at  those 
points.  I could  not  point  out  where  the  rapids  were  in  the  river 
so  very  jiarticularly.  I have  been  along  the  river  a little  sometimes 
when  I was  going  to  Channahon.  I never  tried  to  go  down  the 


607 


river  in  a boat.  I guess  I have  seen  skiffs  on  tlie  river;  I 

1686  have  not  seen  them  very  frequently.  Whether  or  not  skiffs 
were  used  much  on  the  river,  when  I first  came  down  here, 

I do  not  know  much  about  it.  I did  not  stay  but  a few  days  in 
town.  Then  we  went  up  to  the  12-mile  Grove,  and  then  I didn’t 
get  here  very  often;  onjy  in  the  winter,  I came  down  and  went 
to  school. 

1687  I don’t  know  how  the  farmers  got  their  grain  to  market 
between  1837  and  1844.  I guess  they  must  have  drawn  it 

up.  About  1846,  I guess,  I know  I was  down  to  visit  my  brother- 
in-law  that  lived  at  the  club-house;  that  is  a little  east  of  this  old, 
stone  school-house.  He  said  he  wished  he  had  a load  of  grain 
hauled  up  to  Chicago,  and  I said  that  I would  take  it  for  him.  I 
took  it  by  Blue  Island,  with  a team.  I suppose  that  people  who 
traveled  between  Chicago  and  Joliet,  and  that  merchandise  and 
freight,  were  carried  by  means  of  teams.  I am  satisfied  as  well 
as  I can  be  that  they  did.  I never  heard  of  any  boats  bringing 
merchandise  or  produce,  or  freight  of  any  kind,  down  the  river 
from  Joliet  until  the  canal  boats  commenced  to  operate.  I never 
heard  of  any  boats  being  navigated  upon  the  Desplaines 

1688  Elver  at  any  time  for  the  purpose  of  commerce.  I never 
heard  of  it  at  any  place  on  the  river.  I never  saw  any  such 

thing.  I do  not  recollect  of  having  seen  any  fences  built  across 
the  river. 

No  cross-examination. 

Seneca  Hammond, 

called  as  a witness  on  behalf  of  defendant,  testified  as  follows: 

Direct  Exam  mat  ion. 

(The  testimony  of  this  witness  objected  to  on  the  ground 
that  complainant  had  had  no  notice  of  the  intended  examina- 
tion.) 

My  name  is  Seneca  Hammond. 

I live  in  Joliet.  I came  here  in  1849,  by  the  way  of  Chicago. 
I came  from  Chicago  to  Joliet  on  a canal  boat.  I was  born  in 
1837,  and  have  lived  here  in  Joliet  and  vicinity  ever  since  1849. 

My  business  has  always  been  a farmer,  up  to  within  a few 
1690  years.  My  farm  was  right  east  of  Joliet  on  Maple  street 
(road  we  call  it)  about  4 miles;  that  would  be  4 miles  from 


608  Hammond, — Direct  Exam. — Continued. 

the  river.  I had  occasion  to  transport  farm  produce  or  grain  to 
the  Chicago  market.  It  was  always  done  by  boat  on  the  canal. 
After  I arrived  here,  the  Desplaines  Eiver  was  always  our  fish- 
ing ground.  I always  went  there  fishing;  that  was  all  the  sport 
we  had  those  days — fishing;  I went  once  or  twice  a year;  we 
used  to  fish  down  below  Joliet  here  where  the  Hickory  Creek 
empties  into  the  river;  we  used  to  fish  there,  and  also  from  Joliet 
up  to  Lockport  and  through  there.  I never  was  down  the  river 
below  Hickory  Creek,  above  Lockport.  We  used  to  go  near 

1691  Komeo.  I have  only  been  along  the  Desplaines  Eiver  be- 
low Hickory  Creek  by  wagon  road.  I have  not  seen  the 

river  much  below  Hickory  Creek.  It  was  our  custom  to  go  fish- 
ing about  May.  We  calculated  to  go  when  it  was  not  very  high. 
We  had  to  fish  with  a seine;  do  wading;  we  generally  found  where 
we  always  waded.  I went  where  I could  find  holes  in  the  river 
and  seined  for  fish  in  these  holes.  I have  had  a boat  which  we 
drove  down  to  the  bank  with  a wagon,  and  then  waded  out  into 
the  stream  and  used  our  seine.  I never  saw  skiffs  or  boats 

1692  going  up  or  down  the  river  at  any  time.  I,  myself,  never 
used  a boat  on  the  river.  I never  heard  of  any  other  kind 

of  a boat  going  up  or  down  the  river,  nor  did  I ever  see  any.  I 
never  heard  of  any  boats  used  for  commercial  purposes  going  up 
or  down  the  river  at  any  time  in  my  life. 

Q.  From  your  observation  of  the  river  at  the  points  where 
you  have  fished  it,  what  do  you  say  as  to  whether  it  would  be  pos- 
sible, or  whether  it  would  have  been  possible  to  navigate  the 
river  by  any  kind  of  boats? 

(Objected  to  on  the  ground  that  the  witness  has  disquali- 
fied himself  from  answering  the  question.) 

A.  Well,  as  far  as  I know,  I do  not  think  they  could.  I saw 
the  river  at  these  points  where  I was  fishing. 

1693  Q.  Were  there  points  in  the  river  that  even  a skiff  would 
have  to  he  dragged  over  rapids  and  riffles? 

(Objected  to,  as  leading  and  suggestive.) 

A.  Yes,  sir. 

Q.  Would  it  have  been  possible,  in  your  judgment,  to  have 


taken  skiffs  up  or  down  the  river,  over  the  rapids  that  you  ol)- 
served,  when  you  were  fishing  there  in  the  early  days? 

(Objected  to  on  the  ground  that  the  witness  has  not  said 
that  he  has  seen  any  rapids.) 

A.  Why,  it  would  be  possible,  yes  sir. 

But  not  without  dragging  it.  You  would  have  to  drag  it  over 
riffles,  in  my  experience.  I have  seen  the  river  in  times  of  high 
water.  It  would  have  been  possible  to  have  navigated  boats  up 
or  down  during  these  times  over  the  rapids  I obser\^ed  in  the 
river,  but  I should  hate  to  have  been  in  it.  I think  it  would  have 
been  dangerous  to  go  down  the  rapids.  The  current  wmuld  be 
very  swift.  I do  not  think  it  would  be  possible  to  have  rowed 

1694  a boat  up  those  rapids  in  high  water;  the  current  was  too 
swift.  I don’t  think  it  would  have  been  possible  to  have 

taken  boats  used  for  commercial  purposes  either  up  or  down  the 
river  during  the  times  of  high  water.  I never  heard  of  it  being 
done.  In  the  early  days  I didn’t  observe  that  any  fence  was  built 
across  the  river.  I saw  one  up  here  at  the  penitentiary  when  the 
penitentiary  was  built  there.  It  was  a ware  fence.  The  parties  that 
owned  the  land  on  the  other  side,  built  the  fence  there.  I saw  that 
fence  about  1863  or  ’64,  somewhere  along  there.  That  fence  was  a 
mile  or  two  north  up  the  river  from  Joliet,  right  beside  the  upper 
lake.  I saw  that  fence  there  more  than  once.  I climbed  over 
there  a good  many  times.  That  fence  remained  there  within  my 
knowledge  3 or  4 years.  I don’t  know  whether  it  was  ever  re- 
moved or  not.  I could  not  say.  I don’t  know  whether  it  has 
ever  been  taken  away  or  not. 

1695  Cross-Examination, 

I have  rowed  a skiff  on  the  river  from  the  lock  down  as  far 
as  Joliet;  I mean  the  twin  locks  up  there.  They  must  be  nearly 
a mile  up  the  river  from  Joliet.  I rowed  a skiff  down  only  once; 
I was  hunting  ducks  in  there.  The  little  experience  that  I have 
had  does  not  enable  me  to  know  very  much  about  what  can  be 
done  with  a skiff  on  a river.  I do  not  pretend  to  have  very 

1696  much  knowledge  about  what  can  be  done  with  a skiff.  I did 
not  say  that  I helped  drag  a skiff  over  the  rapids.  If  a 

skiff  were  taken  over  certain  rapids  that  I saw,  it  would  have  to 
be  dragged  over. 


610 


Peter  O’Brien^ 

1697  a witness  on  behalf  of  defendant,  testified  as  follows: 

D i rect  Exami n a ti on . 

(Counsel  for  complainant  objected  to  the  examination  of 
the  witness  on  the  gToimd  that  they  had  not  been  previously 
served  with  notice.) 

My  name  is  Peter  O’Brien.  I was  75  years  old  the  29th  day 
of  last  June.  I lived  at  806  Northeastern  avenue.  I have  lived  in 
the  city  or  vicinity  of  Joliet  and  Desplaines  River  fifty- three 
or  fifty-four  years.  When  I first  came  here  I was  steward 
and  porter  on  these  packets  that  ran  from  Chicago  to  LaSalle. 
I raised  a company  here  as  2nd  Lieutenant  and  went 

1698  to  the  war  and  resigned.  I was  nine  months  in  and  re- 
signed. After  that  I fished  and  hunted,  trapped  and  so  on. 

My  business  to-day  is  just  trapping.  I ain’t  trapping  now,  but 
I am  waiting  for  the  water  to  get  so  I can  trap.  I trap  every 
winter  and  fall;  7 miles  south  here;  Jake  Schweitzer,  that  is  on 
the  Desplaines  River.  My  trapping  and  hunting  and  fishing  has 
generally  been  confined  to  a territory  along  the  Desplaines  River 
and  adjacent  to  it.  I have  seen  the  Desplaines  River  in  all 
seasons  of  the  year.  It  has  been  very  low.  I have  waded  along 
from  Malcolm’s  mill  way  down  to  Brandon’s  bridge,  and  be- 

1699  low  that  40  or  50  rods.  In  that  territory  from  Malcolm’s 
mill  to  Brandon’s  bridge,  I should  say  there  was  from  6 

to  8 feet  of  a fall.  Quite  a current  from  Malcolm’s  down  to — 
way  down  to  where  we  call  the  lake;  that  is,  the  head  of  Lake 
Joliet;  that  is  in  the  neighborhood  of  three  or  four  miles  from 
the  court-house.  I have  never  seen  any  freight  boats  plying  up 
and  down  the  Desplaines  River,  excepting  a canoe  or  a skiff  tak- 
ing provisions  down  to  camp  for  a week  or  so;  never  heard  of 
a freight  boat  going  up  or  down  the  Desplaines  River  carrying 
merchandise.  As  to  whether  it  is  possible  for  a row  boat  to  come 
up  the  Desplaines  River  in  any  season  of  the  year,  from  the 
mouth  of  the  river  to  Malcolm’s  mill,  sometimes  you  would  have 
a good  deal  of  poling  and  avoiding  these  big,  hard  heads 

1700  to  get  up  when  there  was  any  kind  of  a current.  They  poled 
up  small  boats  from  the  mouth  of  the  Desplaines  River  to^ 

Malcolm  mill.  They  poled  up  and  worked  with  the  oars.  [ don’t 


GIT 

know  whether  they  were  able  to  get  their  l)oat  up  through  the 
rapids,  without  getting  out  of  the  boat,  or  not.  I myself,  even, 
had  to  get  out  to  come  around  the  edge  of  the  abutments,  be- 
fore Brandon’s  bridge  was  built,  in  order  to  get  up  that  heavy 
current.  I would  fake  my  boat  down  to  where  the  current  was 
not  as  swift,  and  give  her  a good  shove,  so  I could  go  around 
the  piers;  around  the  abutments.  I might  ])ull  my  boat  out  of  the 
water,  once  in  a while.  I never  rowed  or  poled  a boat  from 
Brandon’s  bridge  to  Malcolm  mill.  I could  not,  because  there  is 
not  water  enough  and  when  there  was  water  enough,  I could  not 
get  up  against  that  current. 

1701  If  a boat  were  going  down  the  Desplaines  Eiver  in  times 
of  high  water,  it  would  be  likely  to  strike  one  of  these  hard 

heads.  All  you  can  see  of  them  when  it  is  high  water  is  a kind 
of  a little  riffle  or  current  around  them.  I often  went  down  the 
Desplaines  Biver  in  times  of  high  Avater  from  Malcolm  mill.  I 
went  in  a small  boat,  but  I would  go  down  backwards,  so  as  to 
avoid  those  hard  heads.  I Avould  sit  right  where  I rowed  from 
and  turn  my  boat  around,  turning  the  bow  doAvnwards — back- 
wards, and  row  backwards.  I would  not  roAv,  I would  let  her  go 
down  with  the  current  and  a\mid  those  stones. 

I have  seen  fences  across  the  Desplaines  Ewer.  Mr.  Adler 
had  a fence  there,  down  below  Malcolm’s,  so  the  cattle  would 
not  get  in  the  opposite  place  of  Mr.  Davidson,  the  old  fellow  who 
owns  the  quarry.  The  fence  went  clear  across  the  river.  I 

1702  don’t  remember  whether  there  was  more  than  one  of  them. 
I saw  it  pretty  often.  A freshet  would  generally  take  it 

out,  once  in  a while.  It  would  start  in  at  Hickory  Creek,  where 
Adler’s  pasture  used  to  be,  and  then  cross  over  so  it  would  not 
strike  Davidson’s  place.  They  would  get  in  any  way,  once  in 
a while,  and  they  would  have  to  drive  them  out.  There  was  a 
wire  fence  along  the  shore,  from  about  south  of  Hickory,  down, 
you  might  say,  maybe  80  or  100  rods.  I am  pretty  certain  of 
that. 

1703  As  to  the  dams  on  the  Desplaines  Eiver  I remember  Mal- 
colm’s Dam  and  then  the  Jefferson  Street  Dam  and  then 

Number  1 at  Jackson  street,  where  the  present  dam  is  now. 


612 


I knew  of  a dam  at  Treat’s  Island.  I used  to  go  out 

1704  and  wade  out  to  where — a little  above  this  dam.  There 
used  to  be  an  old — kind  of  big  logs  and  so  on  across  this 

place;  a little  kind  of  east  of  Treat’s  Island,  and  I think  it  was 
for  the  purpose  of  getting  water  into  the  mill  that  they  had  a 
sawmill  down  at  the  lower  end  of  this  little  runway;  I think  that 
was  what  it  was  for.  There  used  to  he  a dam,  an  old  dam,  in  the 
vicinity  of  the  mouth  of  the  Desplaines  Eiver,  a good  deal  like 
the  dam  that  was  there  at  Treat’s  Island.  That  dam  was  clear 
across  the  river. 

C ross-Examination. 

The  trapping  that  I did  was  done  in  the  winter  and  fall, — the 
fall  and  spring.  The  reason  I could  not  take  my  row  boat  up 
the  river  was  because  of  the  swift  current.  At  any  time 

1705  when  I waded  in  the  river,  it  was  in  warm  weather,  in  the 
summer  time;  that  was  the  season  of  the  year  when  the 

river  was  lowest.  I should  say  it  was  all  of  a quarter  of  a mile 
over  from  the  dam  here  in  Joliet,  at  Jackson  street,  to  Malcolm’s 
mill.  There  were  rapids  in  the  river  below  Malcolm’s  Dam,  but 
not  above  the  dam.  I don’t  think  where  I waded,  I could  drown 
very  easily.  In  some  places  it  was  5 or  6 inches  deep  and  in  more 
IDlaces  it  was  maybe  two  or  three  feet.  The  dam  that  I spoke  of 
at  Treat’s  Island  I think  was  put  in  to  have  some  of  the  water 
pass  by  the  sawmill  that  was  there. 

1706  There  are  three  channels.  There  is  one  on  the  west  side 
of  Treat’s  Island,  and  then  there  is  one  betwixt  the  main 

island,  large  island,  that  the  race-way  goes  down  to  the  mill, 
and  tlien  the  biggest  is  on  the  east  side.  This  portion  of  the 
river  where  the  dam  was,  was  not  very  narrow.  There  was  quite 
a stream  on  the  east  side  of  it.  It  might  have  been  as  wide  as 
a good  sized  road;  it  might  have  been  5 or  6 rods  wide.  The  size 
of  the  stream  on  the  other  side  of  the  island  was  about  the  same. 
Mr.  Adler  had  a fence  across  through  it,  one  time;  it  was  just  a 
wire  or  two  wires  stretched  across;  there  might  have  been  only 
two  or  three  wires  for  that  matter.  I didn’t  pay  much  attention 
to  it,  but  I know  there  was  a wire  there,  and  that  it  broke  when 
there  was  a freshet  in  the  spring  of  the  year;  it  would  generally 


613 


break  it.  The  purpose  of  this  fence  was  to  keep  cattle  from 
going  over  to  Mr.  Davidson’s.  I think  that  was  what  the  point 
was.  Davidson  used  to  have  a big  lot  of  quarry  stone  put  on 
end  for  a fence  in  one  part  of  his  field.  This  fencing  was  to  keep 
cattle  from  going  from  one  man’s  field  around  to  another.  I only 
remember  the  one  fence  that  was  across  the  river. 

1708  Fkanklix  Collins^ 

a witness  on  behalf  of  defendant,  testified  as  follows: 
Direct  Examination. 

(Counsel  for  complainant  objected  to  the  examination  of 
this  witness,  on  the  ground  that  no  notice  had  been  previ- 
ously served.) 

My  name  is  Franklin  Collins.  I live  at  201  Baker  avenue, 
Joliet.  I came  to  Will  County  with  my  x^arents  in  the  fall  of 
1833.  I was  about  three  years  and  a half  old.  My  first  knowl- 
edge of  the  Desplaines  Eiver  was  in  1837  or  ’38.  The  dam  at 
Lockport  pertaining  to  the  Daggett  mill  was  either  in  process  of 
construction  or  constructed  at  that  time.  There  was  a dam  across 
the  river  down  here  a little  above  the  old  Jefferson  street 

1709  bridge.  I think  it  extended  across  the  river.  I suppose  there 
was  a grist-mill  in  connection  with  that  dam.  I never  was 

in  the  building;  that  is  the  dam  known  as  the  McKee  Dam.  As 
to  whether  or  not  there  were  any  other  dams  in  the  river  x^rior 
to  1848,  I could  not  swear  as  to  the  date  that  the  Havens  boys 
Xout  in  a dam  down  below  there  for  the  x^niq^ose  of  a sawmill.  I 
never  saw  boats  carrying  freight  or  merchandise 
down  the  Desplaines  Kiver,  nor  did  I ever  hear  from  anyone 
whom  I regarded  as  a reliable  source  of  information,  that  boats 
carrying  freight  and  merchandise  plyed  up  and  down  the  Des- 
plaines Eiver. 

There  were  some  places  in  the  river  where  it  was  easily  forded 
at  almost  any  time,  and  then  there  were  other  places  where  you 
could  drive  right  across  the  river.  I never  forded  the  river 

1710  at  all,  later  years.  I think  the  first  time  was  about  1840, 
’41  or  ’42.  At  that  time  I forded  it  at  Loclq3ort.  I don’t 

think  I ever  forded  it  at  any  other  x^lace,  before  the  opening 
of  the  Illinois  and  Michigan  Canal.  The  ordinary  condition  of 
the  river  as  to  quantity  and  depth  of  water  was  very  little  in 


614 


quantity;  in  depth,  it  varied  very  nineh,  from  nothing  to,  maybe 
in  places,  two  feet,  perhaps.  There  would  he  a series  of  holes 
and  shallows  clear  across  the  river;  also  up  and  down  the  river. 
I have  seen  row  boats  going  up  and  down  the  river  for  short  dis- 
tances. There  were  places  where  a row  boat  could  run  a few 
rods,  and  in  some  places  I should  say  half  a mile.  When  they 
got  to  the  limit  of  row  boat  flotation,  if  they  wanted  to  continue, 
they  would  have  to  carry  the  boat  over — make  a portage.  There 
were  not  many  row  boats  on  the  river ; they  were  owned  for  pur- 
poses of  pleasure.  I never  heard  of  a boat  being  owned  on  the 
Desplaines  Eiver  for  the  purpose  of  commerce.  When  we  came 
here,  we  came  by  wagon  from  Eochester,  N.  Y.  We  came  around 
through  Indiana.  We  crossed  the  river  at  Detroit,  and  the  rest  of 
the  way  through  Indiana  and  those  adjacent’  states  that  we  had 
to  touch.  I frequently  had  occasion  to  go  to  Chicago  before  the 
opening  of  the  Illinois  and  Michigan  Canal.  At  first  we 

1712  used  to  use  ox  teams,  and  soon  branched  off  into  horse 
teams.  There  was  no  other  way  of  getting  produce  to  Chi- 
cago and  getting  supplies  from  Chicago,  excepting  teams  at  that 
time.  There  were  teams  in  the  summer,  when  the  roads  were 
very  good;  later  in  the  fall  and  early  in  the  spring,  they  were 
very  bad.  It  was  almost  impossible  to  get  through  with  a rea- 
sonable sized  load.  Before  the  opening  of  the  canal,  there  would 
usually  be  a good  many  teams  going  to  and  from  Chicago.  There 
was  a stage  line  running  from  Chicago  down  through  this  country; 
it  was  called  Frink  & Walker.  I don’t  know  its  real  southern 

terminus;  it  ran  from  Chicago  south  and  southwest. 

1713  There  have  been  fences  across  the  river  north  of  here; 
south  of  here  I am  not  well  posted.  Those  fences  north  of 

here  extended  clear  across  the  river.  They  used  to  have  a swing- 
gate,  or  what  they  called  a swing-gate  in  some  places ; they  were 
not  all  alike.  I don’t  know  whether  or  not  the  Daggett  Dam  ex- 
tended clear  across  the  river. 

Q.  In  view  of  the  difficulties  of  transporting  merchandise  and 
siqqfiies  to  and  from  Chicago,  if  it  had  been  possible  to  have  used 
the  Des})laines  Eiver,  would  it  have  been  used,  in  your  opinion? 

(Objected  to,  as  leading  and  improper.) 

A.  Most  emphatically. 


In  my  opinion  the  only  reason  the  Desplaines  liiver  was  not 
used,  was  because  it  was  not  capable  of  bein^  used. 

C ross-Exam  h lation. 

1714  I will  be  78  years  old  the  19th  day  of  A])ril.  I came  to 
this  country  in  1833,  as  a child,  with  my  ])arents.  When  I 

first  came  to  Will  County,  we  lived  in  what  is  now  called  the  Town 
of  Homan.  We  lived  there  most  of  the  time  until  1870.  I live 
5 miles  from  the  Desplaines  River,  at  a place  that  is  northeast 
of  the  City  of  Joliet;  I would  call  it  a distance  of  about  9 miles. 
A¥e  call  the  distance  to  Chicago  32  miles;  that  is,  the  shortest 
and  most  direct  road.  If  there  had  been  boats  on  the  river,  I 
would  not  have  seen  them,  but  I should  have  known  of  them 

1715  by  hearsay.  It  is  possible  that  there  might  have  been  some 
boats  on  the  river,  without  my  having  heard  of  it;  there 

might  have  been  hundreds  of  them,  without  my  knowing  it.  The 
dam  at  Lockport  was  built  at  an  early  day;  I think  before  1840. 
If  it  was  built  in  1837,  I was  then  7 years  old.  Our  home  at  that 
time  was  about  5 miles  from  Lockport.  This  dam  known  as  the 
McKee  Dam  was  situated  at  about  Jefferson  street;  it  was 

1716  in  what  is  now  known  as  the  City  of  Joliet.  I think  there 

was  a mill  in  connection  with  it,  as  it  is  spoken  of  freely 

as  the  McKee  mill;  I have  never  been  to  it.  Prior  to  1848  I do 

not  pretend  to  have  exact  memory  as  to  month  or  year.  The 
canal  was  built  and  finished  about  1848;  after  that,  water  trans- 
portation was  on  the  canal.  I would  say  that  since  about  1840, 
I have  an  accurate  memory  at  this  time  of  the  situation; 

1717  that  would  be  from  the  time  I was  about  10  years  old.  I 

think  I moved  to  Joliet  in  about  1871.  I think  it  was  prior 

to  1840  that  I forded  the  river  at  Lockport ; I think  it  was  in 

1841  or  ’42  somewhere;  I could  not  tell  very  positively.  I would 
not  pretend  to  be  accurate  as  to  three  or  four  years  of  a time 
there  when  it  might  have  been.  I forded  it  in  company  with  my 
father,  with  a team  of  horses.  I think  in  the  deepest  place  it  was 
about  two  feet  deep.  I think  I have  a clear  and  distinct  recollec- 
tion to-day  as  to  how  deep  it  was.  I think  there  was  a regular 
drag  across ; it  might  have  been  a riffle ; I could  not  say  as  to  that. 
The  place  selected  for  fording  would  most  likely  be  in  the  shal- 


616 


low  parts  of  the  river;  I don’t  remember  whether  it  was  or  not; 
generally  the  fords  of  the  river  were  on  the  riffles.  During 
the  next  8 or  10  years  I usually  crossed  the  river  two  or 

1719  three  times  a year ; that  would  be  in  the  summer  time  at  the 
low  stages  of  the  water.  In  extreme  high  water,  this  river 

got  to  be  half  or  three-quarters  of  a mile  wide  in  many  places ; 
I don’t  remember  how  deep  it  was  at  those  times.  There  were 
no  measurements  and  no  means  of  ascertaining.  As  far  as  any 
fence  was  concerned  south  of  what  is  now  Joliet,  I don’t  know 
about  that  until  later  years.  There  are  no  fences  across  the  river 
south  of  Joliet,  that  I know  of  now.  I would  not  swear  that 

1720  there  ever  was  a fence  across  the  river  south  of  Joliet. 
North  of  Lockport  there  used  to  be  several  fences  across  the 

river.  Mr.  Fitzpatrick  had  one ; that  fence  went  clear  across  the 
river ; it  consisted  mostly  of  boards ; sometimes  they  had  a swing- 
ing fence,  one  that  they  could  take  out  as  they  saw  fit;  the  ma- 
jority of  them  were  fixed  that  way;  I would  not  swear  that  all  of 
them  were  so  fixed.  All  fences  at  that  time  were  built  most  any 
way,  with  almost  any  kind  of  material  that  they  had,  but  usually 
those  were  boards;  also  there  was  wire.  The  earliest  wire  fence 
that  I recollect  about,  is  1845.  Until  long  after  1845,  as  a 

1721  general  thing  there  was  no  wire  to  be  used  for  fence  or 
otherwise.  Whatever  was  of  wire  at  an  earlier  date,  was 

made  by  a home  blacksmith,  or  something  of  that  kind,  and  strung 
across  the  stream.  Kods  were  stretched  across,  and  swung  on 
what  was  a swinging  gate;  they  were  usually  small  rods,  almost 
approaching  wire.  I remember  distinctly  of  such  rods  as  that 
being  used  in  fences.  I would  not  swear  it  was  used  there,  but 
I will  swear  it  was  used  north  of  there  on  Spring  Creek — across 
Spring  Creek.  These  rods  or  wires  varied  in  length;  I should  say 
they  were  from  about  15  feet  to  2 rods.  In  setting  them 

1722  across  the  river,  posts  were  set  in  the  river;  they  were 
mostly  of  wood;  a few  of  iron.  I do  not  know  where  they 

got  that  material  to  make  those  fences.  I may  be  slightly  mis- 
taken in  the  date  as  to  any  wure  or  iron  fence  feeing  put  up  as 
early  as  1845,  but  I don’t  think  I am  very  far  off. 


617 


1723  John  McGowan, 

a witness  on  behalf  of  defendant,  testified  as  follows: 

Direct  Examination . 

My  name  is  John  McGowan.  I live  in  Joliet.  I was  horn  in 
1826.  I first  came  to  Will  Gounty  before  Will  Gonnty  had  been 
made.  I first  came  to  this  territory  adjoining  the  Desplaines 
River  on  the  28th  of  May,  1835;  I was  8 years  old  in  December, 
1834;  I came  from  Golumhia  Gounty,  State  of  New  York.  We 
came  by  wagon  to  Albany  and  got  on  a canal  boat  at  Albany 
and  came  the  whole  length  of  the  Erie  Ganal  to  Buffalo ; then 
we  got  on  a steamer  at  Buffalo  and  took  that  to  Detroit;  from 
Detroit  to  Ghicago,  we  came  on  a 2-masted  schooner  called 

1724  the  ‘Mohn  Jacob  Astor.”  From  Ghicago,  father  hired  a man, 
and  he  had  to  get  an  assistant  to  help  him — another  team. 

It  took  us  one  whole  day  to  get  the  first  9 miles,  because  of  mud 
and  water.  There  were  no  roads  at  all  in  those  days,  from.  Ghi- 
cago out.  We  had  to  unload  and  carry  it  to  where  they  could 
set  it  down  without  being  in  water,  and  drive  up  and  then 

1725  load  it  over.  We  started  from  AVinterl)erry’s  Point  a little 
after  sunrise  on  the  26th  day  of  May,  and  got  to  Joliet  at 

sundown.  It  was  a wet  season  of  the  year,  and  there  was  a great 
deal  of  mud;  we  did  not  have  to  again  unload  our  goods;  we 
took  them  all  on  one  wagon  from  there.  We  were  heading  for 
Ghannahon,  but  we  did  not  know  anything  about  what  there  was 
down  there,  so  we  came  to  Joliet  and  laid  over  two  days. 

1726  From  there  we  went  down  to  Ghannahon.  We  went  down 
about  a mile  from  the  southwest  end  of  what  is  called  the 

AVide  AVater.  I refer  to  the  AYide  AYater  on  the  Illinois  and 
Alichigan  Ganal.  There  was  nothing  but  a big  slough  then,  be- 
cause the  canal  was  not  built  until  1848.  From  1835  I lived  in 
the  vicinity  of  our  location  at  Ghananhon  for  39  years.  On  a 
direct  line,  we  were  a little  over  3 miles  from  the  Desplaines 
River.  Old  Air.  Isaiah  Treat  had  a little  grist-mill  and  as 
soon  as  we  got  corn  ripe  enough  and  then  dried  it  enough, 
we  gathered  it  and  dried  it  out  around  the  stove-pipe  and 
shelled  it  and  took  it  over  to  that  mill.  I personally  went 
with  the  corn  to  the  mill.  The  first  time  I went  was  in 
1835;  that  mill  was  in  operation  at  that  date.  I waited  until  the 


618  McCoican , — Direct  Exam. — Continued. 

corn  was  ground  into  meal  and  took  it  back  with  me.  There  were 
two  dams,  one  standing  across  each  branch  of  the  river.  He 
had  one  run  of  stone  in  the  mill.  It  did  not  take  a great  while 
to  grind  our  corn.  I never  took  only  4 or  5 bushels  at  a time 
because  it  was  then  green,  that  year’s  growth,  and  of  course 

would  not  keep  very  long.  I lived  on  the  right  side  of  the 

1728  Desplaines  Eiver,  going  down  the  stream.  I got  to  the  mill 
by  going  across  both  branches,  because  the  mill  was  on  the 

east  side  of  the  east  branch.  I had  occasion  to  cross  the  Hes- 
jdaines  at  other  points  and  other  times  before  1848.  I crossed 
at  the  foot  of  Treat’s  Island,  and  I crossed  down,  over  near 
where  the  Smith  bridge  is  at  the  present  time.  The  bridge  is 
not  exactly  on  the  old  ford,  but  it  is  very  close  to  it.  I have 
crossed  the  river  here  in  Joliet  at  just  below  what  used  to  be 
the  island.  It  would  be  about  half  way  between  Exchange  street 
and  McDonough;  that  was  where  the  ford  was  in  the  early  days. 
There  was  a dam  in  the  river  at  Joliet  in  1836.  I don’t 

1729  remember  whether  there  was  in  1835  or  not,  but  in  1836 
McKee  had  a dam  and  a grist-mill.  One  thing  that  fixes 

that  date  in  my  mind  is  that  father  took  some  wheat  there  of  the 
growth  of  1836,  and  he  had  some  trouble  in  getting  his  pay.  I 
didn’t  go  with  him  to  the  mill  but  I had  been  past  it  several  times 
between  1835  and  1836.  Don’t  ^know  whether  that  dam  was  in 
in  1835  or  not;  that  dam  extended  clear  across  the  river;  there 
was  only  one  branch  here.  I don’t  remember  of  a dam  being 
located  below  what  is  known  as  the  aqueduct  near  the  mouth  of 
the  Desplaines  Eiver,  near  a place  called  Beardstown  in  the 

1730  early  days.  I remember  the  locks  were  constructed  in 
Channahon.  The  stone  with  which  those  locks  were  con- 
structed first  came  from  what  was  called  afterwards  the  Alexander 
Quarry;  that  is  on  the  east  side  of  the  river,  or  the  left-hand  side 
going  down  stream.  They  got  the  stone  from  Alexander’s  Quarry 
across  the  river  on  stone  trucks  hauled  by  horses.  The  locks  were 
constructed  in  1846  and  1847.  I remember  the  construction  of 
what  was  known  as  the  aqueduct.  I could  not  say  whether  they 
got  the  stones  from  which  that  was  constructed  at  Beardstown, 
or  whether  they  got  them  at  Alexander’s.  They  had  quarries 


down  there  at  what  is  called  Beardstown;  that -was  just  he- 

1731  fore  the  conjunction  of  the  Desplaines  and  Kankakee  but 
I don’t  know  that  there  was  anything  there  exce])t  sand- 
stone quarries,  that  is  to  get  stone  heavy  enough  for  aciueduct 
purposes. 

I have  never  seen  boats  plying  up  or  down  the  Desplaines 
River  carrying  merchandise  or  passengers.  I never  heard  of  any 
such  thing;  there  were  trappers’  boats,  skiffs — little  l)oats  and 
skiffs.  I never  went  up  or  down  the  Desplaines  River  in  a 
skiff.  I have  seen  trappers  with  shift's.  1 have  seen  them  all  the 
way  from  the  Davidson  quarries  clear  to  Treat’s  Island,  and  I 
have  seen  them  as  far  down — but  there  did  not  many  of  them  go 
beyond  Treat’s  Island — but  I seen  a few  down  as  far  as  the 
Smith’s  bridge.  Part  of  the  stretch  of  river  from  the  Davidson 
Quarry  to  the  head  of  Treat’s  Island  is  known  as  Lake 

1732  Joliet.  I have  not  seen  a skiff  go  all  the  way  up  the  river 
from  the  head  of  Lake  Joliet  to  Davidson’s  (luarry;  T have 

seen  them  at  different  places.  The  current  in  that  stretch  of  river 
was  pretty  swift;  the  first  two  miles  and  a half  was  pretty  swift; 
a good  deal  of  a fall.  A row  boat  could  be  rowed  u])  that  cur- 
rent, but  it  would  not  be  much  fun.  I never  saw  one  rowed  u]) 
there,  and  I never  rowed  one  myself. 

The  first  time  I was  in  Chicago  after  1835  was  in  the  fall  of 
1842,  and  then  from  that  until  the  opening  of  the  canal  we  were 
there  every  year,  in  the  fall  of  the  year,  with  produce,  wheat  prin- 
cipally. We  got  to  Chicago  with  a team.  We  passed  a good  many 
other  people  on  the  road  going  to  and  from  Chicago.  That 

1733  was  the  only  way  of  getting  produce  from  this  territory, 
and  below  here,  to  Chicago  that  I ever  knew,  and  I have 

lived  within  three  miles  of  the  Desplaines  River  since  1835  and 
up.  to  the  present  date.  I don’t  think  it  would  be  possible  for 
boats  to  have  gone  up  or  down  the  Desplaines  River  since  1835 
and  up  to  the  present  date.  I don’t  think  it  would  be  possible 
for  boats  to  have  gone  up  or  down  the  Desplaines  River  carry- 
ing merchandise  without  my  knowing  it,  because  1 think  it  would 
have  been  such  a memorable  thing  that  it  would  have  been  talked 
about.  In  those  early  days  the  Desplaines  River  could  not  be 
used  for  transportation,  that  is  unless  it  was  in  high  water  flood. 


620 


or  in  the  spring.  If  they  had  steam  powerful  enough  to  counter- 
act the  current,  I guess  they  could  have  used  it  in  high  water, 
providing  the  boats  did  not  draw  too  much  water. 

1734  I never  heard  of  anybody  owning  a boat  on  the  Desplaines 
Elver  for  the  purpose  of  carrying  merchandise  or  freight 

up  or  down. 

Q.  When  you  came  to  Chicago,  did  you  inquire  as  to  the  meth- 
ods and  means  that  could  be — that  were  available  for  getting  into 
this  country! 

(Objected  to  as  suggestive  and  leading.) 

A.  My  father  did.  I didn’t. 

There  was  no  other  available  means  of  getting  into  this  country 
at  that  time.  I remember  of  the  Haven  Dam  in  Joliet,  some- 
times called  the  Malcolm  Mill.  I could  not  tell  exactly  when  that 
was  constructed. 

1735  I have  walked  across  the  Desplaines  Eiver  down  there  at 
Treat’s  Island.  Where  I went  across  there  was  none  of  it 

over  16  inches  deep,  and  some  parts  of  it  were  not  more  than  6. 
Nigger  heads  and  boulders  were  pretty  numerous  in  the  channel 
near  Treat’s  Island.  I had  walked  by  stepping  from  stone  to 
stone  across  the  river.  I went  over  dry  shod  on  the  stones.  I 
have  seen  a few  fences  clear  across  the  Desplaines  Eiver. 

1736  C ross-Examination. 

I was  born  in  1826.  I came  here  with  my  father  in  the  spring 
of  1835.  My  birthday  is  in  the  month  of  December.  I guess  I 
must  have  been  eight  years  and  a half  old  when  I came  here.  I 
learned  a good  deal  about  means  of  travel  from  the  time  I started 
until  I got  here.  Of  course  I didn’t  know  anything  about  travel 
until  I started.  I knew  nothing  about  this  country  through  here 
and  from  Chicago  until  I came.  I didn’t  make  any  inquiry  and 
look  about  to  find  the  best  means  of  getting  down  from  Chicago, 
but  I heard  my  father  talking.  I know  that  I came  from  Chicago 
here  with  teams,  and  I know  that  for  the  first  9 miles  after  get- 
ting out  of  Chicago,  the  roads  were  very  muddy.  There  was  not 
much  Chicago  there  at  that  time.  We  started  from  what  was 
called  the  ‘H)ld  Green  Tree”  house,  across  from  the  ‘Hndian 


621 


Agency’s’’  house.  John  H.  Kinzie  was  the  Indian  agent  there  at 
that  time.  I don’t  know  anything  about  a ‘'Mud  Lake”  near  the 
City  of  Chicago;  I never  heard  of  it.  I haven’t  heard  of  boatf? 
crossing  between  Chicago  River  and  the  head  waters  of  the  Des- 
plaines  in  high  water  time.  I have  lieard  that  the  waters  connect 
in  high  water  time;  tliat  is,  the  waters  of  the  Chicago  River  and 
the  Desplaines  River.  I could  not  say  when  I first  learned  about 
it;  it  was  previous  to  ’48,  but  I could  not  locate  the  year;  that 
was,  as  I understood,  at  the  time  during  a great  flow  of  ice  that 
caused  the  waters  to  dam  up  in  the  Desplaines.  I didn’t  learn 
where  the  ice  was  located,  but  I read  that  in  the  newspapers.  I 
just  know,  in  a general  way,  the  fact  that  in  very  high  water 
there  was  water  connection  between  the  Chicago  River  and  the 
Desplaines  River,  and  that  in  low-water  that  connection  didn’t 
exist. 

I never  heard  of  the  name  “The  Portage.”  The  first  year  I 
went  to  Chicago,  after  I came  here,  I think  was  in  1842;  I 

1739  went  with  a team,  with  my  father.  I took  some  grain  up; 
we  had  two  teams;  I drove  one  and  he  the  other.  I made 

no  personal  inquiry  myself  as  to  how  I could  get  down  here  from 
Chicago,  but  I was  always  with  my  father  when  he  was  talking 
with  the  teamsters  and  others,  and  I heard  all  he  said  pro  and 
con.  He  was  talking  to  ditferent  ones — to  the  hotel-keeper  and 
others.  He  talked  with  the  hotel-keeper  first,  because  he  had  to 
get  the  address  of  the  teamster  from  the  hotel-keeper.  He  in- 
quired where  he  could  find  some  teams  or  teamsters  to  bring  him 
down,  and  the  hotel-keeper  directed  him  to  one  certain  man  hav- 
ing teams;  then  my  father  went  to  this  man  and  engaged  him  to 
bring  him  down  with  his  team,  and  I heard  that  talk.  My  father’s 
inquiry  at  the  time  as  to  how  he  could  get  down  here  was  all  that 
I heard. 

1740  Nine  miles  out  from  where  we  started  in  Chicago  it  was 
very  wet  and  muddy  and  the  water  was  on  the  prairie ; there 

were  no  roads  at  all.  Concerning  the  depth  of  the  water  that  wO 
drove  through,  as  the  saying  is,  the  tires  and  fellies  of  the  wagon 
were  very  wet;  it  was  all  the  way  from  two  or  three  inches,  up 
to  two  feet,  in  places.  I cannot  say  how  far  up  the  Desplaines 
River  went;  I don’t  know  to-day  how  far  up  it  goes  toward  Chi- 


G22 


cago,  but  I know  the  Desplaines  Biver  and  the  south  branch  of 
the  Chicago  Elver  come  together  in  high  water.  Of  course 
1741  we  must  have  been  between  the  south  branch  of  the  Chicago 
Biver  and  the  Desplaines.  The  condition  that  I have  de- 
scribed existed  all  the  way  across  that  stretch  of  7 or  8 or  9 
miles  that  I traveled  the  first  time.  I forded  the  Desplaines 
Biver  down  near  the  location  of  what  is  called  the  Smith’s 
bridge.  It  must  be  10  miles  below  Joliet;  that  is,  below  Lake 
Joliet.  That  bridge  would  be  in  the  neighborhood  of  3 miles 
below  the  lower  end  of  what  is  called  Lake  Joliet;  it  might  be 
more  and  might  be  less ; it  is  right  in  Channahon.  Where  I 
crossed  there  was  a pretty  swift  current,  but  I would  not  say  there 
was  much  riffles  there.  The  rapids  were  further  up  stream;  it 
was  at  a jdace  where  the  water  was  running  quite  rapidly.  It  must 
have  been  a shallow  part  where  this  ford  was,  because  we  went 
through  there  with  wagons  very  often.  It  would  not  more  than 
cover  front  hubs.  I don’t  know  the  difference  between  deep  and 
shallow  in  that  line.  If  you  get  water  6 feet  deep,  you  cannot  ford 
it.  I forded  there  at  all  times  of  the  year  when  there  was  not  a 
flood.  I hauled  three  hundred  loads  of  stone  from  the  Alexander 
quarry.  I took  the  stone  home,  the  greater  part  of  it.  From 
the  Village  of  Chananhon,  it  was  just  about  one  mile  and  a half 
to  the  Alexander  quarry.  The  quarry  was  right  in  the  bank  of 
the  river,  that  is,  as  soon  as  you  went  across  the  flat,  about  30 
rods,  I should  judge  it  was,  there  the  (piarry  was  there  in 
the  hill.  This  ford  where  I crossed  with  my  loads  was  about 
1744  30  rods,  as  nearly  as  I can  tell,  below  the  Alexander  quarry. 

The  water  at  that  fold  was  a little  more  sometimes  than 
enough  to  cover  the  front  hubs  of  the  wagon;  the  lowest  would 
be  probably  just  over  the  front  hubs.  From  the  Alexander  quarry, 
Treat’s  Island  is  up  the  river;  I should  think  it  was  about  a mile 
and  a half  from  the  (piarry  to  the  lower  part  of  the  island.  I 
have  seen  skiffs  on  the  river  all  along  from  Joliet  to  Channahon, 
going  both  ways.  Part  of  the  way  the  current  was  so  ra])id  that 
it  was  hard  to  get  a skiff  along,  especially  on  the  rapids,  and 
there  was  quite  a number  of  them.  A good  deal  of  the  way  from 
Joliet  to  Channahon  is  rapids.  I know  where  Davidson’s  quarry 
was;  that  was  about  a mile  and  a half  above  the  head  of  Lake 


eloliet.  Davidson's  is  not  right  across  the  canal  from  the  head 
of  Lake  Joliet. 

R e-di rect  Exam  i u a t i o n . 

Those  skiffs  that  I have  seen  on  the  river  were  used  for  tlie 
men  to  trap  and  fish.  A way  back  in  the  early  40 's  and  late  30 's, 
most  everybody  had  a skiff  that  lived  anywhere  near  the  river; 
they  were  for  the  purpose  of  recreation  and  trapping  and  fishing. 
When  I first  came  to  Chicago,  the  name  of  the  hotel  I went  to 
was  the  Green  Tree  House."  I was  with  my  father  when  he 
made  inquiries  as  to  how  to  get  into  this  territory. 

Q.  And  do  you  remember  whether  he  discussed  with  the  hotel- 
keeper  where  he  intended  to  go? 

(Objected  to  as  not  being  fair  re-direct  examination.) 

A.  He  told  him  he  calculated  to  go  some  place  below  Joliet, 
but  he  didn’t  know  just  exactly  where.  The  hotel-keeper  had  no 
map  that  showed  the  location  of  the  territory,  that  I know  of.  I 
didn’t  see  it,  anyway. 

Q.  Is  that  the  question  he  asked  the  hotel-keeper,  “How  can 
I get  to  Joliet!’’ 

(Objected  to  as  not  being  re-direct  examination,  and  sug- 
gestive.) 

A.  Yes. 

The  hotel-keeper  told  him  he  would  have  to  get  a team  and  team 
through.  Then  my  father  asked  where  he  could  get  a team,  and 
was  directed  to  a man  who  did  teaming  business.  At  that 
1747  time  I suppose  there  were  men  in  Chicago  who  made  it  a 
regular  business  of  taking  people  into  this  country,  because 
they  took  us,  and  I suppose  that  it  was  the  same  way  with  every- 
body. Of  course  there  were  the  teams  going  in  from  the  country, 
as  there  were  years  later. 

Q.  Ho  you  know  how  far  from  Chicago  down  the  river  they 
went  in  teams  with  merchandise!  A.  Down  the  Desplaines! 

Q.  Yes,  down  the  Desplaines  Eiver  and  Illinois  Eiver,  to  what 
points  they  went  down  with  teams ! 

(Objected  to  as  not  proper  re-direct  examination.) 


624 


A.  Well,  I know  they  did  go  with  teams  as  far  as  Morris. 

I don’t  know  of  any  below  that  point. 

Q.  Do  yon  know  of  any  merchandise  going  up  the  Illinois  Kiver 
to  points  on  the  Illinois  Eiver  and  then  being  hauled  by  teams  into 
this  territory? 

(CH^jected  to  as  suggestive.) 

A.  No. 

I don’t  think  there  was  any. 

Re-cross  Examination. 

These  skiffs  that  the  trappers  had  on  the  river  were  used  to 
take  the  trappers  out  to  where  they  set  them.  They  brought  back 
the  furs,  mink  and  muskrat,  which  were  principally  the  animals 
being  trapped  at  that  time,  and  once  in  a while  they  would  catch  an 
otter  and  hippopotamus, — no,  I don’t  mean  that;  possum,  that  is  it. 
There  were  a great  many  people  engaged  in  the  business  of  trap- 
ping in  the  early  days;  everybody,  most,  was  a trapper  tiiat  lived 
anywhere  near  that  stream.  I have  known  one  man,  and  that  is 
the  only  one  that  I knew  personally  how  many  he  had.  He  had 
200  traps ; that  was  principally  for  muskrat.  This  man  didn’t  hap- 
pen to  want  to  use  the  Desplaines  Eiver;  he  had  plenty  right  be- 
tween where  he  lived  and  I lived,  in  the  big  slough  there  in  wet 
Aveather.  Others  that  did  use  the  skiffs,  used  them  to  carry  these 
traps  out  and  set  them  at  different  places.  They  went  every  morn- 
ing and  gathered  up  what  they  had  caught  and  skinned  them  and 
brought  the  skins  in.  Game  of  that  kind  was  veiw  plentiful  here  at 
that  time.  I was  not  acquainted  with  those  men  that  were  on  the 
river,  but  I knew  that  was  their  business.  Charley  Smith,  prob- 
ably a good  many  people  know  him,  or  know  of  him,  was  a great 
fur  gatherer.  He  didn’t  trap  any  himself;  he  bought  furs  from 
the  farmers  and  others.  Most  of  the  trappers  in  the  early  days — 
a Avay  back  about  ’40 — most  of  them  lived  right  here  along  the  river 
bank  and  had  a skiff  of  their  own;  they  were  not  what  you  might 
call  professional  trappers;  the  professional  trappers  came  a little 
later,  in  1835  and  ’38;  they  came  from  Chicago  and  some  other 
places.  I don’t  know  anything  about  aboA’-e  Joliet,  but  below  Joliet 
they  traiq^ed  as  far  as  I know  down  to  the  mouth  of  the  Kankakee. 


According  to  Schoolcraft,  when  the  l)es])laines  and  DnPage  come 
together  they  form  the  Illinois,  and  tliat  junction  is  about  2 miles, 
may  he  a little  more  or  a little  less,  from  the  junction  of  the  Kanka- 
kee. My  understanding  is  that  it  is  the  DuPage  River  and  the  Des- 
])laines  River  that  form  the  Illinois  River,  and  the  Kankakee  em])- 
ties  into  the  Illinois  about  2 miles  below  the  head  of  the  Illinois. 
I know  where  the  Economy  Light  & Power  CMni])any  has  com- 
menced to  build  a dam.  It  is  down  at  Dresden  Heights.  I have 
been  down  there.  I was  down  there  last  Se])tember.  The 

1751  Economy  Light  & Power  Company  were  at  work  then  building 
their  dam.  I didn’t  see  them  building  their  dam.  I know  the 

])oint  in  the  river  where  the  Economy  Light  & Power  Company 
started  to  build  a dam;  I know  they  are  reported  to  be  building. 
There  are  a great  many  who  have  the  idea  that  that  is  on  the  Des- 
plaines  River,  but  the  old  Indians  that  were  roaming  around  here 
in  1835  have  always  said  it  was  the  Illinois  just  as  soon  as  the 
waters  of  the  Desplaines  and  DuPage  came  together,  and  I think 
it  is  borne  out  in  Schoolcraft’s  stipulation,  and  one  thing  and  an- 
other, of  the  Mississippi  Valley.  I know  that  is  what  they  always 
said.  They  appeared  to  be  Indians  that  were  well  informed.  No, 
I didn’t  know  Shabbona. 

1752  R.  AV.  Killmer, 

a witness  for  defendant,  was  examined  in  chief  by  Mr.  Mun- 
roe,  and  testified  as  follows: 

Direct  Examiuaiioji. 

My  name  is  R.  W.  Kilhner.  I live  513  Herkimer  street.  I was 
86  years  old  last  month.  I came  to  Joliet  in  184-I-.  I was  22  at 
that  time.  We  came  into  this  territory  by  wagon  from  Cleveland. 
Between  the  years  ’44  and  the  opening  of  the  Illinois  & Michigan 
Canal,  I was  farming  in  the  Town  of  DuPage,  and  had  all  our  grain 
to  haul  to  Chicago.  I went  up  lots  of  times,  had  considerable 
grain  to  haul.  We  met  very  many  people  on  the  road.  There  was 
no  other  way  of  getting  grain  to  Chicago.  There  was  no  other  way 
of  getting  supplies  or  produce  into  this  territory  from  Chicago 
than  by  teams  to  my  knowledge.  I never  saw  any  kind  of 

1753  freight  boat  or  boat  carrying  merchandise  or  freight,  going 
up  and  down  the  Desplaines  River  at  any  time. 


626 


Q.  Did  YOU  ever  hear  from  any  creditable  source  that  any  boat 
carrying  merchandise  or  freight  ever  did  go  up  or  down  the  Des- 
plaines  Eiver?  A.  I never  did. 

I had  occasion  to  ford  the  Desplaines  Eiver  at  Goose  Lake.  My 
farm  came  right  down  to  Goose  Lake  up  here  above  Lockport.  I 
often  crossed  there,  because  my  cows  ran  down  to  the  river,  and 
in  a short  time  they  would  cross  the  river  over  to  get  better  food, 
so  I had  to  go  and  get  them  occasionally.  Many  a time  I had  to  do 
it.  At  those  times  I would  cross  on  horseback.  I have  crossed  the 
river  above  there  and  below  there.  I guess  I never  crossed  it  be- 
low Joliet.  I think  the  Dagget  Mill  was  in  the  Desplaines  at  Lock- 
])ort  when  I came  here  in  ’44.  I know  I went  to  mill  there 
] 754  often.  The  depth  of  the  water  in  the  river  in  ordinary  times, 
excluding  the  time  of  extreme  freshet  or  flood,  was  rather 
slim  for  navigation  purposes.  That  would  be  my  opinion.  I can’t 
see  how  boats  could  navigate  it  at  that  stage.  The  roads  between 
my  farm  and  Chicago  in  early  days  were  not  any  too  good,  be- 
cause it  was  a rainy  season. 

Q.  In  your  opinion,  if  the  Desplaines  Eiver  could  have  been 
used  for  any  useful  purpose  of  commerce  before  any  opening  of 
the  Illinois  & Michigan  Canal,  would  it  have  been  used? 

(Objected  to.) 

A.  lYell,  in  my  judgment,  I think  it  would. 

(^).  Then,  as  I understand  you,  in  your  opinion  the  reason 
why  it  wasn’t  used  for  commercial  purposes,  was  that  it  was  not 
capable  of  being  used. 

(Objected  to.) 

A.  AVell,  I would  think  if  it  could  have  been  used,  it  would  have 
been  used  of  course.  That  vrould  be  my  opinion. 

Q.  AVere  there  times  in  the  Desplaines  Eiver  when  there  was 
scarcely  no  water  running  over  the  riffles? 

(Objected  to  as  leading  and  suggestive.) 

1755  A.  Yes,  there  was  very  little  running  over. 

I have  run  my  fences  into  the  river  a little  ways,  not  very 
much.  I don’t  think  very  many  of  those  owning  farms  along  the 
river,  did  that.  I can’t  remember  anybody  running  across  the 


river  at  the  time  I am  thinking  of,  because  there  was  no  wire,  but 
maybe  they  have  since  been  using  wire. 

Cross-Examination. 

I said  I had  not  heard  from  a creditable  source  of  any  boats 
being  on  the  river.  What  I meant  by  creditable  source,  was  where 
a man  of  noted  credibility  for  truth  and  veracity,  would  tell  me 
such  a thing  that  I could  believe  him. 

1756  Where  I crossed  on  Goose  Lake,  the  water  was  pretty  nearly 
up  to  the  horses’  belly,  almost  all  the  time  when  I crossed 

there.  It  was  about  21  feet  deep,  a small  horse. 

As  to  how  much  water  would  be  necessary  for  navigation  for 
commercial  purposes,  that  depends  on  the  craft  some  I should  think. 
When  the  canal  was  opened,  I boated  on  this  canal  a little.  Four 
feet  of  water  was  all  that  our  boat  would  draw  and  go  aground  at 
that.  I should  say  four  feet  of  water  according  to  my  experience, 
was  necessary  in  order  that  profitable  commercial  navigation  could 
be  had.  And  when  I said  the  water  was  rather  slim  in  this  river 
for  navigation  purposes,  I had  in  mind  that  there  ought  to  be  4 
feet  of  water.  The  river  was  very  rapid  at  the  time  I had 

1757  occasion  to  cross  it.  In  the  summer  time  there  wasn’t  no 
fiood  or  anything  of  that  kind.  It  was  in  the  low  stage  of  the 

water.  The  place  where  I crossed  wasn’t  a rapid  place.  Goose 
Lake  in  low  water  had  no  very  great  current.  The  roads  to  Chi- 
cago were  pretty  bad  at  certain  seasons  of  the  year ; in  dry  weather 
the  roads  were  good.  In  wet  w^eather  they  were  muddy  and  bad. 
The  same  condition  prevailed  all  over  this  country  in  an  early  day. 

I have  forgotten  how  big  a town  Joliet  was  when  I came  here. 
I did  know,  but  I have  forgotten.  It  wasn’t  very  big  in  ’44.  It 
was  just  a little  village  at  that  time.  People  as  a rule  were 

1758  poor  people. 

At  that  time  Governor  Matteson  was  the  big  man.  He  kept 
store  in  Ottawa  street,  I think.  He  was  one  of  the  biggest  men  i 
know  of  at  them  times. 

Q.  Those  men  were  not  any  of  them  able  to  own  and  operate 
boats  that  would  cost  a thousand  or  two  thousand  dollars  apiece, 
were  they!  Take  the  farmers  that  lived  round  you,  and  the  men 


that  lived  in  Joliet  at  the  time.  A.  No,  as  a general  thing,  that 
class  of  people  were  striving  to  fix  their  homes  and  farms. 

The  only  means  these  people  had  of  moving  themselves,  with 
their  products,  was  by  teams.  They  had  no  boats,  and  I donT 
know  but  they  might  have  been  able  to  have  them,  but  I don’t 
know  it. 

I went  to  Chicago  once  myself  with  an  ox-team,  and  saw 
1759  plenty  of  others  on  the  road.  I don’t  know  whether  the  ox- 
team  were  the  principal  means  of  hauling  rather  than  horses. 
We  had  prairie  schooners  that  came  from  the  south  of  here.  A 
prairie  schooner  was  a covered  wagon,  with  3 or  4 yoke  of  oxen 
on  it. 


Re-direct  Examination  hy  Mr.  M unroe. 

Q.  Did  you  ever  hear  from  anybody  whether  creditable  or  in- 
creditable,  whether  the  boats  for  the  purpose  of  commerce  ever 
went  up  or  down  the  Desplaines  Kiver  ? A.  No,  I never  did. 

Q.  Did  you  ever  hear  of  anybody  owning  a boat  on  the  Des- 
j)laines  river,  for  the  purpose  of  carrying  commerce?  A.  Never 
did. 

The  canal  was  opened  about  four  years  after  I came  here.  As 
soon  as  the  canal  was  opened,  we  took  warehouses  in  Lockport,, 
and  from  our  neighborhood  took  the  grain  there.  As  soon  as  the 
canal  was  opened,  that  was  the  method  of  communication  between 
Chicago  and  Joliet,  and  was  used  by  the  farmers. 

1760  I never  knew  a farmer  sending  his  grain  on  the  boat.  He 
generally  took  the  grain  to  the  warehouse  and  the  warehouse- 
men loaded  it  on  the  boat,  and  sent  it  to  Chicago. 

1761  Certificate  of  Frederick  A.  Hill,  Master  in  Chancery,  that 
he  took  the  depositions  of  the  foregoing : Geo.  Alexander,  Ste- 
phen J.  Williams,  William  S.  Myers,  Geo.  F.  Gurney,  Xavier  Munch, 
James  Boyne,  Louis  K.  Stevens,  Jacob  Adler,  William  S.  Burt, 
David  Layton,  John  P.  King,  Adam  Comstock,  Jas.  C.  Keen,  Enos 
Field,  Urias  Bowers,  Oliver  S.  Chamberlin,  Seneca  Hammond, 
Peter  O’Brien,  Franklin  Collins,  John  McCowan  and  K.  W.  Kill- 
mer,  at  his  office,  325  Barber  Bldg.,  Joliet,  111.,  commencing  at  9 


A.  M.,  January  K),  1908;  that  said  depositions  by  stipulation  of 
1762  the  parties  were  taken  down  in  shorthand  and  afterwards 
transcribed  in  typewriting,  and  l)y  stipulation  of  the  parties, 
the  subsequent  signing  and  swearing  to  said  depositions  to  said  wit- 
nesses, was  waived,  and  it  is  agreed  to  that  said  depositions  as 
returned,  shall  be  accepted  as  correct,  and  have  weight  and  effect 
as  though  such  formalities  had  been  complied  with.  Further  certi- 
fied that  no  exhibits  were  offered  in  evidence  upon  said  heal- 
ing. 

176o  Here  follows  statement  of  fees,  as  follows: 

Statement  of  Fees. 


Master’s  fees  $169.50 

Stenographers’  fees  187.10  $356.60 


Witnesses’  fees: 


George  Alexander 2.35 

Seneca  Hammond  2.20 

0.  S.  Chamberlin 2.20 

Urias  Bowers 2.20 

Enos  Field 2.20 

J.  C.  Keen  2.00 

Adam  Comstock 1.10 

John  P.  King 2.20 

David  Layton 2.20 

William  S.  Burt 2.20 

Jacob  Adler  2.20 

L.  K.  Stevens 2.20 

James  Boyne  1.10 

Xavier  Munch  1.10 

Geo.  F.  Gurnev  1.10 

Mh  S.  Myers  . ' 1.50 

Stephen  J.  Williams 1.80 

K.  MC  Kilhner 1.10 

John  McCowan  1.10 

Franklin  Collins  1.10 

Peter  O’Brien  1.10  36.25 


1764  Here  follows  the  oath  of  said  witnesses. 

1773  Stipulation  entitled  in  this  Court  and  in  the  Circuit  Court 
of  Grundy  County  signed  by  counsel  for  complainant,  appel- 
lant, and  for  defendant,  appellee,  that  any  and  all  objections  on 


630 


either  side  to  time  or  place  of  hearing  or  any  other  proceeding  in 
the  Circuit  Court,  including  the  settlement  of  bill  of  exceptions,  are 
waived.  Dated  November  5th,  1908. 

1775  Stipulation  entitled  in  this  Court  and  in  the  Circuit  Court 
of  Grundy  County  signed  by  counsel  for  complainant,  appel- 
lant, and  defendant,  appellee,  that  the  original  Certificate  of  Evi- 
dence, instead  of  a copy,  may  be  incorporated  in  the  Transcript  of 
Eecord  to  be  filed  in  the  Supreme  Court  in  the  appeal  of  said  cause. 
Stipulation  dated  November  5th,  1908. 


1779 


CERTIFICATE  OF  EVIDENCE. 

(Filed  September  15th,  1908.) 

1779  Title  of  cause. 

1780  NOTE  EXPLAINING  ARRANGEMENT  OF  CERTIFI- 

CATE OF  EVIDENCE. 

This  certificate  of  evidence  is  divided  into  two  volumes,  of 
which  this  present  volume  is  Volume  I,  as  follows: 

Volume  I contains  images  1 to  3,910  inclusive. 

Volume  II  contains  pages  3,911  to  3,997  inclusive. 

Said  volume  two  is  also  labeled  and  entitled  Atlas  of 
Maps,  Plats  and  Charts.”  In  it  are  embodied  the  several 
maps,  plats  and  charts  offered  in  evidence  and  not  elsewhere 
embodied  in  this  certificate. 

Where  these  maps,  plats  and  charts  are  produced  and  re- 
ferred to  in  this  certificate  of  evidence  (or  in  connection 
therewith)  cross-references  are  made  to  the  places  in  the 

Atlas  where  they  will  be  found;  thus:  (Atlas,  page )” 

And  accompanying  the  maps,  plats  and  charts  in  the  Atlas, 
cross-references  are  made  to  places  where  they  are  produced 
or  referred  to  in  the  evidence. 

In  Appendix  I are  embodied  the  Deed  of  Cession  from 
Virginia,  and  the  several  public  and  private  Statutes,  Legis- 
lative Acts  and  Resolutions  offered  in  evidence  and  not  else- 
where embodied  in  the  certificate. 

In  connection  with  the  statement  of  the  offer  or  introduc- 
tion of  these  statutes.  Acts  and  Resolutions,  cross-references 
are  made  to  the  places  in  the  Appendix  I where  they  will  be 

found ; thus : ‘ ‘ (App.  I,  page ) ’ ^ 

And  accompanying  the  statutes.  Acts  and  Resolutions  in 
the  Appendix  I,  cross-references  are  made  to  the  places  where 
they  are  produced,  otfered  or  referred  to  in  the  evidence. 

In  Appendix  II  are  embodied  the  other  documents  and  docu- 
mentary evidence, — not  elsewhere  set  forth  herein. 

In  connection  with  the  statement  of  the  offer  or  introduc- 
tion of  these  documents,  cross-references  are  made  to  the 
places  in  the  Appendix  II  where  they  will  be  found  thus: 

^^(App.  II,  page  )”  And  accompanying  the  documents 

in  Appendix  II  cross-references  are  made  to  the  places  where 
they  are  produced,  offered  or  referred  to  in  the  evidence. 

1781  Counsel  for  complainant  exhibited  to  the  court  and  offered 
in  evidence  the  stipulation  setting  said  cause  for  hearing 

on  April  20,  1908,  before  Julian  W.  Mack,  acting  temporarily  as 

Judge  of  the  Circuit  Court  of  Grundy  County,  which  said  stipula- 
tion appears  elsewhere  in  the  transcript  of  record.  (Trans., 

p.  5565;  Abst.,  p.  1713.) 


G32 


1783  Counsel  for  complainant  offered  in  evidence  the  follow- 
ing, which  were  received  in  evidence  by  the  court,  viz : 

The  deed  of  cession  of  the  Northwest  Territory^  from  Virginia 
to  the  general  government,  dated  March  1,  1784,  pursuant  to  the 
Act  of  Virginia  of  December  20,  1783.  {Infra,  p.  1719.) 

(Here  follows  explanatory  note  stating  that  the  full  text 
of  said  deed  and  of  each  of  the  legislative  acts  and  resolu- 
tions below  offered  and  received  in  evidence  is  set  out  and 
appears  in  full,  thereafter,  in  said  certificate  of  evidence  in 
an  appendix  following  the  oral  evidence,  marked  Appendix 
I”  on  page  3,757  of  the  said  certificate  of  evidence. 

Said  explanatory  note  also  states  that  proper  references 
are  made  to  said  Appendix  I and  the  legislative  acts  and 
resolutions  therein  set  out  and  each  thereof  is  incorporated 
in  full  in  said  certificate  of  evidence  by  such  references  at 
the  place  of  its  offer  and  introduction.) 

Following  each  of  the  said  legislative  acts  and  resolutions  as 
named  below  is  given  the  page  of  this  abstract  of  record  where 
the  said  legislative  act  and  resolution  is  abstracted,  in  parenthesis, 
thus:  {infra,  ^ )” 

Ordinance  of  July  13,  1787  {infra,  p.  1719).  ^ 

Act  of  Congress,  May  18,  1796  {infra,  p.  1719). 

Act  of  Congress  May  7,  1800  {infra,  p.  1719). 

A^t  of  Congress  March  26,  1804  {infra,  p.  1719). 

Act  of  Congress  Feb.  3,  1809  {infra,  p.  1719). 

Act  of  Congress  April  18,  1818  {infra,  p.  1720). 

Act  of  Congress  Dec.  3,  1818  {infra,  p.  1720). 

Constitution  of  Illinois  of  1818  {infra,  p.  1720). 

Then  follow  Acts  of  the  General  Assembly  of  Illinois, 

Feb.  19,  1839  {infra,  p.  1720). 

Feb.  26,  1839  {infra,  p.  1720). 

Feb.  28,  1839  {infra,  p.  1720). 

1784  Mar.  3,  1845  {infra,  p.  1720). 

Feb.  12,  1849  {infra,  p.  1720). 

May  29,  1889  {infra,  p.  1722). 

May  14,  1903  {infra,  p.  1722). 

Dec.  6,  1907  {infra,  ]).  1722). 

May  31,  1887  {infra,  p.  1721). 

Feb.  16,  1865  {i)ifra,  ]v  1720). 

Oct.  20,  1871  {infra,  p.  1721). 


May  10,  1901  {infra,  p.  17:22). 

May  i:i,  1897  {infra,  p.  1722). 

1785  May  i:i,  1901  {infra,  ]).  1722). 

Mar.  27,  1809  {infra,  p.  1721). 

June  10,  1895  {infra,  p.  1722). 

June  10,  1895  {infra,  p.  1722). 

Also  joint  resolutions  of  the  House  of  liepresentatives  and 
Senate  of  the  General  Assembly  of  Illinois,  of  March  27,  1889 
{infra,  p.  1721),  and  iMay  27,  1889  {uifra,  ]>.  1721),  of  1871  {infra, 
p.  1721)  and  of  1881  {infra,  p.  1721). 

To  the  introduction  of  the  said  joint  resolutions  of  May  27, 
1889,  and  of  1881,  counsel  for  the  defendant  objected  on  the 
ground  that  the  same  were  incompetent,  immaterial  and  not  per- 
tinent to  the  issues  of  the  case,  which  objections  were  overruled 
by  the  court. 

Counsel  for  the  complainant  thereui)on  offered  in  evidence  a 
large  general  plat,  showing  the  course  of  the  Desplaines  Eiver, 
being  a certified  cojiy  of  the  original  survey  by  the  federal  gov- 
ernment. 

Counsel  for  the  defendant  objected  to  the  same  on  the  ground 
that  there  had  been  no  sufficient  foundation  laid  for  its  introduc- 
tion. 

The  court  overruled  said  objection  and  admitted  said  })lat  in 
evidence  and  the  same  was  marked  ‘‘McCullough  Exhibit  1.” 

Here  follows  explanatory  note  stating  that  said  AIcCul- 
lougli  Exhibit  1 and  other  maps,  ])lats  and  charts  offered  in 
evidence  are  each  set  out  and  appear  in  full  in  a separate 
volume  of  said  certificate  of  evidence  marked  “Volume  No. 
2,  Atlas  of  maps,  plats  and  charts,”  and  that  proper  refer- 
ence to  each  of  said  maps,  plats  and  charts  as  contained  in 
said  atlas  are  made  at  the  point  of  the  introduction  of  each 
thereof,  and  each  thereof  fs  by  such  references  incorporated 
in  full  in  said  certificate  of  evidence  at  the  place  of  its  intro- 
duction. 

And  in  this  abstract  of  record,  after  the  statement  of  the 
offer  or  introduction  of  each  of  the  said  maps,  plats  or  charts 
is  given,  the  page  of  the  said  Atlas  where  the  said  map,  plat 
or  chart  is  set  forth  and  appears  thus : “ (Atlas,  p ) ”. 

Said  McCullough  Exhibit  I is  admitted  in  evidence  (Atlas,  p. 
5913;  Trans.,  p.  6480;  Abst.,  p.  1914). 


634 


1786  IViLLlAM  R.  Tibbals^ 

a witness  for  eomplainant,  testifies  as  follows: 

Direct  Examination. 

My  name  is  'William  R.  Tibbals.  I live  in  Dubuque,  Iowa.  I 
have  lived  there  since  March,  1857.  I will  be  seventy-six  years 
old  the  27th  day  of  next  month. 

1787  Since  then  the  greater  portion  of  the  time  I have  been  a 
captain  and  pilot  on  the  Mississippi  River  between  St.  Louis 

and  St.  Paul.  I first  commenced  navigating  the  upner  Mississippi 
River  in  1854.  Have  had  government  license  as  a pilot  ever  since 
I went  there.  First  received  Government  license  in  March  or 
April,  1855. 

My  duties  as  pilot  were  to  navigate  the  boat  I was  on  and  de- 
termine its  course,  and  the  crew  were  subject  to  my  orders  as  far 
as  navigating  the  boat  was  concerned,  and  in  handling  of  the  load 
they  were  subject  to  the  captain  and  to  me  when  I was  cap- 
tain. . 

1788  From  the  time  I received  this  Government  license  I navi- 
gated the  Mississippi  River  and  the  St.  Croix  River  as  a 

pilot.  I became  the  LAiited  States  Supervising  Inspector  of  Steam 
Vessels  of  the  Fifth  Inspection  District  in  February,  1895,  and 
served  four  years.  I was  appointed  by  President  Cleveland.  The 
Fifth  Inspection  District  embraces  from  Keokuk,  Iowa,  to  St. 
Paul,  Minn.,  and  the  part  of  Lake  Superior  that  borders  on  Wis- 
consin, and  the  tributaries  of  the  Mississippi  between  the  points 
named.  That  included  the  Iowa  and  the  DesMoines  Rivers. 
There  was  no  steamboats  on  those  rivers  at  that  time. 

1789  Also  the  Wisconsin,  the  Chippewa  and  the  St.  Croix  Rivers 
were  in  my  district,  and  navigation  was  being  prosecuted 

upon  them  at  that  time. 

It  was  necessary  for  me  to  examine  the  vessels  actually  operat- 
ing and  which  were  applicants  to  operate  on  those  streams  during 
the  period  when  the  local  inspectors  were  not  there,  but  I was  in 
charge  of  the  district  and  had  two  sets  of  local  inspectors  in  my 
charge  when  located  in  Dubuque  and  Duluth. 

1790  The  vmter  and  channel  conditions  on  the  ^Mississippi  River 
when  I went  on  the  river  in  1854  was  such  that  we  had  no 


serious  trouble  at  all.  In  1855  the  water  got  very  low  and  we 
had  a good  deal  of  trouble  with  the  new  boats  that  were  built  and 
came  out  that  spring.  In  1855  the  depth  of  the  low  water  that  I 
referred  to  was  between  Lake  St.  Croix  and  St.  Paul  about  26 
or  27  inches,  that  is  about  30  miles  of  water.  We  had  some  boats 
that  navigated  the  Mississippi  that  would  draw  from  12  inches 
to  3^  feet.  I was  referring  not  to  one  boat, — 12  inches  being  the 
empty  and  the  3^  foot,  the  low, — but  was  referring  to  two  ves- 
sels, which  were  light  and  without  any  load.  xV  vessel 

1791  which  drew  12  inches  of  water  when  unloaded,  when  loaded 
to  its  capacity  would  carry  about  80  tons  of  freight.  It 

would  be  from  120  to  130  feet  long  and  about  30  feet  beam,  and 
would  draw  when  it  was  loaded  about  3 or  31  feet  of  water,  or 
somewhere  between  that.  The  larger  vessel,  which  drew  31  feet 
of  water  when  loaded  to  its  capacity  would  draw  about  61  feet 
and  its  load  would  be  between  800  and  900  tons.  That  boat  would 
be  about  235  feet  long  and  she  would  be  37  feet  beam. 

1792  Before  I went,  on  the  river  I lived  in  Galena,  Illinois.  I 
went  to  Galena  in  1852  and  I knew  that  they  were  running 

a boat  from  Galena  up  the  Wisconsin  Eiver  and  saw  her  every 
time  she  went  in  there,  and  after  I went  on  the  river  I was 
conversant  with  her.  That  boat  was  called  the  Enterprise.^’ 
She  would  draw  when  she  was  light,  I should  not  think,  over  10 
inches,  perhaps  less  than  10  inches,  and  when  loaded  she  would 
draw  from  28  to  30  inches.  She  would  carry  75  tons  of 

1793  freight.  In  her  ordinary  operation  I should  think  she 
would  carry  between  60  and  80  tons.  When  she  was  light, 

without  any  load,  just  her  fuel,  she  would  draw  about  10  inches, 
somewhere,  about  8,  9 or  10  inches;  and  when  fully  loaded 

1794  she  would  draw  30  inches,  perhaps  more.  She  was  a boat 
that  had  about  44  hull,  4-|  side.  She  was  what  you  call  on 

the  Mississippi  Eiver  a ‘‘Gunnel  Boat,”  and  she  had  straight 
sides,  about  4 feet,  and  they  could  load  her  clear  to  safety  so 
they  could  make  her  draw  nearly  4 feet  of  water.  The  depth  to 
which  she  would  descend  into  the  water  would  simply  depend 
upon  the  relative  amount  of  the  load;  and  it  would  fluctuate  be- 
tween a draught  of  30  inches  and  a draught  of  8 inches. 

1795  There  were  several  boats  that  ran  up  the  Iowa,  from  a 
little  place  in  Iowa  called  New  Boston.  The  Iowa  Eiver 


(J36 


Tihhals, — Direct  Exam. — Continued. 


comes  out  at  New  Boston,  and  they  went  up  the  Iowa  Eiver  to 
get  their  freight  and  deliver  it  at  New  Boston,  to  he  taken  by  the 
through  boats  to  St.  Louis. 

Two  or  three  different  sized  boats  ran  there.  Their  draught 
would  run  from  12  inches  to  18  or  20.  They  were  tow  boats,  tow- 
ing barges  themselves.  They  did  not  put  much  freight  on  them 
as  a rule;  that  is,  they  kept  them  as  light  as  they  could,  so  that  in 
case  their  barges  got  into  trouble  they  would  have  room  to 
work. 

1796  In  operating  one  of  these  boats,  they  put  a ba]‘ge  on  each 
side  of  her  and  made  them  fast,  pretty  well  forward.  It 

really  pushes  them.  They  would  have  to  hitch  the  two  boats  into 
them  far  enough  to  make  them  solid. 

Their  loads  consist  of  sack  corn,  and  I have  known  of  them 
])ringing  out  3,000  sacks  on  a trip, — about  1,000  sacks  on  each 
barge  and  about  1,000  on  the  boat.  The  draught  of  a boat  carry- 
ing such  a load  would  be  about  3 feet,  and  the  barges  would  draw 
but  2 feet. 

Q.  You  may  state,  Mr.  Tibbals,  if  you  know  it  to  be  a fact, 
if  it  is  a fact,  whether  or  not  it  is  a fact  that  commercial  navi- 
gation is  carried  on  streams  of  water  in  different  parts  of  the 
United  States,  drawing  less  than  two  feet  of  water?  A.  Yes, 
sir.  I have  steamboated  on  the  Mississippi  River  on  fourteen 
inches. 

1797  The  Moline  chain  of  rapids  is  on  the  upper  raijids,  ex- 
tending from  Rock  Island  to  LeClaire,  a distance  of  about 

16  miles.  It  is  right  opposite  the  Town  of  Moline,  and  a steam- 
boat man  would  speak  of  it  as  being  the  swiftest  water  on  the 
river.  The  rate  of  the  current  there  was  from  6 to  9 miles  per 
hour.  I have  navigated  through  there  before  there  was  any  im- 
])rovement  made  there.  I never  knew  of  a steamboat  that  tried 
to  go  through  there  and  did  not  get  through.  At  the  same  time 
I have  known  them  to  have  to  lay  at  anchors  and  work 

1798  themselves  through.  They  would  cordell  some  of  them.  I 
was  on  one  boat  they  had  to  cordell.  The  method  of  cordell- 

ing  was  to  put  out  a 600-pound  anchor,  which  would  catch  in 
the  bottom  of  the  stream,  and  then  wind  the  line  up  on  a capstan 


and  pull  the  boat  up.  AVlieii  they  ^ot  the  boat  iij)  to 

1799  the  anchor,  they  would  repeat  the  operation.  I have  done 
that  on  the  lower  rapid  at  Keokuk,  and  it  was  also  used  on 

the  rapids  in  the  Mississippi,  called  the  Smith  chain,  which  is 
swift  water  too,  but  not  as  bad  as  Moline. 

Q.  Now,  I will  ask  you,  Mr.  Tibbals,  to  take  the  case  of  a 
river  which,  for  a period  of  four  to  five  months  each  year,  ex- 
clusive of  the  time  she  was  frozen  over,  and  exclusive  of  the  time 
of  extreme  low  water,  presented  a depth  of  water  which  would 
range  from  18  inches  to  10  feet  of  water,  in  a channel  which  would 
range  from  250  wide,  to  a quarter  of  a mile  wide,  and  which 
had  a current  which  varied  from  an  almost  imperce])tible  cur- 
rent in  some  of  the  wide  spots  where  it  was  a quarter  of  a mile 
wide  and  ten  feet  deep,  to  a current  much  of  the  way  at  twu 
and  a half  miles  an  hour,  and  which  would  ascend  to  three  and 
a half  miles  an  hour,  and  in  one  or  two  places  to  five  miles  an 
hour,  and  in  one  or  two  places  to  seven  and  seven  and  a half 
miles  an  hour,  the  swiftest  current  in  one  instance  being  in  a 
shallow  part,  and  in  another  instance  being  where  the  water 

1800  was  somewhat  deeper,  but  not  up  to  the  large  depth,  I will 
ask  you  to  state  whether  or  not,  in  your  judgment  as  a navi- 
gator, that  stream  would  be  a navigable  stream? 

Counsel  for  Defendant.  That  is  objected  to,  if  the  court 
please,  as  incompetent,  irrelevant  and  immaterial,  and  it  does  not 
state,  if  it  is  intended  to  include  the  Desplaines,  it  ^loes  not  state 
the  physical  facts  and  conditions  there  with  enough  accuracy. 

The  Court.  M^iatTact  is  left  out? 

Counsel  for  Defendant.  One  important  fact  is  the  slope  to 
the  river  and  another  is  the  bend  in  this  stream. 

The  Court.  He  may  answer  the  points — he  may  answer  first 
whether  the  questions  of  slope  and  bends  in  the  stream  would  or 
would  not  affect  any  answer  he  might  giv^e. 

A.  Well,  I don’t  know  that  I exactly  understand  the  situation, 
and  if  I understand  the  question. 

Counsel  for  Complainant.  I submit  in  regard  to  the  slope,  if 
your  Honor  please,  that  the  slope  in  so  far  as  important,  is  im- 
portant in  producing  the  velocity  or  current  in  the  water,  and. 


638 


having  given  the  velocity  or  current  of  the  water,  I have  covered 
that  feature,  and  if  the  bends  in  the  stream  are  important,  I have 
here,  if  your  Honor  please,  a map  which  has  already  been  intro- 
duced in  evidence,  and  one  which  is  a certified  copy  of  the  Gov- 
ernment record,  and  this  is  the  one  that  has  no  annotations 
of  any  kind  upon  it,  but  just  as  it  comes  from  the 

1801  Government,  and  it  is  drawn  on  the  standard  Government 
scale  of  two  inches  to  the  mile,  and  I am  perfectly  willing 

to  incorporate  into  the  question  that  the  stream  is  a stream  such 
as  is  shown  you  on  the  map  before  you,  which  may  be  called  Mc- 
Cullough Exhibit  1,  and  which  is  drawn  on  the  scale  of  two  inches 
to  the  mile;  and  the  particular  part  of  the  stream  we  are  inter- 
ested in  is  from  Joliet  to  the  mouth  of  the  river  and  the  bends 
are  such  as  are  shown  on  this  McCullough’s  Exhibit,  which  is 
drawn  upon  the  scale  of  two  inches  to  the  mile. 

Counsel  eor  Defendant.  Does  your  question  still  stand? 

Counsel  forIDomplainant.  It  does.  I have  embodied  this  other. 

Counsel  for  Defendant.  There  are  other  objections. 

The  Court.  Let  us  have  them  all  at  one  time,  Mr.  Porter. 

Counsel  for  Defendant.  Of  course  I could  write  out  a hypo- 
thetical question  that  I think  would  be  proper. 

The  Court.  You  can  put  that  on  cross-examination. 

Counsel  for  Defendant.  This  witness  cannot  tell  any  sup- 
posed examples,  unless  he  knows  the  declivity  of  the  river. 

The  Court.  That  has  been  given. 

Counsel  for  Defendant.  And  between  the  points  where  navi- 
gability is  supposed  to  exist.  It  might  be  the  frequency  of  rapids 
or  ripples  or  shallow  places.  This  supuosed  stream  may  have  a 
light  current  in  one  place  and  a greater  current  in  another 
place. 

1802  The  Court.  You  may  state,  after  having  heard  the  ob- 
jection of  counsel,  whether  you  are  competent  on  the  hypo- 
thetical question  as  put  to  you  by  Mr.  Starr,  and  without  further 
information  bearino*  on  the  point,  suggested  in  the  objection,  to 
answer  the  question  whether  such  a river  as  stated  is  or  is  not 
navigal)le?  A.  As  Mr.  Starr  asks  the  question,  I would  say 
yes. 


631) 


The  Court.  That  is  you  would  say  that  any  river  which  an- 
swers the  description  given  by  Mr.  Starr,  irrespective  of  any- 
thing else—  A.  Yes,  sir. 

Q.  No  matter  what  else  you  might  add  to  it,  it  would  always 
remain  and  be  a navigable  river?  A.  Yes,  sir. 

C ross-Examination . 

I have  knowledge  as  to  the  rapidity  of  the  current  of  the  Moline 
Rapids,  not  as  an  engineer,  but  I was  connected  with  the 

1803  United  States  Engineer’s  office  at  Rock  Island  for  seven  years. 
I was  navigating  over  the  rapids  and  I was  with  them  and 

heard  the  conversations  in  the  office  and  heard  the  engi- 
neer that  used  to  work  on  the  rapids.  The  Moline  Rapids 
are  not  the  same  rapids  as  those  referred  to  as  the  Des- 
Moines  Rapids.  The  DesMoines  Rapids  are  at  Keokuk,  the  foot 
of  them ; the  head  of  them  is  at  Navoo,  Illinois.  The  Moline  Rapids 
commence  at  Rock  Island  and  Davenport  and  extend  to  LeClaire, 
about  16  or  17  miles.  The  Rock  Island  Rapids  are  the  same  as  the 
Moline  Rapids.  The  slope  of  the  water  I do  not  know  well  enough 
to  make  a positive  statement.  I know  they  are  pretty  swift,  that 
is  all.  I have  doubled  the  trip  a good  many  times  over  the  rapids; 
that  is,  towed  part  of  the  load  and  then  went  back  and  got  the 
other  part.  I have  navigated  these  rapids  before  they  were  im- 
proved. The  improvement  was  made  in  1877.  Before  the 

1804  improvement  was  made,  it  is  not  true  that  a good  portion  of 
the  time  it  was  dangerous,  if  not  impossible,  to  navigate  these 

rapids.  It  never  has  been  in  my  time.  I always  got  over  the  rap- 
ids. Of  course,  there  is  more  water  now. 

The  Deposition  of  George  W.  Reed 

was  thereupon  otfered  and  read  in  evidence  by  counsel  for  com- 
plainant as  far  as  the  close  of  the  direct  examination. 

(For  rulings  on  same  see  Abstract  of  Depositions,  {supra,  p. 
155). 


640 


1806  Frederick  H.  Hild, 

a witness  for  complainant,  testified  as  follow^s : 

Dir  ect  Exa  min  at  ion. 

My  name  is  Frederick  H.  Hild.  I reside  at  321  Wells  street.  I 
am  librarian  of  the  Public  Library.  I have  been  in  that  position 
21  years.  I have  been  with  the  Library  since  1874,  either  as  assist- 
ant, or  librarian.  Dr.  William  F.  Poole  was  librarian  in  chief  at 
the  time  I was  assistant. 

Prom  my  experience  as  librarian,  assistant  librarian  and 
otherwise,  I have  become  familiar  with  a large  number  of  recog- 
nized standard  historical  works. 

‘‘LaSalle  and  the  Discovery  of  the  West,”  by  Francis  Parkman, 
Boston,  Little,  Brown  & Company,  1869,  is  a standard  author- 
ity. 

1807  “Discovery  and  Conquests  of  the  Northwest,  with  History 
of  Chicago,”  by  Eufus  Blanchard,  Chicago,  Blanchard  & Com- 

]iany,  1888,  is  a standard  book  of  recognized  authority. 

“Chicago  Antiquities,”  comprising  original  items  and  relations, 
letters,  extracts  and  notes  pertaining  to  early  Chicago,  by  Henry 
H.  Hurlbut,  Chicago,  1881,  is  a standard  and  recognized  authority. 

“Early  History  of  Illinois”  by  Sydney  Breese,  Chicago,  E.  B. 
Myers  & Company,  1884,  is  a standard  history. 

“Expedition  from  Pittsburg  to  the  Rocky  Mountains,”  from  notes 
of  Major  S.  H.  Long  and  others,  by  Edwin  James,  London,  1823, 
is  a standard  authority. 

“Great  Highways  of  the  West,”  Clark  & Company;  “Illinois  in 
1837,”  by  H.  L.  Ellsworth,  S.  A.  Mitchell  & Company,  Philadelphia, 
1837,  is  also  a standard  work. 

“American  Atlas,”  Philadelphia,  1822,  is  a standard  authority 
for  that  time. 

1808  “Atlas  in  the  State  of  Illinois,”  Union  Atlas  Company, 
Chicago,  1876,  is  also  an  authority. 

“Description  of  Bounty  Lands  in  the  State  of  Illinois,”  also 
the  princiiial  routes  and  roads  by  land  and  water  through  the 
Territory  of  the  United  States,  by  E.  Dana,  Cincinnati,  1819,  is  a 
standard  work  for  that  period. 


641 


‘^The  Last  of  the  Illinois,”  by  John  D.  Caton,  is  also  an  author- 
ity. 

^^John  Wentworth’s  Early  Chicago,”  is  a well  known  authority. 

‘^Denenhower’s  Chicago  City  Directory  for  1851,”  is  a standard 
work. 

Charles  Fenno  Hoffman’s  Winter  in  the  West,”  is  a standard 
authority. 

‘Hjetters  Descriptive  of  Chicago  and  Vicinity  in  1833-4,”  re- 
printed as  ^‘Fergus  Historical  Series,”  is  a standard  work  for  that 
period. 

‘‘Andreas  History  of  Chicago,”  is  a well  known  authority. 

“Beck’s  Gazetteers  of  Illinois  and  Missouri,”  by  Louis  B.  Beck, 
1823,  is  a standard  authority. 

“The  Navigator,”  twelfth  edition,  1824,  is  a standard  authority. 

“The  Encyclopedia  of  Geography,”  by  Hugh  Murray,  F.  K.  S.  E., 
is  a standard  authority. 

“Delation  de  la  decouverte  de  plusierus  pays  siteuz  au  midi  de 
la  nouvelle,  France,  Faite  en  1673,”  Paris,  D.  Jouaust,  1875,  is  one 
of  the  Jesuit  Eelations,  well  known  authorities. 

“New  France,”  1610-1791,  Burrough’s  Edition,  is  a standard  au- 
thority. 

“Woodruff’s  History"  of  Will  County”  is  a standard  authority. 

“American  State  Papers,  Volume  I,  Indian  Affairs,”  is  a stand- 
ard official  authority. 

“Expedition  to  the  Source  of  St.  Peter’s  Elver,”  Keating,  is  a 
standard  work. 

“Expedition  Through  Upper  Mississippi,”  Schoolcraft,  is  a 
standard  work,  a standard  authority  on  that  subject. 

“Western  Pilot”  by  Cummings,  is  a standard  book  for  that 
time. 

1810  “History  of  Wisconsin,”  by  "William  E.  Smith,  is  a stand- 
ard authority  on  that  subject. 


642 


Cross-Examination. 

I said  that  a book  called  ‘‘Illinois  in  1837,”  by  H.  L.  Ellsworth, 
was  a standard  authority.  I look  on  that  as  a book  which  is  much 
sought  after  by  collectors  of  Illinois  history  for  that  period.  It 
was  written  to  encourage  .emigration  to  the  State  of  Illinois,  and 
there  are  a number  of  books  of  that  kind  that  are  very  well  known 
and  sought  after  by  libraries  and  collectors.  As  to  how  much  value 
or  weight  was  given  to  an  opinion  expressed  in  that  book,  I don’t 
know. 

1811  Q.  All  you  know  then  is  that  there  is  a demand  for  the 
book  among  the  collectors?  A.  Yes,  sir. 

Q.  And  is  it  not  a fact,  Mr.  Hild,  that  Mr.  Ellsworth  did  not 
write  that  book  that  bears  his  name?  A.  That  I don’t  know. 

Q.  Is  it  not  a fact  that  that  book  is  a mere  compilation  taken 
from  other  books  and  almanacs  of  the  current  day  at  the  time,  and 
was  not  that  published  by  a map  maker  in  connection  with  a map? 
A.  That  may  be.  As  I said,  it  was  a work  compiled  to  encourage 
emigration  to  the  state,  and  most  of  those  books  at  that  time  were 
made  up  in  that  way. 

Q.  Do  you  know  who  Mr.  Ellsworth  was?  A.  No,  sir.  I 
regard  it  as  a standard  authority  in  this  way,  that  it  explains  con- 
ditions as  they  existed  at  that  time;  that  was  one  of  the  best 

1812  authorities  or  sources  of  information  that  people  had  at 
that  time. 

The  general  reputation  of  most  of  the  other  books  is  better  than 
Ellsworth’s. 

I should  take  Parkman’s  “LaSalle  and  the  Discovery  of  the 
West,”  “Blanchard’s  Discovery  and  Conquests  of  the  Northwest,” 
although  that  is  largely  a compilation;  Hurlbut’s  “Chicago  Anti- 
quities”; and  “Breese’s  Early  History  of  Illinois”;  “Major  Long’s 
Expedition  from  Pittsburg  to  the  Kocky  Mountains,”  that  is  a 
book  published  under  the  auspices  of  the  United  States  Govern- 
ment, written  by  an  army  officer,  Mr.  Edwin  James.  It  was 

1813  made  from  Major  Long’s  notes.  They  used  his  work  as  a 
basis.  James  made  the  compilation  from  the  Government 

wmrk;  Long  wrote  several  Government  reports  and  James  made 
this  compilation  for  more  popular  reading.  As  far  as  I know,  I 


think  it  is  regarded  as  authority.  It  is  based  on  Government  re- 
port, but  was  not  itself  published  by  the  authority  of  the  United 
States. 

Then  here  is  the  ‘‘American  Atlas”  of  Philadelphia,  1822. 

1814  Part  of  that  was  reprinted.  That  is  accepted  among  his- 
torians as  standard  reliable  authority,  as  showing  the  condi- 
tion of  the  State  and  geographical  knowledge  of  the  country  at  that 
time,  in  1822. 

This  next  book  “Description  of  the  Bounty  Lands  in  State  of 
Illinois,”  is  a book  I imagine  a great  deal  like  the  Ellsworth  book, 
written  to  encourage  emigration  to  the  State.  It  is  like  books  of 
that  kind, — books  intended  to  induce  emigration.  Historians  often 
quote  this  book  as  authority.  I know  it  by  its  reputation  as  a book 
sought  for  by  libraries  collecting  materials  for  western  history. 
It  is  the  custom  among  collectors  to  buy  some  books  published 

1815  in  early  days,  at  real  early  times,  authoritative  or  not,  to  seek 
them  merely  to  get  the  first  book,  but  I don’t  believe  it  is 

true  of  this  book. 

The  next  book  is  “The  Last  of  Illinois”  by  John  Caton  of 
Ottawa.  I consider  that  a high  authority.  Then  John  Wentworth’s 
“Early  Chicago,”  is  a good  authority.  He  was  Mayor  of  Chi- 
cago during  the  early  ’50s.  Which  of  the  two  books  was  the 
better  authority  would  be  hard  to  tell ; both  men  knew  what  they 
were  talking  about. 

The  next  book  “Denenhower’s  City  Directory  for  1851” 

1816  is  an  official  publication.  I give  that  as  much  weight  as  I 
would  any  directory.  It  is  a fact  that  it  was  a directory  pub- 
lished by  private  individuals. 

Q.  And  has  no  official  character  whatsoever!  A.  No,  sir.  I 
don’t  mean  it  in  that  sense. 

Q.  What  knowledge  have  you  of  the  accuracy  of  that  book  or 
of  the  statements  therein  contained,  if  you  have  any!  A.  I have 
no  special  knowledge. 

Charles  Fenno  Hoffman’s  “A  Winter  in  the  West,”  is  a well 
known  work  descriptive  of  early  Chicago  and  this  part  of  the 
country.  That  was  published  in  the  30 ’s.  That  and  Harriet 


644 


H i I d, — C ross-Eiam. — Continued. 


Martineau’s  “Letter  of  Chicago,”  are  both  Tvell  known  books  de- 
scribing conditions  in  this  part  of  the  country  at  that  time. 

Andrea’s  “History  of  Chicago”  is  a well  known  work  in  three 
volumes,  considered  one  of  the  best  sources  of  general  in- 

1817  formation  and  data  about  the  history  of  Chicago  that  there 
is,  published  about  twenty  years  ago.  Harriet  Martineau’s 

hook  is  very  often  quoted.  It  has  been  commented  on  adversely 
on  account  of  the  views  she  took  on  social  life  here  in  the  west. 
But  as  to  the  actual  physical  condition  of  it  during  her  travels, 
she  is  regarded  as  very  reliable.  She  came  over  here  herself 
and  all  the  things  she  writes  about  were  learned  by  her  first 
hand.  Her  statements  are  reliable,  except  some  of  her  comments 
on  social  conditions,  where  she  writes  from  an  English  point  of 
view. 

Beck’s  “Gazetteers  of  Illinois  and  Missouri”  is  a standard  work 
of  that  time,  that  is  very  often  quoted  by  later  writers. 

Q.  That  was  a compilation,  was  it  not?  A.  I believe  so;  yes, 
sir. 

“The  Xavigator,”  which  runs  through  a great  many  editions, 
the  copy  specified  here  is  in  the  Public  Library  as  the  twelfth  edi- 
tion. As  to  the  weight  and  nature  of  the  testimony  that  is  con- 
tained in  those  books,  I should  say  that  a hook  that  goes 

1818  through  so  many  editions  has  some  meiit,  some  value. 

Then  there  is  Hugh  Murray’s  “Encyclopedia  of  Geog- 
raphy.” That  is  compiled  by  an  Englishman,  a member  of  the 
Geographical  Society,  and  this  copy  here  is  an  American  reprint. 
That  is  a standard  work  of  that  kind,  just  the  same  as  Smith’s 
“Dictionary  of  Geography,”  or  one  of  those  modern  Gazetteers. 
Then  the  French  work  here  is  an  old  Jesuit  Relation,  1673.  That 
is  also  included  in  the  following  one,  which  is  a translation  in 
sixty  volumes  of  all  those  historical  pamphlets  published  at  that 
time  known  as  the  Jesuit  Relations. 

They  were  published  between  1610  and  1791.  There  were  a 
great  many  of  them.  This  work  specified  here  is  in  60  volumes, 
contains  translations,  and  the  original  texts  of  all  Jesuit  Re- 
lations. 

1819  Q.  About  the  work  by  IVoodrutf,  has  that  any  genera) 
reputation  among  historians  outside  of  Mill  County?  A. 


None  more  so  than  all  those  compilations  of  County  history. 
They  are  thrown  together  and  contain  a lot  of  facts  and  data. 

Q.  Do  you  personally  know  whether  statements  made  in 
that  book  are  to  be  relied  upon  or  not!  A.  Not  in  that  book,  no, 
sir.  I know,  it  is  the  only  history  of  Will  County  that  has  been 
published. 

The  ^ American  State  Papers”  is  a compilation  of  documents 
from  the  first  to  the  fifteenth  Congress,  a sort  of  digest.  This 
particular  volume  is  known  as  the  volume  on  Indian  atfairs.  It 
is  an  official  document  of  the  United  States  Government.  It  con- 
tains only  official  papers. 

‘‘Expeditions  to  St.  Peter’s  Eiver,”  by  Keating,  is  a book  that 
contains  a great  deal  of  information  about  the  Northwest 

1820  country,  Wisconsin  and  Minnesota  up  there,  published  about 
40  years  ago,  I think.  ’ 

Q.  Have  you  any  knowledge  as  to  whether  that  book  is  thor- 
oughly reliable!  A.  Only. its  general  reputation.  That  is  based 
on  the  early  explorations. 

As  to  “Expedition  Through  the  U])per  Mississippi  Kiver”  by 
Schoolcraft,  I will  say  that  is  a very  high  authority,  and  he  has 
done  a great  deal  of  work  for  the  Government  by  way  of  explora- 
tions and  writing  about  the  Indians ; and  on  the  strength  of  his 
name,  I would  give  this  book  a high  rank  on  this  authority.  I 
consider  Schoolcraft  as  having  greater  weight  and  authority 
than  any  of  these  other  authors  that  I have  mentioned  on  the 
subjects  covered  by  this  book.  I should  say  he  was  a higher 
authority  than  some  of  those  minor  writers.  He  was  a better 
known  man. 

The  book  called  “The  Western  Pilot,”  by  Cummings,  is 

1821  a book  a good  deal  like  the  volume  on  “The  Navigator.”  It 
is  a book  on  early  waterways  here  in  the  west. 

Q.  What  do  you  know  about  the  authoritative  character  of 
that  book!  A.  Nothing. 

Q.  You  are  not  able  to  say  then  whether  that  book  is  to  be 
relied  upon  in  any  way!  A.  No,  sir. 

“Early  Wisconsin,”  by  William  R.  Smith,  is  one  of  the  standard 
histories  of  Wisconsin,  published  by  the  AYisconsin  Historical  As- 


(346 


sociation,  about  25  years  ago,  I think,  or  30.  The  statements  made 
in  that  book  I would  give  considerable  weight,  considering  the  man 
who  wrote  it. 

Eufus  Blanchard,  who  wrote  one  of  the  books  I testified 

1822  about,  died  several  years  ago.  I knew  him  well.  He  got  out 
two  editions  of  it.  The  first  edition  was  in  one  volume,  and 

he  afterwards  elaborated  and  made  two  volumes  additional.  The 
1888  edition  is  the  one-volume  edition. 

1823  lie-direct  Examination. 

I have  paid  a good  deal  of  attention  to  books  of  history  from 
the  standpoint  of  the  bibliography  and  the  rarity;  but  from  the 
standpoint  of  the  accuracy  from  an  historical  standpoint,  from 
the  standpoint  of  a professor  of  history,  I have  made  no  special 
study  of  that;  but  my  interest  in  the  matter  is  more  than  the 
bibliographic  value  and  rarity  of  the  book,  I consider  the  value  to 
the  community  to  have  a book  like  that  in  the  library. 

Q.  But  from  the  basis  of  a Universal  Library,  we  will  say, 
of  a professor  of  histon^,  would  you  say  that  you  were  compe- 
tent to  form  an  opinion  of  those  books  and  their  value!  A.  I think 
so,  of  a good  many  of  them ; yes,  sir. 

Re-cross  Examination. 

Q.  Have  you  read  ‘‘The  Navigator’’!  A.  I have  read  part 
of  it. 

Q.  Have  you  read  it  with  a view  of  determining  whether 

1824  its  statements  of  fact  are  true  or  not!  A.  No,  sir.  I simply 
looked  at  it  and  saw  it  was  a very  interesting  book,  and  the 

maps,  etc. 

Q.  Do  you  know  any  one  with  whom  it  has  the  reputation  of 
being  an  authoritative  work!  A.  No,  sir. 

Q.  Have  you  read  Andreas’  “History  of  Chicago”!  A.  Not 
entirely,  no,  sir;  I have  read  parts  of  it. 

Q.  Have  you  made  any  comparisons  or  investigations  for  the 
purpose  of  determining  the  accuracy  of  its  statements,  determin- 
ing whether  it  is  authoritative  or  not!  A.  Yes,  sir;  I have  some- 
what. 


047 


* 


Q.  Have  you  in  reference  to  the  Desplaiiies  and  the  Illinois 
Rivers?  A.  No,  sir. 

Q.  Or  the  travel  upon  the  Illinois  and  Desplaines  Rivers?  A. 
No,  sir. 

Q.  Have  you  made  an  examination  of  any  of  the  books  de- 
scribed here  with  a view  to  any  statements  they  may  contain  as 
to  the  Desplaines  and  the  Illinois  Rivers,  and  travel  upon  them, 
Vvdth  a view  to  determining  whether  they  are  correct  or  not,  or  au- 
thoritative or  not? 

(Objected  to  as  not  giving  the  test  ado])ted  by  the  courts; 
overruled.) 

A.  I have  not. 

'Counsel  for  Defendant.  That  is  true  as  to  all  the  books,  is  it 
not?  A.  Yes,  sir. 

Q.  As  to  which  you  have  testified?  A.  Yes,  sir. 

Counsel  for  Complainant.  We  did  not  ask  Mr.  Hild  to  book 
up  and  brief  up  in  order  to  testify.  AYe  took  the  general  quali- 
fication— 

The  Court.  Yes;  but  Mr.  Starr,  you  introduced  him  for  a spe- 
cific purpose,  and  I will  say  right  now  that  as  to  a great  many 
of  those  volumes  you  have  not  laid  the  proper  basing.  Some  of 
these  books  are  well  known  and  standard,  but,  Mr.  Hild,  as  to  a 
good  many  of  these,  is  limited  to  a bibliographical  knowledge, 
and  not  their  value  as  historical  works. 

Thereupon  counsel  for  defendant  offered  and  read  in  evidence 
the  cross-examination  of  Mr.  George  Reed,  and  also  the  re- 
direct. 

(For  rulings  on  same  see  Abstract  of  Deposition,  supra y 
p.  158.) 

1826  Thereupon  counsel  for  complainant  offered  and  read  in 
evidence  the  direct  examination  in  the  deposition  of  George 
C.  Ehrhard,  followed  by  counsel  for  defendant,  reading  the  cross- 
examination. 

(For  rulings  on  same  see  Abstract  of  Deposition,  supra,  p.  162.) 

Thereupon  counsel  for  complainant  otfered  and  read  in 
evidence  the  deposition  of  Francis  P.  Belz. 


648 


(For  rulings  on  same  see  Abtsract  of  Depositions,  supra, 
p.  439.) 

1827  Thereupon  counsel  for  complainant  offered  and  read  in 
evidence  the  deposition  of  Alexander  McKenzie. 

(For  rulings  on  same  see  Abstract  of  Deposition,  supra,  p.  166.) 

Thereupon  counsel  for  complainant  offered  and  read  in  evi- 
dence the  deposition  of  Theodore  E.  Burton. 

(For  rulings  on  same  see  xVbstract  of  Deposition,  supra,  p.  182.) 

Thereupon  counsel  for  complainant  offered  and  read  in  evi- 
dence the  deposition  of  William  Lorimer  on  behalf  of  the  com- 
plainant. 

(For  rulings  on  same  see  Abstract  of  Depositions,  supra,  p.  195.) 

Thereupon  the  complainant  offered  and  read  in  evidence  the 
following  extracts  from  Keports  of  IT.  S.  Engineers,  an  extract 
from  Executive  Document  No.  16  of  the  House  of  Eepresenta- 
tives,  40th  Congress,  First  Session,  entitled  as  follows: 

1828  ‘^Survey  of  the  Illinois  Elver.  Eeport  of  Brevet  Gen.  J. 
H.  Wilson  on  the  survey  and  examination  of  the  Illinois 

Eiver.’’ 

United  States  Engineers  office,  Des  Moines  and  Eock  Island 
Eapids  Improvement  and  Illinois  and  Eock  Eiver  Surveys. 
Davenport,  Iowa,  February  15,  1867. 

‘‘General:  Having  been  charged  by  instructions  from  the 

Engineering  Department  with  the  survey  of  the  Illinois  Eiver 
from  La  Salle  to  its  mouth,  provided  for  by  Act  of  Congress 
June  23,  1866,  I have  the  honor  to  submit  the  following  re- 
port.” * * * 

The  supposition  is  that  the  survey  of  this  river  has  imme- 
diately in  view  of  its  capacity  for  navigation  to  LaSalle  for  the 
largest  possible  class  of  steamers  that  the  river  will  admit 
when  certain  obstructions  shall  have  been  removed,  and  ulti- 
mately the  determination  of  canal  facilities  with  Lake  Mich- 
igan, and  the  solution  of  the  question  of  an  adequate  supply 
of  water  from  Lake  Michigan  as  a reservoir  for  the  canal 
and  river  during  periods  of  low  water.  * * * 

Subsequently  by  letter  from  the  engineer  department,  dated 
January  8,  1867,  I was  directed  to  continue  the  examination 
of  the  Illinois  Eiver  as  far  towards  its  source  as  there  may 
be  reason  to  believe  that  it  is  susceptible  of  improvement  for 
the  purposes  of  commerce  and  navigation. 

1 829  Page  5 : 

There  is  no  doubt  that  dredging  alone,  or  at  most,  dredging 
and  a feeder  from  the  lake,  can  be  made  to  answer  every  pur- 


G49 


pose  in  i;lie  improvement  of  the  Illinois  Elver,  if  it  is  to  he 
considered  as  independent  navigation  of  no  other  tlian  local 
importance;  but  it  must  be  remembered  that  this  river  is  not 
the  exclusive  property  of  those  living  upon  its  banks.  It 
forms  already  an  important  link  in  a network  of  river  navi- 
gation extending,  with  its  various  branches,  through  seven- 
1830  teen  States  of  the  Union,  and  is  destined  at  no  distant  day 
to  become  the  great  commercial  highway  between  the  pro- 
ductive States  of  the  west  and  northwest  and  the  markets  of 
the  world. 

The  Illinois  River  seems  to  have  been  specially  designed 
by  nature  as  the  line  by  which  the  waters  of  Lake  Michigan 
are  to  be  connected  with  those  of  the  Mississippi.  Its  two 
principal  tributaries,  the  Desplaines  and  the  Kankakee,  ris- 
ing, the  one  in  Wisconsin,  and  the  other  in  Indiana,  run  for 
many  miles  almost  parallel  with  the  western  and  southern 
lake  shore,  and  are  separated  from  the  lake  basin  by  a ridge 
of  insignificant  height  and  width.  A momenUs  consideration 
will  show  that  at  no  remote  period  the  waters  of  the  lake  must 
have  been  carried  off  by  these  streams  as  well  as  by  the  St. 
Lawrence.  In  fact  it  is  the  opinion  of  many  old  contractors 
who  are  well  acquainted  with  the  entire  region,  that  a much 
more  favorable  location  for  a steamboat  canal  can  be  ob- 
tained from  Bridgeport  to  Section  16  of  the  present  canal,  by 
following  the  line  through  Mud  Lake;  but  let  this  result  be  as 
it  may,  the  data  herein  contained,  together  with  the  existence 
of  a canal  of  limited  capacity  already  in  operation,  demon- 
strate beyond  a doubt  that  the  waters  of  the  lake  may  be  car- 
ried into  the  Illinois  River  through  a navigable  channel  of  any 
required  dimensions,  and  at  a cost  which  cannot  be  regarded 
as  excessive  when  the  objects  to  be  obtained  are  duly  con- 
sidered. 

Ib31  Page  7 : 

^^From  the  foregoing  considerations,  I have  the  honor 
to  recommend  the  improvement  of  the  Illinois  River  by  a 
system  of  locks  and  dams,  to  be  placed  at  such  points  between 
Lockport  and  Grafton  as  may  be  determined,  after  a full  and 
careful  survey,  to  be  the  most  advantageous ; and  that  navi- 
gation shall  be  extended  to  the  harbor  of  Chicago  by  the  en- 
largement of  the  Illinois  and  Michigan  Canal,  so  as  to  adapt 
it  to  the  use  of  the  largest  boats  plying  upon  the  Mississippi 
River.’’ 

1832  Page  8 : 

‘‘We  can  assert  confidently,  however,  that  the  interests  of 
commerce  and  the  national  defense  require  navigation  be- 
tween Lake  Michigan  and  the  Mississippi  River  for  the  larg- 
est river  steamboats;  that  all  the  physical  circumstances 
unite  in  making  the  line,  by  the  way  of  the  Illinois  and  Mich- 


650 


igan  Canal  and  Illinois  Eiver  as  the  only  feasible  route  for 
such  a work,  and  that,  therefore,  the  enlargement  of  the  canal 
and  the  improvement  of  the  river  by  locks  and  dams  as  herein 
described,  are  demanded  by  considerations  of  economy  as 
well  as  by  the  public  welfare. 

1833  ‘‘It  is  quite  evident  from  what  is  already  known,  that  steam 
boat  navigation  can  be  more  cheaply  provided  between  Lock- 
port  and  LaSalle  by  following  the  line  of  the  river  than  by 
enlarging  the  canal.  The  State  of  Illinois  has  taken  this  mat- 
ter in  hand,  and  during  its  recent  session  of  its  Legislature  has 

1834  passed  a law  providing  ultimately  for  the  improvements  rec- 
ommended herein.^’ 

Page  11 : 

“In  closing  this  report,  I beg  leave  to  invite  the  attention 
of  the  engineering  department  to  the  interesting  report  of  my 
assistant,  Mr.  S.  T.  Abort,  and  a statement  (marked  Exhibit 
A)  compiled  by  Col.  H.  A.  U1 tiers,  civil  engineer,  assistant, 
giving  an  outline  of  the  Canadian  and  New  York  canal  sys- 
tems.’^ 

And  then  follows  Me.  Abertis  Report,  page  21 : 

“The  Desplaines  Branch  of  the  Illinois  approaches  to  with- 
in twelve  miles  of  the  western  shore  of  the  lake,  while  the 
Kankakee,  another  branch  of  the  same  river,  may  be  fifteen  or 
twenty  miles  from  the  Great  Calumet  River,  a tributary  of 
the  lake  at  its  lower  extremity.  It  is  evident  that  any  de- 
sired fall  can  be  obtained,  from  the  fact  that  the  Desplaines, 
at  Lockport,  twenty-nine  miles  from  the  Chicago  River,  and 
33  miles  from  the  lake,  is  20  feet  below  the  surface  of  this 
great  natural  reservoir. 

“The  summit  level  of  the  Illinois  and  Michigan  Canal  be- 

1835  tween  the  last  named  points^  is  being  now  cut  down  to  the 
standard  low-water  level  of  the  lake,  for  the  purpose  of  drain- 
ing the  stagnant  water  of  the  Chicago  River.  It  is  estimated 
that  this  channel  will  discharge  24,000  cubic  feet  per  minute, 
a quantity  equal  to  two-thirds  of  the  discharge  of  the  Illinois 
River  at  Treetop  bar  during  the  low-water  stage.  This  supply 
must  have  an  ameliorating  effect  upon  the  worst  navigable 
condition  of  the  river.” 

Page  23: 

“The  practical  conclusion  from  the  foregoing  statement 
is  that  a method  of  improvement  by  feeding  from  Lake  Mich- 
igan as  a reservoir  is  feasible  between  LaSalle  and  Grafton, 
but  above  that  point  it  will  be  necessary  to  employ  locks  and 
dams,  and  small  sections  of  canal  at  Lockport,  Joliet  and  Mar- 
seilles Rapids.” 

Page  28: 

“It  may  not  be  out  of  place  before  closing  this  report  to 
bring  together  a few  facts  which  establish  the  superiority  of 


()51 


the  Illinois  River  as  the  route  for  a navigable  connection  be- 
tween the  lakes  and  the  Mississippi  River.” 

^‘The  sources  of  the  river  being  in  a lower  latitude  than 
any  of  its  rivals,  this  advantage  increases  as  the  river  ad- 
vances in  its  course,  and,  as  a consequence,  less  obstruction  to 
navigation,  and  less  damage  to  works  of  improvement  may 

1836  be  anticipated  from  the  length  of  the  winter  and  the  break- 
ing up  of  ice  in  the  spring.  ’ ’ 

Page  29 : 

‘‘A  more  important  advantage  belongs  to  the  valley  of  the 
Illinois;  upon  it  alone  is  a navigation  ])racticahle  for  the  larg- 
est steamers,  by  the  completion  of  which  a union  will  be  ef- 
fected with  the  best  navigable  conditions  of  the  western  riv- 
ers, possessing  an  aggregate  length  in  their  main  channels  of 
12,000  miles,  exceeding  in  their  collateral  channels  and  tribu- 
taries 39,000  miles,  and  draining  an  area  of  911,000  square 
miles  with  90,300  square  miles  of  lake  surface,  bearing  a 
commerce  of  413,000  tons  burden.” 

1837  The  Report  of  Colonel  J.  X.  Macomb,  ‘^Reports  upon 
transportation  routes  to  the  seaboard”;  being  Appendix  CO 

of  the  Annual  Report  of  the  Chief  of  Engineers  for  1875,  p.  95, 

paragraph  2 : 

”This  survey  led  to  the  conclusion  that,  on  every  account, 
the  Hennepin  Canal  and  Upper  Illinois  River,  and  enlarged 
canal  from  Joliet  to  Chicago,  will  afford  the  best  through 
route  for  navigation  between  the  Mississippi  River  and  Lake 
Michigan  that  can  be  secured  in  this  vicinity. 

Paragraph  5 : 

‘Hndeed  the  Hennepin  Canal,  without  the  improvement  of 
the  Upper  Illinois  River  and  the  enlargement  of  the  eastern 
portion  of  the  Illinois  and  Michigan  Canal,  would  be  useless 
as  an  outlet  for  the  freights  of  the  Upper  Mississippi  River; 
and  a careful  consideration  of  the  subiect  has  shown  that 
the  improvement  of  the  Upper  Illinois  River,  to  accord  with 
the  scheme  of  improvement  now  in  progress  for  its  lower 
portion,  is  greatly  to  be  preferred  as  a measure  of  economy 
in  its  broadest  sense,  rather  than  to  undertake  the  enlarging 

1838  of  the  western  portion  of  the  Illinois  and  Michigan  Canal 
lying  between  Joliet  and  the  Hennepin  basin.” 

Paragraph  6 : 

” The  improvement  of  the  eastern  portion  of  the  Illinois  and 
Michigan  Canal  involves  the  further  cutting  down  of  the 
summit-level  and  enlarging  the  water-way  so  as  to  afford  an 
unfailing  supplv  of  water  from  Lake  Michigan  for  the  im- 
proved Illinois  River.” 


652 


1839  The  Eepokt  of  Majok  Handbury,  Chief  of  Engineers  for 
1887,  part  3,  Appendix  II,  on  page  2122,  paragraphs  2 
and  3: 

^^The  United  States  and  the  State  of  Illinois  have  long  been 
committed  to  the  project  of  opening  a water  communication 
between  the  Mississippi  Eiver  and  the  northern  lakes  of  ca- 
pacity sufficient  for  the  wants  of  coimnerce  and  for  the  exig- 
encies of  our  national  defense,  should  these  ever  arise.” 

* * 

^^The  problem  of  connecting  Lake  Michigan  with  the  Missis- 
sippi Eiver  by  a commodious  waterway,  that  could  be  used 
for  commercial,  military,  and  naval  purposes,  has  received  at- 
tention from  our  most  thoughtful  statesmen  from  the  day 
of  Albert  Gallatin  to  the  present.” 

Page  2123 : 

1810  ” Before  taking  steps  looking  to  the  enlargement  of  the 

Illinois  and  Michigan  Canal,  in  the  interests  of  commerce,  or 
as  a military  expedient,  the  advisability  is  suggested  of  ascer- 
taining whether  or  not  some  route  can  be  found  from  Joliet 
to  Lake  Michigan  at  a point  where  better  facilities  can  be  pro- 
vided for  handling  the  large  commerce  of  this  section.  It  is 
thought  by  some  that  a practical  route  exists  between  the 
valleys  of  the  Desplaines  and  Calumet  Eiver s,  along  which 
a canal  such  as  will  acommodate  the  largest  vessels  using 
the  improved  Illinois  Eiver  can  be  constructed,  at  a cost 
less  than  that  estimated  for  the  enlargement  of  the  Illinois 
and  Michigan  Canal  from  Joliet  to  Chicago. 

Before  definitely  locating  that  portion  of  this  route  which  is 
to  lie  between  Joliet  and  Lake  Michigan,  and  which  will  in- 
volve in  its  construction  the  expenditure  of  a very  consider- 
able amount  of  money,  every  possible  route  should  be  exam- 
ined, and  every  engineering  phase  of  Jhe  problem  should  be 
considered.  For  these  reasons  I venture  to  respectfully  sug- 
gest the  advisability  of  calling  the  attention  of  Congress  to 
the  necessity  of  making  available  the  sum  of  $10,000 ; as  much 
thereof  as  may  be  necessary  to  be  expended  in  examinations 
and  surveys  between  the  southern  end  of  Lake  Michigan  and 
1841  the  Desplaines  Eiver  at  or  near  Joliet,  Illinois,  and  on  the 
preparation  of  plans  and  estimates  of  cost  of  constructing, 
along  the  most  practical  route  so  determined,  a waterway 
having  sufficient  capacity  to  accommodate  the  same  class  of 
vessels  and  commerce  that  the  present  improved  condition 
of  the  Illinois  Eiver  is  designed  to  accommodate.” 

The  Eeport  of  the  Comstock  Board  of  1886,  found  in  this  same 
volume  on  page  2125,  the  last  paragraph: 

“The  report  of  the  Board  of  Engineers  shows  that  to  en- 
large the  canal  between  Joliet  and  LaSalle,  and  provide  for 


G58 


an  increased  navigation,  equal  to  that  contemplated  by  the 
improvements  in  progress  on  the  Illinois  River,  between  La 
Salle  and  its  junction  with  the  Mississippi,  would  require 
an  expenditure  of  money  greater  than  the  cost  of  improving 
the  river  itself  between  Joliet  and  LaSalle.  If  such  is  the 
case,  the  river  route  should  be  improved  as  recommended.” 

1842  The  Report  of  the  Chief  of  Engineers,  J.  C.  Duane,  found 

in  this  same  volume  on  page  2127,  paragraph  2 : 

‘‘With  reference  to  the  conditions  in  this  act  of  Cession 
regarding  the  enlargement  of  the  canal,  I would  remark  that 
the  locks  and  dams  that  have  been  and  are  to  be  built  by  the 
United  States  below  LaSalle  have  been  projected  with  a view 
to  a steamboat  navigation  of  the  first  class,  and  the  project 
looks  to  a continuation  of  navigation  upon  the  same  scale  be- 
tween LaSalle  and  Joliet,  and  since  the  cost  of  an  enlarge- 
ment of  the  canal  between  these  points,  would,  it  appears, 
be  greater  than  that  of  the  improvement  of  the  river  itself, 
a river  route  between  those  points  should  be  adopted.” 

The  Report  of  the  Board  of  Engineers,  found  in  this  same  vol- 
ume, on  page  2129 ; paragraph  3 : 

“The  waterway  from  Chicago  to  Grafton,  on  the  Missis- 
sippi River  is  a most  important  one,  and  when  completed 
there  is  little  doubt  that  it  will  richly  pay  for  itself  in  the 
reduction  and  regulation  of  freights.” 

The  Survey  of  1889  by  Captain  W.  L.  Marshall,  Executive 
Document  No.  264,  51st  Congress,  1st  Session,  commencing 

1843  on  page  12,  at  paragraph  2 : 

“Chicago  River  Route.  The  route  proposed  follows  the 
Chicago  River  from  its  mouth,  via  its  south  branch  and  the 
Ogden  Ditch  to  Summit,  thence  parallel  to  the  present  loca- 
tion of  the  Illinois  and  Michigan  Canal,  on  lower  ground, 
three  miles  more  or  less,  where  it  enters  the  bed  of  the  Des- 
plaines  River,  which  it  practically  follows,  cutting  off  bends  to 
Sag  Bridge,  where  it  unites  with  the  second  or  Sag  Route.” 

Page  21,  paragraph  7 of  the  same  report : 

“The  route  will  be  navigable  at  all  stages  below  a stage 
corresponding  to  a discharge  of  from  about  30,000  to  35,000 
cubic  feet  per  second,  or  under  all  ordinary  conditions  of 
the  river,  the  extreme  floods  occurring  at  rare  intervals,  and 
then  being  of  short  duration.” 

Thereupon  the  complainant  offered  from  the  same  document 
No.  264  the  borings  along  the  Chicago  Route,  commencing  on  page 
69  at  No.  46,  explaining  that  these  borings  were  made  to  discover 


654 


the  different  strata ; first  the  water  on  to}),  and  then  the  strata 
down  through,  preparatory  to  a deep  water  way;  and  the  point 
which  the  complainant  introduced  them  for  was  to  show  the  depth 
of  water  down  this  river  in  1889;  thereupon  reading  as  fol- 
lows : 

1844  “Boring  Xo.  46.  Located  in  the  Desplaines  Eiver  400  feet 
west  and  3,400  feet  north  of  the  southeast  corner  of  Section 
32,  Town  38  X'orth,  Kange  12  East,  Lyons  Township,  Cook 
County,  Illinois, — depth  of  water  5.5  feet.” 

“Elevation  of  surface  water  163.1  feet;  commenced  boring 
11:30  A.  M.,  June  25,  1889;  completed  boring  11:05  A.  M. ' 
June  28,  1889. 

1845  “Boring  X"o.  47.  Located  in  the  Desplaines  Eiver,  2,400 
feet  west  and  1,600  feet  north  of  the  southeast  corner  of  Sec- 
tion 6,  Township  57  X'orth,  Eange  12  East,  Palos  Township, 
Cook  County,  Illinois.  Depth  of  water  six  feet.  Boring 
made  June  29,  1889. 

“Boring  No.  48.  Located  in  Desplaines  Eiver,  fifty  feet 
from  the  north  bank,  two  hundred  feet  west  and  twenty-two 
hundred  feet  north  of  the  southeast  corner  of  Section  6,  Town- 
ship 37  Xorth,  Eange  12  East,  Palos  Township,  Cook  County. 
Depth  of  water  nine  feet.  Boring  made  July  5,  1889. 

“Boring  X"o.  49.  Located  1,300  feet  west  and  twelve  hun- 
dred feet  north  of  the  southeast  corner  of  Section  32,  Town- 
ship 38  X^^orth,  E:ange  12  East,  in  the  Desplaines  Eiver,  ten 
feet  below  the  northwest  pier  and  eighty  feet  from  the  north- 
west abutment  of  wagon  bridge  over  the  Desplaines  Eiver  at 
AVillow  Springs,  Lyons  Township,  Cook  County,  Illinois.  Depth 
of  water  3.5  feet.  Boring  made  July  9th,  1889. 

1846  “Boring  Xo.  50,  located  in  the  Desplaines  Eiver,  one  thou- 

sand feet  east  and  twenty-five  hundred  feet  south  of  the  north- 
west corner  of  Section  5,  Township  37  Xorth,  Eange  12  East, 
Palos  Township,  Cook  Countv,  Illinois.  Depth  of  water  six 
feet.  Made  July  12th,  1889.  " , ^ 

“Boring  Xo.  51.  Located  in  Desplaines  Eiver  three  hun- 
dred feet  north  and  thirteen  hundred  feet  east  of  the  south- 
west corner  of  Section  6,  Township  37  Xorth,  Eange  12  East, 
Palos  Township,  Cook  Countv,  Illinois.  Depth  of  water  eight 
feet.  Taken  July  15,  1889. 

“Boring  X”o.  52.  Located  in  Desplaines  Eiver,  100  feet  south 
and  1,300  feet  west  of  the  northeast  corner  of  Section  12, 
Township  37  X^orth,  Eange  11  East,  on  the  line  between  Dow- 
ner’s Grove  Township,  DuPage  County,  and  Lemont  Town- 
ship, Cook  Countv,  Illinois.  Depth  of  water  8.7  feet.  Taken 
Julv  17,  1889. 

“Boring  X"o.  53.  Located  in  the  Desplaines  Eiver,  1,600 
feet  east  and  1,400  feet,  south  of  the  northwest  corner  of 


Section  12,  Township  37  North,  llange  11  East,  on  the  line 
between  DnPage  and  Cook  Counties,  Illinois.  Depth  of  water 
five  feet.  Taken  July  20th,  1889. 

1847  ''Boring-  No.  54.  Located  in  Desplaines  Biver,  300  feet  • 
west  and  2,300  feet  north  of  the  southeast  corner  of  Section  11, 
Township  37  North,  Range  11  East,  on  the  line  l)etween  Dn 
Page  and  Cook  Counties,  Illinois.  Depth  of  Avater  7.1  feet 
Taken  July  23,  1889. 

"Boring  No.  55.  Located  in  Desjdaines  River,  2,400  feet 
west  and  700  feet  north  of  the  northeast  corner  of  Section 
11,  Township  37  North,  Range  11  East,  on  the  line  between 
DuPage  and  Cook  Counties,  Illinois.  Dei)th  of  water  7 feet. 
Taken  July  25,  1889. 

"Boring  No.  56.  Located  in  the  Desi)laines  River,  400  feet 
south  and  600  feet  east  of  the  northwest  corner  of  Section 

14,  Township  37  North,  Range  11  East,  on  the  line  between 
DuPage  and  Cook  Counties,  Illinois.  Depth  of  water  8.5  feet. 
Taken  July  25,  1889. 

"Boring  No.  57.  Located  in  the  Desplaines  River,  1,800  feet 
south  and  1,500  feet  west  of  the  northeast  corner  of  Section 
,15,  Township  37  North,  Range  11  East,  on  the  line  between 
DuPage  and  Cook  Counties,  Illinois.  ])epth  of  water  8 feet. 
Taken  July  30,  1889. 

"Boring  No.  58.  Located  in  Des])laines  River,  1,700  feet 
east  and  2,200  feet  north  of  the  southwest  corner  of  Section 

15,  Township  37  North,  Range  11  East,  on  the  line  between 
DuPage  and  Cook  Counties,  Illinois.  Depth  of  water  six  feet. 
Taken  July  30,  1889. 

1848  "Boring  No.  59.  Located  in  Desplaines  River,  1,000  feet 
north  and  500  feet  west  of  the  southeast  corner  of  Section  16, 
Township  37  North,  Range  11  East,  on  the  line  between  Dn 
Page  and  Cook  Counties,  Illinois.  Depth  of  water  11.5 
feet.  Taken  August  1,  1889. 

"Boring  No.  60.  Located  in  the  Desplaines  River,  2,600 
feet  east  and  50  feet  north  of  the  southwest  corner  of  Section 

16,  Township  37  North,  Range  11  East,  on  the  line  between 
DuPage  and  Cook  Counties,  Illinois.  Depth  of  water  10.4  feet. 
Taken  August  1,  1889.’^  . 

1849  Counsel  eok  Complainant.  We  now  offer  from  this  same 
report  a table.  A list  of  merchants’  steamboats  navigating  on 

the  Mississippi  Rnmr  and  its  tributaries  with  a depth  of  less  than 
seven  feet.  We  don’t  want  to  put  those  in,  your  Honor,  but  only 
such  portion  of  them  as  show  boats  drawing  less  than  three  feet 
of  water,  three  and  less. 

Counsel  eok  Defendant.  We  object  to  it  as  incompetent,  im- 
material and  irrelevant. 


656 


The  Court.  Your  purpose  is  to  show  that  there  are  boats  draw- 
ing less  than  three  feet  of  water  that  are  used  in  commercial  life. 

Counsel  for  Complainant.  Yes,  that  is  the  point. 

1850  The  Court.  For  that  purj3ose  I think  it  is  admissible. 

Thereupon  complainant  read  as  follows : 

“No.  7,  name  Abner  Gile,  gross  tonnage  124.18,  net  tonnage 
124.18,  length  of  boat  110  feet,  breadth  21  feet,  depth  3 feet; 
Avhere  built,  LeClaire,  Iowa;  home  port  Galena,  Illinois. 

No.  13,  name  Advance,  gross  tonnage  82.83,  net  tonnage 
59.79,  length  70,  breadth  18,  depth  two  feet;  where  built,  Madi- 
son, Arkansas;  home  port,  Memphis,  Tennessee. 

No.  14,  name  Aggie,  gross  tonnage  88.57,  net  the  same, 
length  92.4,  breadth  20.4,  depth  3 feet;  where  built,  Manches- 
ter, Ohio;  home  port,  Kansas  City,  Missouri. 

No.  26,  name  Alpha,  gross  tonnage  56,  net  same,  length 
121  feet  and  three-tenths,  breadth  21,  depth  2.7 ; where  built, 
Jefferson,  Texas;  home  port.  New  Orleans,  Louisiana. 

1851  No.  52,  name  Belgrade,  gross  tonnage  89.26,  net  the  same, 
length  96  feet,  breadth  18  feet,  depth  2.5;  where  built,  Vin- 
cennes, Indiana;  home  port,  Evansville,  Indiana. 

No.  56,  Belle  Crooks,  gross  tonnage  78.43;  net  tonnage 
the  same,  length  91,  breadth  22,  depth  3;  where  built,  Jeffer- 
sonville, Indiana;  home  port.  New  Orleans,  Louisiana. 

No.  68,  name  Bessie  Siler,  gross  tonnage  54.42,  net  tonnage 
49.38,  length  93,  breadth  16,  depth  3;  where  built,  Harmar, 
Ohio;  home  port.  Wheeling,  West  Virginia. 

No.  78,  name  Bob  Henry,  gross  tonnage  80.24,  net  55.44, 
length  91.4,  breadth  16.6,  depth  2.4;  where  built.  Charles- 
ton, ^Y.  Va.;  home  port.  Wheeling,  West  Virginia. 

No.  81,  name  Border  City,  gross  tonnage  96.96,  net  tonnage 
88.86,  length  108,  breadtl/ 21,  depth  2.5;  where  built.  Fort 
Smith,  Arkansas;  home  port,  Memphis,  Tennessee. 

No.  82,  name  Boston,  gross  tonnage  70.77,  net  tonnage  57.10, 
length  65,  breadth  16,  depth  2.5 ; where  built,  Pittsburg,  Penn- 
sylvania ; home  port,  Pittsburg,  Pennsylvania. 

]852  No.  86,  name  Bright  Star,  gross  tonnage  71.52,  net  tonnage 
41.66,  length  89.6,  breadth  18.7,  depth  2.8;  where  built.  Calico 
Bock,  Arkansas;  home  port,  Memphis,  Tennessee. 

No.  88,  name  Buckeye,  gross  tonnage  69.62,  net  tonnage  the 
same,  length  102,  breadth  16.4,  depth  3;  where  built,  Feed’s 
Landing,  Minnesota;  home  port,  LaCrosse,  Wisconsin. 

No.  91,  name  Burnside,  gross  tonnage  100.45,- net  tonnage  the 
same,  length  114.6,  breadth  20.4,  depth  3;  where  built,  Hannar, 
Ohio;  home  port,  MJieeling,  West  Virginia. 

No.  95,  name  C.  C.  Martin,  gross  tonnage  67.78,  net  tonnage 
the  same,  length  103.2,  breadth  18.3,  depth  3.9;  where  built, 
Harmar,  Ohio;  home  port.  Wheeling,  West  Virginia. 


No,  lOo,  name  Caney  Port,  gross  tonnage  8o.90,  net  tonnage 
the  same,  length  126,  breadth  19,  depth  2;  where  built,  Pa- 
ducah, Kentucky;  home  port,  New  Orleans,  Louisiana. 

No.  108,  name  Carrie  M.  Kraft,  gross  tonnage  81.16,  net 
tonnage  the  same,  length  102,  breadth  20,  depth  3;  where  built, 
Parkersburg,  West  Virginia;  home  port,  Memphis,  Tennessee. 

1853  No.  135,  name  Clara,  gross  tonnage  60.95,  net  tonnage 
the  same,  length  87,  breadth  14,  depth  2.5;  where  built,  Leon, 
West  Virginia;  home  port.  Wheeling,  West  Virginia. 

No.  136,  name  Clara  Belle,  gross  tonnage  71.48,  net  tonnage 
56.66,  length  100,  breadth  18.8,  depth  2;  where  built.  Point 
Pleasant,  W.  Va.;  home  port.  Wheeling,  West  Virginia. 

No.  147,  name  Cora,  gross  tonnage  75.18,  net  tonnage  the 
same,  length  105,  breadth  22,  depth  2.8;  where  built,  Pittsburg, 
Pennsylvania;  home  port,  Cincinnati,  Ohio. 

No.  152,  name  Crescent,  gross  tonnage  82.93,  net  tonnage 
the  same,  length  106,  breadth  18,  depth  3;  where  built,  Letart 
Iktlls,  Ohio;  home  port.  New  Orleans,  Louisiana. 

No.  155,  Crusader,  gross  tonnage  302.07,  net  tonnage  186.77, 
length  138.8,  breadtli  22.3,  depth  2.9;  where  built,  Nashville, 
Tennessee;  home  ]mrt,  Paducah,  Kentucky. 

No.  161,  name  B.  T.  Watson,  gross  tonnage  80.45,  net 
tonnage  80.45,  length  99,  l)readth  17,  depth  2.6;  where  Ituilt, 
Pittsburg,  Pennsylvania ; home  port,  Pittsburg,  Pennsylvania. 

1854  No.  182,  name  Dyersburg,  gross  tonnage  73.08,  net  tonnage 
the  same,  length  93,  breadth  18.4,  depth  3 ; where  built,  Dyers- 
burg, Tennessee;  home  port,  Memphis,  Tennessee. 

No.  186,  E.  T.  Holman,  gross  tonnage  102.48,  net  tonnage 
71.59,  length  100,  breadth  20,  depth  3;  where  built,  Nash- 
ville, Tennessee;  home  port,  Paducah,  Kentucky. 

No.  199,  name  Eli,  gross  tonnage  140.25,  net  tonnage  120.25, 
length  106,  breadth  21.5,  depth  2.5;  where  built.  Little  Eock, 
Arkansas;  home  port,  Memphis,  Tennessee. 

No.  201,  name  Ella,  gross  tonnage  284.70,  net  tonnage  184.70, 
length  148,  breadth  28,  depth  2.5;  where  built,  Jeffersonville, 
Indiana;  home  port,'  Memphis,  Tennessee. 

No.  216,  name  Experiment,  gross  tonnage  62.35,  net  tonnage 
34.99,  length  106.5,  breadth  16.2,  depth  3;  where  Wit,  Evans- 
ville, Indiana;  home  port,  Evansville,  Indiana. 

No.  226,  name  Prank  Preston,  gross  tonnage  61.14,  net  ton- 
nage the  same,  length  103.5,  breadth  19.3,  depth  2.9;  where 
built,  Catlettsburg,  Kentucky;  home  port,  Cincinnati,  Ohio. 

1855  No.  231,  name  Ereedrick,  gross  tonnage  82.51,  net  tonnage 
the  same,  length  96.4,  breadth  14.3,  depth  3;  where  built,  St. 
Louis,  Mo.;  home  port,  St.  Louis,  Mo. 

No.  234,  name  C.  B.  Montieth,  gross  tonnage  69.03,  net  ton- 
nage 62.91,  length  103.4,  breadth  18.2,  depth  2;  where  built. 
Long  Beach,  West  Virginia  ; home  port.  Wheeling,  W.  Va. 

No.  341,  name  J.  W.  Mills,  gross  tonnage  86.98,  net  tonnage 


658 


Boats  Drau'ing  Less  Than  3 Ft.  of  Water. 


the  same,  length  109.7,  breadth  22.2,  depth  3;  where  built, 
Paducah,  Kentucky;  home  port.  Galena,  Illinois. 

No.  360,  name  Jimmie  B. ; gross  tonnage  58.32,  net  tonnage 
the  same,  length  97.3,  breadth  20,  depth  2.3;  where  built,  Pt. 
Pleasant ; home  port,  Vicksburg,  Mississippi. 

No.  390,  name  Josephine  Spengler,  gross  tonnage  104.50,  net 
tonnage  the  same,  length  106,  breadth  25,  depth  3 ; where  built, 
Vicksburg,  Mississippi;  home  port.  New  Orleans,  Louisian^. 

No.  397,  name  Julian  Gracey;  gross  tonnage  81.71,  net  ton- 
nage the  same,  length  100,  breadth  22,  depth  2.8;  where  built, 
Clarkesville,  Tennessee;  home  port,  Paducah,  Kentucky. 

1856  No.  417,  name  Leroy,  gross  tonnage  66.44,  net  tonnage 
48.17,  length  60,  breadth  14,  depth  2.7 ; where  built,  Greenville, 
Mississippi;  home  port.  Memphis,  Tennessee. 

No.  420,  name  Lillian,  gross  tonnage  91.75,  net  tonnage  the 
same,  length  124.5,  breadth  21.3,  depth  3;  where  built,  Ash- 
land, Kentucky;  home  port,  Wheeling,  West  Virginia. 

No.  424,  name  Lion,  gross  tonnage  71.96,  net  tonnage  the 
same,  length  100,  breadth  15.6,  depth  3;  where  built,  Lyons, 
Iowa;  home  port,  LaCrosse,  Wisconsin. 

No.  433,  name  Lizzie  Bayliss,  gross  tonnage  110.05,  net 
tonnage  the  same,  length  117,  breadth  21,  depth  3 ; where  l)uilt, 
Wellsville,  Ohio;  home  port,  Vicksburg,  Mississippi. 

No.  442,  name  Lucy  Robertson,  gross  tonnage  103.84,  net 
tonnage  81.89,  length  95  feet,  breadth  20.5,  depth  2.9;  where 
built,  Johnsonville,  Tennessee;  home  port,  Padudah,  Ken- 
tucky. 

No.  463,  name  Mary  Ruble,  gross  tonnage  65.73,  net  tonnage 
the  same,  length  100,  breadth  16.7,  depth  3 ; where  built,  Carrs- 
ville,  Kentucky;  home  port,  Cincinnati,  Ohio. 

1857  No.  464,  Mary  C.  Cantwell,  gross  tonnage  64.73,  net  ton- 
nage the  sam'e,  length  100,  breadth  28,  depth  3;  where  built, 
Pittsburg,  Pennsylvania;  home  port,  Pittsburg,  Pennsylvania. 

No.  474,  name  Mike  Davis,  gross  tonnage  112.28,  net  tonnage 
78.92,  length  96,  breadth  17,  depth  3;  where  built.  Wheeling, 
W.  Va.;  home  port,  Paducah,  Kentucky. 

No.  479,  name  Minnie  H. ; gross  tonnage  130.24,  net  tonnage 
the  same,  length  133,  breadth  25,  depth  3;  where  built,  Reed’s 
Landing,  Minnesota;  home  port,  St.  Paul,  Minnesota. 

No.  510,  name  Novelty,  gross  tonnage  63.14,  net  tonnage 
49.95,  length  76.4,  breadth  16.4,  depth  3;  where  built,  Manchefs- 
ter,  Ohio;  home  port,  Vicksburg,  Mississippi. 

No.  513,  name  Octavia,  gross  tonnage  95.23,  net  tonnage 
62.84,  length  76.5,  breadth  16.5,  depth  3;  where  built,  Green- 
ville, ^Mississippi ; home  port,  Memphis,  Tennessee. 

No.  516,  name  Olivette,  gross  tonnage  130.01,  net  tonnage 
94.44,  length  120,  breadth  22,  depth  3;  where  built,  Harmar, 
Ohio;  home  port,  Cincinnati,  Ohio. 

No.  537,  name  Phil  Scheckel,  gross  tonnage  108,  net  tonnage 


659 


the  same,  length  114,  breadth  20.5,  depth  3;  where  built,  Wau- 
beck,  Wisconsin;  home  port.  La  Crosse,  Wisconsin. 

1858  No.  541,  name  Pinhook,  gross  tonnage  160.36,  net  tonnage 
90.60,  length  94,  breadth  18,  depth  3 ; where  built,  Chattanooga ; 
home  port,  Chattanooga,  Tennessee. 

No.  546,  name  Prince,  gross  tonnage  107.88,  net  tonnage 
the  same,  length  120,  breadth  21,  depth  2.8;  where  built, 
Harniar,  Ohio ; home  port.  Wheeling,  W.  Va. 

No.  550,  name  E.  B.  Kendall;  gross  tonnage  70,  net  ton- 
nage 70,  length  105,  breadth  18,  depth  3;  where  built,  Pitts- 
burg, Pennsylvania;  home  port,  Pittsburg,  Pennsylvania. 

No.  552,  name  K.  E.  Philips,  gross  tonnage  84.06,  net  ton- 
nage 79.60,  length  110.8,  breadth  20,  depth  2.3;  where  built. 
Freedom,  Pa.;  home  port.  Wheeling,  West  Virginia. 

No.  554,  name  E.  L.  Cobb,  gross  tonnage  365.33,  net  tonnage 
204.56,  length  145.1,  breadth  28.5,  depth  3;  where  built.  Little 
Eock,  Arkansas;  home  port,  Memphis,  Tennessee. 

No.  560,  name  Eeindeer,  gross  tonnage  56.36,  net  tonnage  the 
same,  length  103,  breadth  19,  depth  3;  where  built,  Terre 
Haute,  Indiana;  home  port,  Louisville,  Kentucky. 

1859  No.  573,  name  Eob  Eoy,  gross  tonnage  100.02,  net  tonnage 
84.63,  length  119,  breadth  19,  depth  2.9 ; where  built,  Lafayette, 
Indiana;  home  port,  Kansas  City,  Missouri. 

No.  577,  name  Eoy  Lynds,  gross  tonnage  64.19,  net  tonnage 
the  same,  length  101,  breadth  23,  depth  3;  where  built,  Jetfer- 
sonville,  Indiana;  home  port,  St.  Joseph,  Missouri. 

No.  578,  name  Eozelle,  gross  tonnage  62.46,  net  tonnage 
50.35,  length  110,  breadth  19,  depth  3;  where  built.  Charles- 
ton, W.  Va. ; home  port.  Wheeling,  W.  Va. 

No.  581,  name  S.  P.  Pond,  gross  tonnage  86.34,  net  tonnage 
56.27,  length  75,  breadth  15.5,  depth  3;  where  built,  LockliarCs 
Landing,  Arkansas;  home  port,  Memphis,  Tennessee. 

No.  596,  name  Scout,  gross  tonnage  55.68,  net  tonnage  the 
same,  length  85,  breadth  15,  depth  2.8;  where  built.  Freedom, 
Pennsylvania;  home  port,  Pittsburg,  Pennsylvania. 

No.  638,  name  Tom  Spurlock,  gross  tonnage  93.05,  net  ton- 
nage 86.30,  length  114.3,  breadth  22.9;  where  built,  Ashland^ 
j"  Kentucky;  home  port,  Cincinnati,  Ohio. 

1860  No.  642,  name  Two  Brothers,  gross  tonnage  69.13,  net  ton- 
nage 48.13,  length  91.9,  breadth  16,  depth  2.5;  where  built. 
Pittsburg,  Pennsylvania;  home  port,  Pittsburg,  Pennsylvania. 

No.  643,  name  Undine,  gross  tonnage  72.90,  net  tonnage  the 
same,  length  112,  breadth  30,  depth  2;  where  built.  Mound 
City,  Illinois;  home  port,  Kansas  City,  Missouri. 

No.  651,  name  Vienna,  gross  tonnage  73.17,  net  the  same, 
length  89.6,  breadth  24,  depth  2.3;  where  built,  Plattsmouth, 
Nebraska;  home  port,  St.  Louis,  Missouri. 

No.  663,  name  W.  L.  Norton,  gross  tonnage  63.01,  net  ton- 


G60 


nage  43.60,  length  67.5,  breadth  12,  depth  3;  where  built,  Le- 
noirs,  Tennessee;  home  port,  Chattanooga,  Tennessee. 

No.  665,  name  W.  P.  Bishop,  gross  tonnage  69.09,  net  ton- 
nage 48.09,  length  93.9,  breadth  16.5,  depth  2.5;  where  built, 
Pittsburg,  Pennsylvania;  home  port,  Omaha,  Nebraska. 

No.  668,  name  Water  Lilly,  gross  tonnage  141.17,  net  ton- 
nage 89.96,  length  112,  breadth  21,  depth  3;  where  built, 

1861  Knoxville,  Tennessee;  home  port,  Chattanooga,  Tennessee. 

No.  678,  name  William  Wagner,  gross  tonnage  52.25,  net 
tonnage  the  same,  length  100,  breadth  17,  depth  2;  where  built, 
Pittsburg,  Pennsylvania;  home  port.  Wheeling,  West  Vir^ 
ginia. 

And  thereupon  complainant  offered  and  read  in  evidence  as  fol- 
lows : 

Document  No.  263,  House  of  Eepresentatives,  59th  Congress, 
First  Session,  report  upon  the  survey,  with  plans  and  estimates 
of  cost  for  a navigable  waterway  fourteen  feet  from  Lockport, 
Illinois,  ly  way  of  Desplaines  and  Illinois  Eivers,  to  the  month 
of  said  Illinois  Eiver,  and  thence  by  way  of  the  Mississippi  Eiver 
to  St.  Louis,  Missouri,  and  for  a navigable  waterway  of  seven 
and  eight  feet  depth,  respectively,  from  the  head  of  navigation 
of  Illinois  Ei\^er  at  La  Salle,  Illinois,  through  said  river  to  Ottawa, 
Illinois.  By  the  Mississippi  Eiver  Commission  covering  the  sec- 
tion below  the  month  of  the  Illinois  Eiver  and  by  a board  of 
officers  of  the  Corps  of  Engineers,  United  States  Army,  covering 
the  section  above  the  month  of  the  Illinois  Eiver,  December  19th, 
1905. 

1862  Page  16.  ‘‘Plan,  Lockport  to  Utica.  Between  Lockport 
and  Utica,  five  miles  above  LaSalle,  the  fall  of  the  water 
surface  is  about  136  feet  in  a distance  of  63.5  miles,  while 
between  Utica  and  Grafton  the  fall  is  but  33  feet  in  a dis- 
tance of  229.5  miles  (see  profile  sketch  hereto  attached.)  The 
method  of  improvement  for  the  former  must  be  by  locks 
and  dams.  In  general  terms  two  routes  are  available,  viz : 
the  river  route  and  that  of  the  old  Illinois  and  Michigan 
Canal.  The  board  decided  to  adopt  the  river  route  because 
the  greater  width  would  afford  better  facilities  for  naviga- 
tion, and  because  subsequent  enlargement  could  be  executed 
at  less  cost  and  without  interfering  with  navigation;  also 
because  a waterway  by  that  route  could  be  constructed  at 
less  cost  in  the  first  instance  and  the  annual  charges  for  main- 
tenance would  be  less.  In  reaching  this  conclusion  a careful 

1863  investigation  was  made  of  the  velocities  to  be  expected  at  the 
higher  stages  in  various  parts  of  the  reach.  It  was  found 
that  they  would  be  prohibitive  only  at  Marseilles  and  at 


GGl 


Joliet.  At  each  of  these  places  a canal  about  three  miles 
long  is  proposed.  At  several  other  places  for  short  dis- 
tances velocities  of  3.5  miles  to  4 miles  per  hour  may  be 
expected,  but,  although  somewhat  obstructed,  they  are  not  pro- 
hibitive, and  as  the  floods  which  cause  them  are  of  short  dura- 
tion and  occur  only  at  rare  intervals,  the  inconvenience  is 
believed  to  be  of  small  importance.’’ 

Page  40.  ^‘Velocity  of  current  in  the  upper  Illinois  and 
lower  Desplaines  River  during  extreme  high  water.  In  order 
to  ascertain  whether  the  currents  which  obtain  in  the  upper 
Illinois  and  lower  Desplaines  Rivers  during  extreme  high 
water  would  prohibit  navigation  at  such  times,  velocities  were 
computed  at  16  points  between  Utica  and  Joliet  for  the  high- 
est water  on  record  for  each  station.  These  results,  which 
are  shown  in  the  following  table,  are  based  upon  the  following 
field  measurements,  and  are  entirely  independent  of  any  as- 
sumptions or  theories.  The  high  water  elevations  were  taken 
from  the  high  water  line  on  our  general  profile,  which  were 

1864  platted  from  actual  guage  readings  and  reliable  readings  and 

reliable  high  water  marks.  The  areas  of  the  discharging 
sections  were  obtained  by  platting  and  computing  the  cross 
sections  from  soundings  and  stadia  elevations  taken  in  the 
field.  ^ ^ ^ 

The  discharges  for  the  sections  one  mile  below  the  mouth 
of  the  Kankakee  River,  at  the  Kankakee  cut-off,  and  1/4 
mile  below  the  foot  of  Treat’s  Island,  were  obtained  from 
discharge  curves  platted  from  measurements  taken  at  El- 
gin, Joliet  and  Eastern  Railroad  bridge  at  the  Kankakee 
cut-off,  and  2,000  feet  above  Jackson  Creek,  respectively. 

For  tlie  sections  in  Joliet  and  If  miles  below  the  Brandon 
bridge  the  discharges  were  derived  from  tables  showing  the 
discharge  of  the  Drainage  Canal  and  the  Desplaines  River, 
prepared  for  each  day  of  the  year  by  the  Sanitary  District  of 
Chicago.” 

Then  follows  the  table  in  detail. 

1865  Under  the  heading  of  Kankakee  Cut-off,  velocity  of  Kan- 
kakee Cut-off  2J  miles  per  hour,  1/4  mile  below  foot  of 

Treat’s  Island,  If  miles  below  Brandon  bridge,  2f  Jefferson 

Street  bridge,  Joliet  7.4  miles  per  hour. 

‘‘Prom  Seneca  to  Patterson  Island,  at  the  head  of  Lake 
Joliet,  a distance  of  32.7  miles,  the  maximum  velocities  vary 
from  2.1  to  3.1  miles  per  hour.  There  are  two  exceptions 

1866  to  this,  viz.,  at  the  mouth  of  the  Desplaines  River  and 
at  Treat’s  Island,  where  it  is  impossible  to  compute  the 
velocity,  as  there  are  not  sufficient  data  on  hand.  It  would 
probably  not  exceed  four  miles  per  hour,  at  either  place  for  a 
distance  of  about  one-half  mile.  Proceeding  up  stream  from 


662 


Ijake  Joliet  the  velocity  increases  up  to  Dam  No.  1 at  Joliet. 
At  the  Jefferson  Street  bridge  the  computed  velocity  is  7.4 
miles  per  hour  for  the  flood  of  1904. 

(Counsel  for  Complainant.  I think  there  is  no  objection  to 
stating  to  the  Court  that  this  flood  of  1904  was  the  biggest  flood 
for  a great  many  years  and  consequently  of  the  greatest  velocity.) 

^‘From  the  preceding  investigation  it  has  been  decided  that 
the  velocities,  which  obtain  during  extreme  high  water,  are 
prohibitive  only  below  the  Marseilles  and  Joliet  dams.  Under 
the  adopted  project  a canal  about  3 miles  long  has  been  pro- 
vided along  each  of  these  sections. 

The  velocity  from  the  Marseilles  dam  to  Seneca,  viz.,  3.5  to 
4.1  miles  per  hour,  is  obstructive  to  navigation  but  not  pro- 
hibitive, and  as  these  floods  occur  only  at  rare  intervals  and 
are  of  short  duration,  it  is  not  considered  necessary  to  leave 
the  river  bed  at  this  section.  The  same  remarks  apply  to  the 
section  just  below  the  proposed  canal  at  Marseilles,  and  to  the 
short  sections  at  the  mouth  of  the  Kankakee  Eiver  and  at 
Treat’s  Island.” 

1S67  Whereupon  counsel  for  complainant  offered  and  read  in 
evidence  the  deposition  of  Urias  Bowers,  followed  by  coun- 
sel for  defendant  reading  the  cross-examination. 

(For  rulings  on  same  see  Abstract  of  Depositions,  supra ^ p.  421.) 

Whereupon  counsel  for  complainant  offered  and  read  in  evidence 
the  deposition  of  Mrs.  Eliza  P.  Jones,  followed  by  counsel  for 
defendant  reading  the  cross-examination. 

(For  rulings  on  same  see  Abstract  of  Depositions,  supra,  p.  461.) 

Whereupon  counsel  for  complainant  offered  and  read  in  evidence 
the  depositions  of  Samuel  W.  Jones,  followed  by  counsel  for 
defendant  reading  the  cross-examination. 

(For  rulings  on  same  see  Abstract  of  Depositions,  supra,  p.  463.) 

Whereupon  counsel  for  complainant  offered  and  read  in  evi- 
dence the  deposition  of  Frank  Paddock,  followed  by  counsel  for 
defendant  reading  the  cross-examination. 

(For  rulings  on  same  see  Abstract  of  Depositions,  supra,  p.  469.) 


1868 


William  H.  Bing 


a witness  for  complainant,  testified  as  follows: 

Direct  Examination. 

1869  My  name  is  William  H.  Bing.  I live  in  Cincinnati,  Ohio. 
I am  a steamboat  captain  and  pilot.  I have  been  engaged 

in  steamboat  work  and  business  since  1873.  I was  licensed  by 
the  Government  as  a pilot  on  the  Ohio  and  its  tributaries  and  have 
continuously  followed  the  business  of  navigating  the  Ohio  river  and 
its  tributaries  from  the  year  1873  up  to  last  December.  The  trib- 
utary streams  of  the  Ohio  which  I have  navigated  are  the  Great 
Kanawha  Eiver  and  Big  Sandy  Eiver,  and  some  on  the  Kentucky 
Eiver,  and  have  navigated  the  Ohio  all  this  time,  almost  alto- 
gether. Not  very  much  on  the  other  rivers. 

1870  The  run  which  I have  made  on  the  Ohio  Eiver  most  fre- 
quently was  from  Pomeroy,  Ohio,  to  Louisville,  Kentucky. 

Eeferring  to  the  Ohio  Eiver  and  the  depth  of  that  river  at  high 
water, — I have  seen  it  seventy-one  feet,  at  Cincinnati;  and  I have 
seen  the  river  as  low  as  twelve  inches;  twelve  to  fourteen  inches, 
near  Pomeroy,  Ohio, — ^between  Pomeroy  and  Ironton.  There  are 
several  shoal  places  there  that  go  down  to  about  twelve  inches;  I 
don’t  just  recollect  what  year  it  was  now;  it  was  years  ago.  It 
is  a frequent  thing  for  the  Ohio  Eiver  to  have  those  very  high 
floods  and  those  very  low  water  periods, — every  year.  Most 

1871  every  summer  we  have  about  as  low  as  three  feet,  and  some- 
times under  the  three-foot  stage.  When  I said  twelve  inches, 

I meant  twelve  inches  only  in  chutes, — what  we  call  chutes, — in 
the  deepest  part  of  the  shoal  place.  A boat  going  down  through 
that  river  runs  over  the  one  foot  of  water.  They  cannot 

1872  use  the  big  boats,  and  when  we  cannot  use  the  larger  boats 
we  generally  use  the  steamboats  used  in  the  small  streams. 

They  navigate  and  carry  freight  on  those  small  stages  of  water. 
It  is  not,  maybe  not  more  than  once  in  eight  or  ten  years,  when 
it  gets  that  low;  but  I have  steamboated  on  little  boats  when  the 
water  was  only  twelve  inches  in  the  river.  We  carry  light  freight 
and  passengers.  You  couldn’t  carry  over  eight  or  ten  tons  on 
that  low  water  you  know.  The  little  boats  would  probably  draw 


Bing, — Direct  Exam. — Continued. 


664 

five  or  six  inches;  they  were  not  built  very  wide,  you  know. 

1873  The  dimensions  of  these  boats  that  would  navigate  on  the 
twelve  inches  of  water  and  carry  freight  were  about  100  feet 

long,  90  to  100  feet  long,  and.  about  16  to  18  feet  wide,  with  a little 
fiat  bottom,  square  bow, — or  the  kind  of  boats  on  the  Ohio  Eiver. 

They  have  put  in  dikes  and  dams,  which  helped  the  channel 
considerably  from  what  it  was.  I ran  over  it  there  before  the  im- 
provements were  made.  The  12-inch  water  was  before  the  im- 
provements had  been  made. 

On  the  Kanawha  Eiver  the  dimensions  of  the  boats  which 

1874  we  used  were  something  like  the  boats  that  were  in  the  Big 
Sandy  Eiver, — the  ones  I have  already  described;  something 

of  that  class.  I have  navigated  that  kind  of  boats  on  the  Kanawha 
Eiver, — about  ninety  to  100  tons  being  their  capacity.  I have  seen 
it  as  low  as  ten  to  twelve  inches  on  the  Kanawha;  I have  been  on 
small  boats  there  and  could  navigate  on  that  twelve  inches  and 
carry  light  freight.  We  generally  have  low  water,  though 

1875  each  year,  but  probably  not  that  low.  When  it  got  down 
to  two  feet  we  would  call  it  low  water.  Before  they  had 

improvements  there,  it  did  go  as  low  as  that  annually.  It  got 
as  low  as  six  inches  at  Charleston,  West  Virginia,  on  the  gauge, 
but  the  gauge  is  always  considered  a little  less  than  the  water 

1876  is.  About  ten  inches  in  the  river.  It  would  run  ten  inches 

1878  to  three  feet  at  low  water.  From  18  inches  and  2 feet — • 

nlong  there — I have  run  there  when  it  was  that  low.  I 
made  on  the  Kanawha  in  the  years  that  I was  running  on  it 
about  a couple  of  trips  a week,  for  three  months  each  year. 

1879  The  most  of  my  work  from — over  the  Kanawha  was  on  tow- 
boats and  took  up  empty  barges ; just  shoved  the  barges  up 

to  the  mines.  They  did  not  draw  over  ten  inches,  six  or  eight 
inches.  We  loaded  the  barges  to  six  feet  or  six  to  seven  feet. 
Loaded  them  vdth  coal,  ten  to  twelve  thousand  bushels  of  coal  on 
the  barge, — and  we  would  bring  out  six  or  eight  or  ten  of  tk.em, 
one  steam.boat. 

1880  I have  run  on  passenger  boats  up  there  that  were  about 
150-ton  boats,  about  the  largest  sized  boats  than  run  in  the 

KanaAvha  Eiver,— when  I was  working  there,  in  all  kinds  of  stages, 
from  15  feet  to  20  feet,  during  that  time.  The  boat  that  I 


G65 


was  on  would  cany,  I suppose,  very  near  200  tons,  all  of  100 
tons,  on  three  feet  of  water.  I have  seen  and  used  boats  on 

1881  the  Kanawha  Kiver  whose  capacity  would  be  less  than  100 
tons ; and  size  about  90  to  100  feet  long  and  16  to  18  feet  wide, 

— about  that  sometimes.  On  three  feet  of  water  they  would  carry 
from  thirty  to  forty  tons. 

Boats  of  that  size  and  tonnage  were  of  frequent  occurrence  upon 
the  Kanawha  Kiver  engaged  in  commerce.  When  I steamboated 
there,  they  had  a great  many  what  they  call  chutes  there,  strong 
currents,  walls  built  up,  and  the  channel  close  to  the  walls,  and 
the  current  I suppose  would  be  an  eiglit  or  ten  mile  current.  I 
navigated  through  that  current,  and  the  capacity  of  the  boat 

1882  would  be  about  ninety  tons,  and  the  boat  was  about  half- 
loaded. 

1883  As  to  how  the  current  of  eight  to  ten  miles  an  hour  affected 
the  operation  of  navigating  boats  with  freight,  going  down 

the  current  takes  the  boat  along;  all  we  have  got  to  do  is  keep  it  in 
the  channel ; going  upstream  it  is  pretty  slow.  Sometimes  we  have 
to  lay  in  line  and  warp  through  those  strong  places  when  the  river 
is  down  low.  We  take  and  lay  an  anchor  above  over  the  shoals 
and  put  a line  to  it,  and  have  a nigger  running  by  steam;  make  a 
capstan  and  wind  them.  We  call  a capstan,  in  local  parlance, 

1884  a ‘‘nigger.”  The  boat  was  loaded  with  this  half  load  of 
freight  when  hauled  up  in  this  manner. 

Q.  I will  ask  you  to  state.  Captain  Bing,  to  take  the  case  of 
a river,  which  for  a period  of  from  four  to  five  months  each  year, 
exclusive  of  the  time  when  it  was  frozen  over,  and  exclusive  of  the 
time  of  extreme  low  water,  presented  a depth  which  would  range 
from  fifteen  to  twenty  inches  of  water  in  the  shallows,  and  up  to 
ten  feet  and  more  in  other  parts;  and  in  a channel  which  would 
range  from  250  feet  wide  up  to  a quarter  of  a mile  wide,  and 
which  had  a current  which  varied  from  an  almost  imperceptible 
current  in  some  of  the  wide  spots,  where  it  was  a quarter  of  a mile 
wide,  and  ten  feet  deep,  to  a current  much  of  the  way  up  to  two 
and  a half  miles  an  hour,  and  which  would  increase  to  three  and 
a half  miles  an  hour,  and  in  one  or  two  places  to  five  miles, 
and  in  one  or  two  places  to  seven  and  seven  and  a half  miles 
an  hour;  the  swiftest  current  in  one  place  being  in  the  shallow 


666 


part  and  in  another  place  where  it  was  somewhat  deeper,  but 
not  up  to  the  large  depth, — I will  ask  you  to  state  whether  or  not 
in  your  judgment  and  opinion,  as  a navigator,  that  stream 
1885  would  be  a navigable  stream,  assuming  that  it  had  such 
windings  and  bends  as  are  indicated  in  the  river  which  is 
shown  upon  the  McCullough  plat  which  is  before  you  here! 

1893  I will  add  to  that,  that  you  may  include  in  the  conditions, 
that  there  is  a stretch  of  nearly  a mile  where  it  passes  an 

island  where  the  width  is  less  than  250  feet,  and  in  one  part  goes 
down  to  nearly  sixty  feet;  that  the  area  of  the  imperceptible  cur- 
rent, or  very  low  current,  is  in  a strip  of  the  river  between  five 
and  six  miles,  and  where  the  river  runs  very  nearly  straight 
without  bends,  and  is  about  a quarter  of  a mile  wide,  and  that 
there  is  another  place  in  the  river  where  the  current  is  very 
sluggish  for  about  a mile,  where  it  goes  around  a rather  large 
])end  and  where  the  river  is  from  three  to  six  hundred  feet  wide 
as  it  goes  around  the  bend;  that  the  swift  current  of  seven  and  a 
half  miles  is  confined  to  an  area  not  exceeding  a mile  or  a little 
more,  less  than  two  miles  in  length.  A.  I would  say  that  it  would 
be  a navigable  stream. 

Counsel  for  Complainant.  What  depth  would  you  say,  as  a 
navigator,  would  be  sufficient  for  the  carrying  on  of  navigation 
upon  a stream  of  these  conditions! 

1894  The  Court.  You  mean  for  commercial  purposes! 

Counsel  for  Complainant.  Yes,  sir. 

A.  As  low  as  three  feet,  I should  think. 

Q.  You  may  state  whether  or  not,  upon  a stream  of  these  gen- 
eral conditions,  the  presence  in  the  stream  of  different  places  at 
stretches  of  from  a quarter  of  a mile  to  a mile  where  the  water 
would  be  in  low  water  as  low  as  fifteen  inches  deep,  for  the  period 
of  a month  or  six  weeks  in  each  year,  would  deprive  the  stream 
of  its  character  as  a navigable  stream. 

(Objected  to  as  asking  for  a legal  conclusion,  navigable 
stream,  rather  than  whether  in  fact  it  could  be  navigated  for 
commercial  purposes.) 

Counsel  for  Complainant.  I will  adopt  what  you  say:  That 


a stream  having  those  conditions  would  be  in  fact  navigated  for 
commercial  purposes. 

A.  Yes,  sir,  it  could. 

Cross-Examination. 

1895  I am  sixty  years  old.  I first  began  to  navigate  the  Ohio 
' Eiver  in  about  1870,  when  about  twenty-two  years  old.  That 

is  when  I went  on  to  learn  the  river.  It  took  me  three  years 
to  learn  it.  I got  my  license  in  1873.  After  I obtained  my 

1896  license  I was  a pilot  on  a boat  for  a while  until  I knew 
how  to  man  a boat.  When  I first  took  command  of  a boat,  I 

guess  it  was  about  five  years  after  I was  piloting.  I think  it  was 
about  that;  before  I took  out  a captain’s  license,  about  1879  or 
1880,  along  there,  about  that  I guess;  I don’t  recollect  the  year. 
I obtained  command  of  my  first  boat  about  1879  or  1880,  on  the 
Ohio  Eiver,  between  Syracuse,  Ohio,  and  Louisville,  Kentucky.  I 
was  first  on  one  boat  and  then  on  another.  I was  not  on  one  reg- 
ular boat  all  the  time.  I had  charge  of  a boat  as  long  as  four 
years  at  a time. 

1897  The  first  boat  was  a tow  boat,  towing  coal  and  salt, — 
towing  barges  filled  with  coal, — ^what  we  would  call  a tow- 
boat. I would  not  call  it  a tug.  She  had  about  fifteen  or  eighteen- 
inch  cylinder,  fifteen-inch  cylinder,  and  five  and  a half  stroke, 
five  and  a half  foot  stroke ; all  towboats  are  stern-wheels.  In  the 
water  when  light  she  drew  about  thirty  inches.  I operated  her 
about  two  and  a half  years,  that  is  in  one  time,  running  time.  I 

have  been  on,  I expect,  fifty  ditferent  boats  or  more. 

1898  It  has  been  thirty-five  years  since  I got  my  license,  about, 
and  I have  been  working  on  the  river  most  of  the  time  until 

last  December,  I have  not  been  on  the  river  since  December.  All 
the  boats  that  I have  been  captain  of  were  tow  boats.  I have 
piloted  on  passenger  boats,  but  I have  never  had  charge  of  one. 
As  to  acting  as  pilot  on  passenger  boats,  the  longest  at  one  time 
was  about  a year.  Those  boats  operated  between  Charleston,  Vir- 
ginia, and  Cincinnati,  Ohio,  on  the  Kanawha  Eiver,  and  the  Ohio 
Eiver  together, — the  steamer  Boone. 

I was  thirty-five  years  on  the  Ohio,  and  I guess  about  three 


6G8 


Bing, — C ross-Exam. — Contimied. 


years  on  the  Kanawha  Eiver;  that  is,  I was  in  the  Ohio  and 
Kanawha  together  on  boats  that  run  np  the  Kanawha  Eiver.  My 
license  went  to  the  head  of  navigation  on  the  Kanawha, 

1899  Canalton,  about  eighty  miles  from  the  month  of  the  Kanaw- 
ha. The  character  of  the  boats  I had  charge  of  running 

in  the  Kanawha  Eiver  was  mostly  towboats.  Brought  np  empty 
boats  and  brought  out  coal  from  the  mines.  The  barges  carried 
from  ten  to  twelve  thousand  bushels,  they  would  draw  about  six 
feet  or  six  and  a half,  along  about  that.  We  always  put  our  fuel 
on  the  steamboats,  what  we  wmuld  use  on  the  trip,  and  put  them 
down  to  about  three  and  a half  or  four  feet,  generally.  It  would 
depend  on  the  class  of  boat  it  was.  If  it  was  a small  boat  it  would 
not  carry  very  much  coal  and  it  was  not  built  as  deep  in  the  hold 
as  the  large  ones. 

The  Ohio  Eiver  I navigated  as  far  up  as  Syracuse,  Ohio, 

1900  about  twenty-five  miles  above  the  mouth  of  the  Kanawha 
Eiver.  It  is  near  Pomeroy,  Ohio,  about  seven  miles  above 

Pomeroy,  or  six  miles.  Below  Pomeroy  there  were  some  shoals 
there,  at  Eight-mile  Island,  it  is  calledi.  The  extent  of  those  shoals 
in  the  river,  in  length,  were  about  a quarter  of  a mile,  I sup- 
pose ; the  worse  part  of  it,  not  over  a quarter  of  a mile,  I think. 

I have  taken  tow  boats  up  with  empty  barges  up  over  those 
shoals  in  low  water.  The  barges,  of  course,  were  light  and  would 
not  draw  over  six  of  eight  inches;  steamboats  would  draw 

1901  thirty  inches  or  more.  The  tow  boats  drew  some  thirty  inches ; 
of  course,  smaller  boats  were  lighter  draught.  I have  taken 

all  kind  up  over  those  shoals  on  low  water;  taken  barges  partly 
loaded.  They  could  go  over  the  shoals  without  stopping.  The 
water  at  that  time  was  three  or  four  feet  deep,  along  there.  I 
have  taken  small  boats  up.  We  carried  passengers  and  freight 
on,  when  there  was  ten  to  twelve  inches  in  the  river,  over  those 
shoals;  as  low  as  ten  inches  I have  taken  on  one  particular 

1902  boat.  It  very  seldom  got  down  to  twelve  inches,  very  seldom. 
The  usual  depth  during  the  dry  season  was  about  twenty-six 

inches,  or  twenty-eight,  along  there.  I can  remember  one  season 
wheu  it  got  as  low  as  15  inches.  It  was  along  in  the  ’70s;  I don’t 
recollect  the  year  at  all.  I have  never  seen  it  that  low  since. 
1902  Suppose  it  were  only  twelve  to  fifteen  inches  deep  all 
the  way  from  Pomeroy  to  Louisville.  Small  boats  could 


rim  there  at  that  stage,  and  it  would  be  possible,  in  my  judgment, 
to  carry  on  profitable  commercial  navigation;  I know  it  has  been 
profitable,  anyway. 

Being  asked:  ‘^Did  you  ever  know  a time  when  the  river  was 
twelve  to  fifteen  inches  deep  all  the  way  from  Pomeroy  to  Louis- 
ville, Kentucky,”  Captain  Bing  replied:  ‘‘Not  all  the  way;  no, 

sir.  ’ ’ 

1904  Captain  Bing  further  testified  that  there  is  a place  above 
Cincinnati, — there  was  before  they  improved  the  river  there, 

that  it  got  as  low  as  the  shoals  at  Pomeroy,  a place  called  Nine- 
mile,  and  Eight-mile,  and  Four-mile;  they  are  all  strung  along 
there  together.  I did  navigate  over  those  places  before  the  river 
improvements.  It  was  a sand'  bottom  and  we  had  a good  deal  of 
trouble  there.  As  to  the  average  depth  of  the  water  there  during' 
the  dry  season,  I have  seen  it  down  to  twenty  inches,  and  two 
feet;  and  along  there,  there  is  a stretch  that  is  all  shoal,  bad 
places,  of  about  five  or  six  miles,  from  Four-mile  to  Eight  or 
Nine-mile. 

1905  Being  asked  if  a man  had  a small  boat  that  only  drew  six 
inches  of  water,  he  could  run  it  over  those  shoals,  he  replied: 

“They  did  do  it.  There  were  lots  of  them  around.  Small  boats 
that  drew  eight  or  ten  inches.” 

The  distance  between  Pomeroy  and  Cincinnati  was  two  liundred 
and  fifty  miles,  I believe  it  is  estimated.  I went  up  the  river 

1906  with  tows  that  didn’t  make  over  a mile  and  a half  an  hour  and 
I went  up  with  some  sized  tows,  with  a different  stage  of 

water  that  would  make  four  and  a half  or  five  miles  an  hour.  It 
would  depend  altogether  upon  the  tow  you  had  and  the  stage  of 
the  water.  When  our  tow  and  barge  were  light,  we  would  make 
five  miles  an  hour;  when  the  barge  was  loaded,  the  tow  was  loaded, 
we  would  not  make  more  than  from  one  to  two  miles  an  hour. 
We  very  seldom  tow  our  loaded  barges  up  the  stream.  If  we  do 
it  is  not  very  much.  I say  we  make  as  high  as  four  and  a half  or 
five  miles  an  hour  with  a medium  sized  tow  of  empty  barges  going 
up  the  river. 

1907  As  to  the  kind  of  passenger  boats  operated  by  me  for  a 
time  on  the  Ohio  Eiver, — they  carried  passengers  and  freight; 


670 


B i ng, — C ross-Exam . — Con  tin  ue cl. 


stem  wheelers,  flat  bottomed  boats,  somewhat  similar  to  the  boats 
used  on  the  Mississippi  Eiver.  They  drew,  well,  from  about 
three  to  four  feet  generally.  Four  and  a half  some  of  them;  it 
depends  upon  the  size  of  the  boat.  Those  passenger  boats  oper- 
ated from  Cincinnati  to  Charleston,  West  Virginia, — the  boat 
I was  on.  Charleston  is  on  the  Kanawha  Eiver,  about  the  mouth 
of  the  Kanawha  Eiver,— sixty  miles  they  call  it.  The  size 

1908  of  those  passenger  boats  was  about  300  tons,  what  she  car- 
ried. I would  not  be  positive.  Something  like  that.  She 

drew  very  nearly  thirty  inches  light. 

I have  been  on  a good  many  others,  just  for  a short  time. 
There  would  be  trips  down  there  when  I was  only  on  a boat  for 
three  or  four  or  five  days,  and  then  I would  be  on  another  one; 
what  you  would  call  tripping.  I have  been  on  a great  many  at  low 
water  season,  but  not  steady,  just  for  trips.  They  will  make  twelve 
or  fourteen  miles  an  hour  down  the  stream  with  the  current.  It 
depends  upon  the  stage  of  the  river  a good  deal,  too,  that  does. 
Sometimes  they  will  make  fifteen  miles,  if  it  is  a big  river  may  be 
more.  Going  up  the  river  they  will  make  six  or  seven,  or  eight 
miles  an  hour,  some  ten. 

1909  The  steamer  Boone  I was  on;  she  just  averaged  about  eight 
miles  an  hour,  we  always  considered  she  would  make  about 

eight  miles  an  hour  going  up  stream,  from  Cincinnati  to  Charles- 
ton. That  counted  out  the  landings,  too.  We  had  to  land  our 
wharf  boats  and  do  business.  Going  up  in  the  Kanawha,  I never 
timed  her.  I suppose  six  or  seven  miles  an  hour;  I would  not 
be  positive  about  that. 

I have  not  navigated  very  much  on  the  Kanawha  Eiver  since 
the  improvements,  about  twelve  years  ago.  Locks  and  dams 

1910  were  put  in, — one  near  the  mouth,  about  a mile  from  the 
mouth,  and  then  there  were  about  eight  or  nine  or  ten  miles 

apart,  something  like  that.  All  the  way  up  to  just  below  Canal- 
ton,  I think  there  was  eight  locks,  eight  or  ten,  I would  not  be  posi- 
tive which.  There  were  no  canals  put  in  since  those  improve- 
ments were  commenced.  I have  been  up  the  river  since,  hut  not  to 
run  there  regularly.  I have  been  as  far  as  Charleston  since,  on 
boats,  several  times.  Since  Congress  first  began  the  improvement 
of  the  Kanawha  Eiver,  I do  not  recollect  how  long  it  has  been. 


671 


Tliere  were  locks  and  dams  in  tlie  river  when  I operated  there, 
at  the  head  of  the  river,  what  is  called  Paint  Creek  Lake. 

1911  That  is  below  Canalton  and  above  Charleston  about  ten  miles, 
I think.  The  sluices  spoken  of  in  direct  examination  are  a 

rock  wall  built  up,  right  along  where  the  deepest  part  of  the 
water  runs,  the  channel  they  call  it.  I don’t  think  the  Govern- 
ment put  it  in.  I think  some  company  that  improved  the  Kanawha 
Eiver  in  the  start,  did  it.  The  Government  afterwards  put  the 
locks  and  dams  in  there.  That  was  there  long  before  I ever 

1912  was.  That  sluice  T speak  of  is  the  one  called  Ped  House, 
about  fort}'  miles  up  from  the  mouth  Kanawha,  and  about 

twenty  miles  below  Charleston;  I suppose  about  150  feet  wide, 
possibly,  or  200.  I took  my  towboats  with  barges  up  through 
there. 

Captain  Bing  being  asked:  suppose  when  a person  is  going 

up  through  a current  of  that  kind,  the  current  always  seems  a 
little  more  swift  than  it  really  is,  doesn’t  it.  Captain?”  replied, 
^^Well,  I don’t  know  about  that”  and  continued  testifying  as  fol- 
lows : 

As  to  the  difficulty  in  taking  boats  up  through  that  sluice, — 
sometimes  they  would  have  to  what  you  call  double-trip,  take 
part  of  the  barges  at  a time,  possibly  have  so  many  she  would 
shove  on  through,  take  three  or  four  and  come  back  and  get 
the  rest  and  go  through  this  place.  We  have  done  that  often. 
Sometimes  have  to  lay  a line  on  the  wall  and  run  them  up  through 
a little  nigger.  That  is  something  like  the  process  known 

1913  as  cordelling;  hitch  a chain  up  ahead  and  pull  the  boat  up. 
I had  to  do  that  at  that  sluice,  only  in  that  low  water. 

That  sluice  was  two  or  three  hundred  yards  long,  I suppose, 
something  like  that.  I don’t  know  exactly  the  length  of  it,  but  I 
suppose  it  would  be  two  or  three  hundred  yards,  something  like 
that. 

•Being  asked : ‘‘Did  you  ever  measure  the  velocity  of  the  current 
at  that  point?”  replied  in  the  negative,  and  to  similar  questions 
as  to  the  Ohio,  Kanawha  and  other  rivers. 

Captain  Bing  further  testified: 

I would  think  it  would  be  eight  or  ten  miles  an  hour,  the  cur- 


rent,  but  I don’t  know, — that  would  be  my  idea  of  it,  gained  from 
the  fact  that  it  is  quite  difficult  to  get  up  there  with  boats. 

1914  I did  make  five  miles  an  hour  up  the  Kanawha  Eiver 
with  only  one  barge  in  tow.  With  the  barge  light,  as  to  cal- 

1915  culating  or  measuring  the  speed,  w^e  know  the  distance  on  the 
river,  all  of  it,  all  pilots  ought  to  know  the  distance  and  we 

always  count  when  we  are  on  watch.  We  know  what  the  distance 
is  from  one  point  to  another.  That  is  the  way  that  our  speed,  that 
is  the  way  we  get  our  speed  of  the  boat,  what  time  she  is  making. 
Say,  I come  on  at  twelve  o’clock  to-day,  I can  tell  at  supper  time 
how  far  I have  come.  I know  just  how  many  miles  I have  made  in 
an  hour. 

As  to  the  Kanawha  River,  I never  calculated  that  at  all.  I know 
they  could  do  it;  I am  satisfied,  make  five  miles  an  hour  up  the 
Kanawha  River  with  one  barge,  from  the  mouth  to  Charles- 

1916  ton.  I am  not  guessing  at  it  at  all.  I never  took  and  meas- 
ured it,  of  course.  We  know  the  distance  and  know  how 

many  hours  we  are  going  while  on,  and  we  will  average  that  about 
so  many  miles,  we  consider  it. 

With  a tow,  I have  averaged  four  miles  an  hour,  and  T have 
averaged  seven  miles  an  hour,  and  five  miles  an  hour;  it  depends 
upon  the  size  of  the  steamboat  and  the  amount  of  barges  we  have 
in  tow.  You  may  take  a boat,  a large  steamboat  and  put  on  twenty 
barges  to  her,  she  would  not  make  over  four  miles  an  hour,  while 
a small  boat  with  three  barges  would  make  four  miles  an  hour,  or 
five  miles  an  hour. 

1917  I said,  with  one  barge,  a towboat  will  make  from  five 
to  six  miles  an  hour,  but  take  eight  or  ten  or  fifteen  barges, 

she  won’t  begin  to  make  anything  like  that.  Maybe  three  miles, 
or  three  and  a half,  something  like  that;  depends  upon  the  stage 
of  the  water.  One  of  those  tow  boats  going  without  any 
barges  will  make  eight  or  ten  miles  an  hour  upstream; 
some  make  more  than  that;  some  will  make  twelve.  Lots  of 
them  that  I have  been  on  made  that  time ; yes,  sir.  H.  F.  Frisbie 
was  one  towboat.  She  would  make  twelve  or  fourteen  miles 

1918  an  hour  up  stream  without  any  tow. 

Well,  an  ordinaiy  tow,  I have  made  five  miles  an  hour  with 


her,  witli  empty  barges  up  stream.  The  Frisbie  was  owned  at 
Cincinnati.  She  ran  to  St.  Louis  part  of  the  time  and  ran  to  Pom- 
eroy. Hedwig  owned  her.  She  went  out  of  commission  three  or 
four  years  ago,  maybe  longer,  I do  not  know  just  exactly  the  time. 
Mr.  Hedwig  lives  in  Kentucky  near  Cincinnati,  near  Dayton,  Ken- 
tucky. 

I don’t  know  anything  about  the  engineering  at  all.  I have 
heard  the  expression  used,  slopes  of  a river,  but  I don’t  know  any- 
thing about  it.  As  to  the  fall  of  a stream,  I don’t  know  anything 
about  it,  it  is  out  of  my  line. 

As  to  whether  a river  could  be  navigated  for  the  purposes  of 
commerce  that  had  a fall  of  90  feet  in  a distance  of  18  miles,  I 
should  not  hardly  think  so. 

If  you  assume  that  a portion  of  that  river  18  miles  in  length 
is  on  a level,  say  there  is  a six  mile  stretch  of  practically  level 
water,  or  a very  gentle  slope,  and  that  the  remainder  of  this  fall 
of  90  feet  is  in  the  balance  of  the  river,  that  that  stream  could  be 
used  profitably  for  commercial  purposes  in  navigation,  there  would 
have  to  be  improvements  made  on  it. 

1920  Valentine  L.  Schlink, 

a witness  for  complainant,  testified  as  follows : 

Direct  Examination. 

My  name  is  Valentine  L.  Schlink.  I will  be  78  years 
old  in  August  of  this  year.  I live  in  Peoria.  I have  lived  there 
since  December,  1844.  I know  Mr.  S.  DeWitt  Drown  in  Peoria.  I 
knew  him  since  sometime  in  the  spring  of  1845 ; every  day 
I suppose,  from  there  on  to  1848.  He  was  surveyor.  He  also 
wrote  for  the  newspapers.  He  wrote  for  the  Gazette  awhile, 
published  several  directories.  I was  clerking  in  the  post-office 

1921  then.  In  those  days  they  did  not  have  free  delivery.  Men 
used  to  come  to  the  post-office  for  their  mail.  He  came  and 

got  his  mail  there  at  the  office.  I used  to  wait  on  him 
at  the  post-office.  My  acquaintance  with  him  did  not  cease  when 
I left  the  post-office.  I knew  him  until  he  died,  or  about  the  time 
he  died.  I think  he  died  in  the  latter  part  of  1857  or  the  forepart 
of  1858 ; I would  not  be  positive  about  the  date  exactly. 


Schlinky — Direct  Exam. — Contimied. 

(Book  handed  to  witness.)  I had  a copy  of  this  work  myself 
at  one  time;  I haven’t  got  it  now.  That  is  one  of  the  Drown 

1922  directories  and  histories  that  I referred  to.  As  to  the  repu- 
tation and  standing  of  that  hook  at  the  time  when  it  was 

published  and  from  that  time  forward,  in  the  City  of  Peoria,  for 
authenticity,  accuracy  and  reliability, — it  was  good. 

I am  seventy-eight,  born  about  1830.  In  1857  I would  have  been 
27  years  old.  Mr.  Drown  was  25  years  older  than  I.  He  would 
have  been  born  in  1805. 

1923  Cross-Examination. 

I have  talked  in  regard  to  the  work  of  Mr.  Drown,  author  of 
this  book,  with  nobody,  as  to  whom  I have  heard  speak  of  the 
work.  Judge  William  H.  Fessenden  was  one  man.  He  was 

1924  the  man  I lived  with,  and  Mr.  Hamlin  and  he  talked  the  mat- 
ter over,  coming  up  the  river  here  to  sell  grain,  to  deliver 

grain  and  take  back  lumber  to  finish  the  court-house  in  Peoria. 
As  to  whom  I heard  talk  about  Mr.  Drown ’s  book,  in  Peoria, 
they  would  be  so  innumerable  I could  not  tell  you.  I have  heard 
Judge  Alls,  I have  heard  Mose  Dusenberry  speak  of  it.  It  was 
about  a year  ago  since  I heard  anybody  speak  about  it, — refer 
to  his  book,  that  he  said  so  and  so  about  the  Illinois  River. 

1925  The  occasion  of  that  conversation  in  regard  to  Drown ’s  book 
was  about  high  water.  Besides  the  persons  named,  I heard, 

well,  I just  cannot  tell,  but  several  people  anyway  speak  of  it. 
As  to  any  occasion,  any  particular  time,  except  the  one  mentioned, 
when  I heard  it  spoken  of  by  anybody,  I would  not  be  very  sure 
novr,  but  I know  it  is  the  general  talk  all  over  town.  Everybody 
refers  to  Drown ’s  book  of  history.  If  I stayed  here  half  an  hour 
I might  think  of  a dozen  that  I cannot  think  of  now.  The  par- 
ticular one  was  the  book  of  M4  that  he  wrote.  As  to  ever  hearing 
any  question  raised  or  anybody  say  that  some  statements  in 
Drown ’s  book  were  not  true  and  not  correct,  I did  not;  no  sir. 
I never  heard  that  question  raised  at  all. 

1926  Well,  it  was  discussed  at  one  time  in  court  there  when 
I was  one  of  the  witnesses  when  that  levee  business  came 

in  court  about  ’44,  but  they  took  the  guide  to  go  by.  That  was 
not  in  the  Sanitary  District  case.  It  was  the  Central  National 


675 

Bank  against  the  City,  or  the  City  against  the  Central  National 
Bank;  I forget  which  it  was,  one  of  them.  I never  testified  in  anv 
of  the  Sanitary  District  cases. 

Re-direct  Examination. 

1927  This  was  a book  which  was  in  general  circulation  in  Peoria 
in  the  ’50s.  I have  owned  one  of  them,  and  I guess  a great 

many  others  have  owned  them. 

I know  this  man,  Mr.  AYoodcock,  the  printer.  He  lived  in 
the  premises  I used  to  own;  Mr.  E.  0.  AVoodcock,  the  old  gen- 
telman ; I knew  him  in  the  printing  and  publishing  business.  From 
my  acquaintance  with  Mr.  Drown  and  Mr.  AYoodcock,  I could  say 
that  this  book  was  published  by  AYoodcock. 

Re-cross  Examination, 

I know  it  was  published  by  Mr.  AYoodcock,  because  it  says 
so  in  the  back;  yes,  sir;  and  everybody  else  says  so  there. 

1928  ^‘Did  you  get  one  of  those  books  that  Drown  published!” 

That  question  was  asked  a good  many  times,  I think. 

And  thereupon  counsel  for  complainant  read  the  title  page  of 
the  book,  ^H)rown’s  Kecord  and  Historical  View  of  Peoria,  from 
the  Discovery  by  the  French  Jesuit  Missionaries;  in  the  Seven- 
teenth Century,  to  the  present  time.  Also,  an  Almanac  for  1851, 
calculated  for  the  latitude  and  longitude  of  Peoria,  Illinois,  40  de- 
grees, 40  minutes  north,  longitude  89  degrees  40  minutes  west  from, 
the  Koyal  Observatory  at  Greenwich;  and  12  degrees  40  minutes 
west  from  the  City  of  AYashington.  To  which  is  added  Business 
Directory  of  the  City,  with  Business  Cards  by  S.  DeAYitt  Brown.” 
Then  it  is  signed  with  the  national  coat  of  arms.  Peoria,  111. 
Printed  by  F.  0.  AYoodcock,  Main  Street,  1850.’’ 

Thereupon  complainant  put  the  preface  in  evidence,  said  pre- 
face being  as  follows: 

^Hn  presenting  this  number,  my  second  attempt  of  a 
^Peoria  Directory,’  or  Pecord  of  Events,  &c.,  I will  not  dis- 
guise the  gratification  it  affords  me  to  observe  the  flattering 
manner  in  which  my  first  was  received  by  the  public,  and  the 
approval  of  the  work  (together  with  my  subsequent  annual 
sheet)  by  distinguished  men  in  our  city  and  elsewhere  as  it 


676  Extract, — Brown’s  Peoria. — Continued, 

found  its  way  abroad.  The  improvements  and  additions 
which  have  been  introduced  in  this,  will,  it  is  hoped,  meet  with 
general  approbation  and  insure  its  continuance  of  public 
favor;  they  will  be  readily  seen  by  a glance  at  its  contents. 

‘^At  this  time,  when  the  all-engrossing  theme  of  public  and 
private  speculation  is  ‘California  Gold’  and  the  dimes,  it  may 
be  hazardous  in  me  to  introduce  this  undertaking  of  a book, 
to  vie  with  the  periodicals  of  the  day,  or  any  of  the  ‘Otfer- 
ings  ’ with  their  gold  edges  or  gilded  bindings,  with  the  expec- 
tation of  arresting  attention  in  outward  appearance,  for  as 
the  poet  has  sung — 

“Dimes  and  dollars,  dollars  and  dimes. 

Poverty  is  the  worst  of  crimes.” 

“I  stand  convicted  for  the  want  of  dimes  to  make  it  exter- 
nally glittering,  but  ‘all  is  not  gold  that  glitters,’  neither  are 
all  the  hooks  bound  in  gilt  wortli  much  more  than  their  bind- 
ing. I have,  however,  spared  no  pains  in  endeavoring  to 
procure  for  insertion  in  my  Kecord,  all  the  information  which 
ought  to  have  a place  in  a work  of  this  kind ; but  it  is  not  so 
1929  full  as  I am  desirous  to  have  it;  such  omissions  are  to  be 
attributed  to  no  lack  of  energy  on  my  part,  but  rather  to  the 
impossibility  of  obtaining  the  desired  information. 

“I  have  expended  some  time,  all  must  acknowledge;  and  the 
inquiry  naturally  arises,  and  I have  often  been  asked,  ‘where 
ao  you  get  those  facts?’  I cannot  give  you  the  details,  but 
it  is  enough  that  you  have  them,  so  that  they  may  be  trans- 
mitted to  posterity.  If  the  past  thirty  years,  under  so  many 
disadvantages,  has  witnessed  the  developments  now  before  us, 
what  will  the  next  generation  bring  forth!  If  we  bear  in 
mind  the  basis  on  which  the  past  growth  has  taken  place, 
reflect  on  the  starting  point  thirty-one  years  since,  compared 
with  the  vantage  ground  which  tve  now  occupy,  can  any  im- 
agination in  its  boldest  flight  exceed  the  reality!  Will  not 
facts  in  the  future,  as  in  the  past,  outstrip  fancy!  For  who 
among  our  ‘oldest  inhabitants’  fifteen  or  twenty  years  ago 
would  have  dared  to  predict  what  we  now  realize  in  Peoria! 
They  have  become  the  wonders  of  history.  Could  those  who 
first  came  to  Peoria  and  took  up  their  abode  on  the  banks  of 
our  beautiful  lake,  could  they  ever  have  dreamed  of  a future 
so  glorious  for  this  country  and  vicinity  as  that  future  has 
since  proved!  Nor  can  we,  with  all  the  advantages  we  now 
enjoy,  of  commerce  and  telegraphic  improvements,  measure 
the  greatness  we  may  attain  by  the  Oquawka  Kailroad,  plank 
roads  and  other  improvements  in  contemplation.  Who  can 
tell  what  we  may  attain  in  the  next  thirty  years  of  Peoria  his- 
tory! Conjecture  is  staggered  at  the  project,  and  dares  not 
attempt  an  estimate. 

“In  collecting  these  cursory  ‘Scraps  of  History,’  I have  ven- 
tured to  present  the  details  of  some  mining  operations  in  a 


677 


field  but  little  noticed  until  recently,  (like  the  gold  mines  of 
California),  but  which  with  a reasonable  amount  of  patient 
toil,  may  be  made  to  yield  abundantly.  A few  there  are,  how- 
ever, who  yet  remain  as  links  between  the  past  and  present, — 
links  which  are  snapping  year  by  year  and  month  by  month, 
and  with  them  are  vanishing  the  historic  circumstances  of 
hy-gone  days  and  years,  when  the  prairies  and  bluffs  of  the 
Illinois  in  and  about  Peoria  were  inhabited  by  the  Red  Man 
and  on  the  margin  of  our  beautiful  lake,  here  and  there,  ^ sol- 
itary" and  alone’  stood  the  log  hamlet  of  the  pioneers  in  the 
Mar  West.’ 

‘^My  principal  aim  in  this  production  is  the  preservation  of 
the  memorials  of  some  of  our  city’s  history,  institutions,  &c. 
I have,  since  the  publication  of  my  directory  in  1844,  annually 
kept  up  a synopsis  of  our  improvements  by  a small  sheet 
under  the  title  of  Peoria  Annual  Record,  or  BrounPs  Sta- 
tistics. I have  now  attempted  a much  more  useful  |)eriodical 
in  a different  form  for  the  convenience  of  the  public  and  in- 
tend to  continue  the  publication  of  similar  researches  from 
time  to  time,  annually  with  an  Almanac  for  each  year  with  a 
hope  also  of  enlisting  others  to  collect  facts  and  details  con- 
cerning such  institutions  as  remain  to  be  noticed  not  only- 
in  our  city-  and  county-,  but  such  as  will  be  of  use  to  the  citi- 
zens of  our  State.  The  co-operation  of  any^  one  who  may- 
take  an  interest  in  matters  of  this  character  is  solicited  in 
collecting  whatever  may  tend  to  throw  light  upon  the  past  as 
well  as  to  observe  authentic  memorials  of  the  present  con- 
nected with  the  Ancient  or  Modern  History-  of  Peoria,  that 
shall  in  any-  way-  tend  to  illuminate  the  path  and  enlighten  the 
labors  of  the  future  historian,  will  be  duly-  a])preciated.  These 
are  the  main  objects  of  this  work,  although  other  departments 
have  been  embodied  so  as  to  be  in  keeping  with  its  title  and 
the  wants  of  the  public. 

have  attempted  the  publication  of  this  Record  axd  His- 
tory from  a decided  conviction  that  such  a work  will  be  useful 
to  the  people  of  the  city-,  county^  and  State;  and  should  be 
encouraged,  I intend  hereafter  to  make  it  a Book  of  Refer- 
ences, communicating  much  valuable  information  to  men  of 
1930  business  and  Mhe  rest  of  mankind.’  The  utility^  of  such  a 
book  must  be  manifest  to  all,  as  has  been  abundantly-  tested 
in  other  states.  Of  its  merits  and  its  claims  to  patronage,  the 
public  must  judge.  Unwearied  efforts  and  untiring  labor  have 
been  exerted  to  make  it  what  it  is;  and  u'hat  it  is,  with  all  its 
imperfections,  is  stamped  upon  its  face.  That  it  is  entirely 
free  from  errors  is  not  expected;  but  it  is  believed  to  be  as 
correct  as,  in  the  nature  of  things,  it  is  possible,  in  the  first 
instance,  to  make  such  a book  out  of  an  unorganized  mass  of 
materials,  collected  from  every-  quarter,  oral  and  written. 
Undoubtedly-  many^  omissions  will  be  observed  of  matters  nec- 


678  Extract, — Droivn's  Peoria. — Continued. 

essary  to  give  completeness  to  the  work.  I shall  he  glad  to 
receive  from  those  who  may  notice  errors  or  omissions,  the 
sum  of  their  knowledge  for  future  use,  there  being  wdsdom, 
generally  in  a ‘multitude  of  counsellors.’ 

“I  am  indebted  to  many  of  the  public  officers  of  our  city, 
as  well  as  the  ‘oldest  inhabitants’  for  many  favors  and  much 
valuable  information.  I deem  it  a gratifyii^’  duty  from  me  to 
the  business  portions  of  Peoria,  to  say  a word  with  respect 
to  the  reception  which  they  gave  my  former  efforts  to  serve 
them  in  this  way;  but  from  the  reasonable,  charitable  portion 
of  the  public,  I have  received  every  allowance  for  not  having 
performed  merely  a stupendous  difficulty  but  even  an  utter 
impossibility.  Of  the  insuperable  difficulty  of  getting  up  such 
a work,  many  are  aware;  though  still  a greater  number  are 
not,  neither  can  they  be  without  trial. 

“With  these  remarks,  and  with  the  hope  that  this  little  Man- 
uel will  receive  sufficient  patronage  to  remunerate  me  for  the 
great  labor  and  expense  which  has  attended  its  publication, 
and  inc^uce  its  continuance  hereafter,  it  is  now  submitted  to 
the  decision  of  the  public,  very  respectfully  by  the  publisher. 

S.  DeWitt  Deowx.” 

“Peoria,  December,  1850.” 

Counsel  foe  Defendant.  We  object  to  reading  anything  from 
it  in  evidence  until  we  have  had  an  ojiportunity  to  see  the  book 
and  see  what  ought  to  go  in  as  explanatory  to  anything  Mr. 
Starr  wants  to  put  in.  That  is  the  same  question  we  had  up  this 
morning.  We  don’t  want  him  to  pick  out  an  isolated  sentence 
and  put  in  evidence. 

1931  Counsel  foe  Complainant.  I respectfully  submit  we 
have  a right  under  the  proof  made  of  the  pertinence  or  ad- 
missibility of  books  to  offer  such  parts  of  its  as  we  please,  and  if 
counsel  shows  to  the  court  that  there  are  other  parts  explanatory 
that  should  go  in,  all  right. 

The  CouET.  I will  let  it  go  in  that  way. 

Counsel  for  complainant  thereupon  introduced  and  read  in  evi- 
dence the  following  from  pages  83  and  84  of  said  book: 

“Another  of  our  old  pioneers  and  citizens,  who  is  still  with 
us,  Mr.  John  Hamlin,  of  Mass.  He  came  here  in  the  spring 
of  1821,  from  Springfield,  in  company  with  John  Lockwood, 
Judge  Latham  (who  afterwards  became  a citizen  and  proprie- 
tor of  city  lots,  and  died  here  in  1826,  and  whom  I shall  have 
occasion  hereafter  to  notice),  Maj.  lies,  Gen.  J.  Adams,  and  a 
Mr.  Winchester,  Maj.  Graham,  Indian  agent,  of  St.  Louis, 


679 


came  here  about  that  time  with  a keel-boat  and  proceeded  up 
to  LaSalle  prairie  (Rome)  where  he  paid  off  the  Indians  their 
annuity.  Some  of  them  returned  and  settled  here  subse- 
1932  quently,  and  became  useful  citizens  in  building  up  our  city. 

In  1832,  an  Indian  agency  was  opened  and  established 
here  by  the  Government,  of  which  Judge  Latham  was  ap- 
pointed agent,  in  place  of  Maj.  Graham,  of  St.  Louis,  where 
it  had  heretofore  been  kept.  John  Hamlin,  Esq.,  was  a clerk, 
in  and  kept  a branch  of  the  American  Fur  Company’s  store  in 
this  place,Jn  one  of  the  buildings  in  the  center  of  the  view 
between  Water  street  and  the  Lake — the  building  from  the 
right,  just  below  the  Inn  sign-post.  In  this  store  were  kept 
Indian  commodities  chiefly.  A portion,  however,  was  adapted 
to  the  wants  of  the  citizens,  who,  at  this  time  were  few.  Mr. 
Hamlin  while  thus  engaged  in  this  store,  exported  the  firs+ 
produce  to  Chicago  in  1825,  in  keel-boats  as  far  as  the  mouth 
of  the  Kankakee  River,  and  from  there  in  Durham  boats 
to  Chicago,  (having  built  a storehouse  at  the  former  place  to 
store  in  from  the  keel-boats,  to  be  taken  by  the  Durham  boats 
up  the  Aux  Plain  River. 

The  principal  articles  exported  were  pork,  beans,  and  other 
provisions  for  the  use  of  the  Fur  Company.  There  were  but 
a very  few  families  till  within  a few  years  of  this  time,  with- 
in the  present  bounds  of  the  city,  till  about  1832. — ” 

1934  Whereupon  the  counsel  for  the  complainant  offered  and 
read  in  evidence  the  deposition  of  William  W.  Stevens. 

(For  rulings  on  same  see  Abstract  of  Depositions,  supra,  p. 
401.) 

1941  Whereupon  counsel  for  complainant  offered  and  read  in 
evidence  the  direct  examination  of  Mr.  Harlow  H.  Spoor, 

following  which  counsel  for  defendant  read  the  cross-examination. 

(For  rulings  on  same  see- Abstract  of  Depositions,  supra,  p. 
418.) 

1942  Whereupon  counsel  for  complainant  offered  and  read  in 
evidence  the  direct  examination  of  the  witness,  in  the  deposi- 
tion of  Charles  Hoey,  following  which  counsel  for  defendant  read 
the  cross-examination  of  the  same  witness. 

(For  rulings  on  same  see  Abstract  of  Depositions,  supra,  p. 
467.) 

Whereupon  counsel  for  complainant' offered  .and  read  in  evi- 
dence the  deposition  of  L.  F.  Conant,  following  which  counsel  for 
defendant  read  the  cross-examina*tion. 


680 


(For  rulings  on  same  see  Abstract  of  Depositions,  supra,  p. 
495.) 

Whereupon  counsel  for  complainant  otfered  and  read  in  evi- 
dence the  direct  examination  in  the  deposition  of  Obediah  Hicks, 
following  which  counsel  for  defendant  read  the  cross-examina- 
tion. 

(For  rulings  on  same  see  Abstract  of  Depositions,  supra,  p. 
435.) 

1944  Whereupon  counsel  for  complainant  offered  and  read  in 
evidence  the  direct  examination  of  Mr.  "VYightman,  followed 
by  the  counsel  for  defendant  reading  the  cross-examination. 

(For  rulings  on  same  see  Abstract  of  Depositions,  supra,  p. 
425.) 

IVhereupon  counsel  for  complainant  offered  and  read  in  evi- 
dence the  direct  examination  in  the  deposition  of  Charles  Clay, 
followed  by  the  reading  of  the  cross-examination  by  the  counsel 
for  the  defendant  and  the  re-direct  by  the  counsel  for  complainant. 

(For  rulings  on  same  see  Abstract  of  Depositions,  supra,  p. 
472.) 

Whereupon  counsel  for  complainant  otfered  and  read  in  evi- 
dence the  deposition  of  Mr.  Jacob  Blaess,  following  which  the 
counsel  for  defendant  read  the  cross-examination. 

(For  rulings  on  same  see  Abstract  of  Depositions,  supra,  p. 
481.) 

AVhereupon  counsel  for  complainant  offered  and  read  in  evi- 
dence the  deposition  of  Samuel  Galons,  following  which  counsel 
for  defendant  read  the  cross-examination. 

(For  rulings  on  same  see  Abstract  of  Depositions,  supra,  p. 
483.) 

"Whereupon  counsel  for  complainant  offered  and  read  in  evi- 
dence the  deposition  of  John  W.  Taylor,  following  which  counsel 
for  defendant  read  the  cross-examination. 

(For  rulings  on  same  see  Abstract  of  Depositions,  supra,  p. 
488.) 


681 


1945  Whereupon  counsel  for  complainant  offered  and  read  in 
evidence  the  deposition  of  the  witness  Engene  Dailey,  follow- 
ing which  the  counsel  for  defendant  read  the  cross-examination. 

(For  rulings  on  same  see  Abstract  of  Depositions,  supra,  p. 
471.) 

Whereupon  counsel  for  complainant  offered  and  read  in  evi- 
dence the  direct  examination  in  the  deposition  of  the  witness 
Daniel  W.  King,  following  which  counsel  for  defendant  read  the 
cross-examination. 

(For  rulings  on  same  see  Abstract  of  Depositions,  supra,  p. 
581.) 

Whereupon  counsel  for  complainant  offered  and  read  in  evi- 
dence the  direct  examination  of  the  witness,  George  Abbott,  fol- 
lowing which  the  counsel  for  defendant  read  the  cross-examina- 
tion. 

(For  rulings  on  same  see  Abstract  of  Depositions,  supra,  p. 
454.) 

1947  Clarence  Walworth  Alvord, 

a witness  for  complainant,  testified  as  follows: 

Direct  Examination. 

My  name  is  Clarence  Walworth  Alvord.  I am  a teacher  and  a 
writer.  I hold  the  position  of  assistant  professor  in  the  University 
of  Illinois,  besides  being  special  editor  of  the  publication,  the  Illi- 
nois State  Historical  Library.  I am  professor  of  the  University 
of  Illinois,  in  the  field  of  Western  American  history,  particularly 
Illinois  history.  Last  Christmas  vacation  I was  elected  Vice- 
president  of  the  Mississippi  Valley  Historical  Association.  I had 
' been  for  two  years  adjunct  member  of  the  Public  Archives 

1948  Commission  for  Illinois,  of  the  American  Historical  Asso- 
ciation. That  commission  investigates  the  public  archives 

of  the  various  States,  and  I am  a member  for  Illinois.  I hold 
active  membership  in  the  American  Historical  Association,  the 
Mississippi  Valley  Historical  Association,  the  Illinois  State  His- 
torical Society;  I have  been  elected  corresponding  member  of  the 
Chicago  Historical  Society,  of  the  Missouri  State  Historical  So- 


682 


Alvord, — Direct  Exam. — Continued. 


ciety,  and  the  Nebraska  State  Historical  Society,  and  am  an  hon- 
orary member  of  the  Missouri  Historical  Society  of  St.  Louis. 

I have  written  a bulletin  of  the  Illinois  State  Historical  Li- 
brary, entitled  ^‘Illinois  in  the  Eighteenth  Century;”  another  bul- 
letin of  the  same  librar^^  board  entitled  ‘‘The  Territory  and  Laws 
of  Illinois;”  for  the  State  Historical  Library  I have  edited  the 
second  volume  of  the  Illinois  Historical  collections,  for  the  Amer- 
ican Historical  Association  I have  written  a report  on  the  French 
archives  of  Illinois;  I am  publisher  of  a pamphlet  published  by  the 
Chicago  Historical  Society,  the  old  Kaskaskia  records  for  the  club 
of  four  Colonial  Eeprints ; I reprinted  with  introduction  the  ear- 
liest production  of  an  Illinois  society  entitled,  “Invitation 
Serieuse  Aux  Habitant  des  Illinois.”  It  was  written  in 

1949  French  and  the  title  is  given  in  French,  meaning  “Serious 
Invitation  to  be  Inhabitants  of  Illinois,”  by  a citizen  of 

Kaskaskia.  That  is,  I suppose,  just  off  the  press  now.  Also  the 
Genesis  of  a proclamation  of  1763  which  was  the  proclamation 
of  the  British  Monarch  stating  the  policy  to  be  followed  in  M^est- 
ern  Illinois  after  the  French  and  Indian  AVar.  This  was  published 
by  the  Michigan  Pioneer  and  Historical  Society.  Also  a study  on 
the  Spanish  Conquest  of  St.  Joseph  in  1780.  This  is  published 
by  the  Missouri  State  Historical  Society. 

I am  acquainted  with  historical  data,  materials,  sources,  com- 
pilations and  treatises  which  relate  to  the  early  exploration  and 
settlement  of  the  Illinois  country,  its  government,  commerce  and 
development  from  the  earliest  European  exploration  down  to  the 
admission  of  the  State  into  the  Union.  That  is  the  special  held 
in  which  I am  making  researches.  This  historical  data,  matenals 
and  sources  deal  with  the  early  use  of  the  Hesplaines  Eiver. 

Historians  divide  historical  material  into  two  broad 

1950  classes,  sources  and  authorities.  Sources  are  regarded  as 
anything  that  has  come  directly  from  the  past  down  to  our 

time.  Such  sources,  of  course,  may  be  of  different  character,  a 
tombstone,  a river,  Indian  arrows,  or  they  may  l)e  written  narra- 
tives of  events  that  occurred  in  the  past,  written  by  a contempo- 
rary who  had  original  sources  of  information.  The  second  class 
is  formed  by  the  authorities  and  includes  the  works  of  historians. 


G83 


who  after  investigating  the  sources,  have  reached  conclusions  in 
regard  to  the  material  that  is  furnished  by  the  sources. 

In  taking  up  a historical  problem  of  any  character  the  historian 
goes  naturally  to  what  we  call  the  sources  of  information  and  in 
those  sources  he  will  naturally  find  various  classes  of  informa- 
tion. In  a problem  of  this  character,  the  question  of  the  Des- 
plaines  River,  whether  it  was  used  by  traders,  etc.,  there  is  fur- 
nished two  broad  classes  of  sources, — first  accounts  of  contempora- 
ries of  the  use  of  the  Desplaines  River  by  themselves;  and,  sec- 
ondly statements  by  contemporaries  that  the  Desplaines  River 
was  usually  used,  or  constantly  used  for  purposes  of  trade. 

1951  Of  course  we  find  what  we  call  the  authorities  who  have 
studied  various  questions  and  problems  of  western  history  in 

these  sources  and  have  reached  their  own  conclusions,  so  that 
we  would  have  three  broad  classes,  narratives  of  the  use  of 

1952  any  river;  secondly,  contemporary  statements  that  the 
river  was  so  used;  and  thirdly,  conclusions  of  historians. 

I am  acquainted  with  sources  of  the  kind  I have  called  narra- 
tive classes,  as  to  the  Desplaines  River.  We  have  narratives  from 
the  earliest  explorers,  the  earliest  Missionaries;  we  have  narra- 
tives also  of  traders  that  have  used  the  Desplaines  River — 

Counsel  for  Defendant.  I object  to  statements  of  what  the 
traders  may  have  done. 

The  Court.  Don’t  say  what  the  traders  say. 

A.  Statements  of  traders  in  regard  to  passing  from  the— 

The  Court.  Don’t  state  wdiat  it  is,  but  in  regard  to  the  Des- 
plaines River. 

A.  Yes,  in  regard  to  the  Desplaines  River. 

I am  acquainted,  for  instance,  with  the  account  left  by  Mar- 
quette. Marquette  and  Joliet,  as  is  well  known,  were  the 

1953  first  ones  to  reach  the  Mississippi  River.  The  question  of 
where  Marquette  and  Joliet  went  rests  among  historians,  of 

course,  upon  the  narratives  which  they  have  left  and  the  maps 
which  they  drew,  and  on  these  maps  they  have  outlined  the  course 
they  have  given.  That  would  be  taken  by  historians  as  a fact 
proved,  that  is  the  course  of  their  journey.  I am  acquainted  with 
the  publication  known  as  ‘‘Thwaites’  Jesuit  Relations.”  That 


684 


Aluord, — Direct  Exam. — Continued. 


series  of  publications  was  prepared  and  made  up  as  follows : The 
Jesuit  Fathers  were  obliged,  by  the  law  of  their  order,  to  write 
letters  to  their  Superior  in  Quebec.  This  Superior  collected  the 
information  from  this  data,  and  if  some  of  them  were  of  partic- 
ular interest,  he  sent  some  of  the  original  letters  themselves,  with 
his  own  account  of  what  the  Order  had  done,  to  Paris.  There 
they  were  immediately  published  for  the  information  of  the 
Court  of  Louis  XIV.  Marquette’s  letter  was  of  particular  in- 
terest and  it  was  sent  in  this  way  to  Paris  and  appeared  in  the 
Journal  of  Eolations  of  the  following  year.  There  were  a series 
of  volumes,  one  coming  out  every  year.  They  were  very 

1954  scarce  and  difficult  to  obtain.  Dr.  Eeuben  Gold  Thwaites  of 
the  Wisconsin  Historical  Society  undertook  the  reprinting  of 

all  these  Jesuit  Eolations.  He  associated  with  himself  men  and 
women  who  had  a knowledge  of  both  the  history  and  the  lan- 
guage and  issued  in  a series  of  seventy-three  volumes  all  of  the 
Jesuit  Eolations.  It  is  regarded  as  one  of  the  principal  monu- 
ments to  western  scholarship,  and  these  reprints  are  now  ac- 
cepted as  authoritative  as  the  original  Jesuit  Eolations  printed  in 
Paris.  Besides  this  he  printed  a translation  on  alternate  pages, 
which  is  a very  careful  and  accurate  translation,  so  regarded  by 
historians. 

I am  acquainted  with  the  book  known  as  Shea’s  Early  Voy- 
ages Up  and  Down  the  Mississippi.”  John  Gilmary  Shea  was  one 
of  the  best  historians  that  has  ever  dealt  with  Western  American 
history.  He  was  a Eoman  Catholic,  particularly  interested,  there- 
fore, in  the  explorations  of  the  Jesuits  and  men  of  other  religious 
orders.  It  was  throus’h  him  that  it  was  finally  decided  that  the 
honor  of  discovering  the  Mississippi  was  due  to  Marquette  and 
Joliet.  After  publishing  his  ‘‘Discovery  of  the  Mississippi,” 

1955  he  published  a little  volume  called  “Voyages  Up  and  Down 
the  Mississippi.”  They  are  original  narratives  of  voyages 

made  by  various  men.  He  has  collected  them  from  various  sources, 
some  from  the  Jesuit  Eelations,  as  Gravier’s  account;  St.  Cosine’s 
account  is  taken  from  a manuscript  in  LaVal  University  in  Quebec. 
The  original  was  carefully  transcribed  and  he  issued  it  in  trans- 
lation in  his  “Voyages  Up  and  Down  the  Mississippi.”  Shea  has 
a very  fortunate  reputation  in  regard  to  his  translations.  Histo- 


685 


rians  as  a rule  will  use  liis  translations  in  j^reference  to  the  origi- 
nal French,  because  Shea’s  interpretations  are  more  accurate. 

Q.  Take  this  volume,  ‘‘Jesuit  Eelations  and  Allied  Documents, 
Volume  59,  Lower  Canada,  Illinois,  Ottawas,  1673-1777.”  That  is 
the  label  on  the  back  of  the  book.  The  full  title  page  is  somewhat 
fuller:  “The  Jesuit  Eelations  and  Allied  Documents,  Travels  and 
Explorations  of  the  Jesuit  Missionaries  in  Xew  France,  1610  to 
1691.  The  original  French,  Latin  and  Italian  Text  with  English 
Translations  and  Notes,  Illustrated  by  portraits,  maps  and  fac- 
similes. Edited  by  Eeuben  Gold  Thwmites,  Secretary  of  the  State 
Historical  Society  of  Wisconsin,  Volume  LIX,  Lower  Can- 
1956  ada,  Illinois,  Ottawas,  1673-1677.  Cleveland.  The  Burrows 
Brothers,  Publishers,  MDCC,”  which  the  reporter  will 
mark  “Alvord  Exhibit  1”  for  identification,  is  a volume  of  the 
series  which  you  have  described  as  the  Jesuit  Eelations  by  Dr. 
Eeuben  Gold  Thwaites! 

A.  Yes. 

Counsel  for  Complainant.  Take  the  volume  and  identify  by 
volume  and  page  the  narratives  therein  contained  which  you  re- 
fer to  as  referring  to  the  use  of  the  Desplaines  Eiver. 

The  Court.  Give  the  pages  containing  the  narratives  by  not 
merely  the  particular  page  which  contains  the  particular  para- 
graph which  may  refer  to  the  Desplaines  Eiver. 

Counsel  for  Complainant.  If  I get  your  meaning,  for  instance, 
if  there  was  a passage  on  page  349,  and  the  narrative  in  which 
that  occurred  began  on  page  340  and  ran  to  360,  the  witness  is 
called  upon  to  identify  by  the  title  of  the  narrative,  and  the  body 
of  pages  within  which  the  passage  is  contained. 

The  Court.  Precisely. 

19o7  The  French  anE  the  English  are  printed  on  alternate 
pages.  The  French  letter,  or  the  French  copy  of  the  letter 
written  by  Marquette  begins  on  page  86  and  on  the  opposite  page, 
87,  is  the  translation.  The  document  is  called  “The  First  Voy- 
age made  by  Father  Marquette  towards  New  Mexico,  and  How  the 
Idea  Thereof  was  Conceived.”  The  document  runs  to  page  163. 
On  page  184  begins  another  document,  “Account  of  the  Second 
Voyage  and  the  Death  of  Father  Jaques  Marquette.”  That  docu- 


()8()  Alvord, — Direct  Exam. — Continued. 

ment  ends  on  page  211.  A map  which  appears  in  this  volume  op- 
posite page  86,  is  simply  assembled  with  the  document.  It  is  not 
the  document  that  was  printed  with  the  original  letter  of  Mar- 
quette. It  is  called  ‘Moliet( ’)  (s)  Map”  and  upon  it  is 

1958  marked  the  rivers  that  were  explored  by  himself  and  Mar- 
quette. As  to  the  standing  of  that  map  and  this  reproduc- 
tion of  that  map,  among  historians,  and  the  history  of  that  map 
and  the  character  of  it,  this  map  was  made  by  Joliet  hut 
was  never  reproduced  until  quite  recently.  I see  it  was  reproduced 
in  the  Eevue  des  Geographique  in  1880.  It  was  found  in  the 
archives  of  the  Marine,  Paris.  This  is  regarded  among  histo- 
rians as  a reproduction  of  the  map  made  by  Joliet  at  the  time  of 
the  discovery  of  the  Mississippi  Eiver.  It  is  regarded  as  reliable 

authority  for  JoliePs  explorations. 

1959  Counsel  for  complainant  offered  from  the  document  iden- 
tified as  the  ‘‘First  Voyage  by  Father  Marquette,”  the 

whole  of  Section  10  of  that  narrative;  counsel  for  defendant  raised 
the  point  that  other  portions  of  the  said  narratives  in  addition  to 
those  read  by  counsel  for  complainant,  which  modified  or  con- 
nected with  the  latter  should  also  be  offered  in  evidence.  The 
court  ruled  that  the  portions  offered  by  counsel  for  complainant 
at  this  time  might  be  received  and  that  upon  other  portions  of 
that  nature  being  pointed  out  by  counsel  for  defendant,  the  same 
should  also  be  offered  in  evidence  by  counsel  for  complainant. 

Said  Section  10  is  abstracted  as  follows: 

“rETUEN  of  the  father  AXD  of  the  FREX'CH. 

“After  a month’s  navigation,  while  descending  the  Miss- 
issippi from  the  42d  to  the  34th  degree,  and  beyond,  and  after 
preaching  the  gospel  as  well  as  I could  to  the  Nations  that  I 
met,  we  started  on  the  17th  day  of  July  from  the  Village  of 
the  Akensea  to  retrace  our  steps.  We,  therefore,  reascended 
the  Mississippi,  which  gives  us  much  trouble  in  breasting  its 
current.  It  is  true  that  we  leave  it,  at  about  the  38th  degree 
to  enter  another  river  which  greatly  shortens  our  road  and 
takes  us  with  but  little  effort  to  the  lake  of  the  Illinois. 

“We  have  seen  nothing  like  this  river  that  we  enter,  as  re- 
gards its  fertility  of  soil,  its  prairie  and  woods,  its  cattle; 
elk,  deer,  wild  oats,  bustards,  swans,  parroquets  and  even 
beaver.  There  are  many  small  lakes  and  rivers.  That  on 

1960  which  we  sailed  is  wide,  deep  and  still,  for  sixty-five  leagues. 
In  the  spring  and  during  part  of  the  summer,  there  is  only 


087 


one  portage  of  half  a league.  We  found  on  it  a Village  of 
Illinois,  Kaskasia,  which  consists  of  seventy-four  cabins. 
They  received  us  very  well  and  obliged  me  to  promise  that  I 
would  return  and  instruct  them.  One  of  the  Chiefs  of  this 
Nation,  with  his  young  men,  escorted  us  to  the  lake  of  the 
Illinois,  whence  at  last,  at  the  end  we  reached  the  bay  Des 
Prantz,  from  which  we  had  started  at  the  beginning  of 
June.’  * * * 

Professor  Alvord  testifying  that: 

The  word  ^OCaskasia”  which  does  not  have  the  third  ‘‘k”  is 
the  word  which  is  now  commonly  used  as  ^‘Kaskaskia.”  The  word 
^‘Akensa”  here  is  the  word  which  we  now  have  as  ^C\r- 
kansas.  ’ ’ 

1961  Also  editorial  foot-note  No.  41  referred  to  in  said  Section 
10  of  said  first  Voyage  of  Marquette,  at  the  end  of  the  sen- 
tence ‘Jn  the  spring  and  during  the  summer  there  is  only  one 
portage  of  half  a league  (41)”  on  page  161  of  said  Alvord’s  Ex- 
hibit 1 for  identification,  which  said  footnote  is  as  follows : 

^^(41) — Reference  is  here  made  to  the  Illinois  River,  from 
its  upper  waters,  the  traveler  obtained  access  to  Lake  Michi- 
gan by  several  portages.  That  between  its  northern  fork  (the 
Desplaines  River)  and  the  Cliicago  River  was,  owing  to  the 
southward  current  along  the  west  shore  of  Lake  Michigan, 
the  usual  route  on  the  outward  voyage  from  Mackinac  and 
other  northern  points.  The  Desplaines  might  also  be  reached 
by  a similar  portage  to  the  Calumet  River,  which  falls  into 
Lake  Michigan  at  the  present  South  Chicago.  On  early  maps 
the  Chicago  and  Calumet  Rivers  are  sometimes  confounded 
with  each  other.  On  the  return  trip,  the  voyages  could  reach 
the  great  lake  not  only  by  these  routes,  but  by  a third— via 
the  Kankakee  (the  southern  fork  of  the  Illinois)  and  a port- 
age (at  the  present  South  Bend,  Ind.)  to  St.  Joseph  River,  at 
the  S.  E.  corner  of  Lake  Michigan.  This  was  often  used  when 
returning  to  Mackinac,  as  the  lake  current  runs  northward 
along  the  east  shore. — (See  Winsor’s  Mississippi  Basin,  pp. 
'24-26.) 

‘^The  Chicago-Desplaines  route  involved  a ‘carry’  of  from 
four  to  nine  miles,  according  to  the  season  of  the  year;  in  a 
rainy  spring  season,  it  might  not  be  over  a mile ; and  during  a 
freshet,  a canoe  might  be  paddled  over  the  entire  route,  with- 
out any  portage.  A canal  between  these  rivers  was  opened 
in  1848,  which  gave  a strong  impetus  to  Chicago’s  early 
growth;  and  the  Government  Drainage  Canal,  now  (Decem- 
ber, 1899)  nearing  completion,  follows  the  same  route,  from 
Chicago  to  Joliet,  a distance  of  36  miles  southwest  to  the  Des- 


()88  Alvord, — Direct  Exam.— Continued. 

plaines  River — a waterway  14  feet  deep,  and  100  feet  wide, 
which  will  not  only  insure  proper  drainage  to  Chicago,  bui 
greatly  facilitate  her  commerce.’^ 

1962  Counsel  for  complainant  also  read  and  now  offered  in  evi- 
dence from  the  document  in  said  book,  ‘^Alvord,  Exhibit  1, 

for  identification  as  the  ^‘Account  of  the  second  Voyage  and  Death 
of  Father  Marquette,’’  the  introduction  and  the  following  passage. 
Said  introduction,  on  page  185,  is  as  follows: 

^‘The  Mission  of  the  Illinois  was  founded  in  the  year 
1674,  after  the  first  voyage  which  Father  Jacques  Marquet 
made  the  discovery  new  territory  and  new  peoples  who  are 
on  the  great  and  famous  Mississippi. 

^^The  year  following,  he  made  a second  voyage,  in  order  to 
establish  there  the  Mission ; it  is  that  one  which  we  are  about 
to  relate.” 

And  then,  after  considerable  narrative,  on  pages  187  and  189, 
the  following  passage: 

‘‘His  prayer  was  answered  against  all  human  probability, 
and  his  health  improving,  he  prepared  himself  to  go  to  the 
Village  of  the  Illinois,  as  soon  as  navigation  should  open — 
which  he  did  with  much  joy,  setting  out  for  that  place  on  the 

1963  29th  of  March.  He  spent  eleven  days  on  the  way,  during 
which  time  he  had  occasion  to  suffer  much  both  from  his  own 
illness,  from  which  he  had  not  entirely  recovered,  and  from 
the  very  severe  and  unfavorable  weather.” 

Counsel  for  complainant  also  offered  the  map,  above  identified 
by  the  witness,  which  appears  opposite  page  87  of  said  book. 

Counsel  for  Defendant.  Is  that  map  supposed  to  have  been 
made  by  Joliet? 

A.  Yes. 

Said  map  was  received  in  evidence  (page  3919  of  Atlas;  Trans., 
p.  6492;  Abst.,  p ). 

Counsel  for  Complainant.  1 now  offer  the  entire  narrative  of 
the  first  voyage. 

Said  narrative  of  the  first  voyage,  without  said  Section  10 
above  given,  is  abstracted  as  follows : 

* In  the  year  1673,  Monsier  The  Count  de  Frontenac, 
Our  Governor,  and  Monsieur  Talon,  then  our  intendant,  rec- 
ognizing the  importance  of  this  discovery — either  that  they 
might  seek  a passage  from  here  to  the  sea  of  China,  by  the 
river  that  discharges  into  the  Vermilion  or  California  Sea;  or 


G89 


because  they  desired  to  verify  wbat  has  for  some  time  been 
said  concerning  the  2 Kingdoms  of  Theguaio  and  Quiuira, 
which  border  on  Canada,  and  in  which  numerous  gold  mines 
are  reported  to  exist, — the  Gentlemen,  I say  appointed  at  the 
same  time  for  this  Undertaking  Sier  Jolyet  whom  they  con- 
sidered very  tit  for  so  great  an  enterprise;  and  they  were 
well  pleased  that  Father  Marquette  should  be  of  the  party. 

‘‘They  were  not  mistaken  in  the  choice  that  they  made  of 
Sieur  Jolyet,  for  he  is  a young  man,  born  in  this  country, 
who  possesses  all  the  qualifications  that  could  be  desired  for 
such  an  undertaking.  He  has  experience  and  knows  the  lan- 
guages spoken  in  the  country  of  the  Outaouacs,  where  he  has 

1964  passed  several  years.  He  possesses  fact  and  prudence, 
which  are  the  chief  qualities  necessary  for  the  success  of  a 
voyage  as  dangerous  as  it  is  difficult.  Finally,  he  has  the 
courage  to  dread  nothing  where  everything  is  to  be  feared. 
Consequently  he  has  fulfilled  all  the  expectations  entertained 
for  him;  and  if,  after  having  passed  through  a thousand  dan- 
gers he  has  not  unfortunately  been  wrecked  in  the  very  har- 
bor, his  canoe  having  upset  below  Sault  St.  Louys,  near  Mon- 
treal,— where  he  lost  both  his  men  and  his  papers,  and  whence 
he  escaped  only  by  a sort  of  miracle, — nothing  would  have 
been  left  to  be  desired  in  the  success  of  his  voyage. 

1965  “Section  1st.  depaktuee  of  fathek  jaques  maequette  foe 

THE  DISCOVEEY  OF  THE  GEEAT  EIVEE  CAELED  BY  THE  SAVAGES 
MISSISSIPPI  WHICH  LEADS  TO  NEW  MEXICO. 

“The  feast  of  The  Immaculate  Conception  of  the  Blessed 
ViEGiN — whom  I have  always  invoked  since  I have  been  in  this 
country  of  the  Outaouacs,  to  obtain  from  God  the  grace  of 
being  able  to  visit  the  Nations,  who  dwell  along  the  Missis- 
sippi River — was  precisely  the  da}^  on  which  Monsieur  Jollyet 
arrived,  with  orders  from  Monsieur  Talon,  Our  Intendant,  to 
accomplish  this  discovery  with  me.  * * 

“We  were  not  long  in  preparing  all  our  equipment,  although 
we  were  about  to  begin  a voyage,  the  duration  of  which  we 
could  not  foresee.  Indian  corn,  with  some  smoked  meat,  con- 
stituted all  our  provisions ; with  these  we  embarked — Mon- 
ster Jollyet  and  myself,  with  5 men — in  2 bark  canoes,  fiill}^ 
resolved  to  do  and  suffer  everything  for  so  glorious  an  un- 
dertaking. 

“Accordingly,  on  the  17th  day  of  May,  1673,  we  started  from 
the  Mission  of  St.  Ignace  at  Michilimakinac,  where  I then 
was.  The  joy  that  we  felt  at  being  selected  for  this  expedi- 
tion animated  our  courage,  and  rendered  the  labor  of  pad- 
dling from  morning  to  night  agreeable 'to  us.  And  because 
we  were  going  to  seek  unknown  countries,  we  took  every  pre- 
caution in  our  power,  so  that,  if  our  undertaking  were  hazar- 
dous, it  should  not  be  foolhardy.  To  that  end,  we  obtained 


690  Extract, — Father  Marcj^uette^s  Voyage. — Continued. 

all  the  information  that  we  could  from  the  savages  who  had 
frequented  those  regions ; and  we  even  traced  out  from  their 
reports  a map  of  the  whole  of  that  new  country;  on  it  we 
indicated  the  rivers  which  we  were  to  navigate,  the  names  of 
the  peoples  and  of  the  places  through  which  we  were  to  pass, 
the  course  of  the  great  river,  and  the  direction  we  were  to 
follow  when  we  reached  it.  * * * 

Section  2nd.  the  father  visits  in  passing  the  tribes  of  the 

FOLLE  AVOINE.  WHAT  THAT  FOLLE  AVOINE  IS.  HE  ENTERS  THE 

BAY  DES  PUANTS;  SOME  PARTICULARS  ABOUT  THAT  BAY.  HE  AR- 
RIVES AMONG  THE  FIRE  NATION. 

With  all  these  precautions,  we  joyfully  plied  our  paddles 
on  a portion  of  Lake  Huron,  on  that  of  the  Illinois  and  on 
the  Bay  des  Puants. 

The  first  nation  that  we  came  to  was  that  of  the  Folle 
Avoine.  I entered  their  river  to  go  and  visit  these  peoples 
to  whom  we  have  preached  the  Gospel  for  several  years, — in 
consequence  of  which,  there  are  several  good  Christians  among 
them.  ^ ^ 

I told  these  peoples  of  the  Folle  Avoine  of  my  design  to 
go  and  discover  those  remote  nations  in  order  to  teach  them 
the  mysteries  of  our  holy  religion.  * * * 

I thanked  them  for  the  good  advice  that  they  gave  me,  but 
told  them  that  I could  not  follow  it,  because  the  salvation 
of  souls  was  at  stake,  for  which  I would  be  delighted  to  give 
my  life;  that  I scoffed  at  the  alleged  demon;  that  we  would 
easily  defend  ourselves  against  those  marine  monsters;  and, 
moreover,  that  we  would  be  on  our  guard  to  avoid  the  other 
dangers  with  which  they  threatened  us.  After  making  them 
pray  to  God  and  giving  them  some  instructions,  I separated 
from  them.  Embarking  then,  in  our  canoes,  we  arrived 
shortly  afterwards  at  the  bottom  of  the  Bay  des  Puantz,  where 
our  Fathers  labor  successfully  for  the  conversion  of  these 
peoples,  over  two  thousand  of  whom  they  have  baptized  while 
they  have  been  there. 

This  bay  bears  a name,  which  has  a meaning  not  so  of- 
fensive in  the  language  of  the  savage:  For  they  call  it  La 

haye  salle  (‘salt  bay’)  rather  than  Bay  des  Piians, — although 
with  them  this  is  almost  the  same  and  this  is  also  the  name 
which  they  give  to  the  Sea.  * * 

The  Bay  is  about  thirty  leagues  in  depth  and  eight  in 
width  at  its  mouth;  it  narrows  gradually  to  the  bottom,  where 
it  is  easy  to  observe  a tide  which  has  its  regular  ebb  and  flow, 
almost  like  that  of  the  sea.  This  is  not  the  place  to  inquire 
whether  these  are  real  tides;  whether  they  are  due  to  the  wind, 
or  to  some  other  cause;  whether  there  are  winds,  the  Precur- 
sors of  the  iMoon  and  attached  to  her  suite,  which  constantly 
agitate  the  lake  and  give  it  an  apparent  ebb  and  flow  when- 
ever the  Moon  ascends  above  the  horizon.  What  I can  posi- 


691 


tively  state  is,  that,  when  the  water  is  very  calm,  it  is  easy 
to  observe  it  rising  and  falling  according  to  the  Course  of 
the  Moon;  although  I do  not  deny  that  this  movement  may 
be  Caused  by  very  Kemote  Winds,  which  pressing  on  the  mid- 
dle of  the  lake,  cause  the  edges  to  Kise  and  fall  in  the  man- 
ner which  is  visible  to  our  eyes. 

We  left  this  bay  to  enter  the  river  that  discharges  into  it; 
it  is  full  of  bustards.  Ducks,  Teal  and  other  birds,  attracted 
thither  by  the  wild  oats  of  which  they  are  very  fond.  But, 

1967  after  ascending  the  river  a short  distance,  it  becomes  very 
difficult  of  passage  on  account  of  both  the  currents  and  the 
sharp  rocks,  which  cut  the  canoes  and  the  feet  of  Those  who 
are  obliged  to  drag  them,  especially  when  the  Waters  are  low. 
Nevertheless,  we  successfully  passed  Those  rapids;  and  on 
approaching  Machkoutens,  the  fire-Nation,  I had  the  Curiosity 
to  drink  the  mineral  waters  of  the  Kiver,  that  is  not  far  from 
that  village.  * * * 

Section  3rd.  description  of  the  villages  of  maskoutens  ; 

WHAT  PASSED  THERE  BETWEEN  THE  FATHER  AND  THE  SAVAGES. 

THE  FRENCH  BEGIN  TO  ENTER  A NEW  AND  UNKNOWN  COUNTRY 

AND  ARRIVE  AT  MISSISSIPPPI. 

Here  we  are  at  Maskutens.  This  word  may,  in  Algonquin 
mean  ‘the  tire  Nation,’ — which,  indeed,  is  the  name  given  to 
this  tribe.  Here  is  the  limit  of  the  discoveries  which  the 
French  have  made.  For  they  have  not  yet  gone  any 
further.  * ^ * 

1968  No  sooner  had  we  arrived  than  we.  Monsieur  Jollyet  and  I, 
assembled  the  elders  together;  and  he  told  them  that  he  was 
sent  by  Monsieur,  Our  Governor,  to  discover  new  countries, 
while  I was  sent  by  God  to  illumine  them  with  the  light  of  the 
holy  Gospel.  He  told  them  that  moreover,  the  sovereign  Mas- 
ter of  our  lives  wished  to  be  known  by  all  the  Nations;  and 
that  in  obeying  his  will  I feared  not  the  death  to  which  I ex- 
posed myself  in  voyages  so  perilous.  He  informed  them  that 
we  needed  two  guides  to  show  us  the  way;  and  We  gave 
them  a present,  by  it  asking  them  to  grant  us  the  guides. 
To  this  they  very  Civilly  consented;  and  they  al?o  spoke  to 
us  by  means  of  a present,  consisting  of  a Mat  to  serve  us 
as  a bed  during  the  whole  of  our  voyage. 

On  the  following  day,  two  Miamis  who  were  given  us  as 
guides  embarked  with  us,  in  the  sight  of  a great  crowd,  who 
could  not  sufficiently  express  their  astonishment  at  the  sight 
of  seven  Frenchmen,  alone  and  in  two  canoes,  daring  to  under- 
take so  extraordinary  and  so  hazardous  an  Expedition. 

We  knew  that,  at  three  leagues  from  Maskoutens,  was  a 
River  which  discharged  into  Missisipi.  We  knew  also  that 
the  direction  we  were  to  follow  in  order  to  reach  it  was 
west-southwesterly.  But  the  road  is  broken  by  so  many  swamps 


692  Extract, — Father  Marquette’ s Voyage. — Continued. 


and  small  lakes  that  it  is  easy  to  lose  one’s  way,  especially 
as  the  river  leading  thither  is  so  fnll  of  wild  oats  that  it  is 
difficult  to  find  the  channel.  For  this  reason  we  greatly 
needed  our  two  guides  who  safely  conducted  us  to  a portage 
of  2,700  paces  and  helped  us  to  transport  our  Canoes  to  enter 
That  river;  after  which  they  returned  home,  leaving  us  alone 
in  this  Unknown  country,  in  the  hands  of  providence. 

Thus,  we  left  the  Waters  flowing  to  Quebeq,  4 or  500 
leagues  from  here,  to  float  on  Those  that  would  thencefor- 
ward Take  us  through  strange  lands.  * * * 

The  Eiver  on  which  we  embarked  is  called  Meskousing.  It 
is  very  wide;  it  has  a sandy  bottom,  which  forms  various 
shoals  that  render  its  navigation  very  difficult.  It  is  full  of 
islands  covered  with  Vines.  On  the  banks  one  sees  fertile! 

1969  lands,  diversified  with  woods,  prairies,  and  Hids.  There  are 
oak.  Walnut  and  basswood  trees;  and  another  kind  whose 
branches  are  armed  with  long  thorns.  We  saw  there  neither 
feathered  game  nor  fish,  but  many  deer,  and  a large  number 
of  cattle.  Our  Eoute  lay  to  the  southwest,  and,  after  navigat- 
ing about  30  leagues,  we  saw  a spot  presenting  all  the  appear- 
ances of  an  iron  mine;  and,  in  fact,  one  of  our  party,  who 
had  formerly  seen  such  mines,  assures  us  that  The  One  which 
We  found  is  very  good  and  very  rich.  It  is  Covered  with 
three  feet  of  good  soil,  and  is  quite  near  a chain  of  rocks, 
the  base  of  which  is  covered  by  very  fine  trees.  After  proceed- 
ing 40  leagues  on  This  same  route,  we  arrived  at  the  mouth 
of  our  Eiver,  and,  at  42  and  a half  degrees  Of  Latitude,  we 
safely  entered  Missisipi  on  the  17th  of  June  with  a Joy  that  I 
cannot  express. 

Section  4th.  of  the  cheat  kivek  called  missisipi.  its  most 

NOTABLE  FEATUKES.  OF  VAKIOUS  ANIMALS  AND  ESPECIAHLY  THE 
PISIKIOHS  OK  WILD  CATTLE,  THEIR  SHAPE  AND  NATURE.  OF  THE 
FIRST  VILLAGES  OF  THE  ILINOIS,  WHERE  THE  FRENCH  ARRIVED. 

Here  we  are,  then,  on  this  so  renowned  Eiver,  all  of  whose 
peculiar  features  I have  endeavored  to  note  carefully.  The 
Missisipi  Eiver  takes  its  rise  in  various  lakes  in  the  country 
of  the  Northern  nations.  It  is  narrow  at  the  place  where 
Miskous  empties;  its  current  which  flows  southward,  is  slow 
and  gentle.  To  the  right  is  a large  Chain  of  very  high  Moun- 
tains and  to  the  left  are  beautiful  lands;  in  various  places  the 
streams  are  divided  by  islands.  On  sounding,  we  found  ten 
brasses  of  Water.  Its  width  is  very  unequal;  sometimes  it 
is  three-quarters  of  a league,  and  sometimes  it  narrows  to 
three  'arpents.  We  gently  followed  its  Course  which  runs 
toward  tlie  south  and  southeast,  as  far  as  the  42nd  degree  of 
Latitude.  Here  we  plainly  saw  that  its  aspect  was  completely 


693 


changed.  There  are  hardly  any  woods  or  mountains;  The 

islands  are  more  beautiful  and  are  Covered  with  finer  trees. 
* * * 

1970  When  we  reached  the  parallel  of  41  degrees,  28  minutes 

following  the  same  direction,  we  found  that  Turkeys  had  taken 
the  place  of  game ; and  the  pisikious  or  wild  cattle.  That  of  the 
other  animals.  * « * 

We  continued  to  advance,  but,  as  we  knew  not  whither  we 
. were  going, — for  we  had  proceeded  over  One  Hundred  leagues 
without  discovering  anything  except  animals  and  birds, — we 
kept  well  on  our  guard.  On  this  account,  we  make  only  a 
small  fire  on  land,  toward  evening  to  cook  our  meals;  and, 
after  supper,  we  remove  Ourselves  as  far  from  it  as  possible, 
and  pass  the  night  in  our  Canoes,  which  we  anchor  in  th0 
river  at  some  distance  from  the  shore.  This  does  not  prevent 
us  from  always  posting  one  of  the  party  as  a sentinel  for  fear 
of  a surprise.  Proceeding  still  in  a southerly  and  south- 
westerly direction,  we  find  ourselves  at  the  parallel  of  41  de- 
grees, and  as  low  as  40  degrees  and  some  minutes, — partly 
southeast  and  partly  southwest, — after  having  advanced  over 
60  leagues  since  We  entered  the  Eiver,  without  discovering 
anything. 

Finally  on  the  25th  of  June,  we  perceived  on  the  water’s 
edge  some  tracks  of  men  and  a narrow  and  somewhat  beaten 
path  leading  to  a fine  prairie.  We  stopped  to  Examine  it;  and 
thinking  that  it  was  a road  which  led  to  some  village  of  sav- 

1971  ages.  We  resolved  to  go  and  Eeconnoiter  it.  We  therefore 
left  our  two  Canoes  under  the  guard  of  our  people,  strictly 
charging  Them  not  to  allow  Themselves  to  be  surprised,  after 

which  Monsieur  Jollyet  and  I undertook  this  investigation.  * 
* * 

Section  5th.  how  the  ilinois  received  the  father  in  their 

VILLAGE. 

* * * After  we  had  taken  our  places,  the  usual  Civility 

of  the  country  was  paid  to  us,  which  consisted  in  offering 
us  the  Calumet.  This  must  not  be  refused,  unless  one  wished 
to  be  considered  an  Enemy,  or  at  least  uncivil;  it  suffices  that 
one  makes  a pretense  at  smoking.  While  all  the  elders  smoked 
after  Us,  in  order  to  do  us  honor,  we  received  an  invitation 
on  behalf  of  the  great  Captain  of  all  the  Illinois,  to  proceed 
to  his  Village  where  he  wished  to  hold  a Council  with  us.  We 
went  thither  in  a large  Company,  For  all  these  people  who  had 
never  seen  any  Frenchmen  among  Them  could  not  cease 
looking  at  us.  They  lay  on  the  grass  along  the  road;  they 
preceded  us,  and  then  retraced  their  steps  to  come  and  see  us 
Again.  All  this  was  done  noiselessly,  and  with  marks  of  great 
respect  for  us. 

When  we  reached  the  Village  of  the  Great  Captain,  We  saw 


694  Extract,  Father  Marquette^ s Voyage. — Continued. 

him  at  the  entrance  of  his  Cabin,  between  two  old  men,  all 
three  erect  and  naked,  and  holding  their  Calumet  toward  the 
sun.  He  harrangued  us  in  a few  words,  congratulating  us 
upon  our  arrival.  He  afterward  otfered  us  his  Calumet,  and 
made  us  smoke  while  we  entered  his  Cabin,  where  we  received 
all  their  usual  kind  Attentions.  * * * 

Having  said  this  he  placed  the  little  Slave  near  us,  and 
gave  us  a second  present,  consisting  of  an  altogether  myste- 
rious Calumet  upon  which  they  place  more  value  than  upon 
1973  a Slave.  By  this  gift  he  expressed  to  us  the  esteem  that  he 
had  for  Monsieur,  Our  Governor,  from  the  account  which 
we  had  given  of  him ; and  by  a third,  he  begged  us  on  behalf 
of  all  his  Nation  not  to  go  farther,  on  account  of  the  great 
danger  to  which  we  Exposed  ourselves. 

I replied  that  I Feared  not  death,  and  that  I regarded  no 
happiness  as  greater  than  that  of  losing  my  life  for  the  glory 
of  Him  who  has  made  all.  This  is  what  these  poor  people 
cannot  Understand. 

The  Council  was  followed  by  a great  feast.  * * * 

We  slept  in  the  Captain’s  Cabin  and  on  the  following  day 
we  took  leave  of  him,  promising  to  pass  again  by  his  village 
within  four  moons.  He  Conducted  us  to  our  Canoes  with 
nearly  600  persons  who  witnessed  our  Embarkation,  giving 
us  every  possible  manifestation  of  the  joy  that  Our  visit  had 
caused  them.  For  my  own  part,  I promised,  on  bidding  them 
Adieu,  that  I would  come  the  following  year  and  reside  with 
Them  to  instruct  them.  But,  before  quitting  the  Ilinois  coun- 
try it  is  proper  that  I should  relate  what  I observed  of  their 
Customs  and  usages. 

Section  6th.  ox  the  chakacter  of  the  ilixois  ; of  their  hab- 
its AXD  CUSTOMS,  OMITTED.  * * * 

1977  Sectiox  7th.  departure  of  the  father  from  the  ilixois  ; of 

THE  PAIXTED  MOXSTERS  WHICH  HE  SAW  UPOX  THE  GREAT  RIVER 
MISSISIPI;  OF  THE  RIVER  PEKITAXOUI.  COXTIXUATIOX  OF  THE 
VOYAGE. 

We  take  leave  of  our  Ilinois  at  the  end  of  June  about  three 
o’clock  in  the  afternoon.  We  embark  in  the  sight  of  all  the 
people,  who  admired  our  little  Canoes,  for  they  have  never 
seen  any  like  them. 

We  descended  following  the  current  of  the  river  called 
Pekitanoui  which  discharges  into  the  Mississippy,  flowing  from 
the  Northwest.  I shall  have  something  important  to  say 
about  it  when  I shall  have  related  all  that  I observed  along  this 
river. 

While  passing  near  the  rather  high  rocks  that  line  the  river, 
I noticed  a simple  which  seemed  to  me  very  Extra  or  dinar>^ 
The  root  is  like  small  turnips,  fastened  together  by  little 


filaments,  which  taste  like  carrots.  From  this  root  springs 
a leaf  as  wide  As  one’s  hand  and  half  a finger  thick,  with  spots. 
From  the  middle  of  this  leaf  springs  other  leaves,  resembling 
the  sconces  used  for  candles  in  our  halls;  and  each  leaf  bears 
Five  or  six  yellow  flowers  shaped  like  little  Bells.  * * * 

While  Skirting  some  rocks  which  by  Their  height  and 
Length  inspired  awe,  We  saw  upon  one  of  them  two  painted 
Monsters  which  at  first  made  Us  afraid,  and  upon  which  the 
boldest  savages  dare  not  Long  rest  their  eyes.  They  are  as 
large  As  a calf;  they  have  Horns  on  their  healds  like  those 
of  deer,  a horrible  look,  red  eyes,  a beard  like  a tiger’s,  a face 
somewhat  like  a man’s,  a body  covered  with  scales,  and  so 
Long  A tail  that  it  winds  all  around  the  Body,  passing  over 
the  head  and  going  back  between  the  legs,  ending  in  a Fish’s 
tail.  Green,  red  and  black  are  the  three  Colors  composing  the 
Picture.  Moreover,  these  two  monsters  are  so  well  painted 
that  we  cannot  believe  that  any  savage  is  their  author;  for 
1978  good  painters  in  France  would  find  it  difficult  to  paint  so 
well, — and  besides  they  are  so  high  up  on  the  rock  that  it 
is  difficult  to  reach  that  place  conveniently  to  paint  them.  Here 
is  approximately  The  shape  of  these  monsters,  as  we  have 
faithfully  copied  it. 

While  conversing  about  these  monsters,  sailing  quietly  in 
clear  and  calm  Water,  we  heard  the  noise  of  a rapid  into  which 
we  were  about  to  run.  I have  seen  nothing  more  dreadful.  An 
accumulation  of  large  and  entire  trees,  branches  and  floating 
islands,  was  issuing  from  The  mouth  of  The  river  Pekistanoui 
with  such  impetuosity  that  we  could  not  without  great  danger 
risk  passing  through  it.  So  great  was  the  agitation  that 
the  water  was  very  muddy  and  could  not  become  clear. 

Pekitanoui  is  a river  of  Considerable  size,  coming  from  the 
Northwest,  from  a great  Distance;  and  it  discharges  into  the 
Missisipi.  There  are  many  Villages  of  savages  along  this 
river  and  I hope  by  its  means  to  discover  the  vermillion  of 
California  sea. 

Judging  from  the  Direction  of  the  course  of  the  Missisipi, 
if  it  Continue  the  same  way,  we  think  that  it  discharges  into 
the  mexican  gulf.  It  would  be  a great  advantage  to  find  the 
river  Leading  to  the  southern  sea,  toward  California;  and.  As 
I have  said,  this  is  what  I hope  to  do  by  means  of  the 
Pekitanoui,  according  to  the  reports  made  to  me  by  the  sav- 
ages. From  them  I have  learned  that,  by  ascending  this  river 
for  5 or  6 days,  one  reaches  a fine  prairie,  20  or  30  Leagues 
Long.  This  must  be  crossed  in  a Northwesterly  direction, 
and  it  terminates  at  another  small  river, — on  which  one  may 
embark,  for  it  is  not  very  difficult  to  transport  canoes  through 
so  fine  a country  as  that  prairie.  This  2nd  Kiver  flows  toward 
the  southwest  for  10  of  15  leagues,  after  which  it  enters  a Lake, 
small  and  deep  (the  source  of  another  deep  river— substi- 


()96  Extract, — Father  Marquette’s  Voyage. — Continued. 

luted  by  Dablon),  wliicli  flows  toward  the  West,  where  it 
falls  into  the  sea.  I have  hardly  any  doubt  that  it  is  The 
Vermilion  sea,  and  I do  not  despair  of  discovering  it  some 
day,  if  God  grant  me  the  grace  and  The  health  to  do  so, 
in  order  that  I may  preach  the  Gospel  to  all  The  peoples  of 
this  new  world  who  have  so  Long  groveled  in  the  darkness 
of  infidelity. 

Let  us  resume  our  Route  after  Escaping  As  best  We  could 
from  the  dangerous  rapid  Caused  by  the  obstruction  which 
I have  mentioned. 

Section  8th.  of  the  new  counteies  discovered  by  the 

FATHER.  VARIOUS  PARTICULARS.  MEETING  WITH  SOME  SAV- 
AGES. FIRST  NEWS  OF  THE  SEA  AND  OF  THE  EUROPEANS.  GREAT 

DANGER  AVOIDED  BY  MEANS  OF  THE  CALUMET. 

After  proceeding  about  20  Leagues  straight  to  the  south, 
and  a little  less  to  the  southeast,  we  found  ourselves  at  a river 
called  ouaboukigou.  The  mouth  of  which  is  at  the  26th  degree 
of  latitude.  Before  reaching  it,  we  passed  by  a Place  that 
is  dreaded  by  the  Savages,  because  they  believe  that  a manitou 
is  there, — that  is  to  say,  a demon, — that  devours  travelers; 
and  The  savages  who  wished  to  divert  us  from  our  undertak- 
ing warned  us  against  it.  This  is  the  demon,  there  is  a small 
1979  cover,  surrounded  by  rocks  20  feet  high  into  which  the  whole 
Current  of  the  river  rushes;  and  being  pushed  back  against 
the  waters  following  It,  and  checked  by  an  Island  nearby,  the 
Current  is  compelled  to  pass  through  a narrow  Channel.  This 
is  not  done  without  a violent  Struggle  between  all  these  wa- 
ters, which  force  one  another  back,  or  without  a great  din, 
w^hich  inspires  terror  in  the  Savages,  who  fear  everything. 
But  this  did  not  prevent  us  from  passing  and  arriving  at 
Waboukigou.  This  river  flows  from  the  lands  of  the  East, 
where  dwell  the  people  called  Chaouanons  in  so  great  numbers 
that  in  one  district  there  are  as  many  as  23  villages  and  15  in 
another,  quite  near  one  another.  They  are  not  at  all  warlike 
and  are  the  nations  whom  the  Iroquois  go  so  far  as  seek  and 
war  against  without  any  reason ; and,  because  these  poor  peo- 
ple defend  themselves,  they  allow  themselves  to  be  captured 
and  taken  like  flocks  of  sheep ; and,  innocent,  though  they  are, 
they  nevertheless  sometimes  experience  The  barbarity  of  the 
Iroquois  who  cruelly  burn  Them. 

A short  distance  above  the  river  of  which  I have  just 
spoken  are  cliffs,  on  which  our  frenclnnen  noticed  an  iron 
mine,  which  they  consider  very  rich.  There  are  several  veins 
of  ore  and  a bed  a foot  thick  and  one  sees  large  masses  of 
it  united  with  Pebbles.  A sticky  earth  is  found  there,  of  three 
different  colors, — puiqfle,  violet  and  Red.  The  water  in  which 
the  latter  is  washed  assumes  a bloody  tinge.  There  is  also 
very  heavy  red  sand.  I placed  some  on  a paddle  which 


was  dyed  with  its  color — so  deej)ly  tliat  the  Water  could 
not  wash  it  away  during  the  15  days  while  I used  it  foi 
paddling.  * * * 

With  the  same  object,  we  were  compelled  to  erect  a sort 
of  cabin  on  the  water,  with  our  sails  as  a protection  against 
the  mosquitos  and  the  rays  of  the  sun.  While  drifting  down 
with  The  current  in  this  condition,  we  perceived  on  land  some 
savages  armed  with  guns,  who  awaited  us.  I at  once  otfered 
them  my  plumed  calumet  while  our  frenchmen  prepared  for 
defense,  but  delayed  tiring  that  The  savages  might  be  the  first 
to  discharge  their  guns.  I spoke  to  them  in  huron  but  they 
answered  me  by  a word  which  seemed  to  be  a declaration  ol' 
1980  war  against  us.  However,  they  were  as  frighteend  as  we 
were  ; and  what  we  took  for  a signal  for  battle  was  an  invita- 
tion that  they  gave  us  to  draw  near  that  they  might  give  us 
food.  We  therefore  landed,  and  entered  their  cabins,  where 
they  offered  us  meat  from  wild  cattle  and  bear’s  grease,  with 
white  plums,  which  are  very  good.  They  have  guns,  hatchets, 
hoes.  Knives,  beads  and  flasks  of  double  glass,  in  which  the- 
put  their  powder.  They  wear  their  hair  long,  and  tattoo 
their  bodies  after  the  hiroquois  fashion.  The  women  wear 
head-dresses  and  garments  like  those  of  the  huron  women. 
They  assured  us  that  we  were  no  more  than  ten  days’  jour- 
ney from  the  sea ; that  they  bought  cloth  and  all  other  good>^ 
from  the  Europeans  who  lived  to  The  east,  that  these  Euro- 
peans had  rosaries  and  pictures;  that  they  played  upon  in- 
struments; that  some  of  them  looked  Like  me,  and  had  been 
received  by  these  savages  kindly.  Nevertheless  I saw  none 
who  seemed  to  have  received  any  instruction  in  the  faith;  J 
gave  them  as  much  as  I could,  with  some  medals. 

This  news  animated  our  courage,  and  made  us  paddle  with 
Fresh  ardor.  We  thus  push  forward,  and  no  longer  see  so 
many  prairies,  because  both  Shores  of  The  river  are  bor- 
dered with  lofty  trees.  * * * 

We  had  gone  down  to  near  the  33d  degree  of  latitude 
having  proceeded  all  the  time  in  a southerly  direction,  when 

we  perceived  a village  on  the  water’s  edge  called  Mitchigamea. 
* * * 

They  prepared  to  attack  us,  on  both  land  and  water ; part  of 
them  embarked  in  great  wooden  canoes, — some  to  ascend,  oth- 
ers to  descend  the  river,  in  order  to  Intercept  us  and  sur- 
round us  on  all  sides.  Those  who  were  on  land,  came  and 
went,  as  if  to  commence  the  attack.  In  fact,  some  Young 
men  threw  themselves  into  the  water  to  come  and  sieze  my 
Canoe ; but  the  current  compelled  them  to  return  to  land.  ^ One 
of  them  hurled  his  club  which  passed  over  without^  striking 
us.  In  vain,  I showed  The  calumet  and  made  them  signs  that 
we  were  not  coming  to  war  against  them.  The  alarm  con- 
tinued, and  they  were  already  preparing  to  pierce  us  with 


f)98  Extract, — leather  Ma rrjuette\s  Voyage. — Continued. 

arrows  from  all  sides,  when  God  suddenly  touched  the  hearts 
of  the  old  men  who  were  standing  at  the  water's  edge.  This, 
no  doubt,  happened  at  the  sight  of  our  calumet,  which  they 
had  not  clearly  distinguished  from  afar;  but  as  I did  not  cease 
displaying  it,  they  were  influenced  by  it,  and  checked  the  ardor 
of  their  Young  men.  Two  of  these  elders  even, — after  casting 
into  our  canoe,  as  if  at  our  feet.  Their  hows  and  quivers;^ 
to  reassure  us, — entered  the  canoe,  and  made  us  approach  the 
shore  whereon  we  landed,  not  without  fear  on  our  part.  At 
first,  we  had  to  speak  by  signs,  because  none  of  them  under- 
stood the  six  languages  which  I spoke.  At  last,  we  found  an 
old  man  who  could  speak  a little  Ilinois. 

1981  We  informed  them  by  our  presents,  that  we  were  goii 
to  sea.  They  understood  very  well  what  we  wished  to  say  to 
them,  but  I know  not  whether  they  apprehended  what  I told 
them  about  God,  and  about  matters  pertainiug  to  their  sal- 
vation. This  is  a seed  cast  into  the  ground,  which  will  bear 
fruit  in  its  time.  We  obtained  no  other  answer  than  that  we 
would  learn  all  that  we  desired  at  another  large  village,  called 
Akamsea,  which  was  only  8 or  10  leagues  lower  down.  They 
offered  us  sagamite  and  fish,  and  we  passed  the  night  amoiui 
them,  with  some  anxiety. 

Section  9th.  eeception  given  to  the  fbench  in  the  last 

VILLAGE  WHICH  THEY  SAW.  THE  MANNEKS  AND  CUSTOMS  OP 

THOSE  SAVAGES.  SEASONS  FOE  NOT  GOING  FAETHEE. 

We  embarked  early  on  the  following  day,  with  our  inter- 
preter; a canoe  containing  ten  savages  went  a short  distance 
ahead  of  us.  When  we  arrived  within  half  a league  of  the 
Akamsea,  we  saw  two  canoes  coming  to  meet  us.  He  who  com- 
manded stood  upright,  holding  in  His  hand  The/  calumet  with 
which  he  made  various  signs  according  to  the  custom  of  the 
country.  He  joined  us,  singing  very  agreeably  and  gave  us  to- 
bacco to  smoke;  after  that,  he  offered  us  sagamite,  and  bread 
made  of  Indian  corn,  of  which  we  ate  a little.  He  then  preceded 
us,  after  making  us  a sign  to  follow  Him  slowly.  A place 
had  been  prepared  for  us  under  The  scaffolding  of  the  chief 
of  the  warriors;  it  was  clean  and  carpeted  with  fine  rush  mats. 
Upon  these  we  were  made  to  sit,  having  around  us  the  elders, 
who  were  nearest  to  us;  after  them  the  warriors;  and  finally 
all  The  common  people  in  a crowd.  We  fortunately  found 
there  a Young  man  who  understood  Ilinois  much  better  than 
did  the  Interpreter  whom  we  brought  from  Mitchigamea. 
Through  him  I spoke  at  first  to  the  whole  assembly  by  The 
usual  Y>resents.  They  admired  what  I said  to  Them  about  God 
and  the  mysteries  of  our  holy  faith.  They  manifested  a great 
desire  to  retain  me  among  them,  that  I might  instruct  Them. 

We  afterwards  asked  them  what  they  knew  about  the  sea. 
They  replied  that  we  were  only  ten  days’  journey  from  it — 


G99 


we  could  have  covered  the  distance  in  5 days;  that  they  were 
not  acquainted  with  The  nations  who  dwelt  There,  because 
Their  enemies  prevented  them  from  Trading  with  those  Euro- 
peans; that  the  hatchets,  knives  and  beads  that  we  saw  wer^ 
sold  to  Them  partly  by  Nations  from  The  east,  and  partly  by 
an  Ilinois  village  westward.  They  also  told  us  that  the  sav- 
ages with  guns  whom  we  had  met  were  their  enemies,  who 
Barred  Their  way  to  the  sea,  and  prevented  them  from  becom- 
ing acquainted  with  the  Europeans,  and  from  carrying  on  any 
trade  with  Them;  that  moreover  we  exposed  ourselves  to  great 
dangers  by  going  farther,  on  account  of  the  continual  forays 
of  their  enemies  along  the  river, — ^because  as  they  had  guniS 
and  were  very  warlike,  we  could  not  without  manifest  danger 
proceed  down  the  river,  which  they  constantly-  occupy.  * * * 
Monsieur  Jollyet  and  I held  another  Council,  to  deliberate 
upon  what  we  should  do, — whether  we  should  push  on  or  re- 
main content  with  the  discovery  which  v/e  had  made.  After 
attentively  considering  that  we  were  not  far  from  the  gulf  of 
Mexico,  the  basin  of  which  at  the  latitude  of  31  degrees,  60 
minutes,  while  we  were  at  33  degrees,  40  minutes,  we  judged 
that  we  could  not  be  more  than  2 or  3 days’  journey  from 
it;  and  that,  beyond  a doubt,  the  Missisipi  Eiver  discharges 
into  the  Florida  or  Mexican  gulf  and  not  to  The  east  in  Vir- 
ginia, whose  sea-coast  is  at  34  degrees  latitude, — which  we  had 
passed,  without,  however,  having  as  yet  reached  the  sea,  or  to 
the  West  in  California,  because  Jn  that  case  our  route  would 
have  been  to  the  west  or  west-southwest,  whereas,  we  had 
always  continued  It  toward  the  south.  We  further  consid- 
ered that  we  exposed  ourselves  to  the  risk  of  losing  the  re- 
sults of  this  voyage  of  which  we  could  give  no  information, 
if  we  proceeded  to  fling  ourselves  into  the  hands  of  the  Span- 
iards, who,  without  doubt,  would  at  least  have  detained  us  as 
captives.  Moreover  we  saw  very  plainly  that  we  were  not  in 
a condition  to  resist  Savages  allied  to  The  Europeans,  who 
were  numerous  and  expert  in  firing  guns,  and  who  continually 
infested  the  lower  part  of  the  river.  Finally,  we  had  ob- 
tained all  the  information  that  could  be  desired  in  regard  to 
this  discovery.  All  these  reasons  induced  us  to  decide  upon 
. Eeturning;  this  we  announced  to  the  Savages,  and  after  a 
day’s  rest,  made  our  preparations  for  itC’ 

Witness  Alvord,  Contimiing. 

1983  Eef erring  to  the  passage  read  first,  ^Mt  is  true  that  we 
leave  it  at  about  the  28th  degree  to  enter  another  river 
which  greatly  shortens  our  road  and  takes  us  with  but  little  effort 
to  the  Lake  of  the  Illinois,”  That  is  Lake  Michigan,  commonly 
called  for  several  years  the  Lake  of  the  Illinois.  The  Jesuits 
preferred  that. 


700  Alvord, — Direct  Exam.  — Continued. 

The  book  now  shown  me  which  has  been  marked  for  identifica- 
tion ‘^Alvord  Exhibit  2,”.  and  which  has  the  title  page,  ‘‘Early 
Voyages  np  and  down  the  Mississippi  by  Cavalier  St.  Cosme,  and 
Others,  with  an  introductory  notice  and  index  by  John  Gilmary 
Shea,’’  printer’s  plate:  “Albany,  Joel  Munsell,  1861.”, — is  one 

of  the  series  of  John  Gilmary  Shea,  to  which  I have  referred.  1 
am  acquainted  with  the  standing  and  reputation  of  that  book 
among  historians.  It  is  regarded  as  an  authoritative  collection  of 
sources  in  regard  to  the  early  history  of  the  middle  west.  As  to 
the  standing  and  acceptation  of  those  sources  among  historians, — 
they  are  regarded  as  very  authoritative  statements. 

1981  Counsel  for  Complainant.  Now,  we  otfer  and  read  from 
the  document  which  begins  on  page  43  of  said  book,  “Alvord 
Exhibit  1,  for  identification,”  with  a special  title  page  there,  headed 
with  the  Eoman  “II,”  “Voyage  down  the  Mississippi  in  1699,  by 
the  Eeverend  Messrs.  Montingny,  St.  Kosme,  Davies  and  Thumur 
de  la  Source,”  that  portion  thereof  beginning  on  page  54  of  said 
book  as  follows: 

“On  the  24th  of  October,  the  wind  having  fallen,  we  made 
our  canoes  come  with  all  our  baggage,  and  perceiving  that 
the  waters  were  extremely  low,  we  made  a cache  on  the  shore, 
and  took  only  what  was  absolutely  necessary  for  our  voyage, 
reserving  until  spring  to  send  for  the  rest,  and  we  left  in 
charge  of  it  Brother  Alexander,  who  consented  to  remain 
there  with  Father  Pinet’s  man,  and  we  started  from  Chi- 
caqw.  ’ ’ 

Counsel  for  Complainant.  Is  that  Chicago! 

The  Witness.  That  is  Chicago. 

Said  paragraph  continues  as  follows: 

“On  the  29th,  and  put  up  for  the  night  about  two  leagues 
otf  in  the  little  river  which  is  then  lost  in  the  prairies.  The 
next  day  we  began  the  portage  which  is  about  three  leagues 
long,  when  the  water  is  low,  and  only  a quarter  of  a league 
in  the  spring,  for  you  embark  on  a little  lake  that  empties  into 
a branch  of  the  river  of  the  Illinois,  and  when  the  waters 
are  low,  you  have  to  make  a portage  to  that  branch.” 

And  a foot-note  that  states:  “Mud  Lake,  which  empties  into 

the  Desplaines,  and  called  by  voyageurs  Le  Petit  Lac.” 

“We  made  half  our  portage  that  day,  and  we  should  have 
made  some  progress  farther  when  we  perceived  that  a little 


701 


boy  whom  we  had  received  from  Mr.  DeMuys  having  started 
alone,  although  he  had  been  told  to  wait,  he  got  lost.^^ 

1985  Also  the  following  passage: 

sat  out  the  2nd  of  November  in  the  afternoon,  made  the 
portage  and  slept  at  the  river  of  the  Illinois;  we  went  down 
the  river  to  an  island.  During  the  night  we  were  surprised  to 
see  an  inch  of  snow,  and  the  next  day  the  river  frozen  in 
several  places,  yet  we  had  to  break  the  ice  and  drag  the 
canoe,  because  there  was  no  water;  this  forced  us  to  leave  our 
canoe  and  go  in  search  of  Mr.  DeMontigny,  whom  we  overtook 
the  next  day,  the  5th  of  the  month  at  Stag  Island  (Isle  Aux 
Cerfs).  They  had  already  made  two  leagues  portage,  and  there 
were  four  to  make  to  Monjolly,  which  we  made  in  three  days 

' and  arrived  on  the  8th  of  the  month.  From  the  Illinois  Isle 
A La  Cache  to  Monjolly  is  in  space  seventeen  leagues.  You 
must  always  make  a portage,  there  being  no  water  in  the  river 
except  in  the  spring.  All  along  this  river  is  very  agreeable.” 
Foot-note:  ‘‘This  is  the  well  known  mound  at  Joliet, 

called  Mount  Joliet,  once  supposed  to  be  a work  of  art,  but 
now  generally  conceded  to  be  a natural  formation.” 

“The  materials  for  paving  used  in  Chicago  are  obtained 
from  that  source.” 

That  is  an  extract  from  AVilliam  Barry,  Esq. 

“Mount  Joliet  may  be  a mistake  for  Mon  jolly  and  Mon- 
jolly not  a corruption.  There  is  Mount  Jolly  in  France  which 
took  its  name  from  the  following  circumstance,”  etc. 

Said  portions  so  offered  were  admitted  in  evidence. 

Counsel  fob  Complainant.  In  connection  with  this,  we  desire  to 
offer  from  the  first  Andreas  History  of  Chicago,  previously 

1986  identified,  on  page  66,  the  print  of  a section  of  Charlevoix  map 
which  labels  the  Desplaines  Eiver  and  shows  the  Chicago 

Kiver,  and  between  the  two  gives  a description  of  the  Portage 
du  Chien.  There  will  be  some  other  passages  in  Andreas  that  we 
will  offer  later. 

Counsel  eok  Defenuant.  I don’t  understand  Andreas’  map 
has  been  identified  or  proved  to  be  authoritative  so  far,  therefore 
we  object  to  its  being  offered. 

The  CouKT.  What  proof  have  you  in  the  record  of  that! 

Counsel  eoe  Complainant.  The  proof  by  Mr.  Hi  Id  in  regard  to 
Andreas’  map  of  Chicago,  his  very  great  personal  knowledge  of  it 
and  his  very  great  acceptance.  For  that  matter  it  has  been  accepted 
by  the  courts. 


702  Alvord, — Direct  Exam. — Continued. 

Counsel  foe  Defendant.  I did  not  understand  Mr.  Hild  so  tes- 
tified. 

1987  Counsel  foe  Complainant.  I am  making  reference  to  it  at 

this  time  for  the  purpose  of  convenience  merely. 

Counsel  foe  Defendant.  My  recollection  is  he  said  he  had 
no  knowledge  as  to  its  value  as  evidence,  its  value  as  testimony. 

Counsel  foe  Complainant.  That  will  straighten  itself  all  out. 

The  CouET.  I am  frank  to  say,  as  I told  you  after  Mr.  Hild  con- 
cluded I have  not  borne  in  mind  and  cannot  bear  in  mind  the 
various  things  and  the  testimony  that  he  gave  in  relation  to  it, 
and  whether  or  not  as  to  any  particular  thing  his  testimony  is 
such  that  it  would  be  admitted  in  evidence  on  hia  testimony,  and 
I cannot  remember,  but  I will  have  to  be  informed.  On  a great 
many  things  his  testimony  was  not  such  that  it  would  be  admitted 
as  a historical  work. 

Counsel  foe  Complainant.  We  will  try  to  have  selected  all  the 
things  that  he  failed  to  qualify  upon. 

Counsel  foe  Defendant.  Do  I understand  this  otfer  is  excluded 
now,  this  map? 

The  CouET.  I don’t  remember  what  he  said  as  to  this. 
Counsel  foe  Complainant.  We  ^re  prepared  to  supplement  it. 

Counsel  foe  Defendant.  He  has  offered  a certain  map  in  evi- 
dence and  I make  objection  to  it. 

The  CouET.  If  you  have  the  testimony  as  to  that  written  up 
I would  like  to  look  it  over. 

Counsel  foe  Complainant.  We  are  prepared  to  supplement 
Mr  .Hild’s  evidence  on  Andreas  History  very  abundantly. 

1988  The  Couet.  Well,  as  I say,  it  may  be  as  to  that  particular 
thing  his  evidence  was  sufficient,  but  as  to  most  of  them  it 

was  Insufficient. 

Said  map  was  excluded.  (Atlas  page  3920,  Trans,  p.  6494,  Abst. 
p.  1916.) 

Professor  Alvord  further  testified : 

The  book  now  shown  me,  which  has  been  marked  ‘AHvord  Ex- 
hibit 3 for  identification,”  and  which  has  for  its  title  page  the  fob 


703 


lowing,  ^‘Information  respecting  the  history,  condition  and  pros- 
pects of  the  Indian  Tribes  of  the  United  States,  collected  and  pre- 
pared under  the  direction  of  the  Bureau  of  Indian  Affairs,  per 
Act  of  Congress  of  March  3,  1847,  by  Henry  K.  Schoolcraft,  LLD., 
illustrated  by  S.  Eastman,  Captain  U.  S.  A.,  published  by  authority 
of  Congress;  Part  III.  Philadelphia,  Lippincott,  Crambo  & Co.,” 
I am  acquainted  with, — in  particular  to  that  portion  of  the  volume 
which  appears  between  pages  353  and  369  and  entitled  “Indian 
Life  in  the  Northwest  in  1783,  by  Jean  Baptiste  Perrault.”  This 
is  the  account  by  Jean  Baptiste  Perrault  who  lived  for  a very  large 
number  of  years  among  the  Indians  of  the  northwest  engaged  in 
the  fur  trade.  He  was  in  Illinois  once  on  a trading  trip  to 

1989  Kaskaskia  for  a Montreal  merchant.  In  the  first  part  of  this 
document  he  gives  an  account  of  his  trading  trip  to  Illinois, 

and  his  stopping  at  G ahold  a over  winter  and  also  his  return  from 
Gahokia,  with  the  products  of  his  trade. 

As  to  the  standing  and  acceptance  among  historians  of  this 
compilation,  “Indian  Antiquities”  by  Schoolcraft, — Schoolcraft  is 
one  of  the  authorities  on  Indian  Antiquities  and  has  made  elab- 
orate collections  of  material  of  this  sort. 

This  narrative  by  Perrault  is  a narrative  of  a man  who  was 
making  a journey  from  one  place  to  another,  and  he  states  simply 
how  he  went  from  A.  to  B.  Historians  would  regard  such  narra- 
tives as  very  good  testimony  because  there  is  no  purpose  in  the 
mind  of  the  writer  to  deceive.  He  simply  is  stating  a fact,  that 
“I  went  from  A to  B,  B to  0,  and  I went  in  that  way.” 

Counsel  for  Complainant.  I offer  in  evidence  the  passage  on 
page  355  of  this  narrative  reading  as  follows : 

Counsel  for  Defendant.  That  is  objected  to. 

The  Court.  On  what  ground! 

1990  Counsel  for  Defendant.  I have  not  seen  it,  I don’t  know 
what  it  is,  and  a mere  recital  of  specific  facts  I do  not  under- 
stand would  be  competent. 

Said  passage  was  thereupon  received  in  evidence  as  follows: 
“About  the  15th  of  April,  the  packs  from  Missouri  ar- 
rived. Our  Bourgeois  settled  his  accounts  with  M.  Coteau, 
and  received  seventy-four  packs  of  furs.  His  retail  store  at 


704 


A Ivofd, — Direct  Exam. — Continued. 


Cahokia  ]H*oduced  500  Spanish  dollars,  and  400  pounds  of 
tobacco.  We  left  Cahokia  on  the  4th  of  May  for  Mackinac. 
My  directions  were  to  pass  by  Chicago,  having  one  barge  and 
one  canoe,  and  to  await  the  arrival  of  M.  Marchisseaux  at 
Little  Detroit,  in  Lake  Michigan,  he  having  gone  by  the  way 
of  Prairie  des  Chiens,  to  terminate  his  business  with  the 
Sauks.  After  fourteen  days  detention,  he  arrived,  and  con- 
tinuing our  route,  we  reached  Mackinac,  the  beginning  of 
July,  where  I found  myself  at  liberty.” 

Counsel  foe  Complainant.  Look  at  the  document  which  I now 
show  you,  which  has  been  marked  ‘‘Alvord  Exhibit  4 for  identi- 
fication,” headed  at  the  top  ‘^Chicago  Historical  Society.  Journal 
of  a Voyage  made  by  Mr.  Heward  to  the  Illinois  Countr}^,” 
1991  and  state  if  you  are  acc|uainted  with  that  document.  A.  I 
am.  This  is  an  account  written  day  by  day;  it  is  a diary 
kept  by  Mr.  Hugh  Heward  who  was  a merchant  in  Detroit  con- 
nected with  such  merchants  as  John  Haskins  of  Detroit,  and  other 
Canadian  merchants,  because  Detroit  at  that  time  was  in  British 
Canada.  I am  now  stating  what  is  generally  accepted  by  his- 
torical scholars.  Heward  went  to  Cahokia  on  business  for  his 
colleagues. 

1993  It  is  generally  known  among  historians  that  Heward  was 
obliged  to  go  to  Cahokia  on  business  for  his  colleagues  and 
this  diary  was  kept  when  he  went  down  the  Cahokia  on  business. 
The  original  manuscript  of  Howard’s  diary  is  in  the  library  of 
Mr.  C.  M.  Burton  of  Detroit.  This  is  a transcription  made  in  Air. 
Burton’s  Ifbrary  for  the  Chicago  Historical  Society.  I have  seen 
the  original.  I have  examined  the  original  and  read  it.  This  is 
a fair  copy,  yes  sir. 

Counsel  for  Complainant.  We  offer  in  evidence  from  the  fol- 
lowing pages:  On  page  22 — 

Counsel  for  Defendant.  If  the  court  please,  we  object  to  the 
offer  on  the  ground  that  it  has  not  been  shown  that  this  is  a true 
copy  of  the  manuscript. 

(Objection  was  sustained,  and  the  book  not  read.) 

1997  As  to  the  book  which  is  now  shown  me,  which  is  marked 
”Alvord  Exhibit  5”  for  identification,  entitled  “Narrative 
of  an  Expedition  to  the  source  of  St.  Peters  Biver,  Lake  Minni- 
])eek.  Lake  of  the  AVoods,  etc.,  jierfornied  in  1823  by  order  of  J. 


C.  Calhoun,  Secretary  of  War,  under  the  command  of 
1998  Stephen  H.  Long,  U.  S.  T.  E.  Compiled  from  the  notes  of 
Major  Long,  Messrs.  Say,  Keating  and  Calhoun,  by  William 
H.  Keating,  A.  M.,  etc..  Professor  of  Mineralogy,  and  Commerce, 
as  applied  to  the  Arts  in  the  University  of  Pennsylvania,  Geolo- 
gist, and  Historiographer  to  the  Expedition,”  in  two  volumes; 
Volume  one,  London,  printed  by  George  B.  Whittaker,  Ave  Maria 
Lane,  1825;  and  its  standing  and  acceptation  and  reputation 
among  historians.  I know  something  of  it.  It  is  an  account  or 
narrative  of  this  expedition,  as  historians  know,  and  would  be 
accepted  as  an  authority  for  w^hat  occurred  on  the  expedition. 

Whereupon  complainant  offered  in  evidence  passages  from  the 
above  book  on  pages  167  and  168. 

On  objection  from  the  defendant  on  the  ground  that  the  above 
is  hearsay  evidence,  the  court  reserved  its  ruling,  and  admitted  the 
passages,  which  were  as  follows : 

2001  ^‘The  South  Fork  of  Chicago  Kiver  takes  the  rise  about 
six  miles  from  the  Fort  in  a swamp  which  communicates  also 
with  the  Desplaines,  one  of  the  head  branches  of  the  Illinois. 
A number  inform  us  that  this  route  was  frequently  traveled 
by  traders,  and  that  it  had  been  used  by  one  of  the  officers 
of  the  garrison,  who  returned  with  provisions  from  St.  Louis 
a few  days  before  our  arrival  at  the  Fort;  we  determined 
to  ascend  the  Chicago  Kiver  in  order  to  observe  this  inter- 
esting division  of  waters. 

Accordingly  we  left  the  Fort  on  the  7th  of  June  in  a boat 
which,  after  having  ascended  the  river  about  four  miles,  we 
exchanged  for  a narrow  pirogue  that  drew  less  water;  the 
stream  we  were  ascending  was  very  narrow,  rapid  and 
crooked,  presenting  a great  fall ; it  continued  for  about  three 
miles  when  we  reached  a sort  of  swamp  designated  by  the 
Canadian  voyagers  under  the  name  of  LePetit  Lac.  Our 
course  through  this  swamp,  which  extended  for  three  miles, 
was  very  much  impeded  by  the  high  grass,  weeds,  etc.,  through 
‘which  our  pirogue  passed  with  difficulty.  Observing  that  our 
progress  through  the  fen  was  very  slow,  and  the  day  being 
considerably  advanced,  we  landed  on  the  north  bank;  we  con- 
tinued our  course  along  the  edge  of  the  swamp  for  about  three 
miles  until  we  reached  the  place  where  the  old  portage  road 
meets  the  current,  which  was  here  very  distinct  toward  the 
south. 

2002  We  were  delighted  at  beholding  for  the  first  time  a feature 
so  interesting  in  itself  but  which  we  had  afterwards  an  op- 
portunity of  observing!*  frequently  on  the  route,  viz. : the  di- 


Alvovd, — Di reef  Exa m. — Contvn iied. 


70() 


vision  of  waters  starting  from  the  same  source  and  running 
in  two  ditferent  directions,  as  though  as  to  become  the  feed- 
ers of  streams  that  discharged  themselves  into  the  Ohio  at 
immense  distances  apart.  Although  at  the  time  we  visited  it 
there  was  scarcely  enough  water  to  permit  our  pyrogue  to 
pass — , 

Without  question  of  doubt,  that  in  the  spring  of  the  year 
the  route  must  be  an  eligible  one.  Lieutenant  Hopson,  who 
accompanied  us  to  the  Desplaines,  told  us  that  he  had  traveled 
it  with  ease  in  a boat  loaded  with  lead  and  flour.  The  dis- 
tance from  the  fort  to  the  intersection  of  the  portage  road, 
and  Desplaines,  is  supposed  to  be  about  twelve  or  thirteen 
miles;  the  elevation  of  the  feeding  lake  above  Chicago  River 
was  estimated  at  five  or  six  feet;  and  it  is  probable  that  the 
descent  of  the  Desplaines  is  less  considerable.  The  portage 
road  is  about  eleven  miles  long;  and  the  usual  distance  trav- 
eled by  land  seldom,  however,  exceeds  from  four  to  nine  miles ; 
in  very  dry  seasons  it  has  been  said  to  amount  to  thirty  miles, 
as  the  portage  then  extends  to  Mount  Juliet,  near  the  con- 
fluence of  the  Kankakee.” 

2009  Also  the  tenth  sentence  on  page  175. 

‘‘Having  spent  a few  days  in  Chicago,  the  party  left  that 
post  on  Wednesday,  June  11. 

The  first  stream  passed  on  that  day  was  the  Chicago 
River,  which  we  crossed  about  half  a mile  above  the  Fort, 
and  immediately  above  the  first  Fork  (or  Gary  River)  ; the 
party  next  came  to  the  Desplaines  River,  which  is  one  of 
the  head  branches  of  the  Illinois ; it  receives  its  name  from  a 
variety  of  maple,  which  by  the  Canadians  is  named  ‘plaine.’  ” 

2010  Thereupon  complainant  read  from  the  American  State 

Papers,  First  Session,  Sixteenth  Congress  (a  United  States 

Government  publication),  documents  12  to  33,  Serial  number  32. 
The  title  page  is,  “Letter  from  the  Secretary  of  War  transmitting 
Topographical  reports  made  with  a view  to  ascertain  the  prac- 
ticability of  uniting  the  waters  of  Illinois  River  with  those  of 
Lake  Michigan.  December  28,  1819.  Read  and  ordered  to  lie 
upon  the  table.  Washington,  Printed  by  Gales  & Seaton,  1819, 
and  is  as  follows : 

“ Department  of  War: 

28th  December,  1819. 

Sir : In  compliance  with  a resolution  of  the  House  of  Rep- 
resentatives, of  the  15tli  inst.  directing  the  Secretary  of 
War  ‘to  lay  before  the  House  the  several  Topographical  re- 
ports that  have  been  made  to  the  War  Department,  in  pur- 
suance of  instructions  to  that  effect,  respecting  the  practica- 
bility of  uniting,  by  a canal,  the  water  of  the  Illinois  River, 


707 


and  those  of  Lake  Michigan,  and  such  other  information  as 
he  may  be  in  possession  of,  on  that  subject,’  I have  the  honor 
to  transmit  an  extract  of  Major  Long’s  rejmrt,  and  a copy 

2011  of  a report  made  by  li.  Graham  and  Joseph  Philips,  Esquires, 
which  comprehend  all  the  information  on  the  subject  in  this 
Department. 

I have  the  honor  to  be. 

Very  respectfully.  Sir, 

Your  most  obedient  servant, 

J.  C.  Calhoun^. 

Hon.  Henry  Clay, 

Speaker  of  the  House  of  Representatives,  U.  S. 

“Extract  from  a Eeport  of  Major  Stephen  H.  Long  to  George 

Graham,  Esq.,  Acting  Secretary  of  War,  dated  Washing- 
ton, March  4th,  1817. 

The  Illinois  is  formed  by  the  union  of  three  considerable 
Kivers,  the  Des  Planes,  the  De  Page  and  the  Kankakee;  the 
last  of  which  is  nearly  double  the  size  of  either  of  the  two 
former.  The  Illinois  is  about  300  miles  in  length,  and  is  of 
variable  width,  from  seventy  yards  to  one  mile.  It  has  a very 
moderate  current,  and  a depth  of  water  sufficient  to  render 
it  navigable,  at  all  times  for  boats  of  considerable  burden, 
about  230  miles  from  its  mouth.  At  the  mouth  of  the  Ver- 
million, there  are  rapids,  perceivable  only  in  the  lower  stages 
of  winter.  Farther  up,  the  water  is  not,  generally,  so  deep 
as  it  is  below  the  Vermillion. 

The  Valley  of  the  Illinois  varies  in  its  width,  from  three 
to  ten  miles;  is  generally  flat  and  marshy,  and,  for  the  most 
part,  subject  to  inundation,  when  the  river  has  no  more  than 

2012  a medial  height.  In  some  parts  of  it,  however,  prairies  and 
bottoms,  of  considerable  extent  are  to  be  met  with,  elevated 
much  above  high  water  mark.  In  ascending  the  river,  the 
bluffs,  gradually  decrease  in  height,  being  about  150  feet 
high  at  the  mouth,  and  about  100  feet  at  the  head  of  the  river. 
Imbedded  in  the  bluffs,  are  strata  of  limestone,  slate  and 
coal,  which,  occasionally,  make  their  appearance  along  the 
surface  of  the  declivities. 

The  river  Des  Plaines  is  a small  stream  rising  in  the  low- 
lands, bordering  upon  the  west  side  of  Lake  Michigan,  and 
has  its  general  course  in  a southwesterly  direction.  The  val- 
ley of  this  river  has  an  average  width  of  about  one  mile,  and 
is  terminated  on  both  sides  by  regular  banks,  nearly  parallel 
to  each  other,  extending  along  the  river  about  30  miles  from 
the  head  of  the  Illinois.  In  ascending  this  river,  also,  the 
banks  or  bluffs  gradually  decrease  in  height,  being  as  be- 
fore mentioned,  about  100  feet  high  at  the  mouth,  and  only 
20  or  25  at  the  distance  of  30  miles  higher  up  the  river,  where, 
instead  of  maintaining  their  parallel  direction,  they  form 


708  Extract, — Long’s  Report. — Continued. 

nearly  right  angles  with  the  course  of  the  river,  that  on  the 
right  taking  an  easterly,  and  that  on  the  left  a northwesterly 
course ; but,  being  gradually  inflected  from  these  courses,  they 
form  an  extensive  curve,  encircling  a large  tract  of  flat 
prairie,  in  no  part  elevated  more  than  12  or  14  feet  above 
the  common  level  of  the  water  in  this  vicinity.  The  river, 
throughout  the  above  mentioned  distance,  has  4 or  5 short 

2013  rapids  or  ripples  that  make  their  appearance  only  in  times 
of  low  water.  In  every  other  part,  it  has  the  appearance  of 
being  a chain  of  stagnant  pools  and  small  lakes,  affording  a 
sufficient  depth  of  water  for  boats  of  moderate  draught. 

In  the  flat  prairie,  above  mentioned,  is  a small  lake, -about 
5 miles  in  length,  and  from  6 to  30  or  40  yards  in  width,  com- 
municating both  with  the  river  Desplaines  and  Chicago  River, 
by  means  of  a kind  of  canal,  which  has  been  made  partly  by 
the  current  of  the  water,  and  partly  by  the  French  and  Indi- 
ans, for  the  purpose  of  getting  their  boats  across  in  that  di- 
rection, in  time  of  high  water.  The  distance  from  the  river 
Desplaines  to  Chicago  River,  by  this  water  course,  is  about 
9 miles ; through  the  greater  part  of  which,  there  is  more  or 
less  water,  so  that  the  portage  is  seldom  more  than  3 miles 
in  the  driest  season;  but  in  a wet  season,  boats  pass  and  re- 
pass with  facility  between  the  two  rivers. 

The  rivers  DePage  and  Kankakee  bear  nearly  the  same 
character,  in  regard  to  their  bluffs,  valleys,  etc.,  that  has  been 
given  to  the  Desplaines.  The  former  of  these  rivers  takes  its 
rise  a few  miles  west  of  that  of  the  Desplaines,  and  has  a 
. course  nearly  parallel  with  it.  The  latter  rises  in  a flat  marshy 
countiw  in  the  neighborhood  of  the  St.  Joseph  of  the  Lake,  and 
runs  a meandering  course  westwardly,  passing  the  southern 
extremity  of  Lake  Michigan  at  the  distance  of  20  or  30  miles 
from  it.  Near  the  head  of  this  river  is  a small  creek  falling 

2014  into  St.  Joseph,  through  which  boats  have  passed  in  time  of 

high  water,  from  the  St.  Joseph  to  the  Kankakee.  The  country 
through  which  the  Desplaines,  the  DePage  and  the  Kanka- 
kee Rivers  take  their  course,  appears  to  be  underlaid  with  a 
vast  bed  of  limestone,  which  occasionally  makes  its  appear- 
ance in  the  valleys  of  those  rivers  covered  with  a soil  too  thick 
to  support  vegetation.  ^ ^ 

2016a  Proposed  Canals  and  Roads. 

A canal  uniting  the  waters  of  the  Illinois,  with  those  of 
Lake  Michigan,  may  be  considered  the  first  in  importance  of 
any  in  this  quarter  of  the  country,  and,  at  the  same  time,  the 
construction  of  it  would  be  attended  with  very  little  expense, 
compared  with  the  magnitude  of  the  object.  The  water  course, 
which  is  already  opened  between  the  River  Desplaines  and 
Chicago  River,  needs  but  little  more  excavation  to  render  it 
sufficiently  capacious  for  all  the  purposes  of  a canal.  It  may 


709 


be  supplied  with  water  at  all  times  of  the  year,  by  construct- 
ing a dam  of  moderate  height  across  the  Desplaines,  which 
would  give  the  water  of  that  river  a sufficient  elevation  to  sup- 
ply a canal  extending  from  one  river  to  the  other.  It  would 
be  necessary  also,  to  construct  locks  at  the  extremities  of  the 
canal,  that  communicating  with  Chicago  River  being  calculated 

2017  to  elevate  about  six  feet,  and  that  communicating  with  the 
the  Desplaines,  about  four  feet. 

To  render  the  Desplanes  and  Illinois  navigable  for  smal! 
boats  and  flats  requiring  but  a small  draught  of  water,  noth- 
ing more  is  necessary  than  the  construction  of  sluices,  in  a few 
places  where  there  are  ripples  of  a sufficient  width  to  admit 
the  boats  to  pass  through  them.  This  may  be  effected  by 
clearing  away  the  loose  stones  from  the  bottom,  and  forming 
banks  riveted  with  stone  two  or  three  feet  high,  on  each  side 
of  the  sluice.  Thus,  a water  communication  between  the  Illi- 
nois and  Lake  Michigan  may  be  kept  open  at  all  times  sufficient 
to  answer  all  the  purposes  for  which  a canal  will  be  wanted, 
for  many  years  to  come.  A canal  uniting  the  St.  Joseph  of  the 
Lake  with  the  Illinois,  by  way  of  the  Kankakee,  may  be  con- 
structed also  in  a similar  manner,  and  with  great  facility,  ex- 
cept that  the  distance  by  this  route  is  considerably  greater. 
^ * 

Thereupon  counsel  for  complainant  read  from  the  report  of  R. 

Graham  and  Joseph  Philips,  which  begins  on  page  8 of  said  Gov- 
ernment document: 

2018  “Kaskaskia,  April  4th,  1819. 

Sir:  In  addition  to  the  notes  of  Mr.  Sullivan,  the  surveyor, 

which  describe  the  face  of  the  country  over  which  the  lines 
were  run,  we  beg  leave  to  suggest  some  views  which  occurred 
to  us  on  the  subject  of  communications  between  the  River  Illi- 
nois and  the  Michigan  Lake. 

By  reference  to  the  map  herewith  forwarded,  it  will  be  seen, 
that  the  little  River  Plein,  coming  from  the  northwest,  ap- 
proaches within  ten  miles  and  a quarter  of  Lake  Michigan, 
and  then  bending  to  the  southwest,  united  with  the  Theakiki, 
at  the  distance  of  about  fifty  miles,  and  forms  the  River  Illi- 
nois.. 

The  country  between  the  lake  and  the  Plein,  at  this  point 
of  approach,  is  a prairie  (natural  meadow)  without  trees, 
covered  with  grass,  and  to  the  eye,  a perfect  level.  From  the 
bank  of  the  Plein,  standing  on  the  ground,  the  trees  are  dis- 
tinctly seen,  with  the  naked  eye,  at  Fort  Dearborn,  on  the 
shore  of  the  lake;  from  Fort  Dearborn  they  are,  in  like  man- 
ner, seen  on  the  bank  of  the  Plein.  Standing  on  any  inter- 
mediate point,  between  the  lake  and  the  river,  and  the  judg- 
ment is  at  a loss  to  say  to  which  side  the  ground  declines,  and 


710  Graham  and  Philips  Report. — Continued. 

whether  the  level  of  the  Plein  or  the  lake  is  the  highest.  It 
was,  however,  determined,  from  certain  data,  that  the  level 
of  the  river  was  two  feet,  or  thereabouts,  above  the  level  of  the 
lake.  From  this  view  it  would  seem  that  the  cutting  of  a canal 

2019  in  this  place  between  the  Plein  and  the  lake  would  be  a work 
of  neither  skill,  difficulty,  or  expense.  Small,  however,  as  the 
labor  would  be,  under  this  view,  it  is  still  diminished  upon  a 
close,  examination,  and  by  finding  that  an  arm  of  the  lake 
called  Chicago  puts  out  in  the  direction  of  the  Plein,  and  that 
an  arm  of  the  Plein,  also  called  Chicago,  puts  out  in  the  direc- 
tion of  the  lake.  They  approach  within  two  miles  of  each 
other;  so  that  in  common  water,  there  is  only  dry  ground  to 
that  extent  between  them.  The  character  of  these  two  arms  is 
essentially  different;  that  of  the  lake  being  but  about  sixty 
feet  wide,  and  from  ten  to  forty  feet  deep;  that  of  the  river 
being,  in  high  water,  from  four  to  six  feet  deep,  and  in  places, 
a mile  wide,  and  in  low  water,  either  dry  or  reduced  to  a gutter. 
Between  the  heads  of  these  two  arms  is  also  a gutter,  which 
is  dry  in  the  dry  seasons  of  summer  and  fall,  and  full  of  water 
in  the  spring,  and,  when  thus  filled  with  water,  the  boats,  of 
six  or  eight  tons,  engaged  in  the  Mackinaw  and  Mississippi 
trade,  run  through,  backwards  and  forwards,  so  as  to  make 
no  portage  between  Mackinaw  and  the  Mississippi.  This  gut- 
ter, judging  from  the  appearance  of  others  now  forming,  was, 
at  first  a path  worn  out  by  the  feet  of  those  who  carried  things 
across  the  portage,  and  afterwards  deepened  by  the  attrition 

2020  of  the  waters,  until  formed  into  a little  canal.  The  wind, 
alone,  gives  the  water  a current  in  this  little  canal,  and  its 
direction  depends  upon  the  course  of  the  wind.  Objects  have 
been  seen  to  fioat  out  of  it,  from  the  same  point,  to  the  river 
and  to  the  lake. 

It  is  incontestibly  true,  that  an  east  wind  will  drive  the 
water  of  the  lake  through  this  gutter  into  the  Plein,  and  that 
water  from  Lake  Michigan  has  been  discharged  by  this  outlet, 
into  the  Mississippi  and  thence  into  the  Gulf  of  Mexico.  It  is 
equally  incontestible,  that  the  waters  of  the  Plein  have  been 
driven  by  the  same  channel  into  the  lake;  and  these  phenomena 
may  now  be  witnessed,  at  any  time,  when  the  waters  are  high 
and  the  wind  blows  hard.  It  follows,  therefore,  that  to  finish 
the  canal  began  by  nature,  in  this  place,  would  require,  as  we 
have  already  said,  but  little  of  skill,  time  or  expense.  On  open- 
ing the  canal,  however,  two  difficulties  would  be  experienced. 

1st.  The  Plein  would  be  found  to  be  above  the  level  of  the 
canal ; its  water,  of  course,  would  be  diverted  from  its  natural 
channel,  and  ]3ass  by  the  canal  into  the  lake. 

2d.  Supposing  that  evil  remedied  by  a lock  to  lift  vessels 
into  the  Plein,  yet  the  Plein,  during  half  the  year,  does  not 


711 


contain  water  enough  to  float  a boat,  and  so  could  not  become 
useful  as  a national  highway. 

2021  To  remedy  this  defent  of  water  in  the  Plein,  two  projects 
suggest  themselves.  1st.  To  sink  the  bed  of  the  Plein  below 
the  level  of  the  canal,  and  thus  increase  the  depth  of  the  Plein 
as  well  by  feeding  it  out  of  the  lake,  as  by  collecting  its  water 
into  a narrower  channel.  2d.  To  make  the  canal  united  with 
the  Plein  lower  down  in  its  course.  A few  miles  lower  would 
be  sufficient  to  give  the  water  of  the  lake  a descent  into  the 
river,  as  the  Plein  has  a sensible  descent  in  this  place,  inso- 
much tliat  the  people  of  Chicago  call  it  ‘‘The  Kapids,'’  having 
no  other  word  to  distinguish  moving  water  from  that  which 
stands  still.  Of  the  Plein  below  its  point  of  approach  to  the 
lake,  we  would  remark,  that  it  has  hardly  the  attributes  of  a 
river,  being  in  most  places  without  current,  and  without  banks, 
lying  as  a sheet  of  water  in  the  prairie,  sometimes  a mile  wude, 
and  so  shallow  that  the  tall  grass  appears  almost  everywhere 
above  its  surface.  Having  said  thus  much  of  the  facility  of 
communication  by  the  Chicago,  we  would  now  remark  that 
several  other  routes  are  ]ierfectly  practicable.  1st.  From  a 
point  in  the  lake  south  of  Chicago  to  enter  the  Plein  below 
Mount  Juliet,  at  or  near  what  is  called  Lake  DuPage,  but 
which  is  only  a dilation  of  the  waters  of  the  Plein.  This  route 
would  lay  over  level  prairie,  through  a multitude  of  small  lakes, 
or  ponds,  which  have  neither  name  or  place  in  any  map.  2d. 

2022  By  a canal  leaving  the  lake  near  its  south  end,  and  uniting 
with  the  Theakiki  just  above  its  confluence  with  the  Plein. 
Both  of  these  canals  would  be  fed  from  the  lake,  would  require 
few  or  no  locks,  would  go  over  ground  of  the  same  sort,  would 
be  50  or  60  miles  long,  and  would  join  the  waters  of  the  Illinois 
at  points  from  which  it  is  constantly  navigable.  A third  route 
was  spoken  of,  but  not  seen  by  us.  It  would  lie  between  the 
Theakiki  and  the  St.  Joseph  of  the  Lake.  Information  says, 
that  it  has  been  practiced  by  French  traders.  You  will  per- 
ceive, sir,  that  we  have  not  spoken  of  the  nature  of  the  soil 
through  which  these  several  routes  would  pass.  Not  being  our 
business  to  search  for,  and  report  upon  the  practicability  of 
water  communications,  our  observations  were  limited  to  what 

. fell  under  the  eye  while  engaged  in  another  duty,  and  in  mak- 
ing this  report  to  you,  it  is  our  object  to  excite  inquiry,  not  to 
furnish  plans  of  practicable  projects.  We  shall,  therefore  only 
say,  on  this  point,  that  the  country  in  general,  and  the  bed  of 
the  Plein,  exhibited  much  loose  stone  and  pebble,  and  firm 
ground. 

To  conclude,  the  route  by  the  Chicago,  as  followed  by  the 
French  since  the  discovery  of  the  Illinois,  presents  at  one  sea- 
son of  the  year  an  uninterrupted  water  communication  for 
boats  of  six  or  eight  tons  burthen,  between  the  Mississippi 


712  Alvord, — Direct  Exam. — Continued. 

2023  and  the  Michigan  Lake;  at  another  season  a portage  of  two 
miles;  at  another  a portage  of  seven  miles,  from  the  bend  of 
the  Plein  to  the  arm  of  the  lake ; at  another  a portage  of  fifty 
miles,  from  the  mouth  of  the  Plein  to  the  lake;  over  which 
there  is  a well  beaten  wagon  road,  and  boats  and  their  loads 
are  hauled  by  oxen  and  vehicles  kept  for  that  purpose  by  the 
French  settlers  at  the  Chicago. 

Eespectfully, 

Your  obedient  servants, 

(Signed)  E.  Graham, 

The  Hon.  J.  C.  Calhoun,  Joseph  Philips. 

Secretary  of  War,  Washington.” 

2024  Thereupon  counsel  for  complainants  offered  from  the  book 
entitled  ‘YWcount  of  an  Expedition  from  Pittsburgh  to  The 

Eocky  Mountains,  Performed  in  the  years  1819,  1820,  by  Order  of 
the  Hon.  J.  C.  Calhoun,  Secretary  of  AYar,  Under  the  Command  of 
Maj.  S.  H.  Long,  of  the  L^.  S.  Topographical  Engineers,  Compiled 
from  the  Notes  of  Major  Long,  Mr.  T.  Say,  and  other  Gentlemen 
of  the  Party,  by  Edwin  James,  Botanist  and  Geologist  to  the  Ex- 
pedition. In  Three  Volumes.  Volume  I.  London:  Printed  for 

Longman,  Hurst,  Eees,  Onne  and  Brown,  Paternoster-Eow  1823.” 
The  title  page,  dedication  and  map;  said  map  was  received  in  evi- 
dence and  will  be  found  in  Atlas,  p.  3921;  Trans.,  p.  6496;.Abst., 
p.  1917. 

2026  Thereupon  the  witness  was  shown  Volume  58  of  the  ^Mesuit 
Eelations,”  which  volume  was  marked  ‘LAlvord  Exhibit  7 for 
identification,”  the  title  page  of  which  is  as  follows: 

The  Jesuit  Eelations  and  Allied  Documents. 

Travels  and  Explorations  of  the  Jesuit  Missionaries  in  New 
France — 1610-1791.  The  Original  French,  Latin  and  Italian 
Texts,  with  English  Translations  and  Notes  ; Illustrated  by 
Portraits,  Maps  and  Facsimiles. 

Edited  by 

Eeuben  Gold  Thwaites,  Secretary  of  the  State  Historical  Society 

of  Wisconsin. 

Vol.  LVIll. 

Ottawas,  Lower  Canada,  Irocpiois,  1672-1674. 

Cleveland:  The  Burrows  Brothers  Company,  Publishers, 

MDCCCNCIX. 

.Did  the  witness  testified  that  he  was  accpiainted  with  the  docu- 
ment contained  in  said  book  and  known  as  the  Eelation  of  Father 


713 


Dablon;  that  Father  Dablon  was  the  head  of  the  Jesuits  at  Quebec 
and  his  information  was  based  upon  the  letters  that  came  from  all 
the  Jesuit  Fathers  to  himself  and  historians  generally  accept,  of 
course,  what  he  says  as  based  upon  such  knowledge.  The 
2027  document  is  entitled,  ‘‘Kelation  of  the  Discovery  of  Many 
Things  Situated  to  the  South  of  New  France,  Made  in  1673- 
August  1,  1674.^^ 

It  was  in  the  nature  of  a report  to  his  superiors,  and  thereupon 
complainant  read  in  evidence  the  passage  on  page  105,  as  follows : 

‘‘The  fourth  remark  concerns  a very  great  and  important 
advantage,  which  perhaps  will  hardly  l)e  believed.  It  is  that 
we  could  go  with  facility  to  Florida  in  a bark,  and  by  very 
easy  navigation.  It  would  only  be  necessary  to  make  a canal, 
by  cutting  through  but  half  a league  of  prairie,  to  ])ass  from 
the  foot  of  the  Lake  of  the  Illinois  to  the  River  Saint  Louis. 
Here  is  the  route  that  would  be  followed:  The  bark  would  be 
built  on  Lake  Erie,  which  is  near  Lake  Ontario;  it  would  easily 
pass  from  Lake  Erie  to  Lake  Huron,  whence  it  would  enter 
Lake  Illinois.  At  the  end  of  that  lake  the  canal  or  excavation 
of  which  I have  spoken  would  be  made,  to  gain  a passage  into 
the  River  Saint  Louis,  which  falls  into  the  Mississippi.  The 
bark,  when  there,  would  easily  sail  to  the  Gulf  of  Mexico.” 

2030  The  Mississippi  River  was  called  by  various  names  until 
the  name  Mississippi  was  finally  settled  upon.  Joliet  named 
it  after  the  family  name  of  a count  Frontenac,  the  river  Baude. 
Marquette  wanted  it  named,  to  name  it  after  his  particular  holy 
day,  and  call  it  the  river  of  the  Magic  Conception.  Louis  XIV, 
finding  it  was  the  great  river  of  central  North  America,  wished  to 
attach  his  name  to  it,  and  in  the  edict  of  1712  issued  for  another 
purpose,  he  calls  it  the  St.  Louis  River,  and  then,  of  course,  it  has 
always  been  called  the  Mississippi  River  after  the  Indian  name. 

The  Illinois  has  also  had  several  names.  It  has  been  called 
2031.  “The  Divine”;  it  has  been  called  the  “Seignelay”;  it  has 
been  called  the  “Illinois”,  and  it  also  has  been  called  the 
“St.  Louis.” 

Witness  Alvord,  Continuing. 

Thereupon  counsel  for  complainant  offered  the  Thevinot  map  in 
evidence,  between  pages  154  and  155  of  Volume  59  of  the  Jesuit 
Relations.  Said  map  was  received  in  evidence.  (See  Atlas,  p. 
3922;  Trans.,  p.  6509;  Abst.,  p.  1917.) 

(The  book  “Alvord  Exhibit  8”  handed  to  witness.) 


714  Alvord,— Direct  Exam. — Continued. 

This  is  a publication  in  two  parts  which  were  bound  together  by 
E.  Dana.  The  first  part  is  a description  of  the  bounty  lands  in 
the  State  of  Illinois;  and  the  second  part  is  a description  of  the 
roads  and  routes  by  land  and  water  through  the  Territory  of  the 
United  States.  It  is  a simple  guide  book  showing  the  various  routes 
to  be  traveled  in  going  over  the  United  States.  Mr.  Dana  had  a 
large  experience  in  these  routes  and  traveled  most  of  them  him- 
self. Of  course,  historians  accept  such  material  as  this  as  very 
good  evidence,  because  the  purpose  is  to  guide  travelers,  and  the 
purpose  of  the  work  would  be  defeated  if  mistakes  or  decep- 

2032  tions  were  to  be  found  in  it.  That  is  the  standing  in  which 
historians  would  hold  it.  Historians  and  scholars  in  history 

regard  it  as  a reliable  book  to  show  the  routes  throughout  the 
United  States. 

And  thereupon  the  book  was  offered  in  evidence,  the  full  title 
of  which  is  as  follows : 

Description  of  the  Bounty  Lands  in  the  State  of  Illi- 
nois ; Also,  the  Principal  Roads  and  Routes  by  land  and  water 
through  the  Territory  of  the  United  States,  Extending  from 
the  Province  of  New  Brunswick,  in  Nova  Scotia,  to  the  Pacific 
Ocean,  Embracing  the  Main  Interior  and  Cross-roads  between 
the  Towns  and  Places  of  Most  Note;  by  E.  Dana,  Cincinnati, 
Looker,  Reynolds  and  Company,  Printers,  1819.’^ 

2033  Also,  the  first,  second,  third  and  fourth  paragraphs  on 
page  14;  then  the  supplemental  title  page  which  constitutes 

page  49  of  the  book.  It  is  unpaged,  but  the  paging  goes  on  con- 
tinuously calling  for  page  49  at  that  page,  and  the  introductory 
note  descriptive  of  the  routes  constituting  pages  51,  52  and  53,  and 
the  passage  occupying  pages  57  and  58,  constituting  Route  No.  2 
by  water;  and  top  on  the  first  column  on  page  51,  the  item  be- 
ginning St.  Louis — 

Counsel  for  Complainant.  The  others  being  routes  other  than 
this  one,  I apprehend  that  the  reading  of  this  entire  matter  would 
be  necessary  to  make  the  entire  force  of  the  evidence  clear,  and 
whether  I read  it  and  let  Mr.  Scott  look  at  it,  or  let  Mr.  Scott 
look  at  it  first  and  then  read  it,  is  a matter  that  is  immaterial. 

Counsel  for  Defendant.  We  object  on  the  same  grounds  we 
have  heretofore  objected,  and  on  the  grounds  it  is  incompetent. 


715 


irrelevant  and  immaterial,  and  it  does  not  appear  from  facts 
known  to  the  author  but  derived  from  various  sources. 

And  thereupon  complainant  read  the  following: 

‘‘Military  Bounty  Lands.  Introductory  Remarks.  One 

2034  tract  of  country,  which  has  been  appropriated  and  surveyed 
for  the  bounty  lands  to  soldiers  who  served  in  the  late  war 

between  the  United  States  and  Great  Britain,  is  situated  be- 
tween the  rivers  Mississippi  and  Illinois,  extending  from  their 
junction  by  a meridian  line  near  the  river,  precisely  169  miles; 
presenting  an  irregular  curvelinear  triangle,  whose  acute 
angle  is  at  the  confluence  of  the  two  rivers.  The  southern  ex- 
treme forms  a point;  the  northern  is  spread  out  to  an  extent 
of  90  miles  wide ; half  way  between  the  extreme,  the  width  is 
54  miles.  The  base  line,  which  is  79  miles  above  the  junction 
of  the  Illinois  with  the  Mississippi,  is  almost  51  miles  long. 
The  whole  area  surveyed  contains  5,360,000  acres,  of  which  no 
more  than  3,500,000  have  been  appropriated  for  bounty 
lands;  the  residue  consists  partly  of  fractional  sections,  bor- 
dering on  the  great  rivers,  and  partly  of  lands  that  were  re- 
turned by  the  public  surveyors  as  unfit  for  cultivation.  The 
Mississippi  on  the  northwest,  for  about  250  miles,  and  the  Il- 
linois for  nearly  the  same  distance,  on  the  northeast, — form 
boundaries  to  the  military  bounty  lands  in  the  State  of  Illi- 
nois; which  occupy  a northern  latitude  between  39  degrees  6 
minutes  and  41  degrees  40  minutes.  That  is,  do  these  great 
rivers  in  their  diverging  course,  with  Rock  River  on  the  north, 
form  a spacious  peninsula,  furnishing  a border  to  the  bounty 
lands  by  a sheet  of  navigable  water  more  than  500  miles  in 

2035  extent,  leaving  no  part  of  that  tract  distant  farther  than  45 
miles  and  the  greater  part  not  exceeding  20  from  navigable 

water.  Rock  River,  navigable  for  300  miles,  deriving 
its  source  near  Green  Bay,  and  an  arm  of  Lake  Michigan 
and  winding  its  course  through  a fertile  country,  in  its  most 
southern  point  reaches  within  two  miles  of  the  eastern  part 
of  the  northern  boundary  of  the  bounty  lands,  and  from  thence 
flowing  northwestwardly,  pours  its  waters  into  the  Mississippi 
about  40  miles  above  the  northwestern  angle  of  the  bounty 
■ lands. 

A water  communication  may  be  easily  opened  between  the 
Illinois  and  Lake  Michigan  by  an  excavation  across  the  por- 
tage which  separates  the  waters  of  the  Plein,  a branch  of  the 
Illinois,  from  those  of  the  Chicago,  a river  of  the  Lake;  the 
distance  between  the  mouth  of  the  Plein  and  the  Lake,  not  ex- 
ceeding 35  miles.  The  portage  will  afford  a canal  at  a small 
expense,  the  distance  being  only  three  miles  and  so  low  a 
level  as  to  be  flooded  in  the  spring  freshets  by  the  inter- 
mingled waters  of  the  Plein  and  Chicago,  sufficiently  deep  to 


716 


Extract, — Bounty  Lands. — Continued. 


admit  loaded  boats  to  pass  from  tbe  lake  to  the  Illinois.  To 
complete  this  contemplated  canal,  100,000  acres  of  land  have 
long  since  been  appropriated  by  Act  of  Congress. 

‘‘The  navigable  water  communication  between  the  Illinois 

2036  and  the  lakes  will  eventually  much  increase  the  value  of  the 
bounty  lands  by  affording  a market  on  the  lake  for  produce, 
by  a transportation  on  water  not  much  exceeding  170  miles. 

The  author  laboriously  employed  the  greater  part  of  twelve 
months  in  traversing  the  military  bounty  lands  in  the  State 
of  Illinois  with  a view  to  acquire  a knowledge  of  the  natural 
qualities  and  peculiar  character  of  the  several  parts. 

His  remarks  on  the  quality  of  the  soil,  the  intrinsic  and  rela- 
tive value,  sites  for  towns  and  mill  seats,  minerals  and  fossils, 
mostly  noted  on  the  township  and  sections  to  which  they  re- 
fer. 

From  personal  observation,  as  well  as  the  information  ob- 
tained from  others,  he  has  been  enabled  to  detect  diverse  er- 
rors and  misrepresentations  in  the  descriptions  of  those 
lands. 

Such  has  been  the  laborious  attention  of  the  author  in  ac- 
quiring the  minute  knowledge  of  the  bounty  lands  by  tracing 
the  lines  of  the  public  surveys,  the  various  streams  and  water 
courses,  and  in  critically  exploring  almost  every  part  of  that 
region,  as  well  as  by  diligent  inquiry  of  public  surveyors  and 
other  intelligent  men  entitled  to  credit  from  their  known 

2037  acquaintance  with  the  lands,  he  feels  a strong  confidence  in 
the  correctness  of  his  description.’’ 

And  thereupon  counsel  for  complainant  explained  that:  Page 

49  is  the  title  page  of  the  second  part  and  the  essence  of  it  is  de- 
scriptive of  the  principal  roads  and  routes  by  land  and  water 
through  the  Territory  of  the  United  States,  extending  from  the 
Provinces  of  New  Brunswick  and  Nova  Scotia  to  the  Pacific  Ocean, 
embracing,  etc.,  introductory  remarks. 

“The  author  has  for  more  than  28  years  traversed  by  the 
principal  routes  and  roads,  almost  every  section  of  the  United 
States,  and  the  southern  parts  of  the  two  Canadas,  bordering 
on  an  extensive  range  of  the  Great  Lakes,  and  constantly  kept 
an  itinerary  wherein  he  has  noted  from  day  to  day  the  routes 
and  distances  from  place  to  place,  by  land  and  water,  correct- 
ing his  own  estimate  by  that  of  other  experienced  men,  such 
as  hunters,  Indian  agents,  merchants,  travelers,  officers  of  the 

2038  army,  as  well  as  by  the  routes  and  roads  delineated  on  maps 
and  published  in  newspapers,  almanacs,  pamphlets,  voyages 

and  itineraries,  statistical  or  geographical  surveys.  Indeed, 
he  has  resorted  to  every  expedient  that  could  enlarge  or  cor- 


717 


rect  his  information  on  the  subject  except  actual  survey  and 
measurement. 

Having  at  length  matured  his  system  by  ranging  and  group- 
ing his  routes  into  what  he  deemed  the  most  natural  and 
geographical  order,  he  has  ventured  to  present  to  the  public 
the  result  of  his  labors,  containing  a description  of  260  routes 
and  roads;  some  by  land,  some  by  water,  and  others  by  land 
and  water,  among  which  are  noted  several  new  and  extensive 
routes  never  before  published.  The  greater  part  of  all  these 
routes  the  author  has  himself  actually  traveled  over,  noting 
down  as  he  passed  the  distance  from  place  to  place. 

In  this  department  of  science  it  is  impossible  in  a new  coun- 
try (where  actual  surveys  of  course  and  distances  have  not 
been  had)  to  attain  to  precise  accuracy;  and  the  author,  al- 
though he  flatters  himself  that  he  has  embraced  more  new 
routes  and  noted  the  distances  of  old  ones  with  more  correct- 
ness than  any  other  man  who  has  attempted  a publication,  is 
sensible  that  in  so  arduous  and  complicated  a business,  where 
exact  information  is  unattainable,  the  distances,  between 
places,  in  several  remote  and  less  frequented  portions  of  the 

2039  country  have  not  been  estimated  with  the  strictest  accuracy. 
Here  and  in  all  other  matters  pertaining  to  the  subject,  his 

endeavors  and  most  arduous  and  persevering  labors  have  l3een 
facilitated  from  the  candid  and  enlightened  public.  He  so- 
licits both  the  indulgence  and  the  notice  of  his  errors  which 
he  purposes  to  rectify  in  a future  edition. 

The  geographer  and  the  man  whose  employment  is  that  of 
tracing  the  courses  of  public  roads,  find  a mutual  advantage 
in  the  labors  of  each  other. 

Like  metaphysicians,  they  cannot  sit  down  and  spin  out 

2040  their  systems  from  their  brains. 

To  obtain  the  object  of  their  pursuit,  with  precision  and 
accuracy  in  presenting  their  images  and  correct  views  of  form 
and  space  on  the  surface  of  a region,  they  must  unite  the 
labors  of  the  body  to  those  of  the  mind,  by  traversing  si^acious 
areas  and  various  courses  they  attempt  to  describe.  In  this 
respect  the  author  presumes  his  manner  of  life  gives  him  a 
superiority  over  most  authors  in  this  country  who  have  pub- 
lished before  him.  And  if  his  health  is  preserved,  he  intends 
to  persevere  in  acquiring  a greater  accuracy  in  courses  and 
distance  of  the  routes  for  public  roads  by  continuing  his 
travels  variously  over  the  United  States.  The  several  routes 
of  roads  are  numbered  and  printed  in  order  according  to  the 
numbers ; beginning  first  with  the  longest  routes  which  extend 
westwardly  or  easterly,  between  the  Atlantic  coast  or  the 
great  western  lakes,  and  the  Mississippi  River;  then  follow 
those  routes,  extending  northwardly  and  southwardly  between 
the  great  lakes  and  the  ocean;  secondly,  will  follow  shorter 


718  Extract, — Bounty  Lands. — Continued. 

routes,  such  as  passing  out  of  one  state  or  territory  into 
another;  and  thirdly  the  remaining  routes  not  before  de- 
scribed, which  are  confined  within  the  limits  of  a State  or 
territory. 

The  last  group  of  routes  will  have  their  commencement  in 
the  most  eastern  sections  of  the  United  States,  the  descrip- 
tion being  continued  westwardly  in  geographical  order.  A 
. 2041  list  of  all  the  routes  will  be  inserted  in  the  latter  part  of  the 
volume  in  order  as  they  are  printed,  with  a reference  to  the 
page  where  described,  where  one  route  runs  into  another 
previously  described,  to  avoid  repetition,  the  sum  total  only 
of  the  intermediate  spaces  in  the  distance  before  set  out  will 
be  specified;  the  number  of  the  route  interfered  with,  being- 
referred  to. 

The  state  or  territory  where  a route  ends  or  a route  enters 
from  another,  will  be  named  but  not  repeated  on  the  same 
route.’’ 

And  thereupon  complainant  read  from  page  57,  which  is  route 
number  two, 

“by  water  from  Quebec,  lower  Canada,  to  New  Orleans,  by 
Montreal  through  Lakes  Ontario,  Erie,  Huron  and  Michigan; 
thence  up  the  Chicago  Eiver  and  over  the  portage  to  and  down 
the  Eiver  Plein,  a head  branch  of  the  Illinois  and  down  the 
latter  to  the  Mississippi.”  * * * 

“Across  Lake  Michigan  to  Fort  Dearborn,  up  Chicago 
Eiver,  Ind.,  over  the  portage  and  up  the  Plein  to  the  junction 
with  the  Theakiki,  the  main  head  branch  of  the  Illinois.  ’ ’ 

Professor  Alvord  further  testified : 

2042  The  book  marked  “Alvord  Exhibit  9”  which  is  entitled 
“The  Navigator”  containing  directions  for  navigating  the 
Ohio  and  Mississippi  Eivers,  * * * Pittsburgh,  1824, — is  a 

book  for  the  purpose  of  giving  directions  for  navigating  the  west- 
ern waters,  and  was  gotten  up  specially  for  voyages  in  the  west. 
It  has  been  used  time  and  again  by  historians  for  the  purpose  of 
learning  how  the  navigation  and  commerce  was  carried  on  in  the 
western  waters.  I am  acquainted  with  its  standard  and  reputa- 
tion. It  is  regarded  as  a very  good  source  for  the  history  of 
western  commerce  and  western  trading  and  western  navigation. 

Thereupon  counsel  for  complainant  otfered  the  following  pas- 
sages, the  title  page  which  reads  as  follows : 

“The  Navigator;  containing  directions  for  navigating  the 
Ohio  and  Mississippi  Eivers;  with  an  ample  account  of  these 
much  admired  waters,  from  the  head  of  the  Tormer,  to  the 


719 


2043  mouth  of  the  hitter;  and  a concise  description  of  their  towns, 
villages,  harbors,  settlements,  &c.  With  maps  of  the  Ohio 

and  Mississippi,  to  which  is  added  an  appendix  containing  an 
account  of  Louisiana  and  of  the  Missouri  and  Columbia 
Rivers,  as  discovered  by  the  voyage  under  Capts.  Lewis  and 
Clark.  Pittsburgh.  Printed  and  published  by  Cramer  and 
Spear,  Franklinhead  Bookstore,  Wood  Street,  1824.” 

2044  In  the  chapter  headed  ^‘The  Mississippi  River,”  pages 
113  and  114.  (The  preface  is  dated  February,  1811.) 

‘^Between  a branch  of  the  Chicago  and  Illinois  River  which 
empties  into  Lake  Michigan,  there  is  a portage  of  two  miles, 
from  this  portage  to  the  lake  there  is  a batteaux  navigation 
of  sixteen  miles.  By  this  happy  connection  of  waters,  there  is 
a complete  communication  from  New  York  to  New  Orleans, 
through  that  northern  and  extensive  route,  having  only  about 
28  miles  land  carriage  in  the  distance  of  nearly  4,000  miles, 
the  greatest  stretch  of  inland  navigation  perhaps  known  in 
the  world. 

This  route  from  New  York  is  by  the  Hudson  River  to  Al- 
bany; thence  by  land  to  Schenectady,  16  miles;  thence  up  the 
Mohawk  River  and  through  a canal  of  four  miles  into  Wood 
Creek;  thence  into  Lake  Ontario  and  up  that  lake  and  Niagara 
River  to  Queenstown,  seven  miles  below  the  Falls  of  Niagara; 
thence  ten  miles  land  carriage  around  several  falls  to  Chip- 
pewa; thence  up  the  river  into  Lake  Erie,  and  through  that 
lake  into  Lake  St.  Clair ; thence  into  Lake  Huron  through  Lake 
Michigan  and  into  the  Chicago  River  mentioned  above ; thence 
down  the  Illinois  and  Mississippi  Rivers.  This  route  com- 
prehends the  most  extensive  channels  and  gives  a wide  scope 
to  trade  in  general,  and  may  one  day  be  made  a profitable 
use  of  to  individual  citizens,  as  well  as  highly  advantageous  to 
the  trade  and  commerce  of  the  United  States,  especially  if 
they  get  possession  of  the  northern  fur  trade  now  carried  on 
by  the  British.” 

Professor  Alvord  further  testified: 

2045  This  is  a book  that  was  printed  to  give  a description  of  II- 
* linois,  for  the  purpose  of  encouraging  immigration  into  the 

state  in  1837.  The  historians  regard  this  book  as  contemporary 
evidence  for  facts  that  are  stated  in  it.  It  does  contain  accounts 
of  the  various  rivers,  etc.,  and  the  historian  would  regard  such 
statements  as  authoritative  statements  of  contemporary  men  and 
knowledge. 

2046  It  is  an  accurate  and  reliable  book  for  matters  of  fact  that 
are  therein  stated.  Of  course  historians  would  use  a book 


720 


like  that  with  some  criticism,  as  one  has  to  do,  but  there  would  be 
matters  of  fact  stated  iu  there  that  would  be  accepted  at  their  face 
value  by  the  historian,  as  evidence  of  a contemporary  period. 

Alvord  Cross-Exa  m iu  a ti  on . 

by  counsel  for  defendant  as  to  the  foundation  of  his  testimony,  the 
witness  testified : 

I am  not  familiar  with  the  author.  I have  known  the  book  for 
possibly  a year.  Have  read  the  book, — partially,  for  certain 
things  in  it.  A book  of  that  sort,  you  must  remember  a historian 
would  not  read  through.  He  would  be  looking  for  certain  facts  in 
it.  I have  a graduate  student  that  is  investigating  the  question  of 
the  commerce  and  trade  and  immigration  in  the  southern  Ih 

2047  linois,  down  the  Ohio.  The  graduate  student  was  referred  to 
the  book  by  Professor  Greene,  a colleague  of  mine  in  the 

University  of  Illinois.  Then  I have  also  talked  in  regard  to  the 
book  with  Professor  Sparks  of  the  Universitj^  of  Chicago.  I talked 
with  him  a few  days  ago  about  the  book,  since  engaged  to  testify 
here.  They  are  the  only  people  I have  talked  with  in  regard  to 
this  book.  I have  seen,  in  the  course  of  my  investigations  refer- 
ences to  that  book  as  being — it  was  quoted  as  authority.  I 

2048  should  think  it  might  have  been  Hurlbut’s  Ohio,  but  I am  not 
certain.  He  has  written  a very  large  number  of  histories 

of  the  trade  route  and  Indian  trails,  and  so  forth.  I should  think 
that  would  be  the  most  likely  place  I have  seen  it,  but  I may  be 
mistaken. 

I do  know  what  the  character  of  this  book,  ‘Hllinois  in  1837” 
is;  it  is  a description  of  Illinois  and  also  has  a kind  of — well,  I 
suppose  you  would  call  it  a directory  of  Illinois  itself.  Some  of 
the  facts  which  are  stated  there  were  unquestionably  within  the 
author’s  knowledge.  He  has  obtained  knowledge  of  those 

2049  facts,  either  hy  personal  inspection  or  by  talking  with  others 
or  reading  upon  them. 

Q.  Hid  you  talk  with  Professor  Greene  after  he  had  referred  the 
book  to  the  post  graduate  student?  A.  No,  I didn’t  mean  to 
say  that.  My  knowledge  of  Professor  Greene’s  knowledge  of  the 
book  comes  through  the  graduate  student. 


Q.  You  then  have  had  no  personal  conversation  with  Pro- 
fessor Greene  about  this  book!  A.  No. 

Q.  The  only  man  with  whom  you  have  talked  about  it  before 
you  were  engaged  to  testify  in  this  case  was  Professor  Sparks! 
A.  Yes,  and  a graduate  student. 

Q.  Do  you  know  any  men  by  whom  that  book  is  accepted  as 
authority!  A.  Why,  it  would  be  used  by — 

Q.  Wait  a moment.  Will  you  kindly  answer  the  question!  I 
am  asking  you  about  your  personal  knowledge.  A.  Will  you 
please  ask  the  question  again! 

Witness.  As  to  knowing  personally  any  man  who  accepts  that 
book  as  authority,  it  will  be  used  as  an  authority  by  this 

2050  graduate  student,  who  has  written  a thesis  for  the  master’s 
degree,  and  quoted  in  that  thesis.  We  use  books — after  we 

look  at  every  book,  we  ask:  Can  we  accept  this  statement  or  that 
statement,  and  we  investigate  each  individual  statement.  He  is  a 
witness,  and  he  has  got  to  prove  himself,  and  that  book  would  have 
to  be  proved  in  that  way  by  an  historian. 

Well,  I have  tested  the  statement  in  regard  to  the — certain  of 
the  rivers  in  that  book,  and  they  seem  to  be  in  accord  with  other 
historical  testimony.  I have  done  that  for  the  past  week.  I was 
investigating  this  particular  historical  problem  for  purposes  of 
this  case.  It  is  in  accord  with  the  testimony  of  all  the  historical 
sources — 

Q.  No,  what  statement!  A.  In  regard  to  the  use  of  the  Des- 
plaines  Eiver. 

2051  Q.  What  statement  in  this  book  called  ‘‘Illinois  in  1837” 
have  you  tested  during  the  past  week!  A.  The  statement 

in  regard*  to  the  use  of  the  Desplaines  Eiver.  There  is  one — it 
takes  the  Desplaines  Eiver,  as  I remember  it  now,  a paragraph 
upon  the  Desplaines  Eiver;  and  that  seemed  to  be  in  accordance 
with  other  historical  testimony. 

Q.  What  statements  did  you  compare  it  with!  A.  I was  in- 
vestigating all  the  historical  testimony  on  the  Desplaines  Eiver, 
and  I had  in  my  mind  the  testimony  of  witnesses  for  150  years 
in  regard  to  the  use  of  it;  and  it  agreed  with  that  testimony. 


722 


Alvordy — Cross-Exam. — Contimied. 


Counsel  for  Defendant.  We  submit  the  book  is  not  competent 
evidence,  your  Honor. 

The  Court.  Let  it  go  in  for  what  it  is  worth. 

The  title  page  is, 

^‘Illinois  in  1837;  a sketch  descriptive  of  the  situation, 
boundaries,  the  face  of  the  country,  prominent  districts, 
prairies,  rivers,  minerals,  animals,  agricultural  productions, 
public  lands,  plans  of  internal  improvement,  manufactures, 
etc.,  of  the  State  of  Illinois;  also  suggestions  to  emigrants; 
sketches  of  the  counties,  cities  and  principal  towns  in  the 

2052  State ; together  with  a letter  on  the  cultivation  of  the  prairies 
by  the  Hon.  H.  L.  Ellsworth,  to  which  are  annexed  the  let- 
ters from  a rambler  in  the  west.  Philadelphia.  Published 
by  S.  Augustus  Mitchell  and  by  Grigg  &>  Elliott,  No.  9 N. 
4th  street,  1837. 

Entered  according  to  the  act  of  Congress  in  the  year  1837 
by  S.  August  Mitchell  in  the  office  of  the  District  Court 
for  the  Eastern  District  of  Pennsylvania.  Stereotyped  by  J. 
Fagan,  Philadelphia.  ’ ^ 

Counsel  for  complainant  offered  in  evidence  the  paragraph  at 
the  top  of  page  36  and  the  same  was  received  and  read  in  evi- 
dence and  is  as  follows : 

‘‘The  Desplaines  Piver  is  the  northern  head  branch  of  the 
Illinois.  It  rises  in  Wisconsin  Territory  a Tew  miles  west 
of  the  Town  of  Eacine  on  Lake  Michigan  and  flowing  through 
the  north  part  of  the  State  it  joins  the  Kankakee  at  the 
boundary  line  between  LaSalle  and  Will  Counties,  where  they 
form  the  Illinois  Eiver.  The  Desplaines  in  its  course  of  150 
miles,  runs  generally  over  a bed  of  limestone.  The  country 
along  its  borders  is  populating  rapidly,  notwithstanding  its 
apparent  deficiency  of  timber. 

About  42  miles  above  the  mouth  of  this  stream  is  a stream 
connecting  it  with  the  Chicago  Eiver,  through  which  boats  of 
some  burden  have  often  been  navigated  into  Lake  Michigan. 
This  route  was  used  by  the  traders  as  a medium  of  com- 
munication between  the  great  lakes  and  the  Mississippi,  from 

2053  the  first  discovery  of  the  country  by  Europeans;  this  cir- 
cumstance first  suggested  the  idea  of  an  artificial  connection 
by  means  of  a canal  at  this  point. 

In  the  bed  of  the  Desplaines  Eiver,  about  40  rods  above  its 
junction  with  the  Kankakee,  there  is  a fossil  tree  of  a very 
considerable  size.  It  is  a species  of  phytolites,  and  is  em- 
bedded in  a horizontal  position  in  a stratum  of  Newer  Floetz 
sandstone,  of  a gray  color  and  close  grain.  There  are  51 
feet  and  6 inches  of  the  trunk  visible.  It  is  18  inches  in  di- 
ameter.’^ 


Professor  Alvord  further  testified: 

Direct  Examination. 

Alvord ’s  Exhibit  10’^;  being  a book  entitled 

^^A  Gazeteer  of  the  States  of  Illinois  and  Missouri;  con- 
taining a general  view  of  each  state,  a general  view  of  their 

2054  counties — a particular  description  of  their  towns,  villages, 
rivers,  etc.,  etc.,  with  a map  and  other  engravings.  By  Lewis 
C.  Beck,  A.  M.,  Member  of  the  New  York  Historical  Society, 
and  of  the  New  York  Lyceum  of  Natural  History.  Albany; 
printed  by  Charles  B.  and  George  Webster,  at  their  book 
store  corner  of  State  and  Pearl  streets,  1823.’’ 

is  the  first  of  the  Gazeteers  of  Illinois.  Upon  this  book  is  based 
largely  the  later  Gazeteers.  Beck  was  a man  of  some  prominence 
in  historical  circles  of  his  time,  and  collected  his  data  very  care- 
fully and  has  been  quoted  at  great  length ; followed  very  minutely 
by  very  many  historians,  since  his  time  down  to  the  present.  As 
to  its  reputation  among  historians  of  Being  an  accurate  and  reli- 
able work  or  not, — it  has  a reputation  of  being  a book,  and  as  a 
source  book  for  information  in  regard  to  the  west  at  this  time; 
and  historians  desiring  to  study  the  conditions  in  the  west  or  to 
study  any  fact  in  regard  to  the  West,  would  go  to  Beck’s 

2055  Gazeteer  among  the  very  first  books. 

Again,  they  would  have  to  use  it  with  critical  judgment 
and  would  accept  its  statements  as  evidence  that  was  to  be  ac- 
cepted. With  these  explanations  and  modifications,  it  would  be 
accepted,  and  has  the  reputation  among  historians  of  being  for 
the  time  of  which  it  speaks  and  the  places  of  which  it  speaks,  an 
accurate  and  reliable  book. 

Thereupon  counsel  for  complainant  read  in  evidence  from  part 
of  book,  page  151 : 

‘‘The  Eiviere  Desplaines,  a considerable  stream  in  the 

2056  northeastern  part  of  the  state.  It  rises  in  the  low  lands 
-bordering  on  Lake  Michigan,  has  a southern  and  southwest- 
ern direction,  and  by  union  with  the  Theakiki,  forms  the  Illi- 
nois. The  valley  of  the  river,  which  is  generally  about  one 
mile  in  width  is  in  the  form  of  an  inverted  cone,  terminated 
on  both  sides  by  regular  banks,  nearly  parallel  to  each  other. 
In  ascending  the  river,  the  banks  gradually  decrease  in  width 
and  at  the  distance  of  30  or  40  miles  up  the  river  they  form 
right  angles  with  the  course  of  the  river — that  on  the  right 
continuing  an  easterly,  and  that  on  the  left  a northwesterly 
curve.  They  then  form  an  extensive  curve  encircling  a large 
tract  of  flat  prairie.  This  in  summer  is  dry,  but  in  the  spring. 


724 


Alvord, — Direct  Exam. — Continued. 


during’  high  water,  is  a lake  of  about  20  miles  in  area.  This 
lake  communicates  with  both  the  Riviere  Desplaines  and  Chi- 
cago Rivers,  by  means  of  a canal,  which  has  been  made  partly 
by  the  current  of  the  water,  and  partly  by  the  French  and 
Indians  for  the  purpose  of  getting  their  boats  across  in  high 
water.  The  distance  from  the  Riviere  Desplaines  at  the 
mouth  of  Portage  Creek  to  Chicago,  is  12  miles;  but  from 
the  head  of  the  creek  to  the  head  of  the  Chicago  River  it  is 
only  three  miles.  In  wet  seasons  boats  of  considerable 
burthen  pass  from  Lake  Michigan  to  the  Illinois  River  with 
the  greatest  ease.’’ 

Counsel  for  Defendant.  What  year  was  that! 

Counsel  for  Complainant.  1823. 

2057  Page  19. — 

^‘The  information  of  traders  and  voyagers  was  such  as 
left  no  doubt  of  the  existence  of  a natural  canal  between  Lake 
Michigan  and  the  Illinois,  at  some  seasons  of  the  year,  but  as 
the  country  had  never  been  carefully  examined  by  men  of 
science  and  observation,  it  was  difficult  to  ascertain  what  were 
the  facilities  of  forming  an  artificial  communication.  * * 

All  talked  of  the  project  as  practical  but  no  one  knew  the 
manner  in  which  it  was  to  be  accomplished.  That  the  lakes 
should  be  united  with  the  Hudson  and  Mississippi  Rivers,  was 
a project  no  one  were  willing  to  scrutinize  lest  its  beauty 
might  be  destroyed.  But  thanks  to  the  genius  and  enterprise 
of  our  citizens,  theories  and  dreams  have  passed  away,  and 
have  been  succeeded  by  experiment  and  practice. 

A few  years  since  the  country  south  and  west  of  Lake  Michi- 
gan, was  explored  by  Messrs.  Phillips  and  Graham.  In  a 
very  interesting  report,  which  they  made  to  the  Secretary  o'f 
War,  four  different  methods  of  forming  a communication  be- 
tween the  Lake  Michigan  and  the  Illinois  River  were  pro- 
posed, viz.,  first,  by  uniting  a branch  of  the  Chicago  River, 

2058  which  empties  into  Lake  Michigan  and  a branch  of  the  Des- 
plaines which  runs  a southeast  course,  and  approaches  with- 
in ten  or  eleven  miles  of  the  lakes  and  then  turning  to  the 
southwest  blends  its  waters  with  the  Theakiki.  These  streams 
approximate  within  three  miles  of  each  other  and  when 
swelled  by  heavy  falls  of  rain  actually  unite,  so  that  boats 
of  eight  or  ten  tons  burthen  pass  and  repass  from  the  lakes 
to  the  Mississippi,  through  this  natural  route. 

Secondly:  It  could  be  effected  by  opening  a channel  from 
a point  on  Lake  Michigan  south  of  Chicago,  to  enter  the  Des- 
plaines below  Lake  DuPage. 

Thirdly:  By  uniting  Lake  Michigan  with  the  Theakiki 

above  its  junction  with  the  Desplaines,  and  lastly,  by  joining 
the  Theakiki  and  St.  Joseph  of  the  Lakes  by  which  the  French 


enjoyed  a partial  navigation  when  the  Canadas  were  an  ap- 
pendage to  their  empire. 

I shall  examine  each  of  these  plans  somewhat  in  detail,  and 
first,  the  junction  of  the  Chicago  liiver  with  the  Desplanes. 

What  is  called  the  Chicago  Eiver  or  creek,  is  merely  an 
arm  of  the  lake,  extending  in  a southwesterly  direction  three 
or  four  miles,  and  fed  by  one  or  two  small  streams  coming 
from  the  north.  Hence  it  is  on  a level  with  the  lake,  but  at 
some  seasons  has  a gentle  current  owing  to  the  rains  and 
freshets.  On  this  stream,  about  four  or  five  miles  from  the 

2059  lake,  is  a trading  establishment;  and  here  the  portage  com- 
mences which,  except  in  very  dry  seasons,  is  seldom  more 
than  three  miles.  From  this  portage  to  the  Desplanes,  a dis- 
tance of  four  or  five  miles,  is  a stream  which  is  generally 
filled  with  water,  and  is  navigable.  The  whole  distance  from 
the  Desplanes  to  the  lake  is  about  12  miles.  The  height  of 
the  Desplanes,  at  the  point  where  the  swamp  unites  with  it  is 
calculated  at  from  8 to  12  feet.  It  approaches  so  near  a level 
that  the  view  from  the  swamp  to  the  lake  is  almost  uninter- 
rupted. This  is  further  proved  by  the  very  fact,  that  at  some 
seasons  there  is  a communication  between  the  Chicago  and 
the  Desplanes,  which  could  not  be  the  case  if  there  was  any 
high  land  intermediate. 

The  Desplanes,  for  1-1  or  16  miles  below  its  junction  with 
the  swamp  before  mentioned  has  scarcely  any  fall  and  may 
be  said  to  be  on  a level.  Below  this  the  rapids  commence  and 
continue  for  a considerable  distance.  A short  distance  below 
the  commencement  of  the  rapids,  the  lake  and  Desplanes  are 
supposed  to  be  on  a level.  To  this  place,  therefore,  the  canal 
would  only  require  an  average  excavation  of  6 or  8 feet. 

It  is  the  first  opinion  of  some  who  have  attended  to  this 
subject,  that  the  canal  should  be  fed  from  the  Desplanes ; but 
the  objections  to  rivers  for  supplies  of  water,  apply  with 

2060  double  force  in  this  section  of  the  country.  It  is  well  known 
that  in  the  spring,  all  these  streams  are  so  filled  with  water 
as  to  overflow  their  banks  for  a considerable  distance;  dur- 
ing this  season  no  canal  would  be  safe,  but  must  unquestion- 
ably be  swept  away.  Again,  in  the  Autumn  they  are  on  the 

.opposite  extreme;  creeks,  ponds  and  rivers,  are  completely 
drained  of  their  water,  to  supply  that  immense  and  greedy 
conductor,  the  Mississippi.  It  is  not  infrequently  the  case 
that  the  savages  and  travelers  are  compelled  to  carry  water 
with  them  in  bladders,  and  that  they  cross  beds  of  large 
streams  without  finding  sufficient  to  quench  their  thirst.  But 
there  is  another  objection  to  using  rivers  as  feeders  which, 
though  not  so  imminent,  becomes  eventually  of  serious  mo- 
ment. When  the  country  shall  he  cultivated,  streams  swollen 
by  showers,  will  bring  down,  mixed  with  their  waters,  a pro- 
portion of  mud,  and  that  in  the  stillness  of  a level  canal  will 


726 


Alvord, — Direct  Exam. — Continued. 


subside  and  choke  it  up.  There  are  also  other  objections 
which  are,  that  those  who  construct  the  canal  may  not  be 
acquainted  with  the  true  character  of  the  streams,  and  that 
by  the  progress  of  industry  the  large  springs  and  swamps 
which  are  the  principal  supply  of  these  streams  will  be  dried 

All  these  objections  and  difficulties  would  be  obviated  by 
feeding  the  canal  with  the  pure  water  from  the  lake.  And 
according  to  the  facts  above  stated,  everything  is  in  favor  of 

2061  supplying  it  from  that  inexhaustible  reservoir.  It  would 
have  such  a constant  supply  of  water,  with  so  little  variation, 
that  the  safety  of  the  canal  would  never  be  endangered.’’ 

Professor  Alvord  further  testified: 

2062  The  book  marked  ^‘Alvord  Exhibit  11,”  entitled  a 

‘‘Topographical  Description  of  the  Western  Territory  of 
North  America.  By  Gilbert  Imlay,  a Captain  in  the  American 
army  during  the  war,  and  commissioner  for  out  lands  in  the 

2063  back  settlements.  The  3rd  edition,  with  great  editions.  Lon- 
don. Printed  for  J.  DeBrett  opposite  Burlington  House, 
Picadilly,  1797.” 

is  a topographical  description  of  western  territory  in  which  Gil- 
bert Imlay,  who  was  a traveler,  has  collected  his  own  letters 
and  also  accounts  of  the  west  by  other  men,  such,  for  instance,  as 
Dr.  Franklin’s  Eemarks  for  the  information  of  those  who  wish 
to  become  settlers  in  America,  and  Patrick  Kennedy’s  account 
of  Journies  up  the  Illinois;  and  Thomas  Hutchin’s  Historical 
Narrative  and  topographical  description  of  Louisiana  and  West 
Florida,  as  well  as  Thomas  Hutchins’  topographical  description 
of  Virginia,  Pennsylvania,  Maryland  and  North  Carolina. 

Thomas  Hutchins  was  a Lieutenant  in  the  British  Army  that 
occupied  West  Florida  after  the  close  of  the  French  and  Indian 
war.  He  was  a civil  engineer,  and  was  used  by  the  British  Gov- 
ernment for  surveying  purposes  and  making  maps.  In  1768  he 
came  to  Illinois  with  a Colonel — the  name  escapes  me — who  re- 
placed Colonel  Eeed,  Lieutenant  Colonel  Watkins.  He  lived  in 
Kaskaskia  for  three  years,  and  made  maps  of  the  Illinois  country, 
which  were  regarded  as  authoritative  maps  for  years  afterwards. 
You  can  trace  Hutchins’  influence  in  the  maps  of  the  West 

2064  down  to  the  end  of  the  century  and  into  the  nineteenth.  In 
1778  he  published  this  account  of  Virginia,  Pennsylvania  and 

Maryland  and  published  maps — a map  of  the  country.  Later,  as 


727 


you  know,  Hutchins  was  appointed  as  Surveyor  General  by  the 
United  States  and  laid  out  the  western  territory.  He  had  ample 
authority  to  learn  the  West  and  is  regarded  by  historians,  and 
has  been  from  that  day  that  he  wrote  down  to  this,  as  one  of 
the  chief  authorities  for  our  knowledge  of  the  west  during  this 
period.  His  work  is  considered  accurate  and  reliable. 

Counsel  for  complainant  otfered  in  evidence  from  Surveyor 
General  Hutchins’  letter  on  page  503,  paragraph  2,  as  follows: 

^^The  Illinois  Eiver  furnishes  a communication  with  Lake 
Michigan  by  the  Chicago  River,  and  by  two  portages  between 
the  latter  and  the  Illinois  River,  the  longest  of  which  does 
not  exceed  four  miles.” 

Thereupon  Professor  Alvord  further  testified: 

Gilbert  Imlay  was  a man  that  was  traveling  through  the  west 
here,  sometime  after  the  Revolution,  about  1791,  or  1792,  for  the 
purpose  of  deciding  where  he  and  friends  would  settle.  He  wrote 
letters  home  and  these  were  collected  and  printed  in  1792.  The 
first  edition  of  Imlay ’s  work,  contained  only  his  letters,  but 

2065  the  later  editions — to  the  later  editions  were  added  twelve 
other  pamphlets,  etc.  This  is  the  third  London  edition  and 

the  quotation  is  from  Gilbert  Imlay  himself,  his  letter — Imlay  is 
regarded  as  one  of  our  best  witnesses  for  western  conditions  after 
the  Revolutionary  war.  Imlay  is  the  writer  of  the  particular  let- 
ter that  is  now  under  consideration. 

Counsel  for  complainant  then  read  in  evidence  beginning  with 
the  last  paragraph  on  page  71,  as  follows : 

have  mentioned  that  it  is  about  230  from  the  mouth 
of  the  Ohio  up  the  Mississippi  to  the  mouth  of  the  Missouri 
and  about  20  from  thence  to  the  Illinois  which  is  navigable 
for  batteaux  to  its  source.  From  thence  there  is  a portage 
only  of  two  miles  to  Chicago,  which  is  also  navigable  for  bat- 
teaux to  its  entrance  into  Lake  Michigan,  which  is  a distance 

2066  of  16  miles.  This  lake  affords  communication  with  the  river 
St.  Lawrence,  through  Lake  Erie,  passing  Niagara  by  a port- 
age of  8 miles.” 

Professor  Alvord  further  testified: 

This  book  which  has  just  been  marked 

Alvord  Exhibit  12,  ‘Hhe  St.  Clair  papers.  The  life  and 
public  services  of  Arthur  St.  Clair,  soldier  of  the  Revolu- 
tionary war;  President  of  the  Continental  Congress;  and 
Governor  of  the  northwestern  territory,  with  his  correspond- 


728 


Alv  or  cl, ^Direct  Exam. — Cont  in  ued. 


ence  and  other  papers  arranged  and  annotated  by  William 
Henry  Smith,  Volume  2.  Cincinnati : liobert  Clark  & Co., 
1882.’’ 

As  the  title  says,  it  is  the  transcription  of  the  letters  of  Arthur 
St.  Clair  who  was  governor  of  the  northwestern  territory,  first 
governor.  The  work  has  been  well  done  by  Mr.  Smith  and  the 
transcriptions  have  been  accepted  as  authoritative  by  historians. 
St.  Clair  was  interested  of  course  in  the  west,  as  historians  say, 
and  all  that  pertained  to  the  west  was  of  interest  to  him,  and 
particularly  the  trade.  And  he  was  interesting  himself  in  gather- 
ing statistics  in  regard  to  trade,  etc.  It  is  regarded  as  reliable 
by  historians.  It  would  be  a statement  by  a contemporary  of  a 
general  belief  in  regard  to  the  question  at  issue. 

Thereupon  counsel  for  complainant  read  in  evidence  on  page 
174  the  first  and  second  paragraphs,  as  follows: 

2067  ‘‘The  commerce  of  the  Illinois  Country  is  of  some  import- 

ance in  itself,  but  more  so  when  considered  as  connected  with 
the  Spanish  side  of  the  Mississippi.  The  villages  on  that  side 
of  the  river  having  been  originally  settled  by  the  French  and 
under  the  same  Government  as  that  part  which  is  now  in 
the  possession  of  the  United  States,  the  connection  between 
them  is  still  very  intimate,  and  favors  a commercial  inter- 
course which,  though  illicit,  might  be  carried  on  by  the  citi- 
zens of  America  without  risk.  It  is  carried  on  at  present 
without  risk,  but  is,  unfortunately,  almost  entirely  in  the 
hands  of  the  British.  Even  much  the  greatest  part  of  the 
merchandise  for  the  trade  of  the  Missouri  Eiver  is  brought 
from  Michilimackinac  by  that  of  the  Illinois  partly  by  the 
Spanish  subjects  themselves  and  partly  by  British  traders. 
The  manner  is  thus:  The  Spanish  subjects  either  introduce 

2068  them  at  once,  in  consequence  of  an  agreed  connection  with 
their  commandants,  or  they  are  brought  down  to  Cahokia  and 
landed  there,  and  afterwards  carried  over  to  St.  Louis,  as 
opportunities  can  be  found.  What  is  brought  by  the  British 
traders  the  Spanish  subjects  purchase  and  pay  for  on  the 
American  side,  taking  all  the  risk  that  attends  the  introduc- 
insr  them  into  their  own  countrv  upon  themselves.  The  furs 
in  which  these  goods  are  generally  paid  for  (deer  skins  an- 
swering better  than  furs  at  the  New  Orleans  market)  are 
carried  to  Canada  by  the  same  communication ; that  is  to  say 
up  the  Illinois  Kiver,  up  to  Chicago,  and  from  thence  with 
a small  portage  into  Lake  Michigan,  and  along  that  lake  to 
Michilimackinac;  or  from  the  Chicago  up  the  river  Aux  Plain, 
and  by  a portage  into  a mud  lake. 

In  the  spring  of  the  year  the  waters  of  the  Michigan  and 


729 


the  Chicago  rises  each  to  such  a lieight  that  the  intermediate^ 
space  is  entirely  overflowed,  and  is  passable  l)y  the  vessels 
in  use  there,  which  are  bark  canoes,  but  which  carry  a very 
considerable  burden,  and  are  navigated  by  three  or  five  per- 
sons.” 

In  connection  with  this  passage,  Professor  Alvord  testified  that 
‘‘Michilimackinac”  is  a name  given  to  Mackinac  regularly  in  the 
eighteenth  century.  I don’t  think  I have  ever  seen  Mackinac 
given  in  an  eighteenth  century  document;  always  Michilimackinac. 

Thereupon  counsel  for  complainant  read  in  connection  with  it 
the  title  of  the  paper  in  which  this  statement  occurs,  from  })age 
164: 

‘‘Governor  St.  Clair,  to  the  President.  Peport  of  official 
proceedings  in  the  Illinois  Countrv  from  March  5th  to  June 
11th,  1790.” 

2069  Professor  Alvord  on  being  shown  “Alvord’s  Exhibit  13,” 
entitled,  “Early  Western  Travels,  1748-1846,  a series  of  an- 
notated reprints  of  some  of  the  best  and  rarest  contemporary 
volumes  of  travel,  descriptive  of  the  aborigines  and  social 
and  economic  conditions  in  the  middle  and  far  west  during 
the  period  of  early  American  Settlement,  edited  with  notes, 
introductions,  index,  etc.,  by  Keuben  Gold  Thwaites,  LLl), 
editor  of  the  Jesuit  Relations  and  allied  Documents;  original 
journals  of  the  Lewis  and  Clark  Expeditions,  Hennepin’s 
Voyage  of  Discover,  etc.  Volume  IX;  Flint’s  letters  from 
America,  1818-1820,  1904.” 

testified  as  follows: 

Flint  was  an  Englishman  who  came  over  the  early  part  of  the  ' 
last  century  and  traveled  in  America,  particularly  interested  him- 
self in  the  west.  He  spent  quite  a while  in  the  west  and  his  let- 
ters are  particularly  interesting  for  showing  the  social  and  eco- 
nomic condition  during  the  years  1818-20.  This  is  an  au- 

2070  thoritative  reprint  by  Thwaites.  It  is  a work  like  his  Jesuit 
Relations  that  have  given  him  a great  deal  of  renown.  Flint 

himself  was  a very  keen  observer,  and  historians  make  a great 
deal  of  use  of  his  observations. 

Thereupon  counsel  for  complainant  read  in  evidence  the  letter- 
head title  “Comparative  Advantages  of  Several  part  of  the  United 
States.”  Then  page  186: 

“At  a period  not  far  distant,  a communication  between 
Lake  Erie  and  Illinois  River  may  be  opened  through  the 
river  Plein  which  empties  itself  into  the  lake.  Craft  are 


730 


A Iv 0 rd, — D i rect  Exa m .—Continu ed. 


said  to  have  already  passed  out  of  the  one  river  into  the 
other.  ^ ’ 

As  to  ‘^Alvord  Exhibit  14’’  being  Volume  19  of  this  series 

2071  of  early  western  travels,  entitled,  ‘‘Ogden’s  Letters  from 
the  West  1821-23.” — Ogden  was  a Yankee  traveler,  came  out 

West  here  to  view  the  land,  traveled  all  through  the  west  and  has 
given  the  results  of  his  observations  in  these  letters.  They  are 
very  keen,  and  he  has  the  same  sort  of  interest  that  Flint  had  and 
the  letters  are  of  the  same  general  character. 

These  letters  were  formerly  printed  in  New  Bedford,  and  this 
is  an  authoritative  reprint  by  Eeuhen  Gold  Thwaite  of  the  original 
letter.  It  is  regarded  as  a very  good  source  of  information  to  the 
historians  for  that  data  of  which  it  treats. 

Thereupon  counsel  for  complainant  read  in  evidence  from  Let- 
ter No.  5,  page  53: 

“The  rivers  and  streams  that  wash  the  various  parts  of 
this  state” — ^what  goes  before  it  shows  he  is  referring  to  Illi- 
nois— “are  almost  innumerable,  and  to  particularize  them  all 

2072  would  be  tedious  to  the  reader  and  a waste  of  time  to  the 
writer.  I shall  barely  mention  some  of  the  most  noted  of 
them.  The  Illinois  is  the  largest  that  is  peculiar  to  this  state. 
This  is  a noble  river,  rising  near  (45)  the  south  end  of  Lake 
Michigan.  Its  head  branches  are  called  the  Plein  and  Thea- 
kakee  or  Kankakee.  The  Plein  is  navigable  within  two  miles 
of  Chicago  Eiver  of  Lake  Michigan,  and  boats  are  said  to 
have  passed  loaded  from  one  to  the  other.  At  high  water 
the  distance  between  them  being  a marsh,  and  in  all  the  flats 
it  is  completely  inundated.  ’ ’ 

And  counsel  for  complainant  read  in  evidence  the  following: 
A portion  of  report  No.  53  found  in  the  Volume  of  Government  re- 
ports of  the  second  session  of  the  eighteenth  Congress,  met  in 
February,  1825,  and  entitled : 

“Eeport  of  the  Select  Committee  to  which  was  referred  on 
3rd  ultimo,  a memorial  of  the  General  Assembly  of  Illinois 
upon  the  subject  of  a canal  communication  between  the  Illi- 
nois Eiver  and  Lake  Michigan,  accompanied  with  a bill  to 
aid  the  State  of  Illinois  in  the  accomplishment  of  the  same. 

2073  February  1,  1825,  Eead,  and  with  the  bill  committed  to  a' 
committee  of  the  whole  house. 

The  select  committee  to  which  was  referred  the  memorial  of 
the  General  Assembly  of  the  State  of  Illinois,  praying  for 
aid  from  the  United  States  in  opening  a canal  to  connect  the 


I 


731 


waters  of  the  Illinois  Eiver  and  Lake  Michigan,  respectfully 
submit  the  following  report:  The  memorial,  represents  what 
the  committee  find  to  be  true,  that  in  1820  a law  was 
passed  by  Congress  authorizing  the  said  state  to  open  a 
canal  through  the  public  land&  to  effect  this  communication, 
which  is  required  to  be  done  within  a given  period.  It 
further  represents  that  the  General  Assembly  has  already 
proceeded  so  far  as  to  appoint  commissioners  to  explore  the 
route  and  prepare  the  necessary  surveys  and  estimate  pre- 
paratory to  its  execution.  It  further  represents  that  the 
state  is  unable,  out  of  its  own  resources  to  defray  the  ex- 
pense of  the  undertaking,  and,  therefore,  prays  Congress  to 
make  to  the  State  a grant  of  public  land  or  such  other  as- 
sistance as  may  be  thought  most  proper  to  enable  the  State 
to  proceed  with  the  work. 

In  examining  this  subject,  the  attention  of  the  committee 
has  been  drawn  to  several  points  which  seem  naturally  to 
bear  upon  it;  and,  first,  as  to  the  practicability  of  making 
the  proposed  connection  of  those  waters.  On  this  branch  of 

2074  their  inquiries,  the  committee  can  see  no  room  to  doubt.  Al- 
though the  report  of  the  State  Commissioners  and  Engineers 
had  not  been  made  to  the  General  Assembly  at  the  time  of 
adopting  the  Memorial  that  has  been  referred  to  the  Com- 
mittee, the  Legislature  of  that  State  entertained  no  doubt 
on  that  point.  Such,  indeed,  is  the  concurrence  of  scientific 
observations  and  actual  experience  in  relation  to  that  fact, 
that,  in  order  to  establish  it,  the  report  was  not  necessary. 
The  experience  to  which  the  Committee  refers  is  that  of  many 
years,  and  which  is  matter  of  of  historical  notoriety.  It  is  that 
of  repeated  passages  having  been  made,  by  uninterrupted 
navigation  from  the  river  into  the  lake.’’ 

2075  Counsel  for  complainant  explained  that  the  Committee  of 
Eoads  and  Canals  to  whom  was  referred  the  Memorial  of  the 

General  Assembly  of  the  State  of  Illinois,  concerning  the  canal 
to  connect  Lake  Michigan  and  the  Illinois  Eiver  reported  adopting 
this  report  of  the  Special  Committee,  and  concurred  in  by  the  re- 
port of  the  whole  house.  This  report  appears  verbatim  in  the 
volume  just  referred  to  and  which  is  entitled: 

March  30,  1826,  Nineteenth  Congress,  First  Session, 
House  of  Eepresentatives.  Eeport  No.  147,  Canal.  Lake 
Michigan  to  Illinois  Eiver.  Mr.  Stewart,  from  the  Committee 
on  Eoads  and  Canals  to  which  the  subject  has  been  referred, 
made  the  following  report.”  (There  follows  the  same  report, 
same  passage  which  has  just  been  read  from  the  preceding 
book.) 

Counsel  eor  Defendant.  It  seems  to  be,  Mr.  Eeeves,  that  this 


Alvord, — Direct  Exam. — Continued. 


is  short,  and  it  is  just  as  well  to  ask  you  now  to  read  certain  parts 
of  it  as  ])art  of  your  case.  For  instance,  to  follow  on,  where  you 
sto})})ed  they  begin  to  refer  to  Major  Long,  and  then  they  refer 
to  Mr.  Graham  and  Phillips  in  that  report.  They  identifY  Mr. 

Phillips  and  Chief  Justice  Philips  of  Illinois.  These  were  the 

2076  gentlemen  who  reported  no  water  most  of  the  year  in  the 

riYer. 

C ounsel  for  complainant  at  request  of  counsel  for  defendant  then 
read  in  eYidence  from  the  same  report  the  following  passage,  which 
begins  where  the  preceding  passage  left  off,  and  is  as  follows: 

'Mt  is  that  of  repeated  passages  liaYing  been  made  by  unin- 
terrupted naYigation  from  the  riYer  into  the  lake.  AVith  re- 
spect to  the  scientific  obserYations  that  liaYe  been  made,  the 
committee  refer  to  the  report  of  Major  Long  to  the  Secretary 
of  AVar  in'  1817,  and  which  was  printed  by  order  of  Congress. 
In  this  report  (See  Volume  2,  Xo.  17  of  the  reports  of  the 
Session),  it  is  stated  that  the  Illinois  EiYer  is  about  300  miles 
in  length  and  is  of  Yariable  width  from  70  yards  to  one  mile.’’ 

AVe  IniYe  this  in  Alajor  Long’s  report : 

2077  “It  is  stated  the  Illinois  EiYer  is  about  300  miles  in  length 
and  is  of  Yariable  width  from  70  rods  to  one  mile.  It  has  a 
Yery  moderate  current,  and  a depth  of  water  sufficient  to  ren- 
der it  navigable  at  all  times  for  boats  of  considerable  burden 
about  230  miles  from  its  mouth.” 

That  is  here  in  quotation  marks  and  it  is  the  quotation  from 
Alajor  Long’s  report  we  read. 

“In  speaking  of  the  proposed  canal,  Alajor  Long  observes, 
L\  canal  uniting  the  waters  of  the  Illinois  Eiver  with 
those  of  Lake  Alichigan  may  be  considered  the  first  in 
importcuice  of  any  in  this  section  of  the  country,  and  at  the 
same  time  the  construction  of  it  would  be  attended  with  very 
little  expense  compared  with  the  magnitude  of  the  object.  By 
a reference  to  the  document  before  referred  to,  it  will  also  be 
seen  that  another  report  was  made  on  the  same  subject  by 
Eichard  Graham,  Esq.,  and  the  late  Chief  Justice  Philips,  of 
the  State  of  Illinois.  AA^ithout  quoting  particularly  from  their 
intelligent  report,  it  will  be  sufficient  to  observe  that  they  coin- 
cide substantially  with  Alajor  Long.  They  present,  however, 
the  further  fact  that  it  is  perfectly  practical  so  to  employ  the 
water  of  the  lake  as  to  furnish  a full  supply  of  water  for  the 
canal. 

2078  As  to  the  expense  of  this  work,  the  committee  have  no  certain 
data  from  which  to  deduce  any  very  accurate  calculation.  Tak- 


733 


iiig  Major  Long’s  report  to  be  sulistantially  correct,  the  lengtli 
of  the  canal  will  not  exceed  70  miles.  The  presumption  is  it 
will  be  less.” 

As  to  '^Alvord’s  Exhibit  14,”  ^M^aSalle  and  the  Discovery  of  the 
Great  West  by  Francis  Parkman,  Boston : — Little,  Brown  & Co.” 

Of  course  historians  regard  this  volume  from  a very  ditferent 
point  of  view  from  those  that  have  gone  before.  This  belongs 
to  the  class  of  authorities.  Parkman  is  an  historian  who  has  ex- 
amined the  sources  of  information  with  regard  to  the  West  and 
has  come  to  conclusions  thereon.  I have  followed— historians  have 
followed  Parkman  very  carefully  and  realize  that  he  is  one  of  the 
most  careful  scholars  that  America  has  produced.  His  statements 
are  based  upon  a very  minute  analysis  of  the  sources  of  informa- 
tion, and  he  is  regarded  as  an  authority  upon  various  phases  of 
history  of  which  he  has  written.  It  is  an  authority;  it  is  not  a con- 
temporary statement,  hut  it  is  a hook  of  conclusions  from  sources 
and  contemporary  statements. 

2080  . Counsel  for  complainant  then  read  in  evidence  page  64 : 

^^They  left  the  Arkansas  villages,  and  began  iheir  home- 
ward voyage  on  the  17th  of  July.  It  was  no  easy  task  to  urge 
their  way  upward,  in  the  heat  of  midsummer,  against  the  cur- 
rent of  the  dark  and  gloomy  stream,  toiling  all  day  under  the 
parching  sun,  and  sleeping  at  night  in  the  exhalations  of  the 
unwholesome  shore,  or  in  the  narrow  confines  of  their  birchen 
vessels,  anchored  on  the  river.”  * * ^ 

(This  is  under  the  date  of  1673.)  Page  51: 

”He  begins  the  journal  of  his  voyage  thus:  ‘The  day  of 

the  Immaculate  Conception  of  the  Holy  Virgin;  whom  I had 
continually  invoked,  since  I came  to  this  country  of  the  Ot- 
tawa s,  to  obtain  from  God  the  favor  of  being  enabled  to  visit 
the  nations  on  the  Eiver  Mississippi, — this  very  day  was  pre- 
cisely that  on  which  M.  Joliet  arrived  with  orders  from  Count 
. Frontenac,  our  Govenor,  and  from  M.  Talon,  our  intendant, 
to  go  with  me  on  this  discovery.  I was  all  the  more  delighted 
at  this  good  news,  because  I saw  my  plans  about  to  be  accom- 
plished, and  found  myself  in  the  happy  necessity  of  exposing 
my  life  for  the  salvation  of  all  these  tribes;  and  especially  of 

2081  tile  Illinois,  who  when  I was  at  Point  St.  Esprit,  had  begged 
me  very  earnestly  to  bring  the  word  of  God  among  them.  ’ 

The  outfit  of  the  travelers  was  very  simple.  They  provided 
themselves  with  two  birch  canoes,  and  a supply  of  smoked  meat 
and  Indian  corn,  embarked  with  five  men;  and  began  their 


734 


Extract j — Parkman  LaSalle, — Continued, 


voyage  on  the  17th  of  May.  They  had  obtained  all  possible 
information  from  the  Indians,  and  had  made,  by  means  of  it, 
a species  of  map  of  their  intended  route.  ‘Above  all,’  writes 
Marquette,  ‘I  placed  our  voyage  under  the  protection  of  the 
Holy  Virgin  Immaculate,  promising  that,  if  she  granted  us 
the  favor  of  discovering  the  great  river  I would  give  it  the 
name  of  the  Conception.’  Their  course  was  westward;  and, 
plying  their  paddles,  they  passed  the  straights  of  Michilli- 
mackinac,  and  coasted  the  northern;  * * * They  soon 

reached  the  river  Menomonie,  and  ascended  it  to  the  village 
of  the  Menomonies,  or  Wild-Eice  Indians.  * * * The  trav- 
elers next  reached  the  mission  at  the  head  of  Green  Bay;  en- 
tered Fox  Kiver ; with  difficulty  and  labor  dragged  their  canoes 

2082  up  the  long  and  tumultuous  rapids.  Crossed  Lake  Winne- 

bago; and  followed  the  quiet  windings  of  the  river  beyond, 
where  they  glided  through  an  endless  growth  of  wild  rice  and 
scared  the  innumerable  birds  that  fed  upon  it.  * * * On  the 
seventh  of  June  they  reached  the  Mascoutins  and  Miamis,  who 
since  the  visit  of  Dablon  and  Allouez,  had  been  joined  by  the 
Kickapoos.  ^ * 

The  travelers  had  no  sooner  reached  the  town  than  they 
called  the  chiefs  and  elders  to  a council.  Joliet  told  them  that 
the  Governor  of  Canada  had  sent  him  to  discover  new  coun- 
tries, and  that  God  had  sent  his  companion  to  teach  the  true 
faith  to  the  inhabitants;  and  he  prayed  for  guides  to  show 

2083  them  the  way  to  the  waters  of  the  Wisconsin.  The  council 
readily  consented;  and  on  the  10th  of  June  the  Frenchmen  em- 
barked again,  with  two  Indians  to  conduct  them.  * * * 

The  river  twisted  among  lakes  and  marshes  choked  with 
wild  rice;  and,  but  for  their  guides  they  could  scarcely  have 
followed  the  perplexed  and  narrow  channel.  It  brought  them 
at  last  to  the  portage,  where,  after  carrying  their  canoes  a 
mile  and  a half  over  the  prairie  and  through  the  marsh,  they 
launched  them  on  the  Wisconsin,  bade  farewell  to  the  waters 
that  flowed  to  the  St.  Lawrence,  and  committed  themselves  to 
the  current  that  was  to  hear  them  they  knew  not  whither, — 
perhaps  to  the  Gulf  of  Mexico,  perhaps  to  the  South  Sea  or  the 
Gulf  of  California.  They  glided  calmly  down  the  tranquil 
stream  by  islands  choked  with  trees  and  matted  with  entangling 
grape  vines;  by  forests,  groves  and  prairies,  the  parks  and 
pleasure  grounds  of  a prodigal  nature;  by  thickets  and 
marshes  and  broad,  bare  sand-bars ; under  the  shadowing  trees, 
between  whose  tops  looked  down  from  afar  the  hold  brow  of 
some  woody  bluft.”  * * 

Page  55 : 

“On  the  17th  of  June,  they  saw  on  their  right  the  broad 
meadows,  hounded  in  the  distance  by  rugged  hills,  where  now 
stand  the  town  and  fort  of  Prairie  du  Chien.  Before  them  a 


735 


wide  and  rapid  current  coursed  athwart  their  way,  by  the  foot 
of  lofty  heights  wrapped  thick  in  forests.  They  had  found 

2084  what  they  sought,  and  ‘with  a joy,’  writes  Marquette,  ‘which 
I cannot  express,’  they  steered  forth  their  canoes  on  the  edies 
of  the  Mississippi. 

Turning  southward,  they  paddled  down  the  stream,  through 
a solitude  unrelieved  by  the  faintest  trace  of  man.” 

Page  58 : 

“Again  they  were  on  their  way,  slowly  drifting  down  the 
great  river.  They  passed  the  mouth  of  the  Illinois,  and  glided 
beneath  that  line  of  rocks  on  the  eastern  side,  cut  into  fantastic 
forms  by  the  elements,  and  marked  as  ‘The  Euined  Castles’  on 
some  of  the  early  Franch  maps.” 

Page  60: 

“They  passed  the  lonely  forest  that  covered  the  site  of  the 
destined  City  of  St.  Louis,  and  a few  days  later,  saw  on  their 
left  the  mouth  of  the  stream  to  which  the  Iroquois  had  given  the 
well  merited  name  of  Ohio,  or  the  Beautiful  Kiver.” 

Page  62: 

“Early  in  the  morning,  they  embarked  again,  and  proceeded 
to  a village  of  the  Arkansas  side,  about  eight  leagues  below.” 

Page  64: 

“They  left  the  Arkansas  Village,  and  began  their  homeward 
voyage  on  the  17th  of  July.  It  was  no  easy  task  to  urge  their 
way  upward,  in  the  heat  of  midsummer,  against  the  current 
of  the  dark  and  gloomy  stream,  toiling  all  day  under  the  parch- 
ing sun  and  sleeping  at  night  in  the  exhalations  of  the  un- 
wholesome shore,  or  in  the  narrow  confines  of  their  birchen* 

2085  vessels,  anchored  on  the  river.” 

Page  65: 

“At  length  they  reach  the  Illinois  and  entering  its  mouth, 
followed  its  course,  charmed  as  they  went,  with  its  placid 
waters,  its  shady  forests,  and  its  rich  planes,  grazed  by  the 
bison  and  the  deer.  They  stopped  at  a spot  soon  to  be  made 
famous  in  the  annals  of  western  discovery.  This  was  a village 
. of  the  Illinois,  then  called  Kaskaskia ; a name  afterwards  trans- 
ferred to  another  locality.  A chief  with  a band  of  young  war- 
riors offered  to  guide  them  to  the  Lake  of  the  Illinois ; that  is 
to  say.  Lake  Michigan.  Thither  they  repaired;  and,  coasting 
its  shores,  reached  Green  Bay  at  the  end  of  September,  after 
an  absence  of  about  four  months,  during  which  they  had  pad- 
died  their  canoes  somewhat  more  than  3500  miles.” 

Page  66 : 

“Marquette  spent  the  winter  and  the  following  summer  at 
the  mission  of  Green  Bay  still  suffering  from  his  malady,  in 


73G  Extract, — Parkman’s  LaSalle. — Continued. 

the  Autumn,  however,  it  abated;  and  he  was  permitted  by  his 
Superior  to  attempt  the  execution  of  a plan  to  which  he  was 
devotedly  attached, — the  founding,  at  the  principal  town  of  the 
Illinois,  of  a mission  to  be  called  the  Immaculate  Conception, 
a name  which  he  had  already  given  to  the  River  Mississippi. 
He  set  out  on  this  errand  on  the  25th  of  October,  accompanied 
l)y  two  men,  named  Pierre  and  Jacques,  one  of  whom  had  been 
with  him  on  his  great  journey  of  discovery.  A band  of  Pot- 

2086  tawattamies  and  another  band  of  Illinois  also  joined  him. 

Tlie  united  parties — ten  canoes  in  all — followed  the  east  shore 
of  Green  Bay  as  far  as  the  inlet  then  called  Sturgeon  Cove, 
from  the  head  of  which  they  crossed  by  a difficult  portage 
through  the  forest  to  the  shore  of  Lake  Michigan.  November 
had  come.  * * The  shore  was  desolate  and  the  lake  wms 

stormy.  They  were  more  than  a month  in  coasting  its  western 
border,  when  at  length  they  reached  the  River  Chicago,  en- 
tered it  and  ascended  about  two  leagues.  Marquette’s  disease 
had  lately  returned,  and  hemorrhage  now  ensued.  He  told  his 
two  companions  that  this  journey  would  be  his  last.  In  the 
condition  in  which  he  was,  it  was  impossible  to  go  farther 
The  two  men  built  a log  hut  by  the  river,  and  here  they  pre- 
pared to  spend  the  winter;  while  Marquette,  feeble  as  he  was, 
began  the  spiritual  exercises  of  Saint  Ignatius,  and  confessed 
his  two  companions  twice  a week.”  * 

‘‘Urged  by  a burning  desire  to  lay,  before  he  died,  the 
foundation  of  his  new  mission  of  the  Immaculate  Conception, 
Marquette  begged  his  two  followers  to  join  him  in  a novena, 
or  nine  days’  devotion  to  the  Virgin.  In  consequence  of  this, 
as  he  believed,  his  disease  relented;  he  began  to  regain 
strength,  and  in  March  was  able  to  resume  the  journey.  On 

2087  the  30th  of  the  month  they  left  their  hut,  which  had  been  in- 

undated by  a sudden  rise  of  the  river  and  carried  their 
canoe  through  mud  and  water  over  tlie  portage  which  led  to 
the  Hesplaines.  Marquette  knew  the  way,  for  he  had  passed 
by  this  route  on  his  return  from  the  Mississippi.  Amid  the 
rains  of  opening  spring,  they  floated  down  the  swollen  cur- 
rent of  the  Hesplaines,  by  naked  woods  and  spongy  saturated 
prairies,  till  they  reached  its  junction  with  the  main  stream 
of  the  Illinois,  which  they  descended  to  their  destination,  the 
Indian  town  which  Marquette  called  Kaskaskia.  Here,  as 
we  are  told,  he  was  received  ‘like  an  angel  from  heaven.’ 
* * * It  took  place  near  the  town  on  the  great  meadow 

which  lies  between  the  river  and  the  modern  Village  of  Utica.” 

2088  Thereupon  counsel  for  complainant  offered  in  evidence  the 
foot  note  in  the  work  of  Justice  Breese,  entitled  as  follows : 

“The  Early  History  of  Illinois,  from  its  discovery  by  the 
French  in  1673  until  its  cession  to  Great  Britain  in  1763,  in- 
cluding the  narrative  of  ^Marquette’s  discovery  of  the  ^lis- 


sissippi  by  Sidney  Breese,  late  Justice  of  the  Supreme  Court 
of  Illinois;  with  a biographical  memoir  by  Melville  W.  Fuller, 
edited  by  Thomas  Hoyne,  LLD,  Chicago,  E.  B.  Meyers  & 
Company,  1884 

which  foot  note  appears  on  page  96  of  said  book. 

After  some  colloquy  between  counsel,  the  court  excluded  such 
foot  note,  which  foot  note  so  excluded  is  as  follows: 

2093  ‘‘Now  there  are  data  stated  and  given  in  these  accounts 
of  the  location  which  Marquette  and  bis  two  Frenchmen  se- 
lected to  build  their  cabin  that  memorable  winter  that  en- 
abled us  with  reasonable  certainty,  if  not  to  fix  the  precise 
spot  of  ground,  yet  to  point  to  the  near  vicinity  of  its  erec- 
tion. 

It  is  stated  by  Parkman,  that  Marquette  moved  two  leagues 
from  the  mouth  of  the  river.  The  river  was  frozen  over,  and 
it  is  not  probable  that  they  paddled  the  canoe  up  the  stream 
two  leagues  or  six  miles.  But  as  the  mouth  of  the  river  was 
then  at  the  foot  of  Madison  street,  they  moved  across  the 
prairie  to  the  south  branch,  and  up  along  the  branch  to  the 
vicinity  of  Mud  Lake,  about  where  it  now  comes  in  as  a tribu- 
tary of  the  south  branch,  above  McCormick’s  present  reaper 
factory.  If  we  place  the  location  between  that  and  the  bridge 
over  the  branch  at  Western  avenue,  we  will  have  about  the 
two  leagues  or  six  miles  traveled  over  to  get  there  from  the 
foot  of  Madison  street.  This  location  was  where  in  times 
of  high  water,  canoes  were  carried  through  Mud  Lake  to  the 
Desplaines  Eiver,  and  so  the  portage  was  made  down  to  the 
Illinois  and  Kankakee  Eivers. 

Besides  the  accounts  both  Parkman  and  Shea  agree  that 
in  the  following  spring,  in  the  month  of  March,  the  ice  break- 
ing up,  the  ground  where  the  cabin  stood  was  flooded,  and  the 
cabin  was  moved.  The  inmates  suffered  from  the  wet,  etc. 

All  the  conditions  agree  in  pointing  out  this  as  the  location. 
The  12th  of  March,  1849,  will  be  memorable  in  this  city  for 
a disaster  connected  with  the  rising  of  the  same  water  that 
occurred  in  the  breaking  up  of  the  ice  that  spring,  which  de- 
stroyed a large  amount  of  shipping  in  the  south  branch  of  the 
river.  The  flood  of  water  coming  down  from  the  junction 
of  Mud  Lake  swelled  the  river  and  increased  its  current  to 
a torrent. 

The  distance  of  two  leagues,  or  six  miles,  is  a strong  cir- 
cumstance, because  taking  a line  across  the  prairie  from  the 
mouth  of  the  river  at  Madison  street  or  following  up  the 
thread  of  the  stream,  the  distance  would  be  counted  about  the 
same  to  Bridgeport,  or  a point  beyond  that,  being  the  only 
route  to  effect  the  necessary  portage,  makes  it  very  probable 
that  it  was  the  direction  taken  in  leaving  Lake  Michigan.” 

See  Parkman ’s  Discovery  of  the  Great  West,  pp.  67,  68,  79. 


738  Extract, — Park  man’s  LaSalle. — Continued. 

Thereupon  counsel  for  complainant  continued  reading  from  the 
book  hy  Parkman,  entitled  ‘‘LaSalle’s  Discovery  of  the  Great 
west,”  page  449,  as  follows: 

2094  “Early  Unpublished  Maps  of  the  Mississippi  and  the 

Great  Lakes. 

Most  of  the  maps  described  below  are  to  be  found  in  the 
depot  des  Cartes  del  la  Marine  et  des  Colonies,  at  Paris. 
Taken  together  they  exhibit  the  progress  of  Western  Dis* 
covery  and  Illustrate  the  records  of  the  explorers. 

The  map  of  Galinee,  1670.  The  first  attempt  to  map  out 

2095  the  Great  Lakes  was  that  of  Champlain,  in  1632.  This  of 
Galinee  may  be  called  the  second.  * 

Three  years  or  more  after  Galinee  made  the  map  men- 
tioned above  another  indicating  greatly  increased  knowledge 
of  the  country  was  made  by  some  person  whose  name  does 
not  appear.  This  map  whicli  is  somewhat  more  than  four 
feet  long  and  about  two  feet  and  a lialf  wide  has  no  title.  All 
the  Great  Lakes  through  their  entire  extent  are  laid  out  on 
it  with  considerable  accuracy.  Lake  Ontario  is  called  ‘Lake 
Ontario  ou  de  Frontenac.’  Lake  Michigan  is  ‘Lake 

Mitchiganong  ou  des  Illinois.’  On  Lake  Michigan  immedi- 
ately opposite  the  site  of  Chicago  are  written  the  words  of 
which  the  following  is  a literal  translation:  ‘The  largest 

vessels  can  come  to  this  place  from  the  outlet  of  Lake  Erie 
where  it  discharges  into  Lake  Frontenac  (Ontario),  and  from 
this  marsh  into  which  they  can  enter  there  is  only  a distance 
of  a thousand  ]>aces  to  the  river  LaDivine  (Desplaines)  which 
can  lead  them  to  the  river  Colbert  (Mississippi)  and  thence 
to  the  Gulf  of  Mexico.’  This  map  was  evidently  made  after 
the  voyage  of  LaSalle  in  which  he  discovered  the  Illinois  or 
at  least  the  Desplaines  branch  of  it.  * * ^ 

We  come  now  to  the  map  of  Marquette  which  is  a rude 
sketch  of  a portion  of  Lake  Superior  and  Michigan,  and 
Michigan,  and  of  the  route  pursued  by  him  up  the  Fox  Eiver 
of  Green  Bay,  down  the  Wisconsin  and  thence  down  the  Mis- 
1096  sissinpi  as  far  as  the  Arkansaw.  The  Kiver  Illinois  is  also 
laid  down  as  it  was  by  this  course  that  he  returned  to  Lake 
Michigan  after  his  memorable  voyage.  He  gives  no  name 
to  the  Wisconsin.  The  Mississippi  is  called  the  Eiviere  de 
la  Conception;  the  Missouri  the  Pekitanoui;  the  Ohio  the  Ona- 
bouskiaou,  although  LaSalle,  its  discoverer,  had  previously 
given  it  its  nresent  name  borrowed  from  Illinois.  The  Illi- 
nois is  nameless  like  the  Wisconsin.  * * * of  far  greater 

interest  is  the  small  map  of  Louis  Joliet,  made  and  presented 
to  the  Count  Frontenanc  after  the  discoverers  returned  from 
the  Mississi]:>pi.  It  is  entitled  ‘Carte  de  la  Decouverte  du  St. 


739 


Joliet  on  la  Visit  la  Commiiiiicatioii  du  fleiire  St.  Jjaureiis 
avec  les  lacs  Frontenac,  Erie,  Lac  des  Hurons  et  Illinois: 

Then  succeeds  the  following  written  in  the  same  anticiuated 
French  as  if  it  were  a part  of  the  title:  ‘Lake  Frontenac 

(Ontario)  is  separated  hy  a valley  of  half  a league  from 
Lake  Erie,  from  which  one  enters  that  of  the  Huron,  and  by 
the  same  navigation  into  that  of  the  Illinois  (Michigan)  from 
the  head  of  which  one  crosses  to  the  Divine  River  (Riviere 
Divine,  7.  e.,  the  Desplaines  branch  of  the  River  Illinois)  by 
a ])ortage  of  a thousand  oaces.  This  river  falls  into  the  River 
Colbert  (Mississip])i),  which  discharges  itself  into  the  Gulf 
of  Mexico.’  ” 

2097  Thereupon  counsel  for  complainant  read  from  “Narrative 
of  the  Expedition  to  the  St.  Peters  River,”  Alvord’s  Exhibit 

5,  one  of  the  passages  on  ])age  162,  which  was  overlooked. 

“In  the  afternoon  of  the  5th  of  June  (he  fixes  the  year 
elsewhere  as  1823)  we  reach  Fort  Dearborn  (Chicago),  hav- 
ing been  engaged  eight  days  in  traveling  a distance  of  216 
miles  making  an  average  of  27  miles  per  day.  * * * At 

Fort  Dearborn  we  stopped  for  a few  days  with  a view  to 
examine  the  country  and  make  further  ])i*eparations  for  the 
journey  to  the  Mississippi.  * * (Page  163.)  Fort  Dear- 
born is  situated  in  the  State  of  Illinois  on  the  south  hank  and 
near  to  the  mouth  of  Chicago  River.  The  boundary  line  be- 
tween this  State  and  that  of  Indiana  strikes  the  western  shore 
of  Lake  Michigan  ten  miles  north  of  its  southernmost  ex- 
tremity and  then  continues  the  shore  of  the  lake  until  it 
reaches  the  42^  degree  of  north  latitude,  along  which  it 
extends  to  the  Mississippi.  The  Post  at  Chicago  was  aban- 
doned a few  months  after  the  party  visited  it.  * * * (Page 
165.)  The  grain  is  frequently  destroyed  by  swarms  of  in- 
sects. There  are  also  a number  of  destructive  birds  of  which 
it  was  impossible  for  the  garrison  to  avoid  the  baneful  influ- 
ence except  by  keeping,  as  was  practiced  at  Fort  Dearbo^*n,  a 
party  of  soldiers  constantly  engaged  in  shooting  at  the  crows 
and  blackbirds  that  committed  depredations  upon  the  corn 

2098  planted  by  them,  but  even  with  all  these  exertions  the  maize 
seldom  has  time  to  ripen  owing  to  the  shortness  and  cold-^ 
ness  of  the  season.  The  provisions  for  the  garrison  were  for 
the  most  part  conveyed  from  Mackinaw  in  schooners  and 
sometimes  they  were  brought  from  St.  Louis,  a distance  of 
386  miles  up  the  Illinois  and  Desplaines  Rivers.” 

Professor  Alcord  further  testified : as  to  the  Volume  marked 
Alvord  Exhibit  15,  entitled  Narrative  of  an  Expedifion  through 
the  Upper  Mississippi  to  Itasca  Lake,  the  actual  source  of  this 
River,  embracing  an  ex]d oratory  trip  through  the  St.  Croix 


740 


Alvord, — Direct  Exam. — Continued. 


and  Biirntwood  (or  Brule)  Elvers,  in  1832,  under  the  direction 
of  Henry  K.  Schoolcraft.  New  York.  Published  by  Harper  & 
Brothers  No.  82  Cliff  Street,  1834. 

I am  acquainted  with  the  standing  and  character  of  Henry  E. 

Schoolcraft.  I have  never  used  this  book  myself,  but  School- 

2099  craft — the  same  Schoolcraft  I spoke  of  yesterday.  This 
book  would  be  regarded  by  historians  as  authoritative  for 

the  expedition  that  was  made  at  that  time  as  described  in  that 
book. 

Thereupon  counsel  for  complainant  read  from  page  121: 

‘‘The  number  of  points  at.  which  the  waters  of  the  Mis- 
sissippi Eiver  communicate  by  interlocking  rivers  and  port- 
ages and  Lakes  are  the  following,  proceeding  from  south  to 
north,  namely: 

1.  By  the  Illinois  and  Chicago  Creek  (with  Lake  Michi- 
gan). 

2.  By  the  Wisconsin  and  Fox  Elvers  (with  Green  Bay). 

3.  By  the  Chippewa  and  Muskkee,  or  Mauvais  Elvers,  with 
Lake  Superior. 

4.  By  the  St.  Croix  and  Burntwood  or  Brule  Elvers,  do. 

5.  By  the  Savanne  and  St.  Louis  Elvers,  do. 

The  routes  by  the  Illinois  and  by  the  Wisconsin  were  first 
laid  open  by  French  enterprise  and  have  been  used  for  canoes 
and  flat  bottomed  boats  in  their  natural  state  and  without 
any  practical  improvement  which  as  yet  facilitates  communi- 
cation about  160  years.  They  are  so  familiar  in  our  geog- 
raphy and  have  been  so  much  explored  and  are  so  well  ap- 
preciated as  permanent  points  for  effecting  canal  and  rail- 
road routes  that  it  is  only  to  be  desired  that  early  and  effi- 
cient measures  should  be  taken  for  opening  them.’^ 

2100  Professor  Alvord  further  testified  as  to  the  book  marked 
by  the  reporter  “Alvord  Exhibit  16,^’  entitled,  “The  History 
of  Wisconsin  in  Three  Parts,  Historical,  Documentary  and 
Descriptive,  compiled  by  direction  of  the  Legislature  of  the 
State  by  William  E.  Smith,  President  of  the  State  Histori- 
cal Society  of  Wisconsin,  Part  1,  Historical,  Volume  1.  Madi- 
son, "Wisconsin.  Beriah  Brown,  printer,  1854.” 

I have  used  this  book.  It  is  regarded  by  historians  as  one  of 
the  best  accounts  of  the  history  of  Wisconsin.  It  is  considered 
among  historians  as  an  accurate  and  relmble  book  on  'the  matters 
with  which  it  deals. 

Thereupon  counsel  for  complainant  read  in  evidence  page  83 
as  follows : 

2101  “At  this  period  the  three  great  avenues  from  the  St.  Law- 


741 


rence  to  the  Mississippi  were,  one  by  way  of  the  Fox  and 
Wisconsin  Eivers,  one  by  way  of  Chicago,  which  had  been 
safely  pursued  since  the  days  of  Marquette,  and  one  by  the 
Miami  and  the  Lakes  where,  after  crossing  the  portage  of 
three  leagues  over  the  summit  level,  a shallow  stream  led  into 
the  Wabash  and  the  Ohio.’^ 

Professor  Alvord  further  testified : 

As  to  the  book  which  the  reporter  marked  for  identification 
‘^Alvord  Exhibit  17,’’  and  which  is  entitled  upon  the  back  ‘‘Mis- 
sissippi Basin,  Winsor,”  and  on  the  title  page  “The  Mississippi 
Basin,”  and  then  in  display  two  maps,  one  of  1697  and  one  of 
1763,  of  the  basin. 

“The  Struggle  in  America  between  England  and  France, 
1697-1763,  with  full  cartographical  illustrations  from  con- 
temporary sources.  By  Justin  Winsor,  Boston  and  New  York, 
Houghton,  Mifflin  & Co.,  Kiverside  Press,  Cambridge,  1895.” 

2102  I am  well  acquainted  with  the  standing  and  character  of 
that  book.  Mr.  Winsor  was  for  many  years  Librarian  of 

Harvard  University,  and  a professor  at  Harvard.  He  was  at  one 
time  president  of  the  American  Historical  Association  and  a mem- 
ber of  many  learned  societies  both  of  Europe  and  of  this  country. 
He  has  had  broader  and  more  intensive  knowledge — he  is  re- 
garded by  historians  as  having  a wider  and  more  intensive  knowl- 
edge of  Western  history  than  any  man  who  has  ever  written  on 
the  West,  and  is  particularly  esteemed  for  his  knowledge  on  the 
historical  geography  of  America.  I have  heard  historians  say 
that  there  was  no  man  who  knew  the  historical  geography  of 
America  as  well  as  Justin  Winsor.  It  is  the  most  authoritative 
and  reliable  book  in  that  field  upon  the  matters  with  which  it 
deals. 

Thereupon  counsel  for  complainant  read  from  page  24,  from 
the -chapter  entitled  “The  Mississippi  Basin  at  the  end  of  the 
Seventeenth  Century.” 

“Before  the  end  of  the  Seventeenth  Century  the  portages 
at  the  head  of  Lake  Michigan  had  become  the  best  known 
of  all,  and  there  had  been  a trading  post  for  something  like 
fifteen  years  at  the  Chicago  Jliver,  what  Herman  Moll,  the 
English  cartographer,  called  ‘The  Land  Carriage  of  Cheka- 

2103  koe,’  as  described  by  James  Logan  in  a communication  which 
he  made  in  1718  to  the  English  Board  of  Trade  as  running 
from  the  Lake  three  leagues  up  the  Eiver,  then  half  a league 


742 


A Ivord, — Direct  Exa m . — Coiitiniied. 


of  carriage,  then  a mile  of  water,  next  a small  carry,  then  two 
miles  to  the  Illinois,  and  then  130  leagues  to  the  Mississippi. 
But  descriptions  varied  with  the  season.  It  was  usually  called 
a carriage  of  from  four  to  nine  miles  according  to  the  stage 
of  water.  In  dry  seasons  it  was  even  farther,  while  in  wet 
times  it  might  not  have  been  more  than  a mile,  but  indeed 
when  the  intervening  lands  were  Mrowned’  it  was  quite  pos- 
sible to  pass  in  a canoe  amid  the  sedges  from  Lake  Michigan 
to  the  Desplaines,  and  so  to  the  Illinois  and  the  Mississippi. 
It  is  along  this  route  that  the  drainage  canal  of  the  City  of 
Chicago  is  now  constructing  for  the  joint  purpose  of  reliev- 
ing the  city  of  its  sewage  and  opening  a passage  for  its  com- 
merce with  the  interior.” 

Thereupon  by  request  of  counsel  for  defendant,  counsel  for 
complainant  read  in  evidence  the  following  additional  passage 
from  Winsor,  p.  24 : 

2104  There  are  other  portages  south  of  the  Chicago  Elver  and 
at  the  southwest  corner  of  the  lake  by  the  lesser  and  greater 
Calumet  Eivers  by  which  the  Kankakee  and  Desplaines 
branches  of  the  Illinois  were  sometimes  reached.  It  is  not 
always  easy  in  the  early  narratives  to  determine  which  of 

2105  these  portages  about  Chicago  was  in  particular  instances 
used,  and  in  the  maps  there  is  some  confusion  in  the  Che- 
kogoua  and  Calumet  Eiver.  ” 

Professor  Alvord  further  testified: 

(Witness  being  handed  documents)  That  is  the  manuscript  of 
the  journal  of  a voyage  by  Hugh  He  ward  to  Illinois,  made  in  the 
year  1780.  The  manuscript  belongs  to  Mr.  C.  M.  Burton  of  De- 
troit, and  was  sent  by  him  by  express  to  me  in  care  of  the  Chicago 
Historical  Society  last  month.  I talked  with  him  over  the 
’phone,  last  night  after  the  adjournment  of  court.  This  is  the  same 
manuscript  to  which  I referred  yesterday.  I examined  this  manu- 
script first  last  summer,  about  August  1st,  or  a year  ago 

2106  last  summer,  about  August  1st,  1907.  I had  seen  the  manu- 
script before  that.  I was  visiting  Mr.  Burton  in  his  own 

house  and  worked  in  his  library  for  half  a week  looking  over 
all  of  his  manuscripts.  He  is  a collector  of  historical  manuscripts 
and  has  one  of  the  best  collections  of  Americana  west  of  the  Alle- 
ghenies. 

I am  very  familiar  with  the  documents  of  Americana  of  this 
class.  From  my  knowledge  of  manuscripts  coming  from  this  same 
period,  I should  judge  that  this  was  written  at  the  time  that  it 


743 


purports  to  be  written,  and  from  my  knowledge  of  the  writing  of 
Hugh  Howard  I should  judge  that  this  was  actually  written  by 
Hugh  Howard  himself.  I am  acquainted  with  his  writing  from 
other  documents,  legal  documents  that  have  been  authenticated  by 
our  court. 

2108  As  far  as  I know  there  are  but  two  men  that  have  ex- 
amined this  document.  I read  it  over  with  Mr.  C.  M.  Bur- 
ton, the  owner  of  the  document,  and  we  found  it  very  interesting, 
and  I intend  to  publish  it  at  some  time  in  Illinois  transactions — 
historical  transactions.  I regard  it  as  a reliable  document.  This 
document  belonged  to  the  John  Askin  papers.  Askin  was  a trader 
at  Detroit,  and  his  papers  have  all  been  acquired  by  Mr.  C.  W. 
Burton,  and  among  those  papers  was  this  document.  Mr.  He- 

ward  was  associated  for  years  with  Mr.  Askin  in  the  fur 

2109  trading  industry. 

Mr.  Askin  went  to  Detroit  about  the  year  1776  or  1777. 
I -know  of  Mr.  Howard’s  association  with  Mr.  Askin  as  early  as 
1787.  That  is  the  historical  knowledge. 

Thereupon  counsel  for  complainant  offered  in  evidence  pas- 
sages from  that  document  giving  the  entries  under  date  of  Sun- 
day, May  9,  1790,  Monday,  May  10,  1790,  Tuesday,  May  11,  1790, 
Wednesday,  May  12,  1790,  Thursday,  May  13,  1790,  Friday,  May 
14,  1790,  and  Saturday,  May  15,  1790. 

C ross-Exam  ii  lafio  n. 

I am  familiar  with  Mr.  Howard’s  writing.  Mr.  Howard  was 
down  in  Cahokia  in  1787  and  entered  in  a court  book  the  power 
of  attorney  that  had  been  granted  to  him. 

2110  The  clerk  was  a Frenchman  and,  being  unfamiliar  with 
. English,  permission  was  given  to  Mr.  Howard  to  write  in 

the  clerk’s  book  this  power  of  attorney  himself,  and  it  is  there 
stated  by  the  clerk  that  it  is  in  Mr.  Howard’s  handwriting. 

The  Court.  You  can  get  that  much  more  simple.  The  only 

2111  reason  you  have,  so  far  as  you  call  that  knowledge  that  this 
is  his  handwriting  is  because  in  your  judgment  it  is  identi- 
cal with  that  which  you  saw  in  those  records  that  you  have  just 
talked  about.  A.  Yes,  sir. 

I have  examined  other  papers  in  Mr.  Burton’s  collection. 


744  . Alvord, — Cross-Exam. — Continued. 

Q.  Aside  from  what  knowledge  you  have  got  of  Mr.  Howard 
at  Cahokia,  have  you  any  outside  of  what  you  got  from  the  col- 
lection in  Detroit  ? A.  No. 

Q.  Who  he  was  or  what  he  was,  except  as  it  appears  in  this 
letter  you  do  not  know?  A.  No. 

Q.  As  to  his  veracity,  have  you  any  knowledge  whatever?  A. 
No. 

Counsel  for  Complainant.  I submit  that  this  is  not  proper 
cross-examination. 

2112  Counsel  for  Defendant.  If  the  witness,  Mr.  Heward, 
were  on  the  stand,  we  would  have  a right  to  know  whether 

he  was  veracious.  I cannot  see  that  because  he  wrote  it  down 
and  died  a hundred  years  ago  that  we  are  any  more  at  the  mercy 
of  his  statement — 

The  Court.  You  can,  of  course,  find  out  all  you  can  about  Mr. 
Heward. 

The  Court.  All  you  know  is  what  you  have  said — is  that 

2113  all  you  know  about  Heward,  what  you  have  said  now  in 
this  examination  or  do  you  know  anything  more  about  He- 
ward? A.  I have  not  refreshed  my  memory  on  the  life  of  Hugh 
Heward  very  recently.  I collected  several  things  at  the  time  that 
I was  working  over  the  Cahokia  record  in  regard  to  Heward.  I 
am  particularly  interested  in  those  Detroit  traders,  but  I sup- 
pose that  I have  stated  practically  everything  that  I know  about 
Heward. 

Q.  Volumes  of  discussions  are  to  be  found  as  to  the  accuracy 
of  statements  even  of  travelers  whose  works  have  become  historic; 
isn’t  that  true?  Yes. 

1214  Witness.  Joliet  and  Marquette  do  not  contradict  each 
other  emphatically  as  to  certain  topographical  matters.  I do 
not  remember  any  material  contradiction  in  regard  to  topography 
between  Marquette  and  LaSalle,  even  as  to  the  Desplaines  Eiver; 
I don’t  remember  any. 

Q.  You  do  not  remember  that  he  takes  up  Marquette’s  state- 
ment and  emphatically  contradicts  it?  A.  I do  not  remember 
an  emphatic  contradiction. 

The  Court.  That  is  a journal  one  hundred  years  or  more  old 


745 


which  bears  no  particularly  discrediting  marks  on  it,  I assume^, — 
that  has  not  been  pointed  out — internally  or  externally — and 

2115  it  may-  go  in  evidence  for  what  it  is  worth.  It  is  a quesetion 
of  weight. 

Thereupon  counsel  for  complainant  read  in  evidence  the  manu- 
script as  follows: 

‘^Sunday,  May  9,  1790.  Wind  at  southwest  inclining  from 
land.  Loaded  and  set  off.  Of  course  in  a bend  nearly  north- 
west. Strong  wind  from  south  southwest,^  but  we  recover  a 
little,  it  being  otf  the  land.  Arrived  at  ’Grand  Calmanuck 
and  afterwards  at  Little  Calmanuck;  the  course  norwest. 
From  there  arrived  by  a north  course  under  sail  at  Chicago, 
under  reefed  sail,  the  wind  blowing  strong  and  in  blasts. 
Missed  the  entrance  of  the  river  and  were  obliged  to  go  al)out 
a mile  past  to  land. 

Monday,  May  10,  1790.  Slept  at  Point  Sables  with  the 
Cannots,  and  began  to  hull  corn  and  bake  bread  and  arrange 
everything  for  next  morning.  Left  the  Cannots  at  Point 
Sables  and  took  his  fur  robe.  Bought  of  him  forty-one  lbs. 
hour,  baked  in  bread  for  25  and  29  lbs.  pork  at  2/8'' — the  form 
of  the  ordinary  English  two  shillings,  eight  pence,  two-eight, 
with  a line  between — Ghe  whole  amounting  to  £5-10-8’ — the 
form  of  the  English,  five  pounds,  ten  shillings  and  eight  pence 
— and  paid  him  with  13  yards  4/4  cotton. 

2116  Tuesday,  May  11,  1790.  Engaged  five  Indians  to  help  us 
over  the  carrying  place  with  pirogue  and  paid  them  with  two 
handfuls  of  powder.  Duarrier  this  morning  very  saucy  and 
abuseful  about  getting  salt.  1 promised  to  requite  him  for 
it.  A showery  day  and  wind  at  west.  Carrying  place  about 
one  half  mile.  Got  over  nearly  at  midday.  Prom  thence 
passed  in  the  run  and  small  lake  to  the  river  DePlain,  and 
course  turning  nearly  southwest.  A very  wet  afternoon  and 
heavy  thunder.  Arrived  at  the  Eiver  DePlain,  said  to  be 
15  miles,  and  encamped. 

Wednesday,  May  12,  1790.  Set  off  from  the  Eiver  DePlain 
which  runs  from  the  north.  Our  course  down  the  Illinois 
.Eiver  southwest  past  Lacroix  and  after  Les  Arbre” — blank, 
‘^and  a pass  that  goes  in  a small  lake  to  the  southeast  and  by 
this  pass  it  is  said  to  be  three  leagues  to  Little  Calmanuck 
on  the  lake.  This  about  eleven  o’clock.  Passed  the  Petit 
and  Grand  Tosil  and  afterwards  the  long  rapids  and  came 
to  the  Village  of  Mount  Juilliette,  course  southwest.  High 
hill  at  west  resembling  Fort  Larnoult  at  Detroit.  Passed 
afterwards  the  lake  following.  Here  Maurice  informed  me 
not  to  be  surprised,  that  there  was  so  much  danger  he  would 
not  return  with  me.  Lomro  said  he  was  to  make  the  voyage 
with  him,  and  if  he  did  not  return,  he  would  not. 


II 0 ward ’s  J oiini al. — Continued. 


74() 


2117  Thursday,  May  13,  1790.  Finding  the  goods  not  dry 
enough,  and  very  warm  weather  coming  on,  remained  to  dry 
them  better  in  the  afternoon.  Threatened  rain.  AVe  were 
obliged  to  take  them  in. 

Friday,  Alay  14,  1790.  Remained  and  finished  drying  the 
goods  and  packed  up.  Belhumour,  a Frenchman  settled 
among  the  Indians,  stopped  to  pass  the  village  at  the  forks 
with  us.  Cool  night  and  heavy  thunderstorm. 

Saturday,  May  15,  1790.  Loaded  and  set  otf.  Passed  the 
village  at  the  forks.  The  chief  and  village  in  feast  and  good 
humor.  Gave  him  little  tobacco  and  powder  and  he  said  he 
should  he  ready  to  assist  me.  Bought  five  sacks  of 
corn  for  four  shirts,  and  powder,  and  paid  Belhumour  with 
powder.  He  was  contented  but  begged  two  white  shirts  on 
credit  till  my  return,  which  I gave  him.  He  lent  me  his  dog 
and  a tea  kettle,  and  gave  me  nine  eggs  and  a leg  of  venison. 
Passed  the  entrance  of  the  river  Theakekie  about  midllay  and 
from  here  arrived  at  the  rapid  of  Demi  Charge  or  rapid  of 
Neingr.” 

Thereupon  counsel  for  complainant  explained  that  this  cor- 
responds closely  with  the  present  rapids  of  Marsailles.  AA%ether 
the  French  word  Marsailles  got  attached  as  early  as  that  we  do 
not  know, — and  then  continued  reading  as  follows : 

2118  ^‘Sunday,  Alay  16,  1790.  And  a fine  bottom  Imlf  mile. 

2119  Set  off  and  passed  isle  of  rocks,  called  the  Charbonnier.  ” ’ 

A Ivo rd  Cross-Exa m i n a ti on . 

As  to  whether  it  is  signed, — it  is  simply  noted  on  the  paper 
as  being  the  journal  of  Hugh  Howard. 

Q.  Is  it  signed  anywhere!  A.  Not  to  my  knowledge,  no. 

2120  It  is  labeled: — ‘Mournal  of  A^oyage  made  by  Air.  Hugh 
Howard  to  the  Illinois  country.”  I should  say  it  was  not 

his  handwriting. 

Q.  And  you  know  of  no  other  signature  u])on  the  document 
anywhere!  A.  No,  it  was  sewed  together  by  the  collector.  AAGien 
I read  it,  I took  the  sewing  out;  it  had  just  been  rather  roughly 
sewed,  and  gave  Air.  Cressy  leave  to  take  the  sewing  out. 

(^.  Sewed  together  by  the  collector!  A.  Yes,  by  the  cob 
lector. 

Q.  Not  by  the  author!  A.  No,  sir. 


747 


2121  No.  This  diary  does  not  show  liis  return  to  Detroit.  T 
think  it  leaves  himldown  at  Cahokia,  or  on  his  way  to  Ca- 

liokia. 

And  on  being  asked:  ‘^Did  you  ever  see  any  furtlier  writing 

or  diary  of  his  after  the  date  when  this  terminates,”  replied, 
”No.” 

Counsel  for  Complainant.  The  record  may  show  that  the 
manuscript  is  concluded  with  and  we  ask  the  consent  of  the  court 
to  return  it  immediately. 

The  Court.  Very  well. 

Counsel  for  Defendant.  Did  the  stenographer  get  what  was 
read  there  hy  Mr.  Starr  from  that  manuscript  accurately? 

Counsel  for  Complainant.  We  have  here  the  Historical  So- 
ciety’s copy.  I want  the  record  to  show,  that  I read  from  the 

2122  transcript  which  we  have  made,  and  that  Mr.^Eeeves  fol- 
lowed and  compared  on  the  copy  of  the  Chicago  Historical 

Society,  making  corrections  as  to  spelling,  and  so  forth,  as  we 
went  along,  and  that  Mr.  Cressy  for  comulainant  and  Mr.  Mun- 
roe  for  defendant  together  followed  on  the  original  manuscript 
as  the  reading  occurred. 

Professor  Alvord  further  testified:  . 

Direct  Examiuatiou. 

As  to  the  volume  which  the  reporter  marked  ” Alvord  Exhibit 
18,”  and  which  is  entitled,  ”The  American  Nation;  a History; 
Vol.  2.  Basis  of  American  History,  1500-1900,  hy  Livingston 
Farrand,  A.M.  M.  D.,  Professor  of  Anthropology,  Columbia  Uni- 
versity, with  maps.  New  York  and  London;  Harper  & Brothers, 
Publishers;  1904,”  and  a preceding  title  page,  for  the  series, 
which  reads  as  follows:  ”The  American  Nation;  a History  from 

original  sources  by  Associated  Scholars,  edited  by  Albert  Bush- 
nell  Hart,  LL.  D.,  Professor  of  History  in  Harvard  University, 
advised  by  various  historical  societies;  in  28  volumes;  Vol.  2.” — I 
am  very  well  acquainted  with  this  series  by  Professor  Hart, 

2123  called  the  ” American  Nation.”  I am  very  well  acquainted 
with  the  work  of  Professor  Farrand,  who  wrote  the  second 

volume  in  this  series. 

Historians  regard  the  set  of  works  known  as  ” Hart’s  American 
Nation”  as  the  best  and  most  authoritative  history  of  the  United 


748  Alvord, — Direct  Exam. — Continued. 

States  that  has  so  far  been  written  and  of  these  excellent  volumes 
the  second  volume  is  regarded  by  historians  as  one  of  the  best. 

Thereupon  counsel  for  complainant  read  in  evidence  pages  26 
and  27  of  said  Volume  II,  as  follows: 

^‘From  the  Great  Lakes  to  the  Mississippi  Basin  there  was 
a choice  of  paths.  In  the  Northwest  the  French  often  crossed 
from  the  head  of  Lake  Superior  to  the  upper  Mississippi  by 
way  of  the  St.  Louis  River.  The  most  important  portage, 
however,  was  probably  that  which  led  from  the  Fox  to  the 
Wisconsin  River,  first  used  in  1673  by  Joliet  and  Marquette, 
and  later  the  site  of  Fort  Winnebago.  At  the  southern  end  of 
Lake  Michigan  an  important  trail  led  from  the  Chicago  to 
the  Desplaines,  and  so  to  the  Illinois,  on  the  same  line  as  the 

2124  present  Chicago  drainage  canal.  The  portage  was  from 
from  four  to  nine  miles  in  length,  according  to  the  season. 
Other  carrying  places  of  the  region  were  from  the  Calumet 
to  the  Desplaines  and  from  the  St.  Joseph  to  the  Kankakee. 
But  that  from  the  St.  Joseph  to  the  Wabash  was  the  principal 
channel  of  supplies  for  early  settlers  at  Vincennes.’’ 

And  thereupon  counsel  for  complainant  offered  and  read  in 
evidence  the  depositions  of  Robert  E.  Orr. 

For  rulings  on  same  see  Abstract  of  Depositions  {supra,  p. 
326  and  p.  380). 

2125  Thereupon  counsel  for  complainant  at  request  of  counsel 
for  defendant  read  the  following  additional  pages  from  ‘L41- 

vord’s  Exhibit  18,”  to-wit,  pages  23  and  24,  as  follows: 

‘^The  two  most  important  factors  in  the  exploration  and 
settlement  of  a country  are  the  waterways  and  the  mountain 
systems,  the  one  an  assistance  to  travel,,  the  other  an  ob- 
stacle. In  the  sheltered  bays,  inlets  and  rivers  of  the  Atlantic 
coast  of  North  America  the  early  European  settlements  were 
mostly  placed.  But  some  locations  were  chosen  well  inland 
by  the  larger  rivers  and  often  near  the  head  of  navigation 
for  seagoing  vessels.  For  example,  Quebec  and  Montreal  on 
the  Saint  Lawrence  where  the  lower  shores  were  forbidding 
and  the  settlements  on  the  James  and  the  Delaware  where 
fear  of  attack  by  sea  determined  the  sites.  From  these  points 
as  bases  the  early  exploration  and  settlement  of  the  country 
extended,  and  the  consequence  of  the  rivers  and  streams  at 
once  became  evident.  The  dense  forests,  where  the  only  road 

2126  was  the  narrow  Indian  trail,  were  not  passable  except  on 
foot.  Even  pack  animals  could  be  used  with  difficulty.  The 
streams,  however,  offered  a ready  means  of  transport,  and 
the  light  birch  bark  canoe  which  could  be  shouldered  over  the 
necessary  portages  made  it  possible  for  the  early  voyageurs 


749 


to  penetrate  far  into  the  heart  of  the  continent  carrying  their 
merchandise  for  barter  and  returning  with  their  bales  of  fur. 
Rivers  traveling  on  east  and  west  lines  involved  crossings 
from  one  stream  to  another.  Hence  a point  of  great  inter- 
est to  the  pioneer  was  the  portage.  * * * The  place  and 

convenience  of  these  portages  were  well  known  to  the  Indian, 
and  the  European  as  a rule  merely  followed  the  trail  of  the 
savage.  * * * Their  importancec  in  the  early  occupation 

of  the  country  is'  attested  by  the  fact  that  forts  were  imme- 
diately established  on  most  of  the  main  portages  and  in  the 
French  and  Indian  wars  such  places  as  Crown  Point,  Schenec- 
tady and  Presque  Isles  indicated  lines  of  attack  and  defense. 
Since  these  routes  followed  the  lowest  and  easiest  ways  over 
the  water  sheds  between  the  river  valleys,  wagon  roads  and 
railways  were  eventually  built  along  the  same  lines  which 
thus  exerted  a marked  influence,  both  on  the  early  movements 
of  population  and  the  more  recent  development  of  commer- 
cial centers.’’ 


2127  Robert  E.  Orr, 

a witness  on  behalf  of  the  complainant,  testified  as  follows  : 
Direct  Examination. 

My  name  is  Robert  E.  Orr.  I have  given  testimony  by  way  of 
a deposition  in  this  case.  In  that  deposition  I was  asked  to  pro- 
duce a tracing,  a blue-print,  of  Section  No.  25  in  Township  No. 
34  North  of  Range  No.  8 East  of  the  Third  Principal  Meridian 
in  Grundy  County,  Illinois,  and  said  I would.  The  tracing  now 
handed  me,  marked  ^^Orr  Exhibit  No.  7,”  is  the  tracing  that  I 
said  I would  furnish.  It  is  a true  and  correct  copy  of  the  record 
on  file  in  the  office  of  the  Commissioners  of  the  Illinois  and  Michi- 
gan Canal. 

The  blue  print  now  handed  me  is  a blue  print  copy  of  the  ex- 
hibit just  identified. 

2128  This  heav}^  black  shading  here  (indicating)  represents  a 
part  of  the  hillside,  the  contour  oT  the  hillside  north  of  the 

canal. 

Thereupon  the  said  tracing  was  admitted  in  evidence  (Atlas, 
3927;  Trans.,  p.  6523;  Abst.,  p.  1920). 

Thereupon  it  was  agreed  by  the  respective  counsel  that  the 
blue  print  of  the  tracing  marked  ^‘Orr  Exhibit  7-A”  might  be 
used  instead  of  the  tracing. 


750 


-129  Clarence  ACal worth  Alvord, 

testified  on  cross-examination  as  follows : 

I have  made  a specialty  of  the  history  of  Illinois.  And  in  con- 
nection with  that  I have  looked  up  the  sources  of  authorities  with 
reference  to  the  Desplaines  and  Illinois  Eivers. 

Q.  State  whether  you  know  of  any  other  works  which  relate 
to  or  discuss  or  refer  to  the  Desplaines  Elver  other  than  those 
that  have  been  mentioned  on  your  direct  examination. 

2131  A.  I know  of  a passage  in  one  book  that  refers  to  the  Des- 
plaines Eiver.  But  it  was  not  what  I regarded  as  an  au- 
thoritative statement.  It  was  where  LaSalle  was  said  to  have 
used  the  Chicago  passage.  In  CTiarlevoix’  History  of  the  New 
Francais  it  is  possible  that  there  is  a passage  about  the  Desplaines 
Eiver.  I looked  into  the  index  and  failed  to  find  it,  and  as  my 
time  was  limited  I did  not  go  through  the  volume. 

In  Charlevoix’  History  of  the  New  France;  the  work  is 

2132  a very  large  one,  and  I did  not  have  time  to  go  through  it. 
In  Bafon’s  letters  from  Louisiana — I do  not  give  the  French 

name  or  translation — it  is  possible  that  there  may  be  a reference, 
but  I should  hardly  think  so  as  that  deals  with  Lower  Louisiana. 

In  Dupraiz,  for  the  same  reason,  it  is  not  likely  that  there 
would  be  any  passage.  So,  to  my  best  knowledge  and  belief, 
practically  every  contemporary  reference  to  the  Desplaines  Elver 
that  was  written  before  1818,  that  was  relevant  to  the  question 
at  issue,  was  to  be  found  in  the  Chicago  Public  Library  and 
the  Chicago  Historical  Library  has  been  introduced. 

2133  I limited  my  personal  investigation  of  this  case  to  the 
years  1673  to  1818,  with  regard  to  the  contemporary  ac- 
counts previous  to  1818,  but  not  with  regard  to  other  books.  In 
a few  cases  I went  beyond  1818  and  testified  as  to  the  authority 
of  works  published  since,  after  that  time,  and  narrating  events 
occurring  since  that  time, — such  as  Pecks’  Gazetteer  of  Illinois 

in  1837;  Ogden’s  letters,  which  fall  quite  approximately  at 

2134  that  time,  and  Schoolcraft, — the  trip  of  Schoolcraft.  Imlay’s 
original  volume  was  published  in  1792;  Long’s  Fx])edition 
to  the  Mississippi  was  in  1818. 


2185  I looked  Charlevoix  up  al)out  last  Friday,  witli  reference 
to  my  testimony  liere.  I am  familiar  with  Charlevoix’  His- 
tory of  New  France,  hut  in  my  working  up  tlie  Desplaines  Fiver 
history,  I did  not  run  across  that  passage  with  regard  to  the  Des- 
plaines River,  I have  read  the  letters  of  Charlevoix.  1 have  no 
recollection  of  any  mention  of  the  Desjdaines. 

As  to  any  reference  to  LaSalle  in  connection  with  the  Des- 
jdaines  river,  I did  not  look  him  up  because  I am  thoroughly 
familiar  with  LaSalle’s  movements  and  the  only  time  that  he 
used  the  Chicago  passage,  or  portage,  if  he  used  it  at  all,  was 
in  1617,  and  the  testimony  is  of  the  witness  who  says  that  he  did 
it,  and  it  is  not  very  good. 

2136  Being  asked,  ^‘Do  you  not  know  that  LaSalle  himself 
wrote  a letter  in  which  he  described  the  Chicago  jmrtage  and 

the  Desplaines  River,  and  its  connection  with  the  Illinois  River,” 
the  witness  replied,  do  not  recollect  that  letter.”  My  work 
with  LaSalle  was  done  about  a year  ago. 

Q.  Do  you  know  that  Windsor,  in  his  narratives  and  critical 
history,  states  that  LaSalle  did  use  the  Chicago  ])ortage,  and  re- 
fers to  this  letter?  A.  I would  not  be  surprised  that  AVindsor 
made  that  statement. 

Q.  And  you  have  already  testified  that  AVindsor  is  as  high 
an  authority  as  exists  upon  that  subject,  have  you  not?  A.  Yes, 
sir. 

In  i)i*eparing  for  this  case  I made  no  use  of  that  letter  of 

2137  LaSalle’s  because  I did  not  know  of  it.  I do  not  recollect 
that  LaSalle  wrote  twm  letters  in  which  he  refers  to  the  Des- 
plaines River  and  the  Chicago  portage  and  gave  his  opinion  of 
them.  And  as  to  Charlevoix  I could  not  find  a reference.  I 
should  consider  LaSalle’s  testimony  as  very  good,  excellent.  La- 
Salle was  a cultured  man,  with  a good  power  of  observation,  but 
extremely  prejudiced  against  the  Jesuits,  so  much  so  that  he 
would  be  likely  to  disparage  anything  that  the  Jesuits  had 

done. 

2138  There  is  a possible  element  in  determining  the  value  of 
LaSalle’s  testimony, — do  not  misunderstand  me.  LaSalle 

is,  for  matters  of  fact,  as  good  an  authority  as  the  Jesuits.  The 
Jesuits  would  always  disparage  LaSalle’s  explorations  and  La- 


752  Alvo  rd, — C ross-Exam. — C ontinued, 

Salle,  the  Jesuits.  LaSalle  started  out  from  Montreal  with  two 
Eecollect  Friars.  They  left  him  among  the  Senecas.  He  is  then 
said  to  have  gone  along  the  Ohio  Eiver,  but  he  was  accompanied 
by  Indians  and  some  white  men,  but  no  men  of  learning  as  I re- 
member, aright. 

Both  the  Friars  left  him;  both  went  up  and  went  around  De- 
troit. Then  he  passed  from  there — the  testimony  is  very  doubt- 
ful— to  Chicafifo  in  1671,  and  it  is  said  by  his  friend  that  he 

2139  went  down  the  Illinois,  his  friend  trying  to  make  out  that 
he  discovered  the  Mississippi  before  Marquette  and  Joliet. 

The  name  of  that  friend  is  not  known.  It  was  a book  that  was 
written  upon  information  obtained  in  conversation  with  LaSalle 
and  the  friend  had  never  been  in  America  and  his  directions  and 
his  latitude  and  longitude  are  so  doubtful  that  it  is  very  diffi- 
cult to  determine  where  LaSalle  actually  did  go. 

AVhen  Father  Hennepin  was  with  LaSalle,  he  came  down  the 
St.  Joseph  and  the  Kankakee.  Father  Hennepin  was  not  with 
him  at  Chicago. 

This  word  Chicago”  was  applied  to  the  Calumet  Eiver 

2140  and  to  the  Desplaines  Eiver.  I do  not  recollect  ever  seeing 
on  a map  or  in  a narrative  the  name  ^‘Chicago”  given  to 

the  St.  Joseph  Eiver.  The  St.  Joseph  Eiver  is  directly  opposite 
us  at  St.  Joseph,  Michigan,  and  that  is  the  other  portage  that  was 
mentioned,  coming  by  the  way  of  the  St.  Joseph  and  down  by  the 
Kankakee  and  around,  and  that  is  the  way  that  I under- 

2141  stand  it  was,  LaSalle’s  favorite  route.  That  was  his  favor- 
ite route. 

I have  read  Moses’  work  on  Chicago. 

And  on  being  asked,  ‘AVhat  authority  has  that,”  replied, 
^Aloses  was  not  a trained  historian.” 

Q.  IVas  Imlay?  A.  No,  Imlay  was  giving  his  experiences 
in  letters. 

Moses  is  an  authority,  Imlay  is  a source. 

I do  not  consider  the  mere  fact  that  a man  imblishes  a book 
and  calls  it  a history  as  giving  him  any  right  or  standing  to  have 
his  statements  accepted  as  historical  or  authentic.  If  I find  that 


a man  had  published  a history  of  a country,  I go  back  to  his  au- 
thority and  see  what  use  he  made  of  his  sources. 

Q.  And  if  you  find  a statement  in  such  a ' history,  and 
found  another  statement  of  that  fact  anywhere,  would 

2142  you  give  any  weight  to  that  statement  as  establishing  any 
historical  fact?  A.  It  would  depend  largely  upon  the  char- 
acter of  the  statement.  Frequently  historians  whose  word  is  not  of 
very  great  value,  have  had  access  to  information  that  is  no  longer 
extant,  or  is  not  contained  in  every  history.  We  should  have  to 
examine  the  statement  in  question  and  determine  its  value  by  it- 
self. 

Q.  If  you  found  no  other  reference  to  the  statement  anywhere, 
nothing  that  you  could  check  it  by  or  gauge  it  by,  would  you  ac- 
cept it  as  a historical  fact,  because  the  man  said  it,  and  particu- 
larly if  it  was  a fact  which  could  not  have  come  within  his  per- 
sonal knowledge? 

Counsel  for  Complainant.  I submit  that  this  is  the  same  ques- 
tion, just  asked  and  just  answered. 

Counsel  for  Defendant.  This  is  cross-examination. 

Counsel  for  Complainant.  No,  this  is  cross  of  cross.  It  is 
repetition,  of  course. 

The  Court.  He  may  answer  it. 

A.  That  statement  would  have  to  be  taken  with  a great  deal 
of  doubt. 

Counsel  for  Defendant.  Q.  The  mere  fact  tliat  you  found 
it  in  a book  of  that  character,  written  by  a man  of  that  descrip- 
tion, would  not  to  you  indicate  that  it  was  a historical  fact? 

2143  A.  It  would  have  to  be  of  a very  peculiar  character  before 
we  would  accept  it. 

I have  not  mentioned  all  the  authorities  upon  this  subject  that 
I am  familiar  with.  There  is  John  Beynolds,  Fogg,  Struve,  John 
Moses.  Keynolds  may  be  accepted  for  facts  to  come  directly 
within  his  knowledge,  and  I would  say,  with  reference  to  him,  that 
he  would  not  be  prejudiced.  Reynolds  is  a very  doubtful  au- 
thority. Moses  is  not  what  we  called  a trained  historian,  but  I 
regard  him — I suppose  you  want  my  personal  opinion? — re- 


754  Alvord, — Cross-Exam. — Continued. 

gard  John  Moses  as  having  done  a very  good  piece  of  work.  A 
great  deal  of  it  will  have  to  be  done  over  again. 

Q.  Is  that  not  so  of  nearly  all  of  the  early  historians? 

2144  A.  I should  not  class  him  like  Windsor.  I would  class  him 
higher  than  AVoodruff,  down  in  Will  County.  Hurlburt  is 

a popular  historian.  Hurlburt  has  somewhat  the  characteristics 
of  Ida  Tarbell.  Hurlburt  writes  for  sales,  and  he  writes  very 
hurriedly  and  not  very  critically.  I have  followed  in  one  or  two 
cases  and  on  the  whole  I think  it  is  a very  good  popular  history. 
You  have  to  be  careful  how  you  read  Hurlburt. 

2145  Monet  comes  pretty  near  being  a source  in  many  ways. 
He  had  access  to  information  that  has  been  in  many  cases 

lost  since,  and  for  that  period  Monet  is  a very  good  historian,  for 
the  period  of  which  he  wrote.  I would  not  put  Monet  in  a class 
like  AYindsor,  or  Hart,  the  American  Nation,  but  I should  classify 
him  with  Moses.  Brown  is  like  Moses. 

As  to  my  ever  hearing  the  name  Chicago  applied  by  the  early 
French  to  the  Ohio  River,  I was  rather  interested.  I have 

2146  never  seen  it  myself  and  I was  surprised,  because  from  the 
very  earliest  times  the  French  called  the  Ohio  and  the 

AVabash  one  river,  and  called  it  the  AYabash,  and  the  river  from 
the  Ohio — what  we  call  the  Ohio,  above  the  AVabash  was  called 
Belle  River,  Beautiful  River.  The  English  from  the  first  called 
it  by  the  Indian  name,  Ohio,  and  finally  that  name,  of  course,  be- 
came attached  to  it. 

And  on  being  asked : 

Q.  AVould  it  surprise  you  to  find  the  term,  Chicago  used  in 
early  documents,  or  at  least  documents  re]Dorted  by  so  excellent 
an  authority  as  AYindsor  in  his  Narrative  and  Critical  History  of 
America  ? 

The  witness  replied  should  not  be  surprised.” 

2147  Up  to  the  first  explorers  of  the  names  used,  a very  few 
stayed,  but  after  the  map  makers  began  to  work,  such  as 

DeLisle,  who  worked  in  the  early  part  of  the  Eighteenth  Century, 
the  names  became  attached,  and  about  1775  the  names  were  pretty 
fimily  attached  to  the  rivers.  The  English  used  names  which 
stayed  longer,  but  after  AlitchelFs  map,  which  was  published  in 
1754,  the  names  were  very  firmly  attached. 


755 


The  map  that  I spoke  of,  Marquette,  was  the  original  map 
made  by  Marquette  on  his  travels.  Joliet  was  the  one  that  lost 
his  map.  Joliet’s  map  was  made  from  memory  afterwards. 

The  Chicago  Kiver  I found  at  times  applied  to  the  Des- 

2148  plaines  River.  I also  find  it  applied  to  the  Calumet  River. 
There  was  a portage  from  the  Calumet  River  to  the  Kan- 
kakee. There  was  a way  of  getting  from  Calumet  to  Kankakee, 
or  it  might  go  from  Calumet  to  Desplaines.  As  I understand  it 
they  did  both. 

Q.  In  connection  with  the  answer  as  to  the  history  of  Wis- 
consin by  Smith,  you  said  it  was  accepted  as  an  authority  with 
qualifications,  and  you  used  that  same  term  with  reference  to 
other  works.  What  are  the  qualifications  as  applied  to  Smith’s 
work?  A.  I would  class  Smith’s  work  in  the  same  class  as 
Moses.  You  would  have  to  use  Smith  with  a great  deal  of  care, 
and  only  use  him  as  an  authority  in  so  far  as  his  statements  were 
backed  up  by  other  authorities. 

Q.  Can  you  name  any  one  of  the  local  historians  who  have 
been  referred  to  in  your  direct  examination  to-day,  to  whom  that 
statement  you  have  just  made  would  not  truthfully  apply? 

2149  A.  I do  not  know  as  I want  to  blanket  them  all  that  way. 

Q.  Try  to  think  of  one  of  those  you  have  named.  A. 
Local  historians? 

Q.  Yes.  A.  I am  willing  to  say  this — 

Q.  You  are  willing  to  say  that?  A.  Yes,  sir. 

Q.  What  do  you  mean  when  you  say  that  the  statements  of  a 
man  like  Imlay  are  authority?  A.  Imlay  was  a traveler  in 
the  west.  He  was  an  observer,  as  was  indicated  by  his  letters. 
He  had  the  means  of  making  inquiries.  Some  things,  of  course, 
he  saw  himself,  and  because  of  the  number  of  books  and  manu- 
scripts that  have  come  down  from  that  time  to  this,  we  have  to 
use  Imlay  as  one  of  our  sources  of  information. 

If,  for  instance,  Imlay  says  there  is  a river  here,  or  a range 
of  hills  there,  I should  be  inclined  to  take  it,  yes,  sir;  unless 

2150  there  was  something  to  disprove  it.  I should  question  him 
in  certain  particulars,  because  he  is  a source  and  we  his- 
torians are  obliged  to  investigate  our  sources  carefully. 


756 


A Iv 0 rd, — C ross-Exam. — C on  tin ued. 


As  to  a description  of  the  physical  objects  generally  in  works 
of  travelers,  as  to  the  nature  and  condition  of  those  ph5^sical  ob- 
jects,— a river  changes,  of  course,  and  we  would  have  to  take 
that  into  consideration,  so  that  if  there  was  a long  period  between 
the  time  the  traveler  visited  the  river  and  the  trained  observer, 
the  traveler’s  opinion  would  have  to  carry  a great  deal  of  weight: 
if  they  were  substantially  contemporaneous  I would  take  the 
trained  observer. 

Q.  You  would  consider  the  fact  that  some  traveler  narrates 
that  he  was  told  by  somebody  else  that  something  existed, 

2151  which  he  had  never  seen,  would  you  consider  that  as  estab- 
lishing the  facts?  A.  What  is  the  question. 

Q.  Just  please  read  the  question. 

(Question  read  by  the  reporter.) 

Counsel  for  Complainant.  I object  to  that  because  it  is  going 
into  a question  of  evidence  and  not  a question  of  his  qualifica- 
tions as  an  expert  upon  historical  works. 

Counsel  for  Defendant.  I think  it  goes  to  his  qualifications 
as  an  expert. 

The  Court.  He  may  answer  it. 

Counsel  for  Defendant.  Have  you  got  the  question?  Please 
read  the  question. 

(Question  again  read  by  the  reporter.) 

A.  It  largely  depends  upon  the  character  of  the  facts. 

Counsel  for  Defendant.  For  instance. 

A.  If  the  traveler  were  told  by  a trader  who  had  made  use 
of  a certain  portage,  that  there  was  a portage  at  such  and  such 
a place,  I should  say  that  that  testimony  could  be  admitted  by  the 
historian. 

If  I found  in  a work  purporting  to  give  routes  of  travel,  a 
statement  made  that  a certain  distance  was  fifteen  miles, 

2152  when  as  a matter  of  fact  it  was  fifty,  I should  want  to  know 
to  what  miles  he  was  referring,  whether  the  European  or  the 

American.  Assuming  that  he  is  writing  in  America  for  Ameri- 
cans, a book  published  in  America,  I should  want  to  know  when 
it  was  published,  because  he  may  have  gotten  his  information  from 


some  Frenchmen,  and  they  would  speak  of  leagues  instead  of 
miles. 

Q.  When  you  read  an  Fnglish  book  and  it  says  miles,  is  there 
any  doubt  in  your  mind  as  to  what  it  means?  A.  I think  you  are 
right. 

Q.  What  would  be  your  qualification  as  to  the  statement  or 
the  weight  attached  to  the  statements  of  that  writer?  A.  I 
should  say  that  the  writer  had  not  himself  measured  the  distance 
and  had  gotten  his  information  from  some  other  people. 

2163  Q.  And  if  you  found  a statement  of  that  nature,  would 
it  not  make  you  scrutinize  with  considerable  care  any  other 
statements  that  he  made  of  that  kind? 

(To  which  question  counsel  for  complainant  objected  on 
the  ground  that  the  question  did  not  test  the  witnesses’  gen- 
eral historical  knowledge  at  all,  and  that  while  the  author 
of  a book  might  have  a splendid  report  of  the  laying  out  of 
travel  routes,  he  might  get  his  mileage, — as  a witness  in  fact 
has  said, — from  some  one  else  as  to  distances  and  be  utterly 
worthless  as  to  exact  distances,  and  that  the  said  question 
was  therefore  not  proper  cross-examination.) 

(All  of  which  objections  were  overruled  by  the  court  and  the 
witness  answered  as  follows:) 

‘ ^ It  certainly  would.  ’ ’ 

2157  And  on  being  asked:  ‘‘If  you  found  that  in  the  very 

next  instance  he  gives  ten  and  a quarter  miles  as  a dis- 
tance, when  in  fact  it  was  four  miles,  would  that  not  rather  tend 
to  increase  your  caution  as  to  accepting  his  statements  as  au- 
thority, ’ ’ replied  in  the  affirmative. 

Shea  is  an  authority,  without  reference  to  any  particular  book 
that  he  wrote.  His  works  are  generally  regarded  as  authority? 
He  has  a very  good  reputation. 

2159  As  to  certain  geographical  names,  pages  56  and  59  of 
Shea, — I am  not  an  authority  upon  all  the  physical  features 

of  this  river  or  the  Illinois  Elver,  and  as  to  Syag  Island,  I am 
not  familiar  with  it.  As  to  the  point  referred  to  in  St. 

2160  Cosme’s  Voyage  at  page  56,  Mount  Jolly, — that  is  a mound 
that  lies  on  the  Desplaines  Eiver — near  the  mouth  of  the 


758  Alvord, — Cross-Exam. — Continued. 

Desplaines  Eiver;  but  as  to  where  it  is  with  relation  to  Joliet,  I 
am  not  familiar  with  the  situation  of  Joliet.  I never  have  studied 
that  country  on  the  ground.  In  passing  on  the  railroad  I have 
never  had  pointed  out  to  me  what  is  sometimes  called  Mount 
Jolly. 

(Thereupon,  upon  objection  of  counsel  for  complainant 
to  the  question,  Where  is  Syag  Island,’^  upon  the  ground 
that  it  was  geography  and  not  history,  the  court  sustained 
the  objection  after  some  colloquy.) 

2163  Counsel  for  Defendant.  Now,  do  you  know  what  any  of 
the  geographical  names  in  St.  Cosme’s  Voyage,  the  Indian 

names,  what  they  designate  in  English,  except  the  Indian  name 
of  the  Kankakee  Eiver? 

2164  A.  I have  read  the  whole  of  this  narrative  and  if  you 
will  notice  in  the  foot-notes  these  Indian  names  are  identi- 
fied by  Mr.  Shea  and  I used  the  foot-notes  of  Mr.  Shea. 

Q.  Just  read  the  question. 

(Question  read  by  the  reporter). 

A.  From  my  own  knowledge,  you  mean? 

Q.  Yes,  sir.  A.  Some  of  them  I remember  and  some  I do  not 
remember. 

There  are  two  magazines  of  American  History.  One  ceased  to 
appear  some  years  ago,  and  there  is  a new  magazine  of  American 
history  that  has  been  started  up  within  the  last  few  years.  The 
earlier  one  is  a fairly  good  magazine.  It  had  some  very  good 
writers. 

The  value  of  Monsieur  de  Montaigny’s  letter  as  a source  would 
have  the  same  value  as  St.  Cosme’s  Journeys. 

Charlevioux’  Letters  are  an  excellent  authority,  because 
Charlevioux  made  the  journey  and  he  was  a very  keen  ob- 
server. 

2165  I do  not  think  I ever  have  examined  Post  and  Poul’s  Ee- 
port.  I have  seen  references  from  it.  I never  used  it.  I 

have  read  Caton’s  Stage  ^Eoute.  As  to  what  authority  I attach 
to  Caton’s  work, — I do  not  know  as  I should  care  to  take  that 
upon  myself  without  more  close  examination  than  I have  given 
it,  because  I only  used  it  in  a casual  way.  I do  not  think  I 


759 


would  want  to  pass  judgment  on  it.  My  first  acquaintance  with 
tlie  history  of  Will  County  was  in  connection  with  this  case. 

Re-direct  Examination, 

In  a work  such  as  Dana’s  ^‘Bounty  Lands  and  Description  of 
the -Principal  Eoads  and  Eoutes  by  Land  and  Water,”  where  it 
appears  as  a preface  to  the  routes  and  distances  given  that  the 
author  had  used  this  language : 

2166  ^Mn  this  department  of  science  it  is  impossible  in  a new 
country,  where  actual  surveys  of  courses  and  distances  have 
not  been  had,  to  attain  a precise  accuracy,  and  though  the 
author,  although  he  flatters  himself  that  he  has  embraced 
more  new  routes  and  noted  the  distances  of  old  ones  with 
more  correctness  than  any  man  who  has  attempted  the  pub- 
lication, he  is  sensible  that  in  our  multifarious  and  complicated 
conditions  where  exact  information  is  unattainable,  the  dis- 
tances between  places  in  several  remote  and  less  frequented 
portions  of  the  country  have  not  been  estimated  with  the 
strictest  accuracy.  Here  and  in  all  other  matters  pertaining 
to  the  subjects  as  his  endeavors  and  most  arduous  and  per- 
severing labor  have  been  bestowed  from  a candid  and  en- 
lightened public,  he  solicits  both  the  indulgence  and  the  notice 
of  his  errors  which  he  proposes  to  rectify  in  a future  edi- 
tion. ’ ’ 

If  routes,  in  which  are  mentioned  distances  from  point  to  point, 
contain  that  kind  of  a prefatory  statement,  whether  or  not  that 
would  lessen  in  my  mind  as  a historian  the  measure  of  accuracy 
as  to  the  fact  of  the  routes,  and  the  routes  themselves,  and  like- 
wise the  inaccuracy  of  the  statement  of  the  historian, — I 

2167  should  think  the  witness  had  attempted  to  be  honest,  but  in 
this  case  there  are  certain  inaccuracies  in  distance  with  re- 
gard to  the  route. 

At  the  time  this  book  was  written,  in  1819,  the  route  through 
the  lakes  and  over  the  portage  here  at  Chicago  to  the  Desplaines 
Eiver  and  down  the  Desplaines  Eiver  was  one  of  the  routes  in 
that  remote  part  of  the  country  where  surveys  were  not  actually 
made  and  distances  hard  to  obtain,  as  mentioned  in  the  preface,  or 
the  prefatory  part  of  this  volume. 


760 


Alvord  Re-cross  Examination. 

Joliet  and  Marquette  and  Montaigny  had  given  those  dis- 

2168  tances  accurately.  This  man  probably  did  not  know  their 

2169  works.  In  the  year  1818,  just  about  that  time,  this  part  of 
the  river  was  not  well  known,  but  I should  say  that  on  the 

whole  the  distances  could  have  been  obtained  at  that  time. 

And  thereupon  after  some  colloquy  between  counsel  in  refer- 
ence to  the  statement  in  Dana’s  ^‘Bounty  Lands”  being  correct 
in  fact,  the  witness  was  excused. 

2175  Thereupon  counsel  for  complainant  read  in  evidence  the 
Treaty  of  Greenville,  communicated  to  the  Senate  Decem- 
ber 9,  1795,  from  the  publication  known  as  ^L\merican  State 
Paj^ers;  Volume  1,  Class  3;  Indian  Affairs.” 

Title  page:  ‘L\mericnn  State  Papers;  Documents,  Legisla- 

tive and  Executive  of  the  Congress  of  the  United  States,  from  the 
first  session  of  the  First  to  the  Third  Session  of  the  Thirteenth 
Congress,  inclusive,  commencing  March  3,  1789,  and  ending  March 
3,  1815;  selected  and  edited  under  the  authority  of  Congress  hy 
AValter  Lowrie,  Secretary  of  the  Senate,  and  Matthew  St.  Clair 
Clarke,  Clerk  of  the  House  of  Kepresentatives.” 

‘‘Fourth  Congress  Number  67,  Treaty  of  Greenville,  corn- 

2176  municated  to  the  Senate  December  9,  1795.  Gentlemen  of 
the  Senate:  I lay  before  you  for  your  consideration  a treaty 
of  peace  which  has  been  negotiated  by  General  MAyne  on  be- 
half of  the  United  States  with  all  the  late  hostile  tribes  of 
Indians  northwest  of  the  Elver  Ohio,  together  with  the  in- 
structions which  were  given  to  General  M^ayne  and  the  pro- 
ceedings at  the  place  of  treaty.  United  States,  December  9, 
1795.  George  Washington. 

A treaty  of  peace  between  the  United  States  of  America 
and  the  tribes  of  Indians  called  the  Wyandots,  Delawares, 
Shawanese,  Ottawas,  Chippewas,  Pattawatamies,  Miamies, 
Fel  Kivers,  Weas,  Kickapoos,  Piankeshaws  and  Kaskaskias. 

To  put  an  end  to  a destructive  war,  to  settle  all  controver- 
sies and  to  restore  harmony  and  friendly  intercourse  be- 
tween the  said  United  States  and  Indian  tribes,  Anthony 
Wayne,  Major  General  commanding  the  army  of  the  United 
States  and  sole  commissioner  for  the  good  purposes  above 
mentioned,  and  the  said  tribes  of  Indians  by  their  sachems, 
chiefs  and  warriors,  met  together  at  Greenville,  the  head- 
quarters of  the  said  army,  being  agreed  on  the  following  ar- 
ticle; which  when  ratified  by  the  President  with  the  advice 


and  coinsent  of  tlie  Senate  of  the  United  States  shall  be 
binding  on  them  and  the  said  Indian  tribes — 

2177  Article  1.  Henceforth  all  hostilities  shall  cease;  peace 
is  hereby  established  and  shall  be  perpetual;  and  friendly 
intercourse  shall  take  place  between  the  said  United  States 
and  Indian  tribes.  * 

Article  3.  The  general  boundary  line  between  the  lands  of 
the  United  States  and  the  lands  of  the  said  Indian  tribes  shall 
begin  at  the  mouth  of  the  Cuyahoga  River  and  run  thence,  up 
the  same.  * * 

2178  And  in  consideration  of  the  peace  now  established,  of  the 
goods  formerly  received  from  the  United  States  and  of  those 
now  to  be  delivered,  and  of  the  yearly  delivery  of  goods  now 
stipulated  to  be  made  hereafter,  and  to  indemnify  the  United 
States  for  the  injuries  and  expenses  they  have  sustained  dur- 
ing the  war,. the  said  Indian  tribes  do  hereby  cede  and  relim 
(iuish  forever  all  their  claims  to  the  lands  lying  easterly  and 
southwardly  of  the  general  boundary  line  now  described.  * * * 

And  of  the  same  consideration  and  as  an  evidence  of  the 
return  of  friendship  of  the  said  Indian  tribes,  of  their  con- 
fidence in  the  United  States  and  desire  to  provide  for  their 
accommodation  and  for  that  convenient  intercourse  which 
will  be  beneficial  to  both  parties,  the  said  Indian  tribes  do 
also  cede  to  the  United  States  the  following  pieces  of  land, 
to  wit:  ^ * 

II.  One  piece  of  land  six  miles  square  at  the  mouth  of 
Chicago  River  emptying  into  the  southwest  end  of  Lake  Mich- 
igan, where  a fort  formerly  stood. 

2179  15.  One  piece  of  land  twelve  miles  square  at  or  near  the 
mouth  of  the  Illinois  River  emptying  into  the  Mississippi. 

One  piece  six  miles  square  at  the  old  Peoria s fort  and  vil- 
lage near  the  south  end  of  the  Illinois  Lake  on  said  Illinois 
River.  * ^ * 

And  the  said  Indian  Tribes  will  allow  to  the  people  of  the 
United  States  a free  passage  by  land  and  water  as  one  and 
the  other  shall  be  found  convenient,  through  their  country 
along  the  chain  of  posts  hereinbefore  mentioned;  that  is  to 
say  from  the  commencement  of  the  portage  aforesaid  at  or 
■near  Loromie’s  store;  thence  along  said  portage  to  the  Saint 
Marys-,  and  down  the  same  to  Fort  Wayne,  and  then  down 
the  Miami  to  Lake  Erie;  again,  from  the  commencement  of 
the  portage  at  or  near  Loromie^s  store  along  the  portage: 
from  thence  to  the  river  Auglaize,  and  down  the  same  to  its 
junction  with  the  Miami  at  Fort  Defiance;  again  from  the 
commencement  of  the  portage  aforesaid  to  Sandusky  River 
and  down  the  same  to  Sandusky  Bay  and  Lake  Erie,  and  from 
Sandusky  to  the  post  which  shall  be  taken  at  or  near  the  foot 
of  the  rapids  of  the  Miami  of  the  Lake,  and  from  thence  to 
Detroit. 


762 


A I V 0 i'd, — R e-cross  Exam . — C on  tinned. 


Again  from  the  mouth  of  Chicago  to  the  commencement 

2180  of  the  portage  between  that  river  and  the  Illinois  and  down 
the  Illinois  Eiver  to  the  Mississippi.  Also  from  Fort 
Wayne  along  the  portage  aforesaid  which  leads  to  the  Wabash 
and  then  down  the  Wabash  to  the  Ohio.  * * * 

In  testimony  whereof  the  said  Anthony  Wayne  and  the 
sachems  and  war  chiefs  of  the  before  mentioned  nations  and 
tribes  of  Indians  have  hereunto  set  their  hands  and  affixed 
their  seals.  Done  at  Greenville  in  the  Territory  of  the  United 
States  northwest  of  the  Eiver  Ohio  in  the  3rd  day  of  August 
one  thousand  seven  hundred  and  ninety  five.  Anthony 
Wayne.  Signed  by  certain  chiefs  of  tribes  enumerated  in  the 
title.’’ 

Counsel  for  complainant  also  read  in  evidence  the  Treaty  of 
Peace,  Friendship  and  Limits  of  August  24,  1816,  found  in  the  vol- 
ume ordinarily  cited  as  United  States  Statutes  at  Large,  Volume 
7,  Indian  Treaties,  as  follows: 

Pages  146-147 : 

Treaty  of  Peace,  Friendship  and  Limits  made  and 
concluded  between  Ninian  Edwards,  William  Clark,  August 
Clark,  August  Chouteau,  Commissioners  plenipotentiary  of 
the  United  States  of  America,  on  the  part  and  behalf  of  the 

2181  said  states  of  the  one  part,  and  the  chiefs  and  warriors  of 
the  United  Tribes  of  Ottawas,  Chippawas  and  Pottowotomees, 
residing  on  the  Illinois  and  Melwakee  Elvers  and  their  waters 
and  on  the  southwestern  parts  of  Lake  Michigan,  on  the  other 
part. 

Whereas  a serious  dispute  has  for  some  time  past  existed 
between  the  contracting  parties  relative  to  the  right  to  a 
part  of  the  lands  ceded  to  the  United  States  by  the  tribes  ot 
the  Sacs  and  Foxes  on  the  3rd  day  of  November  One  Thou- 
sand Eight  Hundred  and  Four,  and  both  parties  being  desir- 
ous of  preserving  a harmonious  and  friendly  intercourse  and 
of  establishing  permanent  peace  and  friendship  have  for  the 
purpose  of  removing  all  difficulties  agreed  to  the  following 
terms : 

Article  1.  The  said  chiefs  and  warriors  for  themselves 
and  the  tribes  they  represent  agree  to  relinquish  and  hereby 
do  relinquish  to  the  United  States  all  their  right,  claim  and 
title  to  all  the  land  contained  in  the  before-mentioned  ses- 
sion of  the  Sacs  and  Foxes,  which  lie  south  of  a due  west 
line  from  the  southern  extremity  of  Lake  Michigan  to  the 
Mississippi  Elver.  And  they  moreover  cede  to  the  United 
States  all  the  lands  contained  within  the  following  bounds,  to 
wit:  Beginning  on  the  left  bank  of  the  Fox  Eiver  of  Illinois 
ten  miles  above  the  mouth  of  the  said  Fox  Eiver;  thence  run- 
1812  ning  so  as  to  cross  Sandy  Creek  ten  miles  above  its  mouth ; 


thence  in  a direct  line  to  a point  ten  miles  north  of  the  west 
end  of  the  portage  between  Chicago  Creek,  which  empties 
into  Lake  Michigan,  and  the  River  Desplaines,  a fork  of  the 
Illinois;  thence  in  a direct  line  to  a point  on  Lake  Michigan, 
ten  miles  northward  of  the  mouth  of  Chicago  Creek;  thence 
along  the  lake  to  a point  ten  miles  southward  of  the  mouth 
of  the  said  Chicago  Creek;  thence  in  a direct  line  to  a point 
on  the  Kankakee,  ten  miles  above  its  mouth;  and  thence  with 
the  said  Kankakee  and  the  Illinois  Rivers  to  the  mouth  of 
the  Fox  River,  and  thence  to  the  beginning: 

Provided,  nevertheless,  that  the  said  tribes  shall  be  per- 
mitted to  hunt  and  to  fish  within  the  limits  of  the  lands  here- 
by relinquished  and  ceded,  so  long  as  it  may  continue  to  he 
the  property  of  the  United  States.  * * ^ 

In  witness  Avhereof  the  said  (N)inian  Edwards,  William 
Clark,  Auguste  Chouteau,  commissioners  aforesaid,  and  the 
chiefs  and  warriors  of  the  aforesaid  tribes  have  hereunto 
subscribed  their  names  and  affixed  their  seals  this  24th  day 
of  August,  One  Thousand  Eight  Hundred  and  Sixteen  and 
of  the  Independence  of  the  United  States,  the  forty-first.” 

Then  follows  the  signatures. 

Thereupon  counsel  for  complainant  at  the  request  of  counsel 
for  defendant  read  in  evidence  from  Early  Voyages  up 

2183  and  Down  the  Mississippi  by  Shea,”  on  page  57  to  59,  as  fol- 
lows : 

‘Hts  prairies  skirted  by  hills  and  very  fine  woods,  where 
there  are  numbers  of  deer  as  well  as  on  the  river.  There  is 
abundance  of  game  of  all  kinds,  so  that  one  of  our  men  stroll- 
ing around  after  making  the  portage  killed  enough  to  give 
us  a plentiful  supper  and  breakfast  next  morning. 

Mon  jolly  is  a mound  of  earth  in  the  prairie  on  the  right  as 
you  go  down,  slightly  elevated  about  thirty  feet.  The  Indians 
say  that  at  the  time  of  a great  deluge  one  of  their  ancestors 
escaped  and  that  this  little  mountain  is  his  canoe,  which  he 
turned  over  there.  On  leaving  Mon  jolly  we  made  about  two 
. leagues  to  another  little  portage,  about  a quarter  of  a 
league. 

As  one  of  our  men,  named  Charboueau,  had  killed  several 
turkeys  and  geese  in  the  morning  and  a deer,  we  did  well  to 
give  somewhat  of  a treat  to  our  people  and  let  them  rest  for 

2184  a day.  On  the  10th  we  made  the  little  portage  and  found 
half  a league  of  water,  and  then  two  men  towed  the  canoe 
for  a league. 

The  rest  marched  on,  each  with  his  pack,  and  we  embarked 
for  the  space  of  a league  and  a half,  and  stopped  for  the 
night  at  a little  portage  five  or  six  arpens  otf. 

On  the  11th,  after  making  the  little  portage,  we  came  to 


764 


Extract^ — Shea’s  Early  Voyages. — Continued. 


the  Eiver  Tealike,  which  is  the  real  river  of  the  Illinois ; that 
which  we  had  ascended  being  only  a branch.  AVe  put  all  onr 
furs  in  the  canoe  which  two  men  towed,  while  Mr.  De  Tonti 

2185  and  we  with  the  rest  of  our  men  marched  on  again,  always 
through  beautiful  prairies.  We  arrived  at  the  Village  of 
the  Peanzichias,  Miamis,  who  formerly  dwelt  on  the — of  the 
Mississippi  and  who  some  years  since  came  to  settle  in  this 
place.  There  was  no  one  in  the  village,  all  having  gone  out 
hunting.  We  went  that  day  to  halt  near  Massacre,  which  is 
a little  river  that  empties  into  the  Eiver  Illinois.”  (The  foot 
note  says  this  was  a river  Charlevoix  tells  ns  was  so  called  be- 
cause an  Iroquois  war  party  was  there  surprised  and  cut  to 
pieces  by  the  Illinois,  but  the  present  river  is  a branch  of 
the  Kankakee  above  the  Desplaines.) 

“It  was  from  this  day  that  we  began  to  have  butfalo,  and 
the  next  day  two  of  onr  men  killed  four,  hut  as  these  ani- 
mals are  lean  at  this  season  they  contented  themselves  with 
taking  the  tongues.  These  cattle  seem  to  be  larger  than  ours. 
They  have  a hum^^  on  the  back,  the  legs  are  very  short,  the 
head  very  large,  and  so  covered  with  long  hairs  it  is  said 
a bullet  cannot  penetrate  it. 

We  afterwards  saw  them  almost  every  day  during  onr 
voyage  to  the  Akanseas.  After  having  had  to  carry  onr 
baggage  for  three  days,  and  put  it  all  together  in  the  canoe, 
th§  river  being  low  and  full  of  rocks,  we  arrived  on  the  16th  of 
Xovember  at  the  place  called  the  old  fort.  It  is  a rock  which 
is  on  the  bank  of  the  river  about  a hundred  feet  high,  where 

2186  M.  de  la  Salle  built  a fort  which  he  abandoned. 

The  Indians  having  gone  to  stay  about  twenty-five  leagues 
lower  down,  we  slept  a league  below,  where  we  found  two 
Indian  cabins.  IVe  were  consoled  to  see  one  perfectly  good 
Christian  woman.  From  Chicago  to  the  Fort  will  reckon 
thirty  leagues.  Here  navigation  begins,  which  continues  un- 
interrupted to  the  Fort  of  the  Permavevvi,  where  the  In- 
dians are  now.  ’ ’ 

Counsel  here  offered  and  read  in  evidence  the  deposition  of 

George  Albert  Parrent. 

(For  rulings  on  same  see  Abstract  of  Depositions,  supra,  p. 
448.) 

2187  Counsel  here  offered  and  read  in  evidence  the  deposition 
of  Christian  Hey  decker. 

(For  rulings  on  same  see  Abstract  of  Depositions,  supra,  p. 
204.) 

2192  Counsel  then  offered  and  read  in  evidence  the  deposition  of 
Edward  D.  Brockway. 

(For  rulings  on  same  see  Abstract  of  Depositions,  supra,  p. 

458.) 


765 


2194  Emil  Eudolph, 

a witness  for  the  complainant,  testified  as  follows : 

Direct  Examination. 

Counsel  for  complainant  offered  in  evidence  the  document  la- 
beled ^‘Certified  copy  of  the  Field  Notes  of  the  Meanders  of  the 
Desplaines  Eiver,”  the  certificate  attached  to  which  reads: 

2195  State  of  Illinois, 

Auditor’s  Office, 

Springfield,  December  9,  1907. 

James  S.  AIcCullough,  Auditor  of  Public  Accounts  of  the 
State  of  Illinois  and  by  law  custodian  of  the  field  notes  of 
surveys  of  lands  in  Illinois,  do  hereby  certify  that  the  fore- 
going is  a true,  correct  and  a complete  copy  of  the  field  notes 
of  the  meander  survey  of  the  Illinois  Eiver  and  the  river  Des- 
plaine,  from  its  mouth  or  junction  of  said  river  with  the 
Kankakee  Eiver  in  Sections  25  and  36,  Township  34  north, 
range  8 east  of  the  third  principal  meridian,  as  far  north  as 
the  northern  boundary  line  of  Township  38  north,  range  12 
east  of  the  third  principal  meridian ; all  of  which  appears  from 
the  records  of  the  field  notes  of  surveys  on  file  in  this  office.” 

2196  In  connection  with  that,  counsel  for  complainant  read  the 
statute,  entitled  ^‘An  Act  to  Eevise  the  law  in  relation  to 

county  surveyors  and  the  custody  of  the  United  States  field  notes, 
approved  March  2,  1874,  in  force  July  1,  1874.” 

‘‘Section  10.  As  soon  as  the  present  custodian  of  the  orig- 
inal field  notes  of  the  United  States  surveys  transferred  from 
the  United  States  Surveyor  General’s  office  to  this  State,  pur- 
suant to  Acts  of  Congress,  shall  complete  the  copying  thereof 
pursuant  to  law,  and  the  new  State  House  is  ready  for  occupa- 
tion by  the  State  officers,  said  custodian  shall  deposit  said 
field  notes  and  the  said  copies  and  all  papers  and  documents 
pertaining  thereto  in  the  office  of  the  Auditor  of  Public  Ac- 
‘ counts,  thereupon  the  office  of  said  custodian  shall  keep,  and 
said  field  notes  and  copies  shall  be  and  remain  in  the  custody 
of  the  Auditor  of  Public  Accounts  and  copies  thereof  made 
and  certified  by  him  under  his  official  seal  shall  be  competent 
evidence.” 

2201  Upon  objection  by  counsel  for  defendant,  after  some  col- 
loquy between  counsel  the  court  said : 


766 


Rudolph, — Direct  Exam. — Continued. 


2202  The  Court.  All  right.  Then  it  is  stipulated  by  eounsel  that 
the  document  now  introduced — we  will  come  to  whether  the 

title  page  is  to  be  excluded,  in  a moment — excluding  the  certificate, 
excluding  the  cover  written  in  counsel’s  office,  is  a correct  copv 
of  the  original  field  notes  of  the  original  Government  survey,  de- 
posited in  accordance  with  the  law  with  the  auditor  of  public  ac- 
counts; counsel  for  the  defendant,  however,  reserving  their  objec- 
tions as  to  the  competency  of  a copy  of  the  original  field  notes 

2203  being  admitted  in  this  case.  =*=  * * Excluding  also  the  title 

page  of  said  copy,  placed  thereon  by  the  auditor. 

2204  Here  follows  an  explanatory  note  stating  that  the  said  field 
notes  ‘^Exhibit  I”  and  the  other  documents  and  documentary 

evidence  offered  or  introduced  in  evidence  herein,  which  are  not  set 
forth  in  connection  with  the  statement  herein,  are  set 
forth  in  this  Certificate  of  Evidence  at  the  close  of  the  testimony 
in  the  appendix  hereto,  marked  ‘^Appendix  II.” 

Said  explanatory  note  also  states  that  proper  references  are 
made  to  said  ‘E^lppendix  II,”  and  the  documentary  evidence  there- 
in set  out  are  incorporated  in  said  Certificate  of  Evidence  by 
such  references  at  the  place  of  its  offer  and  introduction  and  a 
reference  to  each  of  the  said  exhibits  by  the  page  of  said  ‘E4ppen- 
dix  II,”  where  it  so  appears,  follows  the  statement  of  the  offer 
or  introduction  of  each  of  said  exhibits,  thus  Field  Notes  Exhibit 

I.  (Appendix  II,  p.  3885;  Trans.,  p.  5727 ; Abst.,  p.  1724).” 

2205  Thereupon  counsel  for  complainant  introduced  in  evidence 
‘‘Field  Notes,  Exhibit  II  (Appendix  11,  p.  3886;  Trans.,  p. 
5771;  Abst.,  p.  1724)  and  Field  Notes,  “Exhibit  3 (Appendix 

II,  p.  3887;  Trans.,  p.  5782;  Abst.,  1725). 

2206  Thereupon  counsel  for  complainant  had  marked  for  iden- 
tification “Survey  Exhibit  4”  (Appendix  II,  p.  3888;  Trans., 

p.  5791;  Abst.,  p.  1725). 

And  thereupon  the  witness  testified  as  follows: 

My  name  is  Emil  Eudolph, — age  fifty-three, — residence.  High- 
land Park,  Lake  County,  Illinois;  my  occupation,  land  surveyor. 
I have  been  engaged  in  the  business  of  surveyor  since  1871. 

2207  The  principal  part  of  my  work  is  in  establishing  boundary 
lines,  the  lines  of  lands  and  many  larger  surveys  for  the 


767 


railroads  and  parks  and  cemeteries.  Anything  in  the  surveying 
line,  locating  the  meander  lines  of  lakes  and  rivers. 

I have  been  compelled  to  become  acquainted  with  and  have  be- 
come acquainted  with  the  plats,  maps  and  rules  of  the  office  of 
the  United  States  Grovernment  in  charge  of  land  surveys  in  Illinois, 
made  by  and  under  the  direction  of  the  surveyor  general. 

These  documents.  Field  Notes,  Exhibits  1,  2 and  3, — for 
2212  instance  take  the  one  marked  Exhibit  2,  I see  in  the  first 
page  there  in  parenthesis.  Volume  250,  page  263,  and  then 
the  legend,  ^‘Meander  by  the  S.  bank  of  Illinois  Eiver,  in  Sec. 
No.  26,  T.  No.  34,  N.  E.  No.  8 east.’’  Below  that  there  is  a column 
— there  are  columns  ‘‘N.  E.  81  E.”  and  opposite  that  eight  and  two 
ciphers.  Below  that  N.  84  E.  and  to  the  right  of  that  five  and  two 
ciphers. 

2215  N.  81  East  means  North  81  degrees  east,  that  is  the  course 
as  run;  eight  and  two  ciphers  means  8 chains.  North  81  east 

is  the  course  and  8 chains  is  the  distance,  which  this  course  is 
measured  to  the  next  course.  The  other  abbreviations  have 

2216  the  same  meaning,  right  through  until  they  strike  the  corner 
post,  the  section  corner. 

Volume  250,  page  263,  means  the  volume  of  Government  plat 
books,  or  Government  surveys,  and  the  page  is  the  page  number  of 
that  volume,  where  these  Government  field  notes  appear. 

‘‘Meander  by  the  S.  bank”  means  meander  by  the  south  bank 
of  the  Illinois  Eiver;  in  Sec.,  that  is  in  Section  26,  T.  is  Town- 
ship; No.  34  N.  is  north;  E.  is  range.  No.  8 E.  is  east;  and  then 
the  courses  and  distances  follows.  That  “east”  means  east  of  the 
third  principal  meridian. 

2217  “Meander  by  the  south  bank,”  as  understood  by  surveyors, 
— as  the  running  of  a line  taking  its  course  and  measuring  its 

distance  from  some  given  starting  point  and  continuing  on  to  the 
ending  point.  That  I would  call  surveying  a meander  line,  and 
is  generally  applied  as  the  meander  line  of  the  river,  or  lake 

2218  or  body  of  water,  and  the  margin  of  the  body. 

The  meander  line  is  indicated  on  this  map  by  the  border 
lines  of  the  stream  itself.  The  map  is  drawn  on  a scale  of  two 


768  Budolpli, — Direct  Exam. — Continued. 

indies  to  the  mile  and  makes  it  too  small  to  admit  of  any  specific 
marking. 

2219  The  map  indicates  the  meander  line,  the  way  that  the  Gov- 
ernment snrvey  plats  indicate  the  meander  line.  They  show 

the  location  of  the  river  in  a general  way  by  showing  the  direction 
and  course  between  two  meander  posts  in  the  section. 

2220  I have  tested  the  map  by  actual  survey.  The  map  shown 
me  together  with  the  field  notes  that  have  been  shown  me  of 

the  meander  line  of  the  Desplaines  Elver  in  Section  25,  Township 
31,  Eange  8,  ascertain  or  make  certain  the  location  of  the  meander 
line  of  the  Desplaines  Eiver  in  that  section. 

I can  from  these  field  notes  which  have  been  shown  me  and 
from  this  plat  which  has  been  shown  me  find  a meander  line 

2221  located  by  them. 

Looking  at  Section  25,  Township  31,  Eange  8,  shown  on  this 
plat,  I observe  on  the  northeast  quarter  the  phrase  abbreviated 
Ac.”;  the  northeast  quarter  is  160  and  in  the  southwest 
is  116.21;  in  the  northwest  is  101.90;  in  the  southeast  is  91.11.  The 
figures  represent  the  area  of  the  different  fractional  quarters, 
in  acres.  The  area  which  is  covered  by  the  pale  blue  band  which 
is  labeled  the  name  of  the  river  would  be  outside  of  the  meander 
line.  On  several  other  sections  the  legend  610  acres  means  that 
the  section  contains  610  acres.  Sections  31  and  35  in  Town- 

2222  ship  31,  Eange  8,  each  contain  610  acres  by  Government  sur- 
vey, being  a full  section. 

In  laying  out  a township,  that  is,  what  is  called  a Congressional 
township,  when  it  is  full  there  are'  thirty-six  sections  in  it,  six 
miles  square  or  thirty-six  miles  in  the  section. 

Commencing  in  the  northeast  corner,  the  sections  run  west,  to 
six,  then  seven  below  it,  and  then  east  to  twelve,  and  so  alternate 
to  the  36th,  and  36  is  the  southwest  corner.  If  the  township  is  not 
full,  so  that  some  of  the  sections  in  it  will  not  contain  the  610 
acres,  if  it  is  short  north  and  south,  the  fractional  sections  will 
appear  along  the  north  line  of  the  township.  And  if  the  town- 

2223  ship  is  short  east  and  west  the  fractional  lines  will  appear 
along  the  west  tier.  The  sections  on  the  east  side  of  a town- 
ship south  of  Section  1 will  be  full,  if  there  is  area  enough  to 


769 


make  them  full;  and  the  first  one  to  be  made  full  is  section  tliirfv- 
six  and  the  next  one  running  north  and  south,  twenty-five. 

For  instance,  here  is  Township  35,  Eange  9,  I notice  the  acres 
given  on  the  top  here  of  sections  there.  Section  1,  640A,  Section  2 
640A,  Section  3 640A,  Section  4 640A,  Section  5 640A,  and  when 
you  come  to  Section  6 the  acreage  is  given  as  563.96.  The  excess 
or  the  deficiency  in  surveying  the  township  is  thrown  into  the 
west  tier  of  sections,  east  and  west.  In  this  case  there  seems  to 
he  a deficiency.  So  that  the  whole  tier  of  sections  on  the  west 

2224  side  of  that  township — is  a fractional  tier. 

Aside  from  the  last  one  or  two  questions  wherein  I have 
been  shown  an  illustration  of  what  I have  said,  my  answers  have 
been  made  and  are  concerning  the  map  that  is  marked,  ‘‘McCul- 
lough Exhibit  One,^^  and  the  one  which  was  before  me  when  the 
last  three  answers  were  made  is  marked  “McCullough  Ex- 

2225  hibit  lA”  (Atlas  page  3914;  Trans.,  p.  6482;  Abst.,  p.  1914), 
counsel  for  complainant  explaining  that  these  two  maps  are 

identical,  and  both  were  certified  to  by  Mr.  McCullough,  but  Mr. 
Ezra  Williams  has  delineated  upon  there  a lot  of  loose  material 
that  has  come  out  in  the  other  evidence,  upon  one  of  them, — by 
“loose  materiaP’  meaning  material  not  delineated  with  any  of  the 
rest  of  the  material  until  Mr.  Williams  delineated  it  upon  this. 

The  reason  why  the  surveyors  made  the  difference  in  this 

2226  particular  section  twenty-five,  giving  160  acres  to  the  north- 
east quarter  of  the  section  and  the  lesser  amount  to  the  other 

three-quarters  of  the  Section  25, — ^because  the  section  is  a fractional 
section,  being  fractional  on  account  of  the  river  running  through 
it,  the  meander  of  the  river  running  through  it  and  the  fractional 
parts,  the  areas  constitute,  as  I have  said  before, -the  lines  within 
the  section  line  and  the  meander  line.  These  figures,  in  the 
different  fractional  quarter  sections  of  Section  25,  Township  34, 
Eange  8 East,  indicate  the  area  of  any  acres  of  land  within  the 
meander  line  of  those  several  quarters.  Section  25  is  a frac- 

2227  tional  section.  It  should  be  a full  section  according  to  G^ov- 
ernment  surveys.  The  balance  of  the  area  that  would  make 

up  the  640  acres  of  the  section,  not  mentioned  in  these  figures,  indi- 
cating the  several  amounts  in  the  several  fractional  quarters  is  to 


770  Rudolph, — Direct  Exam. — Continued. 

be  found  in  the  river  and  between  the  edges  of  the  river  and  the 
meander  line. 

There  is  a litle  patch  that  has  not  been  mentioned  (indicating 
on  plat),  twenty-six  acres,  twenty  acres  and  a fraction,  there  on 
the  south,  and  the  figures  that  have  not  been  mentioned  by  anyone 
appearing  in  the  southeast  corner. 

2228  The  acreage  shown  on  this  map  in  the  several  quarter-sec- 
tions of  it,  within  the  meander  lines,  are  as  follows : In  the 

2229  northeast  quarter,  160  acres,  in  the  northwest  quarter  101.90 
acres,  in  the  southwest  quarter  146.24,  and  in  the  southeast 

quarter,  that  part  of  it  north  of  the  Desplaines  Eiver  and  east  of 
the  Illinois  94.41  acres,  and  that  portion  of  the  southeast  quarter 
of  said  section  line,  south  of  the  Desplaines  Eiver  is  20.30  acres. 

A-146.24  includes  both  the  southwest  fractional  quarter  and  also 
this  very  small  part  of  the  northwest  fractional  quarter,  which 
lies  south  of  the  river, — that  is  a common  practice  to  include  the 
fraction  of  the  adjoining  part;  it  takes  in  all  of  the  south  fraction 
there,  half  or  quarter,  we  will  call  it,  lying  west  or  south  of  the 
river. 

2230  A different  method  was  pursued  in  indicating  the  small 
area  in  the  southeast  quarter,  that  is  20 :30,  which  lies  south 

of  the  junction  of  the  two  rivers,  and  that  wasn’t  connected  with 
the  tract  which  is  immediately  below  it,  because  that  is  in  a dif- 
ferent section. 

From  the  field  notes,  and  the  McCullough  Exhibit  1,  the  streams 
which  are  shown  to  be  present  in  Section  25,  Township  34,  Eange 
8,  have  been  meandered  by  the  surveys  of  public  lands  of  the 
United  States. 

There  is  not  anything  called  for  by  the  expression  meandered 
by  the  surveys  of  the  public  lands  of  the  United  States”  which  is 
absent  from  the  field  notes  and  this  plat  (McCullough  Exhibit  1). 

Thereupon  McCullough  Exhibit  lA  and  McCullough  Exhibit  2A^ 
were  admitted  in  evidence,  the  court  reserving  the  question  of  strik- 
ing off  certain  annotations  thereon,  which  plats  appear  in  the  Atlas, 
Vol.  2 of  the  Certificate  of  Evidence,  at  pages  3914,  16,  respec- 
tively. Trans.,  pp.  6482-86;  Abst.,  pp.  1914-15. 

2243  This  map  taken  in  connection  with  the  field  notes  of  the  sur- 
vey does  show  all  facts  placed  on  maps  pertaining  to  a mean- 


der  line  made  by  the  general  government  on  this  scale  as  a part 
of  the  survey  of  vacant  public  lands  to  be  offered  for  sale. 

The  CouKT.  That  is  on  the  basis  that  this  map  has  been  admitted 
under  this  understanding. 

It  is  possible  to  retrace  the  original  meander  line  in  Section  25, 
Township  34,  Eange  8,  from  these  notes.  I have  retraced 

2244  them  by  survey.  I have  a plat  of  my  surveys  on  a larger 
scale.  It  is  this  which  is  now  produced  (Exhibiting  plat  to 

witness),  bearing  also  the  legend  ‘^Plat  of  Survey  of  the  North 
Fraction  of  Section  25,  abbreviated.  Township  34,  N.  R.  8-E,  of  the 
Third  Principal  Meridian,  surveyed  April  13th  to  23rd,  1908,  by 
Emil  Rudolph  and  H.  H.  Bremer,  Surveyors”, — which  said  maj) 
was  received  in  evidence  and  marked  ‘^Rudolph  Exhibit  1”  (Atlas, 
p.  3941;  Trans.,  p.  6551;  Abst.,  p.  1922). 

Mr.  Bremer  is  a surveyor  who  is  associated  with  me  in  this 
survey.  We  together  made  this  survey.  The  meander  line  in  this 
section  as  run  by  me  is  indicated  upon  this  plat  ‘‘Rudolph 

2245  Exhibit  1.”  (Pointing  to  map.)  The  line  drawn  from  A 
to  B indicates  the  Gfovernment  meander  line  from  the  Gov- 
ernment field  notes.  It  is  a line  made  of  dots  and  lines,  in  black, 
connected  by  circles  when  the  line  changes.  Different  courses  and 
distances  are  shown  beginning  with  South  28-E,  one  chain,  and 
fifty  links.  Thence  south — A¥ell,  I am  going  the  wrong  way  accord- 
ing to  the  Government;  we  had  better  begin  at  the  west  end.- 

The  point  B is  the  west  line  of  Section  25,  and  the  meander 
post  of  the  river.  Beginning  at  that  point  the  course  is  South  76 
degrees  east,  13  chains.  This  is  the  course  that  is  followed 

2246  and  delineated  on  this  map.  That  is  a true  and  correct  de- 
lineation or  platting  of  the  Government  meander  line. 

As  to  the  area  enclosed  by  the  double  line  near  the  junction 
of  the  Desplaines  and  Kankakee,  labeled  here  Desplaines  River 
and  mouth  of  Kankakee,  and  near  that  place  there  is  a double 
line  describing  a rude  trapezoid,  labeled  “Coffer  Dam.” 

The  coffer-dam  is  the  lower  part  that  has  not  been  washed  away, 
and  the  side,  the  east  side  shows  stone  and  earth,  or  earth  on  the 
bottom,  I think,  and  stone  piled  on  top,  enclosing  the  space  as 
shown  by  this  double  line.  There  was  a coffer-dam  there  when 


772 


Rudolph,— Direct  Exam. — Continued. 


I made  this  survey.  My  survey  correctly  indicates  the  situation 
and  dimension  of  the  coffer-dam  and  the  area  included  therein, 
by  scales. 

2247  There  is  something  more  on  the  map.  On  the  right  hand 
end  of  the  map,  I see  another  representation  which  is  marked 

on  the  scale  400  feet  to  the  inch.  This  separate  representation  over 
here  (indicating)  represents  the  survey  of  the  north  fractional  part 
of  the  section,  or  all  that  part  of  Section  25,  lying  northerly  of  the 
Desplaines  and  the  Illinois  Eivers.  That  merely  shows  the  sec- 
tion and  is  a sort  of  a key  to  the  larger  map,  showing  where  the 
meanders  have  been  taken. 

2248  These  lines  on  this,  which  I have  described  as  meander 
lines,  represent  the  position  of  the  retraced  meander  line  of 

the  Government.  Taking  the  original  Government  field  notes  as  a 
basis,  and  from  the  test  and  actual  survey  that  I have  made,  I 
would  say  that  these  meander  lines  had  actually  been  run.  I 
did  go  to  Springfield  and  examine  the  originals  of  these  field  notes 
in  the  auditor’s  office.  I compared  these  documents,  these  field 
notes,  field  note  exhibits  that  are  produced  here,  with  the  originals 
in  the  office  of  the  auditor.  These  field  notes  exhibits  that  are 
produced  here  are  true  copies  of  the  originals  in  the  auditor’s 
office. 

2249  The  map  is  correctly  drawn  to  a scale  of  100  to  the  inch 
throughout  that  towpath  bank  there,  from  the  water’s  edge 

on  the  one  side  to  the  water’s  edge  on  the  other. 

As  to  the  conditions  that  I found, — the  tow  bank  of  the  canal 
is  the  same  throughout  with  the  exception  at  various  points  along 
the  line  there  were  deposits  of  stone  in  some  places,  widening 
the  tow  bank  of  the  canal,  and  in  some  places  dumped  on  the 
river  side  of  the  canal.  The  tow  bank  or  towpath  is  probably 
three  or  four  feet  above  the  water  in  the  canal  and  as  much  as 
twenty  feet,  I should  say  above  the  river  bank.  I have  taken 
the  levels  there,  but  I do  not  remember  the  exact  figures. 

The  stone  that  had  been  placed  there  on  the  towpath,  was  a 
sort  of  a sandstone,  bluish  sandstone  of  a very  poor  char- 

2250  acter,  and  seemed  to  scale  off.  I think  the  stone  was  perish- 
able because  it  scaled  off.  If  you  took  a piece  up  and  dropped 


it,  it  would  break  in  pieces  almost  like  glass.  It  was  just  turned 
on  loosely  as  though  it  had  been  dumped  from  a car  and  leveled 
otf  in  a loose  way.  There  was  not  anything  in  the  nature  of  rip- 
rapping about  it. 

2251  Thereupon  it  was  agreed  by  counsel  that  the  writing  on  the 
left  under  the  head  of  Areas’^  and  on  the  right  hand  margin, 

that  which  is  marked  ‘‘Note’’  shall  be  omitted;  and  the  balance 
of  McCullough  Exhibit  II  remain,  and  it  is  agreed  that  it  is  a 
correct  representation  of  what  it  purports  to  be. 

Cross-Examination. 

2252  I profess  to  know  what  rip-rapping  means  only  from  a lay- 
man’s standpoint  of  view.  I have  never  examined  any  dic- 
tionary upon  that  point.  I do  not  profess  to  be  so  acquainted  with 
the  meaning  of  that  term  as  that  I would  set  up  my  definition 
as  against  Webster’s  for  instance,  if  Webster  said  loosely  thrown 
in.  As  to  how  many  pieces  of  that  stone  I did  examine, — I saw 
it  all  along  the  line.  I took  it  up  to  find  out  whether  it  was  brittle 

and  would  break  like  glass  probably  a dozen  pieces. 

2253  As  to  whether  there  are  ditferent  strata  there,  some  of 
which  are  soft  and  some  of  which  are  hard  sandstone, — those 

I examined  were  all  soft. 

In  the  map  that  I have  prepared,  which  is  purporting  to  show 
the  meander  line,  the  line  of  the  river  shown  there  is  the  line  of 
the  river  as  it  is  now.  I did  not  undertake  to  ascertain  the  line 
of  the  river  before  the  drainage  water  was  turned  into  the  river. 
The  line  of  the  river  that  I have  shown  is  the  water  line,  the  edge 
to  which  the  water  comes  at  the  time  I made  the  survey,  as  near 
as  I could  get  it.  The  meander  line  does  not  conform  to  the  edge  of 
the  water.  A meander  line  in  its  nature  can  conform  to  the  edge 
of  the  water,  at  only  very  few  places,  perhaps;  it  may  touch, — • 
as  a matter  of  fact  a meander  line  is  ascertained  and  determined 
by  running  straight  lines  between  points  shown  by  the  field 

2254  notes,  so  that  it  does  not  conform  to  the  line  of  the  river 
precisely.  I said  in  direct  examination  the  meander  line  of 

the  river  was  indicated  by  the  lines  of  the  stream  itself. 

Upon  this  map,  McCullough  Exhibit  1,  the  lines  of  the  stream 


774  Rudolph, — Cross-Exam. — Continued. 

are  not  shown  any  differently.  If  the  stream  had  not  been  mean- 
dered, the  line  of  the  stream  would  be  just  as  it  is  now,  so 
that  there  is  nothing  in  the  mere  line  of  the  stream  itself  to 
show  that  the  river  has  ever  been  meandered. 

2255  The  DuPage  Kiver  is  not  meandered  and  the  lines  ’showing 
the  borders  of  that  stream  are  no  different  from  the  lines 

showing  the  borders  of  the  Desplaines.  These  field  notes  take  in 
the  shoal  of  the  Desplaines  Eiver  from  Section  25,  Township 
34,  8 to  the  north  line  of  Township  38.  That  would  be  about  the 
line  of  39th  street  in  the  Town  of  Lyons,  extended  west  to  the  Des- 
plaines Eiver. 

2256  I could  as  well  draw  a meander  line  from  field  notes  up 
to  the  south  line  of  Eiverside  as  I have  been  able  to  down 

below.  The  section  corners  as  shown  upon  that  plat  are  the  north- 
west corner  of  Section  25,  stone,  northwest  corner  of  Section  25, 
34,  8,  as  whether  any  of  them  correspond  to  the  fence  corners 
on  the  actual  ground,  I relocated  the  northeast  corner  of  Section 
25.  I found  nothing  there  in  the  way  of  a monument,  nothing  but 
old  occupation  fences.  The  southeast  corner  of  Section  25  came 
in  about  the  middle  of  the  Illinois  and  Michigan  canal 

2257  AVell,  take  here  on  the  ujDper  left  hand  corner,  the  line  run- 
ning diagonally  across,  the  Government  measurement  equals 

5,313  feet,  I made  that  measurement  5,333-4/10.  It  is  not  true  that 
that  line  should  be  5,280  feet.  I relocated  all  those  lines  in  Sections 
24  and  25.  I made  a survey  of  the  whole  section,  say  24,  located, 
all  the  occupation.  Then  I surveyed  the  whole  of  Section  25  in 
which  this  meander  line  is  located,  surveyed  part  of  36,  also  part 
of  the  section  east  of  Section  24.  My  starting  point  when  I first 
started  in  the  survey  was  beginning  at  a stone  at  the  northwest 
corner  of  Section  25.  That  was  the  first  monument  that  I started 
from,  that  is  a known  monument.  From  there  I measured  north 
and  across  to  the  northwest  corner  of  Section  24.  I did  this 

2258  in  order  to  get  a certain  check  on  my  lines  by  taking  in  all 
of  the  occupation  in  these  different  sections,  and  in  this  way 

I was  enabled  to  locate  the  section  corners  that  were  lost  or  that 
could  not  be  found. 

I have  never  seen  a survey  by  the  United  States  on  which  the 
meander  lines  of  this  river  were  actually  extended.  I don’t  know 


775 


as  any  such  map  exists.  I would  be  likely  to  know  if  it  did.  The 
Land  Office  of  the  United  States  for  Illinois  and  Missouri  was 
located  at  St.  Louis.  I never  knew  of  any  such  land  office  being 
located  in  the  State  of  Illinois. 

You  understood  me  correctly  that  I made  an  accurate  survey  of 
that  coffer-dam,  and  that  that  portion  of  it  referring  to  the 

2259  coffer-dam  actually  represents  it  to  a scale.  We  made  the 
measurement. 

'Re-direct  Examination. 

Directing  my  attention  to  McCullough  Exhibit  2,  as  to  the  sub- 
ject which  I was  cross-examined  about,  on  the 'east  and  west  line 
between  Township  38  and  Township  39,  in  Range  12,  a little  to  the 
west  of  the  divisional  line  between  Range  12  and  Range  13,  I 
can  locate  upon  that  line  between  Townships  38  and  39  the  point 
up  to  which  the  river  was  meandered,  according  to  the  field  notes, 
as  far  north  as  the  north  line  of  Section  1,  Township  38,  Range 
12,  to  the  asterisk  placed  on  that  line,  part  of  the  exhibit 

2260  (point  to  the  asterisk).  I have  seen  the  government  plat  of 
the  Desplaines  River  north  of  that  point.  I have  got  a copy 

of  that.  It  is  in  the  other  room  there.  (Witness  produces  plat.) 
The  number  of  the  section  in  Township  39,  Range  12  East,  that 
lies  directly  north  of  Section  number  one  in  Township  38,  Range 
12  East  is  Section  36,  Township  39,  Range  12.  In  this  book  which 
I might  call  plat  book,  the  label  here  at  the  top  of  this  page  12 
is  a plat  of  Township  39,  north  of  the  base  line  in  Range  12  East 
of  the  third  principal  meridian,  southeast  of  the  old  Indian  Boun- 
dary line. 

The  line  between  Section  36  of  this  page  12  of  this  plat  book 
is  the  same  line  as  the  north  line  of  Section  1 in  Township  38, 
Range  12.  This  wavy  line  that  comes  up  through  Section  36  on  this 
page  12  is  the  Desplaines  River.  That  is  the  same  portion  of  the 
river  which  is  indicated  in  the  unplatted  portion  extending  into  the 
line  on  McCullough  Exhibt  2.  There  are  no  differences  in 

2261  manner  in  which  the  river  and  the  section  are  platted  north 
of  that  line,  and  what  they  are  south  of  that  line,  as  they 

are  indicated.  In  the  way  in  which  the  sections  are  treated  by 


776 


Rudolph, — Re-direct  Exam. — Continued. 


the  surveyor  the  difference  is  that  in  the  meandered  part  the 
areas  are  given  in  different  quarter  sections. 

In  the  meandered  Section  1,  the  northwest  quarter  is  marked 
165  acres;  the  northeast  quarter  87  acres  on  the  east  of  the  river, 
and  42  acres  on  the  west  of  the  river;  the  southwest  quarter 
marked  160  acres ; the  southeast  quarter  east  of  the  river  88  acres, 
southeast  quarter  west  of  the  river  25  acres.  The  section  and 
range  number  is  Section  1,  Township  38  north,  Eange  12,  east  of 
the  third  principal  meridian.  The  total  area  of  that  section 

2262  as  given  on  McCullough  Exhibit  2,  for  the  west  half  of  the 
section  west  of  the  river  392  acres;  for  the  east  part  east 

of  the  river  177  acres.  The  area  of  Section  36  upon  the  piai 
which  I have  produced,  lying  directly  north  of  that  Section  1 
is  marked  640  acres ; and  the  area  given  on  the  Section  35  to  the  left 
and  36,  into  which  the  line  representing  the  river  extends  are  mark- 
ed full  sections,  640  acres, — so  all  the  way  up  the  river  to  the 
sections  next  to  the  top  line. 

The  last  two  rows  of  sections  are  abbreviated. 

The  north  tier  of  sections  in  the  township  are  the  fractional 
sections,  where  the  deficiency  of  the  surplus  in  the  township  are 
accounted  for. 

In  that  portion  of  the  river  up  the  river  from  Section  1,  Town  38 
north,  Eange  12  east,  the  bed  of  the  river  is  taken  into  account  in 
giving  the  acreage  of  the  sections  and  quarter  sections,  while 
below  that  away  down  the  river  from  that  it  is  not  so  taken. 

Thereupon  counsel  for  complainant  read  in  evidence  the  two 
following  certificates  upon  said  page  12,  referred  to  by  wit- 
ness : 

2263  ''Surveyor’s  office,  St.  Louis,  31st  of  August,  1837.  The 
above  plat  of  township  39,  north  of  the  division  line  of  range 

12,  east  of  the  third  principal  meridian,  southeast  of  the  old 
Indian  bonndary  line  is  a correct  copy  of  the  plat  thereof, 
on  file  in  this  office.  Dan  Dinclan.” 

Underneath  that: — "Department  of  the  Interior.  General 
land  office,  Washington,  D.  C.,  Sept.  6,  1895.  I hereby  certify 
that  this  photo  lithographic  is  a true  and  literal  exemplifica- 
tion of  the  township  plat  of  survey  to  which  it  purports  to 
relate  now  on  file  in  this  office.  E.  F.  Burt,  Acting  Commis- 
sion.” 


777 


2265  Mr.  Emil  Rudolph  fui’ther  testified : 

McCullough  Exhibit  2 begins  at  the  south  line  of  Township  36, 
where  McCullough  Exhibit  1 left  off.  It  goes  on  up  through  Town- 
ships 36,  37  and  38,  up  to  the  north  line  of  Township  38  in 

2266  Range  13,  between  12  and  13.  And  the  river  crosses  that 
line  in  Township  39,  Range  12,  on  the  line  between  38  and  39 
in  Range  12. 

Then  McCullough  Exhibit  1 and  McCullough  Exhibit  2 together 
exhibit  the  whole  of  the  river  Desplaines  from  the  mouth  running 
upward  to  the  north  line  of  Township  38,  in  Range  12  east. 

With  reference  to  Chicago  that  last  point  would  be  in  what  in  the 
city  is  39th  street  at  its  intersection  with  the  Desplaines  River, — 
that  is,  it  is  due  west. 

This  McCullough  Exhibit  2 goes  right  on  across  the  portage, 
exhibiting  Mud  Lake,  exhibiting  the  west  fork  of  the  south  branch 
and  the  south  branch  of  the  Chicago  River  to  Lake  Mich- 

2267  igan. 

Thereupon  it  was  agreed  that  the  label  on  the  top  of  Mc- 
Cullough Exhibit  2 put  there  by  the  auditor  together  with  the  note, 
asterisk,  ^ ‘field  notes  of  the  meander  survey  show  this  point  as  the 
head  of  navigation,  but  the  original  plat  shows  no  indication  there- 
of,’’— on  said  exhibit  should  be  struck  off,  together  with  the  cer- 
tificates, and  the  map  admitted  in  evidence  subject  to  the  objec- 
tion of  the  defendant  that  it  was  immaterial  and  irrelevant.  Said 
map  is  shown  in  (Atlas,  p.  3915;  Trans.,  p ; Abst.,  p ). 

2271  Mr.  Rudolph  further  testifies: 

McCullough  2-A  begins  where  McCullough  1-A  left  off. 

2272  McCullough  2-A  goes  on  up  through  Townships  37  and  38 
up  to  the  line  between  38  and  39,  showing  the  river  all  the 

waj  with  the  same  label  and  note,  and  then  extending  on  through 
Ranges  13  and  14,  shows  Mud  Lake,  the  west  fork  of  the  south 
branch,  the  south  branch  and  the  Chicago  River  to  Lake  Mich- 


igan. 


778  Rudolph, — Re-direct  Exam. — C ontimied. 

Then  they — the  two  sets,  one  and  two  on  one  hand  and  1-A  and 
2-A  on  the  other,  together,  show  the  same  things. 

DuPage  Creek  or  river  extends  through  Section  17,  Township 
34,  Eange  9,  but  the  acreage  is  shown  as  640  acres,  or  a full 
section. 

When  you  come  over  to  Sections  7 and  8 in  Township  34,  Eange 
9,  which  are  the  west  tier  of  sections,  the  east  quarters  through 
which  the  river  itself  runs  are  indicated  with  160  acres,  or  a 
2273  full  quarter  section.  But  the  west  quarter  of  those  sections 
are  fractional,  because  they  are  in  the  west  tier  of  sections  of 
the  township. 

Section  5 in  34,  9,  is  640  acres.  I examined  the  field  notes  at 
Springfield  in  this  matter  a good  many  of  them,  not  all  of  them, 
and  there  are  not  any  field  notes  of  meanders  for  DuPage  Eiver 
or  creek  such  as  I have  produced  for  the  Desplaines  Eiver. 

Re-cross  Examination. 

On  that  map  over  yonder  the  Chicago  Eiver  runs  off  in  a fork  to 
the  Avest.  What  that  is  known  as  I don’t  know,  unless  it  is  the 
west  fork  of  the  south  branch.  There  appears  to  be  another  fork 
running  south,  that  is  known  as  the  South  Fork  of  the  South 

2275  Branch.  Bubbly  Creek  runs  into  it.  That  is  not  Healy’s 
Slough.  Healy’s  Slough  would  be  in  Section  29.  It  would  be 

in  the  northeast  quarter  of  Sections  29  and  39. 

In  Eudolph  Exhibit  1,  I show  a number  of  blocks  in  yellow,  con- 
tractor’s quarters,  engineer’s  office,  those  were  frame  buildings  of 
the — recently  put  up,  apparently  used  in  connection  with  this  Avork. 

I found  a suspension  bridge  across  the  canal  also.  That  appears 
to  have  been  recently  put  up  in  connection  with  this  work.  My 
answer  applies  to  all  the  yellow  blocks,  all  the  rectangles 

2276  shown  here.  That  is  my  autograph  attached  to  the  exhibit 
there.  That  is  Mr.  Bremer’s  autograph  below  mine.  That 

autography  in  the  practice  as  a surveyor  goes  as  a certificate  of 
the  correctness  of  the  plat. 

Q.  Do  you  understand  that  it  has  any  higher  weight  than  your 
sworn  testimony  on  the  stand  as  to  the  correctness  of  the  plat?  A. 
I don’t  know.  I guess  it  has  about  equal  weight. 


77f> 


Herman  H.  Bremer, 

a witness  for  complainant,  testified  as  follows : 

Direct  Examination. 

Till  My  name  is  H.  H.  Bremer.  My  first  name  is  Herman  H. ; 

residence,  Chicago ; occupation,  surveyor.  I have  been  engaged 
in  business  as  a surveyor  about  15  years.  My  experience  consists  in 
relocating  lines,  establishing  original  subdivision  lines,  in  laying 
out  cemeteries,  and  in  locating  rivers,  ponds  and  lakes,  railroad 
work  and  farm  work. 

In  my  work  as  a surveyor  I have  necessarily  become  acquainted 
or  am  familiar  with  the  field-notes,  plats  and  maps  and  the 
practice  of  the  United  States  Government  surveyors  in  charge  of 
land  surveys  in  Illinois,  made  by  and  under  the  direction  of  the 
surveyor  general. 

Eeferring  to  those  field-note  exhibits,  I have  made  use  of  those 
field  notes  in  making  a survey. 

2278  In  making  this  particular  survey.  Section  25,  I was  asso- 
ciated with  Mr.  Rudolph,  who  has  just  left  the  stand,— in 

making  a survey  of  Section  25,  Township  34,  Range  8 east  of  the 
third  principal  meridian.  This  plat  called  Rudolph  Exhibit  1,  is  a 
correct  representation  of  that  survey.  This  line  which  is  shown 
on  this  plat  between  the  letters  A and  B is  a series  of  courses  run 
for  the  purpose  of  determining  the  meanders  of  the  Desplaines 
and  Illinois  Rivers.  The  notes  and  courses  are  a copy  of  the  rec- 
ords as  furnished  by  me,  and  purport  to  be  copies  of  the  original 
Government  survey.  That  is  I used  these  field-notes  which  are 
in  the  field-note  exhibit  and  laid  this  line  out  from  those  field- 
notes. 

Looking  at  this  map  which  is  labeled  McCullough  Exhibit  1, 
the  meander  of  the  river  is  indicated  on  the  exhibit,  by  a sin- 

2279  gle  line  on  either  side  of  the  river  demarcating  the  line  be- 
tween land  and  water. 

I see  that  the  scale  of  that  map  is  indicated  as  40  chains  to  an 
inch;  that  is  the  same  as  two  inches  to  a mile. 

The  indication  of  the  meander  line  on  that  plat,  McCullough 
Exhibit  1,  is  the  one  customarily  used  by  surveyors  of  the  United 


780 


Bremer j — Direct  Exam— Continued. 


States  in  platting  public  lands  for  sale  when  they  plat  them  on  a 
scale  of  that  size.  It  is  the  customary  method  of  indicating  the 
meander  line  of  the  stream.  That  scale  is  the  customary  size  of 
Government  plats  of  survey  of  vacant  lands  for  sale  which  I have 
ever  seen. 

This  map,  Exhibit  1,  which  is  before  me,  together  with  the 
field-notes  in  field-note  Exhibit  1,  2 and  3 of  the  survey  of 
the  meander  line  of  the  Desplaines  Eiver  in  Section  25,  Township 
34,  Eange  8,  ascertain  or  make  certain  the  location  of  the  mean- 
der line  of  the  Desplianes  Eiver  in  that  section. 

I could  from  the  field-notes  which  describe  these  meanders 

2280  which  appear  in  those  exhibits  and  from  this  plat  which  is 
now  before  me  find  the  meander  line  as  located  by  them. 

These  notes  and  plats  make  certain  where  the  line  is.  I have  by 
actual  survey  in  the  field  from  these  notes  located  that  line.  It  is 
correctly  shown  upon  this  plat,  Eudolph  Exhibit  1. 

Taking  the  original  Government  field-notes  as  a basis,  I would 
say  from  actual  survey  that  these  lines  had  actually  been  run  in 
the  Government  survey. 

This  map  taken  in  connection  with  the  field-notes  of  the  sur- 
vey shows  all  that  is  placed  on  maps  pertaining  to  the  meander 
line  according  to  the  practice  prevailing  in  the  land-office  of  the 
United  States  upon  plats  of  public  lands  for  sale  made  of  that 
size. 

We  went  down  and  made  this  survey  between  the  13th  and  the 
20th  of  April,  1908. 

2281  As  to  the  condition  of  the  towpath  bank  between  the  canal 
and  the  Desplaines  Eiver  along  this  strip  here  which  extends 

up  stream  from  the  area  enclosed  with  lines  marked  ‘^coffer-dam,’’ 
— I found  that  the  towpath  had  been  filled  and  also  some  stone 
taken  and  thrown  along  the  side  of  the  tow-path  widening  the 
same.  In  other  words  the  towpath  had  been  graded. 

The  character  of  the  stone  which  I saw  used  there  was  a poor 
grade  of  sandstone.  It  was  perishable,  of  a perishable  nature. 

Q.  I will  ask  you  to  state  what  the  effect  upon  that  stone  would 
be  of  causing  a dam  to  be  thrown  across  the  river,  a permanent 
dam  at  the  point  where  the  coffer-dam  is  indicated,  and  a flowing 


781 


of  the  water  up  against  the  towpath  bank  as  graded  and  filled  in 
the  manner  you  have  described. 

2282  (Counsel  for  defendant  objected  to  that  as  incompetent,  im- 
material and  because  there  had  been  no  foundation  laid  for  it. 

Whereupon  after  argument  the  court  sustained  the  objection 
and  ruled : 

The  CouKT.  You  may  go  into  the  question  of  what  has  been 
done  down  there. 

Counsel  for  Complainant.  I will  modify  the  question. 

Q.  Just  describe  to  the  Court  the  form  of  construction 
which  you  found  existing  on  this  towpath  bank  in  this  area 
where  the  towpath  bank  is  indicated  as  being  about  70  and 
less  than  70  feet  wide  between  the  river  on  one  side  and 
the  canal  on  the  other. 

Counsel  for  Defendant.  I object  to  that  on  the  ground 
that  it  has  not  been  shown  by  any  evidence  offered  yet  that 
that  work  has  been  completed  at  that  point. 

Thereupon  it  was  suggested  by  counsel  that  Mr.  Heyworth 
2284  had  testified  as  to  this  matter  and  thereupon  counsel  for  com- 
plainant offered  and  read  in  evidence  deposition  of  James  0. 
Heyworth.  For  rulings  on  same  see  Abstract  of  Depositions, 
supra,  p.  371). 

2308  Thereupon  the  witness  was  asked  the  following  question : 

Q.  Mr.  Bremer,  you  may  state  what  the  effect  of  the  crea- 
tion of  the  pool  by  means  of  a fixed  dam  and  power  house  built 
in  the  bed  of  the  river  across  the  Desplaines  Eiver  near  its  mouth 
at  the  point  where  you  have  located  the  coffer-dam  would  be,  what 
the  effect  of  this  pool  and  of  the  waves  and  water  and  frost  and 
storms  and  floods  upon  the  pool  as  bounded  by  the  towpath  for 
the  1,500  to  2,000  feet  north,  upstream  from  the  dam,  would  hel 

Counsel  for  Complainant.  Just  a moment,  Mr.  Starr:  I think 
you  used  the  word  ‘‘Pool’’  when  you  meant  towpath  bank  in  that 
question. 

Counsel  for  Complainant.  Yes. 

Counsel  for  Complainant.  What  would  be  the  effect  upon  the 
towpath  bank,  I think  the  question  should  be. 

Counsel  for  Complainant.  Yes, — what  would  be  the  effect  on 
the  towpath  bank  for  1,500  to  2,000  feet  upstream,  from  the 
dam,  of  the  erection  of  this  dam  and  the  creation  of  this  pool 


782  Bremer, — Direct  Excun. — Continued. 

under  the  action  of  the  water,  the  elements,  floods,  storms  and 
frost? 

2309  (To  which  question  the  counsel  for  defendant  objected  and 
thereupon  the  Court  ruled  as  follows:) 

The  Court.  Well,  I will  let  you  frame  it  yourself,  but  I will 
sustain  the  objection  to  the  question  as  put  because  of  the  element 
not  being  present  that  the  bank  is  to  be  protected  in  some  way. 
I appreciate  the  force  of  what  Mr.  Reeves  said  yesterday,  that  they 
might  spend  ten  million  dollars,  or  whatever  the  sum  named  was, 
in  building  up  a slope  wall,  a solid  wall  of  concrete  all  along  this 
whole  place,  and  render  it  perfectly  safe  and  that  would  not  be 
the  thing  that  they  are  going  to  do,  or  that  they  are  required 
to  do  under  their  contract. 

2310  Thereupon  counsel  for  defendant  further  objected  on  the 
ground  that  no  foundation  had  been  laid  to  show  the  wit- 
ness’ qualiflcations.  Said  objection  wms  sustained  and  thereupon 

the  witness  testifled  as  follows: 

2311  My  experience  in  the  matter  of  planning,  respecting  hy- 
draulic work,  dams  and  power  houses,  and  so  forth, — I have 

planned  dams,  at  least  two,  and  have  made  a study  of  hydraulics. 

2312  Cross-Examination. 

I planned  two  dams;  one’ of  them  has  been  erected  at  Neodesha, 
Nebraska,  a dam  about  12  feet  in  height  and  about  800  feet  long. 
I was  not  in  charge  of  the  erection,  I drew  the  plans  for  it.  I did 
not  superintend  the  erection  and  I was  not  present  and  did  not  ob- 
serve it  at  any  time  after  it  was  erected.  I never  superintended  the 
erection  of  any  dam.  I never  worked  practically  upon  the  erection 
of  any  dam.  I myself  have  observed  on  the  ground  the  action 

2313  of  waters  upon  dams  at  different  places, — at  Joliet  partic- 
ularly, I have  seen  the  action  of  the  water  on  the  dam  there, 

the  bear  trap  dam,  and  at  different  places.  The  Joliet  dam  is' 
built  of  concrete  and  there  are  no  levees  there  to  be  washed  at 
all.  What  I saw  there  was  the  water  rushing  on  or  over  the  con- 
crete. As  to  the  action  of  the  water  upon  any  earth  levee,  I could 
not  find  anything  there  to  illustrate  it  from  personal  experience, 
nor  anywhere,  from  personal  experience. 

Thereupon  the  Court  ruled  that  the  witness  was  not  qualified. 


783 


Direct  Examination  {Continued) . 

As  to  describing  the  condition  of  the  towpath,  I found  the 

2314  towpath  had  been  tilled  about  two  feet  above  its  normal  level 
with  a sandstone  shale,  for  a distance  varying  between  1,000 

and  1,200  feet,  either  way  from  the  site  of  the  Economy  Com- 
pany’s plant,  proposed  plant.  This  sandstone,  in  my  opinion,  is 
not — 

Thereupon  counsel  for  defendant  objected  and  counsel  for  com- 
plainant was  directed  by  the  court  to  ascertain  if  witness  was 
qualified  to  state  what  he  knows  about  stone. 

Counsel,  for  Complainant.  Q.  Do  you  know  the  character  of 
sandstone  in  reference  to  durability,  are  you  acquainted  with  it? 
Have  you  had  experience  in  the  observation  and  use  of  it? 

A.  I have. 

Q.  And  the  specification  of  it  as  a material.  A.  I have  had 
observation  as  to  the  use  and  durability  and  kind  of  sandstone 
which  I saw  on  the  sill  of  the  towpath  and  also  the  use  of  it  for 
building  purposes. 

Q.  Well,  what  was  the  character  of  this? 

2315  Cross-Examination. 

I did  not  say  that  I had  any  particular  experience  in  specifying 
sandstone  for  buildings.  I do  pretend  to  have  knowledge  other  than 
that  which  the  ordinary  individual  having  no  special  opportunities 
for  observation  or  means  of  observation  has  of  the  character  of 
stone.  I acquired  it  by  a study  of  geology.  As  to  what  are 
the  various  kinds  of  sandstone,  I knew  it  in  a general  way  from  the 
study  of  geology,  and  to  ask  me  to  specify  the  different  strati- 
fication is  almost  beyond  me  now.  It  is  fifteen  years  since  I have 
studied  geology.  As  to  setting  myself  up  as  an  expert  on  sand- 
stone, from  remembering  what  I have  studied, — I have  seen  this 
particular  kind  of  sandstone  in  different  places,  and  this  par- 

2316  ticular  sandstone  interested  me  while  on  this  work  of  sur- 
veying this  particular  section  on  account  of  the  shale,  and 

the  nodules  that  are  found  in  it.  I have  seen  sandstone  similar  to 
it  underlying  the  coal  mines  in  La  Salle  County,  in  the  northern 


Bremer, — Cross-Exam. — Continued. 

portion  as  I recollect  near  Oglesby,  and  it  struck  me  that  it  was 
peculiar  that  that  stone  should  be  used — 

Counsel  for  Defendant.  Now,  I move  to  strike  that  out. 

The  Witness.  This  is  a general  discussion. 

The  Court.  Yes,  that  may  be  stricken  out. 

Witness  further  testified: 

I saw  this  stone  that  is  placed  on  top  of  the  towpath  down  at 
the  site  of  this  proposed  dam.  I know  what  the  effect  of  the 
elements,  air  and  water,  would  be  upon  that  stone, — ^which  last 
statement  was  objected  to  by  counsel  for  defendant,  and  witness 
on  cross-examination  stated  that  he  had  observed  the  effect  of 
the  elements  on  stone  of  this  character  very  recently  at  the 

2317  site  of  the  proposed  dam. 

The  standards  to  which  I refer  in  my  judgments  on  this 
stone  is  this  stone  itself  in  connection  with  stone  of  a similar  kind, 
of  similar  appearance,  which  I have  seen,  on  the  mine  dumps 

2318  at  Oglesby  and  Canley,  Illinois;  also  at  Bloomington  and 
Braidwood  and  Coal  City,  Wilmington  and  Sunfiower,  and  I 

have  observed  it  for  a period  varying  from  one  day  to  probably 
two  months.  I had  a special  reason  for  examining  it.  It  was 
not  a part  of  my  duty  to  examine  it  and  study  it.  It  was  a matter 
of  casual  interest.  I was  studying  geology  at  that  time.  I was 
continuing  my  prior  studies.  I was  working  in  the  coal  mines  at 
that  time  and  had  a good  opportunity  to  study  geology.  I 

2319  was  studying  geology  seriously. 

As  to  my  meaning  in  saying  that  my  study  of  geology 
was  fifteen  years  back,  as  a part  of  my  college  course, — I meant 
to  say  that  in  my  line  of  work  a man  never  ceases  to  study.  I 
have  not  made  a serious  study  of  geology  since  the  day  I left 
college. 

Q.  You  have  never  observed  the  action  of  the  elements  upon 
stone  laid  or  arranged  as  this  stone  is  on  this  towpath,  have 

2320  you?  A.  The  stone  is  not  laid. 

The  Court.  I am  not  going  to  accept  testimony  of  this 
character. 


Cross-Examination. 


Turning  to  the  map  McCullough  Exhibit  1,  that  maj)  by  itself 
shows  the  meander  line  of  the  Desplaines  Eiver. 

On  being  asked  ‘‘Could  you  take  that  map  by  itself  and  run 
the  meander  lines  of  the  Desplaines  River the  witness  replied^ 
“No,  sir.’’ 

Q.  Then  the  map  by  itself  does  not  show?  A.  It  shows  the 
meander  of  the  river  as  I take  it. 

2321  I cannot  from  this  map  trace  the  meander  lines  as  laid 
down  in  the  field  notes  of  the  Government  survey.  There 
is  nothing  on  this  map  by  itself  from  which  I can  run  the 

2322  meander  lines  of  that  river,  because  the  field  notes  are  an  in- 
tegral part  of  the  survey  and  the  map.  They  become  a part 

of  the  map  of  necessity  because  the  map  was  constructed  of  the 
field  notes.  The  map  is  certified  to  as  being  constructed  from 
the  field  notes;  not  particularly  this  map,  but  a Government  map. 
There  is  not  anything  on  that  map  from  which  I could  run  the 
meander  lines  of  the  Desplaines  River,  as  I claim  they  were  under 
the  Government  survey.  That  map  alone,  would  convey  no  knowl- 
edge to  any  person  as  to  where  those  meander  lines  ran, 

2323  and  when  I said  that  there  is  a thin  line  each  side  of  the 
river  on  this  map,  McCullough  Exhibit  1,  which  shows  the 

meander  line,  I refer  simply  to  the  line  which  marks  the  borders 
of  the  stream,  the  division  between  land  and  water,  and  that  exists 
as  well  on  unmeandered  streams  as  on  meandered  streams,  so 
that  in  that  part  of  the  Desplaines  River  there  is  nothing  in  the 
boundary  itself  different  from  the  boundary  of  an  unmeandered 
river,  in  this  line  dividing  the  water  from  the  land  that  marks 
the  meander.  There  is  no  other  line  which  shows  the  meander 
line  on  that  map.  I testified  that  the  meander  was  the  dividing 
line  between  the  water  and  the  land.  And  the  line  that  was  run 
by  the  surveyor  was  simply  a line  that  would  in  a general  way 
define  the  sinuosity  of  the  stream.  I am  using  the  term 

2324  meander  in  a different  sense  from  the  term  meander  line.  In 
my  direct  testimony  when  I said  that  this  line  marked  the 

line  between  the  land  and  the  water,  the  meander  line,  I meant  the 
meander.  The  meander  line  and  meander  are  taken  in  a different 
sense  in  surveying  work.  I know  of  no  map  made  by  the  United 


786 


B rem  er,—C  ross-Exa  m . — Conti  n ued. 


States  Government  on  whicli  the  meander  line  is  run  and  extended 
of  the  Desplaines  Eiver. 

2325  I stated  on  cross-examination  that  there  was  no  map 
which  would  show  the  distance  and  courses,  as  run  by  the 
surveyor,  which  would  define  that  meander  line  on  a map  made  on 
that  scale. 

It  is  true  that  in  platting  rivers  under  the  survey  by  the  gen- 
eral Government,  that  on  maps  of  this  scale  where  a river  has 
been  meandered,  that  the  marginal  line  showing  the  river  is  re- 
garded as  the  line  representing  the  meander  line,  in  a general 
way. 


2326  Re-direct  Examination. 

That  means  that  in  maps  of  this  scale  there  is  nothing  showing 
the  meander  lines  except  the  same  sort  of  line  that  appears  between 
water  and  land,  whether  the  stream  has  been  meandered  or  not. 
The  stream  itself  as  delineated,  would  give  a general  indication  as 
to  where  it  had  been  meandered  by  distances  or  courses. 

2327  There  is  nothing  on  that  map  which  shows  where  it  has  been 
delineated,  but  in  a general  way  the  map  shows  that  the 

stream  has  been  meandered  by  distances  and  courses,  and  these 
distances  and  courses  were  laid  down  on  a paper  and  from  that 
the  meander  line  is  shown,  or  the  border  lines  of  that  stream 
as  shown  are  traced. 

I can  tell  from  that  map  without  the  knowledge  of  the  field 

2328  notes  from  the  map  alone,  that  that  stream  has  been  mean- 
dered, or  some  other  stream  on  that  map  has  not  been  mean- 
dered, by  reference  to  the  sections  and  the  figures  given  in  the 
sections. 

The  fact  of  the  acreage  given  in  the  quarter  section  in  place 
of  the  160  acres  indicates  to  my  mind  that  that  was  derived  from 
an  actual  meandering  of  the  stream,— partially ; but  on  a mean- 
dered stream  the  rules  of  survey  state  that  the  surveyor  shall 
measure  to  the  stream  and  shall  there  cease  his  measurements; 
and  then  measure  from  the  north  line  of  the  township  and  this 
division  on  that  map  by  distances  measured  north  of  the  town- 
ship lines  and  south  from  the  township  lines  given,  leaving  in 
this  particular  instance  the  north  tier  of  sections  full  with  the 


787 


exception  of  the  west  section  of  that  north  tier.  In  other  words 
they  measured  up  from  the  south  and  measured  down  from  the 
north.  The  distances  of  those  lines  are  stated  on  that  map, 
2329  but  not  the  meander  lines.  And  that  is  only  done  under 
Government  rules  where  the  river  is  one  which  has  been  mean- 
dered. 


Re-cross  Examination, 

This  surveying  of  the  meander,  whenever  it  was  done  or  what- 
ever was  done,  was  done  in  consecutive  order,  practically  at  the 
same  time,  as  a part  of  the  same  work.  There  is  nothing  on  that 
map  that  would  tell  you  if  you  .were  buying  property  bordering 
on  the  river  where  the  meander  line  as  to  that  particular  property 
ran,  nothing  that  would  show  its  courses  and  distances. 

2330  Thereupon  the  allegations  in  the  answer  were  called  up 
which  read  as  follows,  to-wit: 

^^And  this  defendant  avers  that  if  the  title  to  said  lands 
outside  of  the  alleged  meander  lines  along  the  said  Desplaines 
Elver  and  in  the  bed  thereof  remains  in  the  State,  it  only 
so  remains  in  the  State  in  trust  for  canal  purposes  and  the 
Canal  Commissioners  of  the  Illinois  and  Michigan  Canal  are 
the  proper  parties  to  cause  said  suit  to  be  brought  and  to  con- 
trol the  same,  and  that  the  attorney  general  of  said  State  upon 
the  relation  of  Charles  S.  Deneen,  the  governor  thereof,  or 
otherwise,  has  no  right,  power  or  authority  to  institute  or 
prosecute  this  suit  without  the  express  consent  and  direction 
of  the  Canal  Commissioners  of  the  Illinois  and  Michigan 
Canal ; and  said  bill  does  not  show  that  it  is  exhibited  l)v 
or  with  the  authority  of  said  Canal  Commissioners,  but,  on  the 
contrary  thereof,  shows  that  it  is  not  exhibited  by  or  with 
their  authority.^’ 

And  the  court  heard  arguments  thereon  and  ruled  as  follows : 

The  Court.  It  seems  to  me  that  the  attorney  general  would 
have  'a  right,  on  behalf  of  the  public,  to  intervene,  and  bring  this 
suit.  If  the  acts  of  the  commissioners  are  a nullity,  the  commis- 
sioners have  gone  beyond  their  powers,  despite  the  fact  that  the 
commissioners  are  given  a statutory  right  to  recover  properyt 
claimed  adversely  to  the  state,  or  property  of  the  state  trespassed 
upon,  inasmuch  as  that  grant  of  power  does  not  purport  to  be 
exclusive,  I am  of  the  opinion  that  the  common  law  power  of 
the  attorney  general  to  represent  the  public  for  the  purpose  of 


788 


Billing  of  Court. — Continued. 


preventing  injuries  to  the  property  of  the  state,  so  far  as  there  is 
a common  law  power  to  do  that,  is  not  thereby  taken  away.  If 
the  contracts  are  within  the  power  of  the  Canal  Commission- 

2331  ers  under  the  statute,  then  in  the  absence  of  some  allega- 
tion of  fraud,  and  if  there  were  such  an  allegation,  the  proper 

proceeding  would  be  to  make  the  Canal  Commissioners  parties, 
and  on  behalf  of  the  cestui  que  trust  seek  to  have  the  contracts 
themselves  annulled — in  the  absence  of  any  allegation  of  that  kind, 
if  there  be  power  in  the  Canal  Commissioners  to  grant  rights  in  the 
90  foot  strip,  then  the  attorney  general  would  be  unsuccessful  as 
to  that  part  of  the  suit. 

But  on  the  real  point  suggested,  which  was  the  first,  the  primary 
point  raised,  he  of  course  has  the  right  to  challenge  the  power  to 
make  these  contracts,  and  he  has  the  right  to  bring  a suit  for 
the  purpose  of  having  the  court  determine  whether  or  not  under 
the  acts,  the  contract  made  come  within  the  power  of  the  Canal 
Commissioners  or  not.  That  was  really  the  question  that  was  to 
be  presented  to  the  court,  as  I understood  it. 

Now,  on  that  question  I hold  that  the  attorney  general  is  the 
proper  party  complainant,  the  proper  relator,  but  that  the  fact 
that. these  contracts  may  be  improperly  carried  out,  would  not, 
in  the  absence  of  some  charge  of  collusion,  give  the  attorney 
general  the  right  to  come  in  and  restrain  the  work  on  such  a con- 
tract as  this,  in  which  the  Canal  Commissioners  have  reserved 

2332  the  supervision  and  the  right  and  the  duty  to  guard  what  they 
consider  to  be  the  interest  of  the  state  in  that  respect.  So 

that  it  is  only  if  there  is  a total  lack  of  power  in  the  Canal  Com- 
missioners who  enter  into  a contract  of  this  kind  that  the  attorney 
general  would  succeed  in  the  case.  But  as  I understand  it,  the 
challenge  goes  beyond  that,  and  the  answer  is  in  tlie  nature  of 
a demurrer  to  so  much  of  the  bill  as  relates  to  the  right  of  the 
attorney  general  to  interfere  with  the  work  on  that  part  of  the 
property  wdiich  is  not  within  the  meander  line  of  the  river.  Is  that 
correct? 

Counsel  for  Complainant.  We  challenge  their  right  to  inter- 
fere with  the  90  foot  strip,  whether  that  is  within  or  without  the 
meander  line,  and  we  likewise  challenge  the  right  to  touch  any  of 
the  land  without  the  meander  line,  if  that  be  the  bed  of  the  river. 


789 


The  Court.  But  as  they  raise  the  question,  tliat  raises  two 

2333  separate  issues. 

Counsel  for  Complainant.  Yes,  sir. 

The  Court.  And  the  one  as  to  the  rights  without  the  meander 
]ine  of  the  river  is  dependent,  at  least  according  to  your  claim 
is  dependent  upon  whether  the  river  is  navigable  or  not.  You 
claim  that  river  to  be — I would  not  say  that,  I won’t  say  that  you 
are  solely  relying  upon  the  fact  that  it  is  a navigable  river,  you 
may  claim  other  rights  which  would  give  you  the  right  to  interfere, 
and  they  claim  as  a matter  of  defense,  that  whether  a river  is 
navigable,  first  that  the  river  is  not  navigable,  and  second  whether 
the  river  is  navigable  or  not,  nevertheless  you  cannot  interfere 
with  what  they  are  doing  on  the  ground,  among  other  grounds, 
that  it  is  not  a purpresture,  but  at  best  a nuisance,  and  as  a mat- 
ter of  fact  it  is  not  a nuisance.  Does  that  statement  sum  up  your 
defense? 

Counsel  for  Complainant.  We  have  not  argued  that  at  all  in 
this  argument. 

The  Court.  No,  I say  that  is  not  in  this  argument  at  all.  This 
argument  has  to  do  with  the  other  part  of  the  case. 

Counsel  for  Complainant.  That  is  right. 

Counsel  for  Defendant.  I think  your  Honor  stated  our  posi- 
tion with  substantial  accuracy.  We  claim  first  that  the  river  is 
not  a navigable  stream,  and  we  claim  that  if  it  is  a navigable 
stream,  still,  the  structure  that  we  propose  to  put  there  is 

2334  not  a nuisance,  and  would  not  prevent  any — 

The  Court.  First,  it  is  not  a purpresture,  second,  it  is 
not  a nuisance. 

Counsel  for  Defendant.  And  would  not  prevent  any  existing 
navigation  or  impede  it  in  any  way. 

Counsel  for  Complainant.  We  set  out  three  bases  of  the  bill; 
first,  that  the  river  is  a navigable  stream  which  they  have  no  right 
to  dam;  secondly,  that  the  bed  of  the  river  which  lies  outside  of 
the  meander  line  is  not  their  property,  but  is  the  property  of  the 
State,  and  neither  of  those  questions  have  we  argued. 

The  Court.  No. 


790 


Ruling  of  Court. — Continued. 


Counsel  for  Complainant.  Very  well.  We  say  that  by  these 
contracts  they  seek  to  take  and  use  for  private  purposes  the  90 
foot  strip,  the  Kankakee  feeder  and  the  cut-off,  and  that  those 
were  beyond  the  power  of  the  Canal  Commissioners  to  grant.  The 
Attorney  General  has  the  right  to  intervene.  That  third  is  the 
thing  we  have  been  arguing. 

The  Court.  Now,  as  to  the  90  foot  strip,  I cannot  see  any  other 
reading  in  the  Act  of  1^74  hut  that  the  90  foot  strip  may  he  leased. 
There  is  no  limitation  on  the  power  to  lease  canal  lands  and  lots. 
There  is  an  express  exception  to  the  power  to  sell  the  canal 

2335  lands  and  lots.  That  exception  is  the  90  foot  strip. 

Counsel  for  Complainant.  May  I suggest  there,  your 
Honor,  that  we  are  not  dealing  with  the  fact  on  that.  The  ques- 
tion here  is  whether  the  Attorney  General — ^whether  the  suit  is 
properly  brought  to  try  that  among  other  things,  and  we  have 
not  got  through  with  that. 

Counsel  for  Defendant.  You  haven’t  any  more  statutes  to 
present  here,  have  you? 

Counsel  for  Complainant.  The  only  question  here  to  he  de- 
termined is,  as  the  court  has  said,  as  I understand  it,  is  whether 
it  is  properly  brought  to  draw  that  out. 

The  Court.  That  is  what  I understood  first,  but  your  argu- 
ment has  taken  a different  range,  as  I understood  the  argument. 

CoUFTSEL  FOR  COMPLAINANT.  YeS,  sir. 

Simply  to  illustrate  the  reason  why  the  Attorney  General  ought 
to  have  the  power. 

Counsel  for  Defendant.  I don’t  think  that  the  other  gentle- 
men ought  to  go  into  as  full  an  argument  as  they  did  on  that 
proposition  and  then  say  it  is  not  here  for  consideration. 

Counsel  for  Complainant.  Pardon  me — 

The  Court.  Let  me  ask  Mr.  Peeves  what  possible  facts  can 
be  brought  that  have  not  been  brought  to  bear  on  the  interpreta- 
tion? 

2336  Counsel  for  Complainant.  I will  answer  your  Honor 
frankly  about  that.  We  expect  to  show  and  we  have  deposi- 


791 


tions  here  to  show  that  have  not  been  read  to  your  Honor,  that 
the  flooding  of  this  bank  will  destroy  the  canal  in  time.  It  will 
destroy  it  in  flooding  this  90  foot  strip ; and  second,  while  what  I 
was  driving  at  in  the  decisions,  most  of  them,  that  I read  to  your 
Honor  was — and  I did  not  make  any  argument  on  this ; I just  read 
from  decisions  here — I was  trying  to  show  that  this  90  foot  strip 
was  part  of  the  canal  itself. 

The  Court.  Yes. 

Counsel  for  Complainant.  We  follow  that  by  facts  already 
taken,  ready  to  be  presented,  so  we  can  read  them  to  you,  that 
the  flooding  of  the  canal  would  destroy  that  part  of  it  which  we 
contend  is  a part  of  the  canal,  and  that  they  have  no  right  to  sell 
the  canal  nor  to  lease  it ; and  then  before  your  Honor  passes  upon 
the  question  of  the  right  to  lease  the  90  foot  strip  or  any  part  of 
it — I did  not  argue  that  nor  do  I think  any  of  the  rest  have  par- 
ticularly, except  Mr.  Scott  insists  they  have,  but  I don’t  think  so, 
and  ultimately  I want  to  be  heard  on  it. 

The  Court.  I won’t  preclude  you.  I will  refrain  from  giving 
a decision  on  that  point,  particularly  in  view  of  the  fact  that  as 
I understood  it  when  we  started  out  it  was  the  first  propo- 
2337  sition  that  was  to  be  argued.  Now,  if  there  is  anything  more 
bearing  on  it  that  is  going  to  throw  any  light  on  it,  I will 
hear  it  before  I decide  it. 

There  is  this  possibility  left  open,  and  that  I suggested  before 
the  argument  began  here,  that  if  this  work,  no  matter  how  done, 
will  necessarily  destroy  that  canal,  then  it  amounts  to  a grant  of 
the  canal  beyond  the  power,  but  that  limits  them  in  their  proof — 
limits  the  State  in  its  proof  to  the  necessary  effect  of  any  such 
work,  regardless  of  how  it  is  done. 

Counsel  for  Complainant.  May  I suggest,  your  Honor,  and  I 
do  it  I think  with  the  full  concurrence  of  Mr.  Scott — 

The  Court.  Pardon  me,  I am  not  passing  on  the  question  that 
you  raised  of  spending  one  hundred  million  dollars  to  do  some- 
thing whicF  would  be  worthless,  I do  not  mean  to  say  that  if  it 
could  be  done  by  the  expenditure  of  a vast  sum  of  money  totally 
out  of  proportion  to  everything  that  would  be  within  the  range  of 
legal  possibility. 


792 


Ruling  of  Court. — Continued. 


If  your  contention  is  that  the  necessary  effect  of  this  contract 
is  to  destroy  the  canal,  that  is  one  thing.  Then  my  otf-hand  view 
of  that  would  be  that  it  would  be  beyond  the  power  of  the  Com- 
missioners, and  under  what  I have  just  said  that  you  would  have 
the  right  to  challenge  it.  If,  however,  you  are  relying  on  the  lack 
of  power  to  deal  with  the  90  foot  strip,  irrespective  of  its  effect 
on  the  canal, — and  that  has  been  the  argument  presented — then 
unless  there  was  something  more  to  be  added  by  way  of  argument 
I do  not  see  how  testimony  could  affect  the  conclusion. 

, Counsel  foe  Defendant.  If  I understood  your  Honor  correctly 
it  was  this  point;  that  the  burden  would  be  upon  them  to  show 
that  it  would  be  impossible  to  do  the  work;  not  only  to  consider 
the  different  methods  of  doing  it,  but  whether  it  would  be  possi- 
ble to  do  it  without  destroying  or  affecting  injuriously  the  canal. 

The  Court.  Yes,  unless  they  convinced  me  that  my  present 
impression  is  wrong  as  to  the  power  of  the  Commissioners  to  deal 
at  all  with  the  90  foot  strip.  Now,  Mr.  Beeves  has  further  argu- 
ment to  otfer  on  that  point  as  I understand. 

2338  Counsel  for  Complainant.  I have  made  no  argument  so 
far  upon  it,  your  Honor,  and  1 would  like  to  be  heard  ulti- 
mately upon  that  proposition. 

Counsel  for  Defendant.  As  the  matter  now  stands,  unless 
your  Honor  should  change  his  opinion  upon  thal  point,  it  is  then 
up  to  the  State  to  show  that  this  work  could  not  be  done  without 
injury  to  the  canal,  otherwise  these  contracts  are  valid. 

2339  The  Court.  I will  hold  my  mind  open  on  the  broad  prop- 
osition that  there  is  no  right  to  deal  with  the  90  foot  strip. 

Counsel  for  Defendant.  Hold  your  mind  open  on  that? 

The  Court.  Yes. 

Counsel  for  Defendant.  But  on  the  question  of  evidence,  if 
the  court  please — 

The  Court.  On  the  question  of  evidence,  the  evidence  may  be 
confined  to  the  question  of  the  necessary  effect  of  any  work  possi- 
ble under  this  contract  on  the  canal  itself.  The  other  is  a matter 
of  law,  not  a matter  of  evidence,  as  I understand  it. 

Counsel  for  Defendant.  I think  so. 

Counsel  for  Complainant.  Of  course,  if  your  Honor  please. 


793 


in  justice  to  the  Attorney  General’s  office  it  is  to  l)e  said  that 
the  principle  that  the  Attorney  General  plainly  had  in  mind  was 
that  which  was  laid  down  in  the  Bauclaire  case  which  I read  yes- 
terday. It  is  proper  to  say  here  that  the  court  would  take  juris- 
diction of  the  information  on  this  ground ; it  would  not  ignore 
the  other  branch  of  the  case,  although  that  deemed  sufficient  to 
give  jurisdiction.  Standing  alone  it  might  not  have  constituted 
a case,  since  the  Attorney  General  must  come  here  in  protection  of 
the  great  navigable  river,  and  in  protection  of  the  property 

2340  rights  of  the  State  in  the  bed  of  the  river;  and  here  he 
goes  on  and  brings  in  these  additional  matters,  which  are 

matters  that  flow  from  the  construction  which  has  been  attempted. 

The  Court.  Yes,  but  if  the  Canal  Commissioners  have  not 
the  legal  power  to  enter  into  contracts  of  this  kind,  then  in  the  ab- 
sence of  some  charge  relating  to  the  specific  contract  the  Attor- 
ney General  would  be  unsuccessful  in  that  portion  of  the  case, 
even  though  he  succeeded  in  the  main  portion. 

Counsel  for  Complainant.  That  is  in  relation  to  the  ulti- 
mate measure  of  relief  to  be  granted.  Of  course,  we  say  that  the 
contract  in  perpetuity  to  this  90  foot  strip  is — 

The  Court.  That  is  another  thing.  That  goes  to  the  specific 
character  of  the  contract.  I do  not  remember  now  whether  you 
set  that  up  in  your  bill  or  not,  that  they  are  void  because  that 
lease  is  in  perpetuity. 

Counsel  for  Complainant.  Yes,  we  charge  it  is  without  limit 
of  time  and  therefore  void.  That  is  the  statement  of  the  bill. 

The  Court.  I am  not  deciding  now  on  any  such  point  as  that.  I 
am  not  deciding  on  the  interpretation  of  the  contract,  but  simply 
on  the  broader  question,  and  even  on  that  broader  question  I will 
reserve  my  decision. 

Counsel  for  Complainant.  If  I catch  your  Honor  right 

2341  you  are  deciding  that  the  Attorney  General  has  the  right  to 
come  in  here  and  be  heard. 

The  Court.  The  Attorney  General  has  the  right  to  come  in 
and  be  heard  that  these  contracts  are  void  for  any  reason  what- 
soever. 

Counsel  for  Complainant.  Yes. 


794 


The  Court.  But  has  no  right  to  come  in  and  be  heard  to  argue 
that  the  work  done  under  that  contract  is  not  proper  work,  nor 
that  the  interest  of  the  state  will  not  be  properly  guarded. 

2342  Lyman  E.  Cooley, 

a witness  for  complainant,  testified  as  follows: 

Direct  Examination. 

Graduated  as  civil  engineer,  Eensselaer,  Polytechnic,  Troy,  1874, 
1874-77  Professor  Civil  Engineering  Northwestern  University  and 
Associate  Editor  Engineering  News. 

2342  1878,  Principal  Assistant  Engineer  constructing  railway 

bridge  C.  & A.  Ey.  across  the  Mississippi  Elver,  Glasgow, 
Missouri,  1878-84,  U.  S.  Engineer  on  improvement  of  western 
rivers. 

Eesident  Engineer  on  improvement  of  Missouri  at  Nebraska 
City,  Nebraska. 

Ditto  at  St.  Charles,  Mo. 

For  two  years  General  Assistant  in  charge  of  all  works  on 
Missouri  Eiver  from  Yankton  to  mouth  (some  13  in  number). 

Surveys  of  Mississippi  Elver  between  Cairo  and  Memphis. 

Surveys  on  Missouri  and  reduction  of  physical  data  on  Missou- 
ri, Mississippi  and  other  western  rivers  and  supervision  of  work 
thereon. 

2344  Nebraska  City  is  50  miles  south  of  Omaha  in  Nebraska 
and  10  miles  north  of  State  line  between  Iowa  and  Mis- 
souri. 

Work  was  for  maintenance  and  improvement  of  navigation  of 
Missouri,  maintenance  of  banks  and  regulation  of  stream. 

Surveys  and  physical  observations  of  changes  in  river  bed,  vol- 
ume of  stream  and  stages  of  water. 

Involving  testing  and  using  the  navigation  of  the  Missouri. 

2345  First  we  had  flat  boats  70  x 16  carrying  40  to  60  tons  pro- 
pelled by  sails,  cordells  from  the  bank  and  sweeps.  Our  cor- 

delling  was  performed  by  a number  of  men  walking  along  the 
river  bank  pulling  the  boat  up  by  a long  cable  attached  to  the  bow 
of  the  boat. 


795 


Second  year  we  had  a steamboat  drawing  20  inches  to  2\  feet, 
56  feet  long,  14  feet  wide. 

It  would  tow  2 loaded  barges  up  stream. 

Currents  in  Missouri  Eiver,  generally  5 to  7 miles  an  hour. 
We  operated  this  boat  in  the  teeth  of  such  currents  throughout 
the  high  water  season  of  79. 

2346  We  had  opposite  our  work  a current  which  averaged 
throughout  the  flood  8 miles  an  hour. 

We  performed  our  navigation  ourselves  against  that  current. 
There  were  a number  of  boats  went  up  the  river  that  season. 

I measured  the  current  at  Wyoming  bluff  and  ascertained  the 
actual  mean  velocity  for  the  whole  cross  section  of  12  miles  per 
hour.  We  measured  it  in  our  boats  and  boats  passed  up  the  river 
during  that  flood. 

The  Nebraska  City  reach  extended  some  18  miles  to  the  Platts- 
mouth  reach. 

It  was  a succession  of  bands  with  good  depths  and  interme- 
diate crossings  between  the  bends  of  shallow  depths.  One  bend, 
Copeland  ^s  bend,  in  high  water  spread  out  to  2J  miles  and  di- 
vided into  a number  of  channels  in  which  the  water  was  very 
shallow  and  varible  in  depth  during  the  low  water  season. 

2347  The  usual  rule  of  depth  in  low  water  was  24  to  3 feet 
on  the  crossings,  but  at  times  we  had  depths  of  15  to  20 

inches  on  the  bars  of  Copeland’s  bend. 

Missouri  river  bends  are  usually  3 or  4 miles  long  with  inter- 
mediate crossing  of  a mile  or  more  to  the  next  bend. 

Missouri  Eiver  is  quite  unstable.  These  bends  in  high  water 
cut  the  banks  more  or  less  continuously  dumping  their  loads  on 
the  crossings  which  makes  a very  variable  channel  changing  in 
depth  and  location.  Pilots  navigating  it  have  to  search  out  a 
new  channel  every  trip. 

The  river  is  very  unstable,  its  bed  and  banks  consist  of  light 
alluvium  and  sands  brought  down  from  above  and  easily 
eroded. 

2348  In  low  water  it  was  from  500  feet  to  a mile  wide  in  some  of 
the  thin  places  on  Copeland’s  bend.  In  high  water  it  was 


79()  Cooley, — Direct  Exam. — Continued. 

from  f of  a mile  to  a mile  and  a half  wide  and  overflowed  bottom 
lands  to  a great  depth. 

2349  Generally  speaking,  in  the  narrow  places  500  feet  wide, 
the  water  was  deep  and  the  current  continuous  from  shore 

to  shore  except  on  the  convex  side  where  there  was  some  shallower 
stationary  water.  Three-quarters  of  the  width  would  be  occupied 
with  a rapid  current. 

Where  it  spread  out  to  a mile  and  a half  wide  the  current  would 
be  very  slack,  but  the  bars  filled  up  from  the  erosion  of  the  bends. 
These  crossings  were  dumps  and  at  times  the  current  became  very 
swift.  In  low  water  these  narrow  channels  became  very  narrow 
only  100  feet  to  100  yards  in  width. 

The  bars  lay  between  the  bends.  They  were  very  unstable  and 
shifting  both  in  elevation  and  location.  In  low  water  navigation 
becomes  quite  difficult. 

2350  It  seems  the  bar  shifts  and  channel  changes  in  a day  or 
two  and  again  persist  for  weeks  in  one  locality. 

I have  seen  the  bars  shift  and  the  channel  change  in  the  course 
of  a day  or  two,  and  again  they  would  persist  for  weeks  in  the 
same  locality. 

As  to  the  degree  of  the  curvature  or  the  abruptness  of  the  change 
in  direction  in  the  bends,  going  around  these  bars, — in  some  of 
these  bed  crossings  the  channel  would  pass  from  one  side  of  the 
river  to  the  other  two  or  three  times  in  the  course  of  a mile.  It 
would  be  extremely  sinuous,  so  that  a boat  had  difficulty  in  thread- 
ing them,  might  often  flank  itself  across  the  current  in  such  a 
manner  that  it  had  to  put  out  lines  in  order  to  get  through,  or  use 
the  boat  spars  for  the  purpose  of  holding  it  in  position  until  it 
could  work  through;  to  put  out  a line  to.  some  point  on  shore, 
or  to  an  anchor  at  some  distance,  100  to  500  yards,  and  work  with 
the  aid  of  the  capstan.  Sometimes  to  pull  the  boat  around;  other 
times  to  hold  it  in  position. 

I was  in  Nebraska  City  doing  this  work  for  two  years. 

2351  During  that  period  I saw  navigation  going  on  on  the  Mis- 
souri River,  at  that  place.  There  were  a number  of  boats 

passed  up  the  Missouri  River  every  season  in  the  up  river  and 
Fort  Benton  trade  from  St.  Louis.  Usually  made  two  trips  from 


797 


the  opening  of  the  season  up  to  August,  when  the  water  l)egan  to 
get  low,  and  some  of  those  boats  were  very  large  boats,  ca])able 
of  carrying  a thousand  tons  of  freight. 

They  made  two  round  trips  to  Fort  Benton,  a distance  of  about 
2,400  miles  from  St.  Louis.  The  round  trip  would  be  about  4,800 
miles,  and  there  would  be  two  such  trips  for  the  boat  in  that  sea- 
son. They  would  carry  a thousand  tons  of  freight  on  four  feet  of 
water.  There  were  four  characteristic  boats  that  were  in  the  Mis- 
souri trade  at  the  time  I was  on  the  river;  the  Montana,  Dakota, 
the  Wyoming  and  the  Idaho,  which  were  45  to  48  feet  wide,  250 
to  260  feet  long, — in  length,  and  with  a depth  of  hold  of  four  and 
a half  to  five  and  a half  feet,  and  they  would  run  on  12  to  14  inches 
light  and  load  down  to  four  feet,  and  thus  loaded  would  carry 
about  a thousand  tons  of  freight. 

2352  There  were  numbers  of  smaller  l)oats  which  ]>assed  up  and 
down  the  river  while  I was  at  Nebraska  City;  a characteris- 
tic size  being  from  28  to  32  feet  wide,  IbO  feet  long,  with  a depth 
of  hold  of  three  and  a half  to  four  feet,  and  running  on  eleven  to 
twelve  inches  of  water  light,  and  loaded  two  to  two  and  a half 
feet,  and  capable  of  carrying  300  tons. 

These  boats  were  used  largely  in  the  upper  river  from  Sioux 
City  and  Yankton  north,  and  passed  to  and  fro  in  their  trips  to  St. 
Louis. 

The  upper  Missouri  River,  referring  to  the  river  above  Sioux 
City,  was  habitually  navigated  by  these  smaller  classes  of  boats 
throughout,  the  season.  The  large  boats  usually  went  out 

2353  of  commission  in  August.  The  smaller  craft  had  200  to  300 
tons  carrying  capacity  on  two  and  a half  feet  of  water. 

We  had  a survey  party  which  was  making  a complete  survey 
of  the  Missouri  River,  wlTose  trips  extended  up  to  the  three  forks, 
above  Fort  Benton,  and  in  the  intervals  of  work  in  the  field,  we 
put  in  our  time  in  reducing  the  data  in  regard  to  the  Missouri 
River  and  other  western  rivers,  and  were  familiar  with  the  con- 
ditions in  the  extreme  upper  Missouri. 

As  to  conditions  prevailing  in  the  upper  Missouri  with  respect 
to  the  depth  of  water,  the  current,  and  the  actual  navigation  in 
the  upper  Missouri, — above  Carroll,  or  at  the  mouth  of  the  Milk 


798 


C ooleijy — Direct  Exa  m. — C on  tin  ued. 


River,  some  250  miles  from  Fort  Benton,  the  stream  is  a stream 
with  a fixed  stream  bed,  a fixed  regimen,  comparatively  speaking, 
with  a number  of  rapids  which  were  drowned  out  in  extreme  high 
water,  but  in  moderate  stages  of  water  there  were  velocities  upon 
these  rapids  of  eight  to  ten  miles  per  hour,  and  the  steam 

2354  boats  at  times  had  to  warp  over  them.  They  would  put  out 
a line  up  stream  a quarter  or  a half  mile  and  wind  up  the 

rapids  with  a steam  capstan  on  the  bow  of  the  boats  for  the  i3ur- 
pose  of  winding  up,  going  up  stream;  down  stream  they  would 
run  with  the  current  and  their  own  ordinary  power. 

I couldn’t  say  exactly  from  memory  as  to  the  extreme  low  water 
depths,  but  the  depths  used  in  this  class  of  work  were  from  two 
and  a half  to  four  feet. 

As  to  my  experience  in  navigation  on  other  streams,  I was 
located  in  St.  Charles,  which  is  another  part  of  the  Mississippi 
River,  for  two  years.  I was  located  one  winter  at  the  Plum  point 
reach  of  the  Mississippi  River  between  Cairo  and  Memphis,  where 
we  had  the  use  of  a small  towboat,  and  had  currents  in  high  water 
of  five  miles  per  hour,  to  six  miles  per  hour,  and  at  Fort  Pillow 
eddy,  w’hich  we  used  to  run,  we  sometimes  struck  currents  of  twelve 
miles  per  hour. 

Boats  tried  to  avail  themselves  coming  up  stream  of  the 

2355  Fort  Pillow  eddy,  and  w^e  did  so,  but  it  was  regarded  as  a 
dangerous  point,  on  account  of  the  counter  currents,  and  was 

avoided  by  most  boats. 

I do  not  think  I have  ever  seen  an  eight  mile  current  in  the 
Mississippi  River  proper  below  St.  Louis,  but  in  the  Missouri 
River  it  was,  except  in  connection  with  the  Fort  Pillow  location.  I 
have  also  examined  some  of  the  tributaries  of  the  Missouri  River, 
the  minor  tributaries,  among  which  was  the  Gasconade  River, 
which  had  12  to  18  inches  of  water,  and  upon  which  we  spent 
money  in  improvements.  By  ^^we”  I mean  the  Engineering 
Corps  of  the  United  States. 

As  to  what  sort  of  craft  navigated  the  Gasconade, — there  was  a 
small  steamboat  that  ran  up  to  Vienna,  that  drew  ten  to  twelve 
inches  of  water,  and  ran  up  on  18  inches;  a boat  about  .14  feet  wide, 
and  perhaps  100  feet  long,  if  I remember  it,  with  a stern  wheel.  It 
would  carry  50  to  60  tons. 


799 


The  ten  to  twelve  inches  of  water  spoken  of  is  low  water 

2356  and  is  a limit,  and  not  an  habitual  stage  of  water.  It  could 
actually  run  on  12  inches,  and  was  actually  employed  on  12 

inches  in  moving  out  rafts  and  ties  on  flat  boats,  and  oli  rafts 
hound  together  in  the  river.  This  Gasconade  Kiver  comes  into 
the  Missouri  Eiver  at  Herman,  a few  miles  below  Jefferson  City 
and  is  a tributary  from  the  south.  In  its  width  it  varies  greatly, 
150  feet  wide  as  I judged  it  at  the  mouth.  I did  not  go  up  the 
river  itself. 

I have  been  up  the  whole  length  of  the  Ohio  River,  and  up  that 
river  in  the  fall  of  1883  for  the  purpose  of  letting  contracts  for 
$500,000  worth  of  water  craft,  which  I had  designed  written  spec- 
ifications for,  and  stopped  at  all  the  points  along  the  Ohio  River 
where  there  were  boat  yards. 

The  Ohio  River  at  that  time  was  not  at  an  extreme  low  stage, 
hut  I remember  of  going  from  Cincinnati  to  Gallipolis,  Ohio,  on 
the  boat  with  a large  complement  of  passengers,  and  one  or  two 
hundred  tons  of  freight,  when  thefe  was  less  than  30  inches  of 
water  on  the  bars. 

2357  The  Ohio  River  does  get  extremely  low.  I have  made  a 
particular  examination  of  it  at  Louisville  for  water  power 

purposes,  where  the  flow  of  water  was  not  over  seven  to  eight 
thousand  cubic  feet  of  water  per  second. 

I do  not  know  that  I could  not  state  that  breadth  at  low  water 
at  that  particular  point,  except  as  I remember  it  from  the  maps. 
It  is  very  much  spread  out  in  approaching  the  falls  of  the  Ohio, 
and  the  rapids.  These  are  located  just  above  Louisville,  just  op- 
posite and  below  Jeffersonville,  Indiana,  and  Hew  Albany,  In- 
diana, on  the  opposite  side.  Below  Pittsburg  the  river  has  reached 
as  low  a stage  as  1,500  feet  of  water  per  second,  and  at  times 
only  a few  inches  of  water,  eight  to  ten  inches  of  water  on  the 
ripples,  in  depth;  and  the  Pittsburg  coal  fleet  has  been  locked 
up  for  as  much  as  five  months  waiting  for  a boating  rise,  as  they 
call  it,  in  order  to  pass  down  the  Ohio  River,  and  over  a million 
tons  of  coal  has  laid  in  the  Pittsburg  harbor  waiting  an  oppor- 
tunity to  pass  out  when  the  water  should  be  in  the  stream 

2358  sufficient  to  float  the  coal  fleet. 

In  the  census  of  1890,  when  I had  occasion  to  make  some 


800 


Cooley, — Direct  Exam. — Continued. 


comparisons  of  that  kind  in  regard  to  the  traffic  on  western  riv- 
ers, the  commerce  of  the  Ohio  Kiver  and  its  tributaries  amounted 
to  five  per  cent,  in  ton  miles  of  that  carried  by  all  the  railroads 
in  the  United  States. 

2359  The  smaller  craft  that  I encountered  on  the  Ohio  Uiver 
were  much  like  these  smaller  craft  of  the  ]\Ussouri  River,  28 

to  32  feet  wide,  125  to  160  feet  in  length,  running  light  on  about 
a foot  of  water  and  loading  up  to  two  and  a half  feet. 

When  the  extreme  low  water  periods  arrive,  the  big  boat^  in 
many  cases  go  out  of  commission,  the  larger  boats  used  on  the 
tributaries  go  into  the  main  river,  and  the  little  boats  on  the 
smaller  tributaries  come  into  the  Ohio  and  into  the  Missouri  and 
into  the  Arkansas. 

When  the  low  water  arrives  the  little  boats  come  out  of  the 
small  streams  and  carry  on  the  business  on  the  big  streams.  There 
are  many  of  these  smaller  streams  that  only  have  navigation  in 
them  for  a few  months,  three  or  four  months,  like  the  head  waters 
of  the  Tennessee,  where  there  are  five  tributaries  that  have  in  low 
water  only  a few  inches  in  depth  on  the  bars,  and  yet  for  four  or 
five  months  or  three  months  have  a good  stage  of  water.  The 
Government  has  spent  considerable  money  in  improving  these 
little  streams,  so  as  to  produce  fifteen  to  eighteen  inches  of  water 
continuously  over  the  ripples  in  the  interest  of  towboating  and 
flatl)oating  by  the  people,  the  riparian  owners. 

2360  The  capacity  in  a state  of  nature,  of  a small  stream 
which  they  improved  to  a continuous  depth  of  fifteen  inches, 

would  be  not  over  five  or  six  inches  upon  the  bars  upon  several 
of  those  minor  streams,  like  Hiawasse,  the  Little  Tennessee,  the 
Hoi  stern,  the  Clinch  and  French  Broad,  and  all  streams  of  that 
class  in  East  Tennessee.  They  are  used  for  carrying  on  a lU'ofit- 
able  commerce. 

St.  Charles  is  located  upon  the  Missouri  River  about  twenty- 
five  miles  from  its  mouth,  and  about  twenty-five  miles  by  rail 
from  the  City  of  St.  Louis.  The  work  there  was  of  a similar 
character  to  that  performed  at  Nebraska  City, — the  work  of  hold- 
ing the  river  bank  and  training  the  river  channel,  and  in  the  in- 
tervals making  measurements  of  the  fiow  and  of  the  movement  of 
the  bottom  of  the  stream  and  of  kee])ing  the  records. 


801 


2361  When  operating  on  the  river  or  making  a journey  on  the 
river,  I hahitually  took  the  pilot  house.  I have  ridden,  I 

was  about  to  say,  thousands  of  miles  on  the  pilot  house  on  the 
Missouri  and  Mississippi  Rivers  and  upon  the  Ohio  River. 

I left  the  Government’s  service  in  the  fall  of  1884.  I returned  to 
Chicago  for  the  purpose  of  engaging  in  sanitary  engineering  and 
for  a time  edited  the  ‘‘American  Engineer,”  and  occupied  the 
chair  of  matliematics  at  the  Nortwestern  University.  In  1885 
I found  myself  along  with  Dr.  Frank  Riley,  Assistant  Secretary 
of  the  State  Board  of  Health,  and  Mr.  Ossian  Guthrie,  a citizen  of 
Chicago,  who  came  here  in  1847,  and  had  lived  adjacent  to  the 
Mud  Lake  region  and  the  Desplaines  Valley  all  his  life,  upon  a 
sub-committee  of  the  Citizen’s  Association  of  Chicago,  charged 
with  the  duty  of  preparing  a solution  of  the  drainage  question  for 
the  City  of  Chicago. 

In  August,  1885,  occurred  a phenomenal  rain  of  six  inches  in 
24  hours,  the  greatest  in  the  history — the  greatest  on  record  in 
the  history  of  Chicago;  which  sent  all  the  contents  of  our 

2362  rivers  and  slips  into  the  lake  and  greatly  concerned  the  peo- 
ple and  brought  to  a head  the  solution  of  the  sanitary  ques- 
tion. We  made  a report  to  the  Citizen’s  Association,  which  was 
adopted.  We  examined  the  Chicago  River,  and  all  the  flood  ter- 
ritory, and  the  Desplaines  River  and  the  regions  of  overflow  by 
which  the  waters  came  to  the  Chicago  River ; in  fact  covered  that 
stream  from  Lake  County  to  Joliet  at  that  time.  This  was  in 
1885. 

In  1886  and  1887  I was  principal  assistant  of  the  Drainage  and 
"Water  Supply  Commission  which  is  charged  with  the  duty  of 
making  the  oflicial  investigation,  for  the  Citv  of  Chicago,  and  in 
1888  I was  connected  with  the  State  Board  of  Health  as  consult- 
ing engineer  with  the  same  duty.  In  1888  I was  consulting  engi- 
neer of  the  joint  committee  of  the  Legislature  and  the  Mayor  of 
Chicago,  which  was  appointed  to  draft  a law,  the  Sanitary  Dis- 
trict Law,  and  had  charge  of  that  legislation  at  Springfield  dur- 
ing the  session  of  1889. 

That  is  the  year  that  this  act  creating  the  Sanitary  Dis- 

2363  trict  of  Chicago  was  adopted,  and  later,  after  the  passage  of 
the  law,  was  engineer  for  the  petitioners,  for  the  Sanitary 


802  Cooley, — Direct  Exam. — Continued. 

District,  and  also  for  the  Commission  that  determined  the  boun- 
daries of  the  District,  and  was  then  the  first  chief  engineer  of 
the  Sanitary  District  during  the  year  1890,  and  from  1891  to  1895 
I was  a trustee  of  the  Sanitary  District,  chairman  of  the  engi- 
neering committee;  and  in  the  year  1897  I was  consulting  engineer 
of  the  Sanitary  District,  and  in  the  interval  was  again  consulting 
engineer  of  the  State  Board  of  Health  upon  general  sanitary 
questions.  And  I was  further  connected  with  the  district  as  a mem- 
ber of  the  committee  upon  a comprehensive  plan  for  the  comple- 
tion of  the  works  of  the  Sanitary  District  in  1901. 

We  had  an  Intercepting  Sewer  Commission  here  in  this  city  in 
1897.  That  was  under  Mayor  Swift,  and  I was  a member  oT 
the  Intercepting  Sewer  Commission  which  planned  the  system  of 
intercepting  sewers  which  is  now  nearing  completion  by  the  City 
of  Chicago. 

In  1895  I was  appointed  upon  the  first  international  deep 
waterway  commission  by  President  Cleveland,  which  was  a joinf 
commission  of  the  United  States  and  Canada,  and  was  the 
2364  engineering  member  of  the  American  Section  and  prepared 
the  report  which  was  submitted  to  Congress  in  1897  by  Pres- 
ident Cleveland  in  a special  message.  Then  Congress  followed 
the  matter  up  by  appropriating  $600,000  for  the  purpose  of  ascer- 
taining the  cost  of  thirty  feet  of  water  from  the  Atlantic  Ocean 
into  the  Great  Lakes,  Chicago  and  Duluth,  as  projected  by  the 
first  international  commission,  and  I made  the  economic  investiga- 
tion for  that  board  of  engineers  that  had  that  investigation  in 
charge  in  reference  to  the  effect  upon  the  freight  movement  in 
this  country  and  in  British  North  America,  of  making  the  lakes  an 
arm  of  the  sea ; and  made  also  a very  full  study  of  the  freight  pro- 
ducing resources  of  the  two  countries  and  of  the  rate  question 
as  between  water  and  rail. 

In  the  fall  of  1897  in  company  with  a number  of  contractors,  I 
visited  the  routes  for  an  isthmian  canal  at  Panama  and  Nicarau- 
gua  and  spent  nearly  a year  in  preparing  plans  and  estimates 
for  a contracting  syndicate  which  contemplated  undertaking  the 
work  by  one  of  those  routes. 

In  1898  I was  the  advising  engineer  of  Governor  Black ^s  Com- 
mittee, on  the  investigation  of  the  Erie  Canal  improvements  under 


what  was  known  as  the  Nine  Million  Act,  and  went  over  the  entire 
route  of  the  several  canals  of  New  York,  some  five  hundred 
miles  in  length,  and  saw  the  work  in  all  stages  of  development,  as 
it  was  being  rebuilt  and  rejuvenated. 

2365  In  1899  I was  consulting — entered  the  service  as  consulting 
engineer  of  the  Union  Water  Company  of  Denver,  Colo- 
rado, in  which  position  I continued  for  four  years  during  the  build- 
ing of  what  is  known  as  the  Cheesemound  Dam  upon  the  south 
fork  of  the  South  Platt  River  near  the  outlet  of  South  Park.  This 
dam  is  225  feet  high,  granite  masonry,  and  within  a year  after 
its  completion  had  210  feet  of  water  against  it,  and  controlled  all 
the  water  running  off  of  1,800  square  miles.  It  is  the  highest  dam 
in  the  world. 

In  1901  I was  employed  to  develop  the  water-power  proposition 
at  the  Des  Moines  Rapids  of  the  Mississippi  River  above  Keokuk, 
Iowa,  and  Hamilton,  Illinois,  and  was  connected  with  that  proposi- 
tion for  four  years. 

We  projected  a dam  35  feet  high  and  7,000  feet  long  at  the  foot 
of  the  rapids,  which  was  to  drown  out  the  entire  rapids,  some 
12  miles  in  length,  and  set  the  water  back  to  Burlington,  Iowa, 
a distance  of  forty  miles,  and  do  away  with  the  ship  canal  along- 
side the  rapids,  which  had  cost  the  Government  since  the  Civil 
War,  four  and  a half  million  dollars. 

The  Government  had  built  a canal  to  go  around  those  rapids 
and  connect  the  navigation  on  the  Des  Moines  above  the  rapids 
with  that  below.  At  extreme  low  water  the  rapids  were  dif- 
ficult. 

2366  Before  that  dam  was  put  in,  as  I remember  the  profiles 
while  I was  working  at  this  project,  I think  the  low  water  got 

down  to  a foot  and  a half  in  the  channels,  but  they  were  very 
crooked  between  the  chains  of  rock,  and  very  difficult  to  navigate  at 
extreme  low  water. 

I wish  to  say  in  that  connection  that  it  took  us  about  four 
years  to  remove  the  prejudice  against  the  construction  of  such 
a dam,  and  close  these  rapids,  and  to  obtain  an  enabling^  act  from 
Congress.  The  matter  is  now  in  its  final  stages  and  will  be  fi- 
nanced as  soon  as  the  state  of  the  market  justifies  it. 


804 


Cooley, — Direct  Exam.— Continued. 


I have  also  prepared  water  power  projects  or  reports,  or  made 
examinations  in  nine  States.  I have  studied  and  made  flood  re- 
ports upon  Green  Eiver,  Michigan,  and  the  Genesee  River  in 
New  York  and  upon  other  streams. 

I have  performed  service  as  an  all-around  engineer  in  nearly 
every  branch  of  the  profession,  hut  more  than  half  my  time  has 
been  given  to  the  domain  of  hydraulic  engineering,  and  particu- 
larly to  the  subject  of  waterways. 

2367  The  Internal  Improvement  Commission  of  Illinois  was 
authorized  by  Act  of  the  Legislature  in  1905,  and  was  or- 
ganized in  1906  for  the  purpose  of  developing  primarily  some 
proposition  in  regard  to  the  Lakes-to-the-Gulf  waterway,  to  be 
submitted  to  the  Legislature  of  Illinois,  and  generally  to  exam- 
ine the  streams  of  this  State  and  ascertain  what  it  was  feasible  to 
do  in  the  way  of  establishing  a waterway  policy  for  the  State.  I 
was  the  secretary  of  this  commission  when  it  was  organized,  and 
prepared  the  report  which  was  submitted  to  the  Legislature  in 
April,  1907,  which  is  the  basis  of  the  action  taken  by  the  Legisla- 
ture in  authorizing  the  constitutional  amendment  to  be  submitted 
to  the  people  this  fall,  and  also  a bill  upon  which  this  suit  has 
been  brought.  I am  now  the  consulting  engineer  of  this  com- 
mission, the  Legislature  having  continued  the  same  and  given  it 
a much  larger  appropriation. 

The  pamphlet  which  is  shown  me,  and  which  the  reporter 
marked  for  identification  ‘‘Cooley  Exhibit  1’’  (Appendix  II,  p. 
3889;  Trans.,  p.  5795;  Abst.,  p.  1725)  is  the  official  print  of  the  re- 
port to  which  I have  referred. 

2368  I am  acquainted  with  the  physical  conditions  of  the  Des- 
plaines  River.  I have  made  personal  examinations  from 

Wadsworth  in  Lake  County  to  the  mouth,  established  gauges  there- 
on for  the  purpose  of  keeping  a record  of  the  stages  of  water, 
measured  the  stream  at  a number  of  points ; have  made  surveys 
and  directed  other  surveys;  in  fact  I think  most  of  the  surveys 
that  have  been  made  in  regard  to  the  stream  by  the  Sanitary  Dis- 
trict and  the  City  of  Chicago. 

In  1885  when  I first  began  to  give  it  systematic  consideration, 
and  in  connection  with  the  Citizen’s  Committee,  and  later  as 
principal  assistant  of  the  Drainage  and  Water  Supply  Commis- 


805 


sion,  I had  charge  of  the  surveys  through  the  Desplaines  Valley, 
and  of  the  records  and  flow  measurements  upon  the  Desplaines 
and  other  streams  about  Chicago. 

This  report  of  the  internal  improvement  commission  of  Illi- 
nois, and  which  is  prefaced  by  a letter  of  transmittal  dated  Chi- 
cago, February  2,  1907,  in  reference  to  that  date  was  officially 

2369  published  by  the  State.  It  was  transmitted  to  the  Legisla- 
ture as  a printed  document  on  April  10th,  by  special  mes- 
sage of  the  Governor,  in  1907. 

As  to  my  own  personal  inspection  and  examination  and  travel 
upon  the  Desplaines  River, — I have  spoken  of  my  connection  with 
the  work,  1885  to  1887,  and  I passed  over  during  that  period  a 
part  of  the  upper  river,  and  all  of  the  lower  river  from  River- 
side to  the  mouth  in  a boat. 

I was  on  portions  of  the  Desplaines  River  in  1885;  in  1887  I 
passed  over  that  portion  between  Joliet  and  the  mouth  in  a boat, 
and  as  late  as  1892  made  a trip  on  the  river  down  the  rapids  from 
Romeo  to  Joliet,  or  Lockport,  and  to  the  upper  basin  at  Joliet. 

I had  much  to  do  with  the  river  diversion,  and  determining 
the  character  to  be  given  to  that,  which  was  based  upon  the  data 
and  studies  which  had  been  made  under  my  direction. 

2370  Q.  You  may  tell  us  now,  or  tell  the  court,  whether  or  not 
the  Desplaines  River  from  the  point  known  as  Dam  No.  1 

in  Joliet  to  its  mouth  is  or  is  not  a navigable  stream. 

(Thereupon  counsel  for  defendant  objected  to  the  question 
on  the  ground  that  it  had  not  been  shown  that  the  witness  had 
any  knowledge  of  the  river  in  its  ordinary  natural  condition, 
that  the  test  of  navigability  under  the  Illinois  decisions  was 
the  capacity  of  the  river  to  carry  commerce  for  useful  pur- 
poses in  its  ordinary  and  natural  state  before  any  improve- 

2371  ments  were  made,  and  also  on  the  further  ground  that  it 
should  be  limited  to  the  time  the  witness  was  there.) 

Counsel  for  Complainant.  I will  accept  that  qualification, 
navigability  for  useful  purposes  of  commerce  at  the  times  and 
places  where  you  saw  it. 

Thereupon  the  witness  answered  as  follows: — ‘^The  Desplaines 


806  Cooley, — Direct  Exam. — Continued. 

Kiver’^  is  a navigable  stream  between  Dam  No.  1 Joliet  and  the 
mouth. 

2372  Counsel  foe  Complainant.  Q.  Was  that  so  when  you 
were  there  and  visited  it  and  inspected  itf 

A.  It  was. 

The  ‘‘Upper  Desplaines  Eiver^’  refers  to  that  portion  of  the 
stream  north  of  Riverside  or  really  north  of  the  township  line 
between  Township  38  and  39,  which  is  the  prolongation  of  39th 
Street  in  the  City  of  Chicago,  and  the  “Lower  Desplaines^’  refers 
to  the  meandered  portion  of  the  stream  from  that  point  to  the 
mouth. 

In  the  personal  examinations  that  I made  of  the  river  I took 
measures  to  measure  its  flow  and  ascertain  its  depth.  I re- 

2373  peatedly  passed  over  what  is  known  as  the  twelve  mile  level 
that  was  extending  from  the  range  line  at  Summit  to  the 

old  portage  slough  on  Range  12  or  13  east,  above  Summit  down 
to  within  a short  distance  of  Lemont,  which  was  a succession 
of  deep  pools  and  wide  waters  containing  several  feet  of  water 
with  two  points  of  more  limited  depth.  I also  went  over  the  por- 
tion of  the  river  in  1892  from  the  end  of  the  twelve  mile  level 
down  to  Lockport  and  Joliet. 

2374  I meaured  the  stream  at  Riverside  at  various  times  in 
1886,  and  also  in  the  flood  of  1887.  I established  a gauge 

at  Riverside  in  May,  1886.  This  gauge  was  about  a half  a mile  " 
above  the  township  line,  by  the  course  of  the  river,  in  the  south- 
east quarter  Section  36,  Town  39,  Range  12  East. 

I was  upon  the  river  in  the  months  of  August  and  September, 
1885,  and  every  month  during  1886  and  a large  part  of  1887. 

M^e  had  depths  in  the  12-mile  level,  and  there  was  a record  made 
of  those  depths.  The  record  was  kept  on  the  Riverside  gauge. 

2375  and  printed  in  the  report  of  the  board  of  engineers  for 
1905.  The  12-mile  level  began  at  the  range  line  between  12 

and  13  East,  north  of  Summit,  at  the  old  Portage  Slough,  at  the 
Ogden  Dam  itself,  and  continued  down  to  within  a short  distance 
of  Lemont,  and  was  a continuous  level  of  water,  very  deep  in 
localities,  up  to  ten  or  twelve  feet,  and  generally  there  was  com 
tinuously  a considerable  depth. 


807 


And  being  asked — ^‘wbat  was  the  shallowest  water  that  yon 
observed  in  the  Desplaines  Eiver  in  the  year  1885,  in  the  channel 
of  the  river  where  the  current  was!’’  the  counsel  for  defendant 
objected  on  the  ground  that  they  made  official  records,  and  that 
the  better  evidence  is  the  record  made  at  that  time. 

3278  Counsel  for  Complainant.  That  particular  question  I 
do  not  regard  as  important,  if  your  Honor  please.  He  estab- 
lished a gauge  in  1886,  and  I was  asking  him  with  reference  to 
1885  because  as  I understand  that  that  was  prior  to  the  time 
when  regular  gauge  records  began  to  be  kept.  That  is  the  only 
reason  why  I asked  that  particular  question,  and  I do  not  know 
whether  those  particular  depths  in  1885  were  included  in  the  pub- 
lished records  or  not. 

The  Court.  Was  it,  Mr.  Cooley! 

2379  The  Witness.  It  was  recorded  on  the  maps,  showing  the 
lower  water  for  the  twelve  mile  level  and  on  the  profile; 

if  I remember  it  was  about  eighteen  inches  at  extreme  low  water. 

In  1887  I was  over  portions  of  the  Desplaines  Eiver  this  side 
of  Joliet,  and  made  a particular  trip  over  the  river  from  Joliet 
to  the  mouth  and  further  down  the  stream. 

2380  In  1886  I was  over  the  river  at  Eiverside,  Desplaines, 
Wadsworth,  in  Lake  County,  at  Joliet  repeatedly,  where  we 

had  measuring  or  gauging  stations,  and  also  on  the  west  fork 
where  we  had  a gauging  station  for  the  purpose  of  gauging  the 
flow  that  came  over  the  Chicago  divide.  There  were  gauges  also 
aside  from  those  which  were  established  by-  myself  and  the  Sani- 
tary District. 

I established  a gauge  at  Wadsworth,  Lake  County,  Desplaines, 
in  Cook  County,  at  Eiverside,  Willow  Springs,  at  Lemont,  at 
Joliet,  and  at  Morris,  Illinois,  and  made  particular  investigations 
at  all  those  points  in  regard  to  flood  heights,  and  other  data 
respecting  the  streams. 

Eef erring  to  House  Document  No.  263,  59th  Congress,  first  ses- 
sion, also  referred  to  as  report  of  the  engineer  corps,  published 
in  1905;  referring  to  the  records  of  gauge  readings,  which 

2381  are  assembled  in  that  volume  between  pages  480  and  520, 
some  40  pages  of  fine  print  figures.  Directing  my  attention 


808 


Cooley, — Direct  Exam. — Continued. 


first,  to  the  gauge  which  in  that  report  and  compilation  is  num- 
bered 47,  the  report  of  which  appears  on  page  480.  The  heading 
is  ^^47  gauge  one-quarter  mile  above  mouth  of  Kankakee  River;’’ 
the  heading  above  that  being  Gauge  readings,  Illinois  and  Des- 
plaines  Rivers.”  I am  acquainted  with  that  gauge  on  the  Des- 
plaines  River  a quarter  of  a mile  above  the  mouth  of  the  Kan- 
kakee. It  was  established  in  1883  by  the  Benyuard  Survey,  a sur- 
vey made  under  the  direction  of  Major  W.  H.  H.  Benyuard,  in 
pursuance  of  an  act  of  Congress  in  1883,  and  reported  in  1884. 

That  survey  covered  the  Desplaines  'and  Illinois  Rivers  from 
Dam  No.  1 at  Joliet  to  LaSalle,  and  established  a number  of 
gauges  along  the  Desplaines  and  Illinois  Rivers,  for  the  purpose 
of  determining  the  stage  of  water,  referring  his  soundings,  and  as- 
certaining the  low  water  line. 

The  low  water  line  was  established  from  the  record  kept  at 
those  gauges  during  this  survey,  and  from  intermediate  levels 
and  all  the  soundings  made  in  the  river  bed  were  referred 

2382  to  this  low  water  line,  and  it  has  been  the  standard  in  all 
surveys  made  since  1883. 

The  gauge  referred  to  on  page  481  of  the  publication,  called 
48,  Gauge  at  Kankakee  Feeder  Aqueduct,”  was  a gauge  estab- 
lished after  the  opening  of  the  Sanitary  Canal  by  the  Sanitary 
District,  as  I remember  it. 

This  1883  gauge,  then,  was  there,  and  all  of  the  1883  gauges 
were  in  place. when  I was  making  my  examinations  in  1885,  1886 
and  1887. 

2383  The  record  appears  here  as  to  the  1883  gauge,  that  the 
readings  were  taken  from  July  29,  1883,  to  November  3, 

1883,  page  480,  the  gauge  that  was  called  No.  49  appearing  on 
page  482  of  this  Government  document.  The  gauge  at  the  Kan- 
kakee cut-off  I think  was  established  in  the  last  survey  by  the 
Barlow  board.  As  to  gauge  No.  50,  as  it  is  designated  in  this  com- 
pilation, ‘'Gauge  three-cpiarters  of  a mile  below  the  mouth  of 
the  DuPage  River.”  I know  that  there  is  a gauge  there  and  a 
record  kept  there.  No.  51,  appearing  on  pages  484  and  485,  “U.  S. 
Gauge  at  mouth  of  Jackson  Creek,”  was  a gauge  established  there 
by  the  United  States,  and  I believe  also  by  the  Sanitary  District 
at  the  same  point,  or  near  the  same  point. 


809 


The  gauge,  the  record  of  which  appears  on  page  486  of  the 
publication  as  No.  52,  ''Chicago  Sanitary  District  Gauge  at  the 
mouth  of  Jackson  Creek,’’  is  the  one,  the  associate  gauge  to  which 
I refer. 

2384  The  report  of  that  appears  on  pages  486  and  487.  The 
gauge  which  I reported  on  page  488,  "Gauge  at  the  foot  of 

Treat’s  Island,  temporary  gauge  established  July  29,  1883,  by  the 
United  States  Engineer  Department,”  was  one  established  in  the 
Benyuard  survey  and  used  for  the  purpose  of  determining  stand- 
ard low  water.  I was  acquainted  with  that  gauge,  the  gauge 
recorded  on  page  489,  which  is  No.  54,  at  the  head  of  Treat’s 
Island,  the  temporary  gauge  established  July  29,  1883,  by  the 
United  States  Engineer  Department;  I am  acquainted  with  that 
gauge. 

Counsel  for  Defendant.  You  mean  when  you  say  that  you 
are  acquainted  with  it,  that  you  are  acquainted  with  the  record  of 
it,  or  were  you  there  at  the  time  the  gauge  was  made? 

The  Witness.  I refer  to  the  record  of  the  gauge;  the  gauge 
was  only  a temporary  gauge  as  it  is  spoke  of  there. 

Counsel  for  Defendant.  Then  the  record  shows  all  you  know 
on  the  subject,  does  it? 

The  Witness.  Yes,  sir,  and  the  report  of  1883. 

Counsel  for  Complainant.  Take  the  gauge  which  is  recorded 
here  on  page  490,  Joliet  gauge  below  Adam’s  Dam,  established 
by  the  United  States  Engineer  Department  in  1883.  Are  you 
acquainted  with  that  gauge? 

2385  Counsel  for  Defendant.  I object  to  any  further  ques 
tions  along  that  line.  Mr.  Cooley  says  his  acquaintance  with 

the  gauges  is  simply  what  is  shown  in  this  record,  which  Mr. 
Starr  has  before  him,  and  a great  many  things  are  in  the  record 
that  Mr.  Cooley  cannot  testify  to  personally. 

Thereupon  counsel  for  complainant  offered  in  evidence  at  this 
point  from  House  Document  263,  59th  Congress,  First  Session,  the 
tabulated  reports  occupying  the  41  pages  from  page  480  to 

2386  520  inclusive.  (App.  II,  p.  3890;  Trans.,  p.  5836;  Abst.,  p. 
1725.) 

As  to  the  other  surveys,  gauge  readings  and  records,  which 


810 


Cooley, — Direct  Exam. — Continued. 


have  been  made,  aside  from  those  which  are  assembled  in  this 
house  document  by  the  Barlow  Board,  I have  made  a pretty 
thorough  search  and  the  document  substantially  covers  the  record 
from  1883  to  1904,  inclusive.  There  is  a further  record  coming 
down  to  date,  made  by  the  Sanitary  District.  Profiles  of  these 
readings  occupying  these  pages  of  the  Government  publication 
were  made  by  the  Government  engineers.  They  set  forth  all  their 
data  fully  upon  their  maps  and  profiles,  or  rather  the  results  of  it. 
I wish  to  say  that  I have  personally  examined  all  the  original  maps 
and  profiles  from  1867  down,  and  had  copies  of  them  made  at  vari- 
ous times  in  connection  with  my  work  on  the  Sanitary  District 
and  the  State  Board  of  Health. 

The  eight  documents  headed  respectively  one  for  each  year, 
^‘Sanitary  District  of  Chicago,  Tabulations  for  the  years  1900, 
1901,  1902,  1903,  1904,  1905,  1906  and  1907,  of  the  Average  Daily 
and  Weekly  Bate  of  Flow  in  cubic  feet  per  minute,’’  omitting 
the  items  of  the  I.  & M.  Canal — ^‘through  the  main  drainage 
canal,  through  the  Chicago  Eiver,  through  the  Desplaines  Eiver 
at  Eiverside,  through 'the  Desplaines  Eiver  at  Joliet,”  are 

2387  the  records  of  the  Sanitary  District  tabulations  to  which  I 
have  referred.  They  were  kept  in  the  regular  course  of  busi- 
ness by  the  Sanitary  District  in  order  to  make  known  and  record 
the  flow  in  the  Desplaines  Eiver  and  in  the  Sanitary  Canal,  and 
in  the  Illinois  and  Michigan  Canal.  (App.  II,  3892-3899;  Trans., 

pp.  5863-94;  Abst.,  pp.  1729-30.) 

2388  As  to  how  many  Government  surveys  and  reports  there 
have  been  made  upon  this  river  since  the  year  1867,  the  sev- 
eral reports  and  surveys  and  examinations  by  the  United  States 
and  State  authorities  number  nine,  since  the  opening  of  the  Illi- 
nois and  Michigan  Canal  in  1848.  The  first  one  was  by  John  D. 

Preston  in  1858,  which  was  a State  examination. 

2389  As  to  Mr.  Preston’s  report,  I know  there  was  such  a re- 
port made,  and  the  State  of  Illinois,  by  the  records,  paid 

$20,000  for  Mr.  Preston’s  material  to  turn  over  to  the  Board  of 
Kngineers  in  1867,  and  that  that  material  was  the  basis  of  the  re- 
port of  1867,  by  James  H.— Garrett  A.  Wilson  and  William 
Gooding,  and  is  so  stated  in  their  report.  The  second  report  T 
have  mentioned,  the  one  of  1867,  explaining  about  Mr.  Preston’s 


811 


report.  The  third  report  was  in  1874  by  Col.  J.  W.  McCbmb,  re- 
ported in  1875,  relating  to  the  Northern  transportation  route  to 
the  seaboard,  covering  the  Desplaines  and  upper  Illinois 

2390  Bivers.  The  fourth  report  of  the  Benyuard  survey,  made  in 
1883,  and  reported  in  1884,  covering  the  river  from  Dam 

No.  1 to  La  Salle.  The  fifth  report  was  the  report  of  the  Com- 
stock Board,  which  was  appointed  to  review  the  relative  availa- 
bility of  the  several  projects,  and  particularly  that  proposed  use 
of  the  canal  and  of  the  river  over  this  same  region,  that  was  in 
1886-7.  The  sixth  report  was  a profile  map  and  project  made  in 
1892  and  1894  under  my  personal  direction  and  submitted  to  the 
legislature  in  1895.  The  next  report  was  the  report  of  the  Ernst 
Board  submitted  in  1905,  known  as  House  Document  263,  for  a 
deep  waterway.  The  next  is  the  report  of  the  Improvement  Asso- 
ciation of  Illinois,  sent  to  the  Geenral  Assembly  on  April 

2391  10,  1907.  There  was  also  a report  by  Major  Long,  made  in 
1816, — of  a survey  made  in  1816,  and  reported  in  1817.  There 

was  also  four  other  reports  dealing  with  the  river,  one  by  Captain 
W.  L.  Marshall,  on  examinations  made  in  1889,  and  submitted  in 
1890.  A preliminary  report  under  further  acts  of  Congress,  by 
Captain  Marshall,  in  1897.  A report  of  the  Barlow  Board  in  1900, 
and  also  a second  report  of  the  Barlow  Board  upon  the  proposi- 
tion for  a fourteen  foot  waterway.  When  I use  the  name  Barlow 
Board  I refer  to  a board  of  engineers  appointed  by  the  secretary 
of  war  under  the  authority  of  Congress,  and  the  Barlow  Boarrl 
refers  to  the  chairman.  And  so  with  the  Comstock  Board  and 
Comstock  report,  that  refers  to  a board  of  LTnited  States  en- 
gineers of  which  General  Comstock  was  chairman,  the  Ernst 
Board  was  the  last  one  to  report,  ahd  that  refers  to  a board  of 
which  General  0.  H.  Ernst  was  chairman.  That  Ernst  report 
is  House  Document  No.  263  of  the  59th  Congress,  First  Ses- 
sion. 

2392  The  document  which  is  shown  me,  marked  Cooley  Exhibit 
2,  I labeled  ^^The  Desplaines  Kiver  below  Joliet,  November, 

1907,”  and  scales  appear  below,  and  various  legends.  (Exhibiting 
document  to  the  witness.)  (Atlas,  p.  3944;  Trans.,  p.  6557; 
Abst.,  p.  1923)  is  a map  accompanied  by  a profile  of 
the  Desplaines  Biver  between  the  end  of  the  Sanitary 


812 


C ooley, — Direct  Exam. — Co7itimied. 


Canal  at  the  power  station,  Loekport,  arid  a point  on  the 
Illinois  Eiver,  about  two  and  a half  miles  below  the  mouth  of 
the  Desplaines  Eiver.  This  map  was  prepared  under  my  direction 
and  designed  to  illustrate  the  conditions  existing  between  the 
points  named,  and  on  a scale  of  approximately  one  inch  to  the 
mile,  shows  the  course  of  the  river,  the  course  of  tributaries  join- 
ing the  river,  the  location  of  the  Illinois  and  Michigan  Canal,  the 
topography  adjacent  to  the  stream,  and  the  geographical  points  in 
the  territory  delineated.  The  legend  here  is,  '‘Compiled  from  the 
latest  surveys  by  Edgar  Williams,”  signed  L.  E.  Cooley.  Edgar 
MTlliams  is  an  assistant  in  my  office,  employed  through  me  by  the 
Internal  Improvement  Commission.  The  platting  and  draft- 

2393  ing  and  drawing  of  the  lines  was  done  by  him  under  my 
direction  or  supervision.  This  is  a correct  representation  of 

what  it  purports  to  represent,  a method  among  engineers  of  mak- 
ing graphic  representations  of  these  contents  of  the  gauge  read- 
ings which  appear  in  these  voluminous  records.  One  of  the  pur- 
poses of  gauge  records  and  making  profiles  of  the  river  is  to  de- 
temiine  flow  lines  which  indicate  the  stages  corresponding  to  the 
different  volumes  of  water.  To  make  a graphic  representation 
of  these  different  stages  of  water,  they  can  be  drawn  in  any  detail 
required,  but  the  flow  lines  corresponding  to  different  volumes  of 
water  are  drawn  with  some  parallelism  dependent  upon  the  phy- 
sical elements  of  the  low  water  line. 

As  to  being  an  accepted  and  regular  method  of  depicting  bodies 
and  stages  of  water  from  gauge  readings  among  hydraulic  en- 
gineers, it  is  the  only  method  by  which  a general  situation  can  be 
obtained,  and  it  is  an  approved  and  accepted  method  among  hy- 
draulic engineers. 

The  document  now  shown  me,  marked  for  convenience  and  iden- 
tification Cooley  Exhibit  3 (Atlas,  p.  3945;  Trans.,  p.  6559; 

2394  Abst.,  p.  1923),  is  such  a graphic  representation  of  the  gauge 
readings  which  I have  referred  to,  and  which  have  been  men- 
tioned in  the  questions  and  answers,  and  represents  not  only  the 
inteiq)retation  of  the  gauge  records,  but  substantially  all  our  in- 
formation, includes  the  river  bed  along  the  channel  line,  the  pro- 
files of  water  surfaces  at  the  several  stages  by  which  these  gauges 
are  kept  up.  That  was  prepared  jointly  by  Mr.  'Williams  and  my- 


818 


self.  In  connection  with  this  profile  we  have  consulted  every  rec- 
ord that  has  been  made  that  was  accessible,  and  all  the  profiles 
that  have  been  jjlatted  in  connection  with  the  river. 

2395  That  includes  all  of  these  volumes  of  gauge  readings  and 
reports  and  profiles  and  gauges  and  maps  to  which  I have  re- 
ferred. It  truly  and  correctly  depicts  these  gauge  readings  ac- 
cording to  the  accepted  method  of  depicting  them  by  hydraulic 
engineers. 

Thereupon  counsel  for  complainant  offered  in  evidence  the  said 
maps.  Counsel  for  defendant  objected  to  the  same  on  the  ground 
that  they  were  based  upon  records  not  in  evidence. 

2396  The  Coukt.  Well,  if  they  are  all  here  we  can  pass  on 
that  question  later.  I will  pass  on  that  later.  I will  over- 
rule it  at  this  time. 

Said  maps  were  then  received  in  evidence,  marked  ‘^Cooley 
Exhibit  2”  and  ‘^Cooley  Exhibit  3”)  (Atlas,  pp.  3944  and  3945; 
Trans.,  pp.  6557-8;  Abst.,  p.  1923).  And  the  witness  further 
testified : 

2399  As  to  how  many  pages  of  figures,  gauge  readings  and  sim- 
ilar matter  I have  consulted  in  the  preparation  of  this  pro- 
file,— the  tabulations  that  have  been  gone  into  and  actually  used 
in  this  connection  amount  to  two  or  three  hundred  pages,  aside 
from  the  maps  and  profiles  of  the  surveys  that  have  been  made 
since  1867.  The  number  of  maps  and  profiles  I have  consulted 
and  made  use  of  in  compiling  this  profile  were  eight  or  ten. 

2401  That  bottom  line  shown  on  the  plat  is  the  low  water  line 
of  1883.  It  is  so  marked  and  it  is  correct.  That  is  as  Cap- 
tain Marshall  put  it.  We  had  the  profile  of  1867  and  the  profile 
of  1874. 

The  profiles  and  soundings  are  not  made  with  the  detail  which 
is  necessary  in  order  to  plat  a profile  of  this  character,  and  furth- 
ermore, the  datums  to  which  those  surveys  were  made  are 

2402  difficult  to  compare  with  the  last  surveys,  so  that  we  did  not 
attempt  to  use  any  profile  of  1867  or  1874  except  in  the  way 

of  a general  comparison. 

The  river  has  been  changed  in  its  water  supply  ever  since  the 
Illinois  and  Michigan  Canal,  in  1848.  Conditions  have  been  con- 
stantly changing. 


814 


C 0 oley, — T) i red  E xa m . — Co ntin iied. 


2403  There  is  a profile  of  1867,  and  one  of  1874.  The  height 
of  dam  72  minus,  crest  of  dam  75  minus.  Economy  Light  & 

Power  Company  plant  is  put  on  the  map  from  the  sheet  furnish- 
ed by  the  Economy  Light  & Power  Company  itself. 

2404  I have  made  such  profiles  as  are  here  shown,  not  with  the 
same  detail  or  accuracy  because  we  did  not  have  the  data  at 

that  time,  in  conjunction  with  the  legislative  sessions  of  1887  and 
1889,  because  it  was  necessary  to  exhibit  before  the  people  the 
probable  etfect  of  volumes  of  water  contributed  to  the  Desplaines 
and  Illinois  Elvers,  and  this  is  not  a new  thing  but  has  been  a 
subject  matter  of  continual  delineation  for  various  purposes  since 
the  inception  of  the  drainage  canal. 

2406  The  low  water  of  1883  was  established  in  the  Benyuard 
survey  and  is  described  in  the  report  of  the  Chief  of  En- 
gineers, U.  S.  A.,  1884,  part  three,  page  1960.  The  zeros  of  all 
these  gauges  were  connected  with  each  other,  and  also  with  all 
the  high  and  low  water  marks  to  be  found  in  the  valley. 

2408  Near  the  extreme  northeast  point  shown  here  is  Dam  No. 
1 and  so  labeled.  Near  the  extreme  left  hand  or  south- 
westerly limit  is  labeled  ^‘E.  J.  & E.  Ey.  Bridge,’’  about  two  and 
a half  miles  below  the  confluence  of  the  Kankakee.  The  entire 

reach  of  the  river  between  those  points  is  shown.  The  pro- 

2409  file  follows  the  line  of  the  river  from  Dam  No.  1 down  to  the 
L.  J.  & E.  Eailway  bridge  two  and  a half  miles  below  the 

confluence  of  the  Kankakee  and  Desplaines  and  shows  the  depth 
of  said  channel  clear  through  below  the  water  line  of  1883  which 
has  been  taken  as  standard  in  all  surveys.  It  is  drawn  to  a scale 
of  2,000  feet  to  one  inch  horizontal  and  ten  feet  to  one  inch  ver- 
tical. It  is  customary  to  exaggerate  the  vertical  scale  sufficient 
to  visualize  the  slopes  and  declivities.  On  the  bottom  of  the 

2410  label,  ‘^From  Power  Station  Miles,”  and  then  a row  of  fig- 
ures, 3,  4,  5,  running  down  to  20,  down  below — a little  below 

the  Dresden  Island  head,  the  distances  are  given  from  the  power 
station  of  the  Sanitary  District  at  the  end  of  the  Sanitary  Channel 
below  Lockport,  both  in  feet  and  in  miles  down  stream.  These 
vertical  lines  that  cross  the  profile  about  half  an  inch  apart  rep- 
resent thousand  feet  distances.  Then  you  have  horizontal  lines 
drawn  across  the  profile  from  left  to  right  with  the  label  on  the 


815 


left  end,  ‘'Feet  below  Chicago  datum,”  and  these  vertical  lines 
beginning  at  the  top  are  labeled  30,  40,  50,  60,  70,  80,  90, 100  and  110. 
Those  are  elevations  below  the  level  of  Chicago  datum.  Then  a 
number  of  lines  here  labeled  respectively  2,000  second  feet,  4,000, 
6,000,  8,000,  10,000  and  13,000  feet.  The  volume  is 

2411  expressed  in  cubic  feet  of  water  per  second  of  time,  and 
these  several  lines  represent  the  profile  of  the  water  sur- 
face as  it  would  be  and  is  at  the  volume  expressed  upon  the  line, 
which  is  when  that  amount  of  water  is  passing.  It  is  an  inter- 
pretation of  all  the  information  that  we  have  upon  the  relation  of 
stages  of  water  and  of  the  volume  passing.  The  line  above  all 
of  them  which  is  labeled  “H.  W.  1892”  was  the  high  water  line 
of  1892.  That  is  the  line  that  is  entered  upon  the  profile  of  the 
report  of  the  Board  of  1905.  It  is  also  entered  upon  the  profiles 
made  by  the  Sanitary  District.  The  water  has  at  times  been  up 
to  each  of  these  ditferent  lines,  including  the  top  one.  High  Water, 

1892.  For  instance,  here  is  a line  labeled  “13,000  second 

2412  feet;”  the  water  in  the  Desplaines  River  amounted  to  13,000 
second  feet  in  1892  and  1904.  Both  high  waters  were  very 

nearly  at  the  same  elevation  as  shown  by  the  1892  line  and  cor- 
respond to  volumes  of  twenty- five  to  thirty  thousand  second  feet, 
I donT  remember  the  exact  amount.  We  have  here  crossing  the 
profile  a blue  band  which  has  the  4,000  second  feet  just  below  it 
and  the  line  6,000  second  feet  just  above  it,  and  the  space  between 
the  two  lines  is  colored  with  a solid  blue  band.  The  blue  band 
represents  the  characteristic  low  water  stage  and  its  variations 
which  have  prevailed  since  January,  1900.  That  is  the  time  when 
the  water  of  the  Sanitary  District  was  turned  into  the  Desplaines 
River.  There  is  one  line  among  others  which  we  used  in  check- 
ing these  flood  lines,  low  water  lines  as  shown  upon  the  profile  of 
the  last  survey  reported  in  1905.  That  line  corresponds  to  4,400 
second  feet  and  is  indicated  on  the  profile  as  the  lowest  water 
of  the  survey  and  is  above  the  lower  limit  of  the  blue  band. 

2413  That  is,  the  4,400  feet  line  would  be  a little  above  the  4,000 
feet  line.  We  did  not  draw  any  profiles  of  different  sur- 
veys upon  this  map,  but  simply  put  the  regular  lines  across  so 
as  not  to  confuse  the  profile.  It  would  have  confused  the  pro- 
file to  have  attempted  to  put  them  all  in.  There  is  such  a thing 
as  getting  so  many  lines  on  that  they  would  confuse  each  other. 


816 


Cooley, — Bii  ect  Exa m . — Con tinii ed. 


Above  all  these  lines  are  various  distinguishing  labels,  like  Eock 
Run,  Brandon  Bridge,  Cedar  Creek,  Head  of  TreaCs  Island,  and 
so  forth.  Those  represent  geographical  points  along  the  course 
of  the  river  and  opposite  the  points  on  the  profile  designated.  For 
instance,  here  we  have  a vertical  line  near  the  middle  of  the  pro- 
file of  the  canal,  and  upon  the  vertical  line  are  the  words  ‘‘Foot 
of  Treat’s  Island.”  Look  at  the  bottom  of  the  map  and  the  pro- 
file, then  the  figure  12,  and  then  this  line;  that  is,  this  level  is  just 
1,000  feet  to  the  left  of  that  12.  That  is  the  position  upon  the 
channel  profile  of  the  foot  of  Treat’s  Island.  It  is  12  miles 

2414  plus  1,000  feet  below  the  power  station.  It  is  geographically 
correct,  and  so  are  the  other  geographical  indications. 

Now  taking  the  line  which  is  illustrative  near  the  center  of  the 
map,  the  profile,  the  bottom  of  the  river  as  indicated  here  occurs 
between  the  horizontal  line  marked  90  and-  the  horizontal  line 
marked  80.  These  90  and  80  respectively  mean  90  and  80  feet 
below  Chicago  datum;  and  the  body  apparently  of  water,  painted 
blue,  between  the  bottom  of  the  river  and  the  low  water  mark  of 
the  river,  is  just  a quarter  of  an  inch  high  at  that  point.  A quar- 
ter of  an  inch  on  that  scale  would  mean  two  and  a half  feet;  that 
would  mean  that  the  low  water  mark  of  1883,  at  that  point — the 
water  was  two  and  a half  feet  deep.  At  that  same  point  the  line 
labeled  4,000  second  feet  is  just  half  an  inch  above  the  bottom  of 
the  river.  That  would  signify  that  with  a volume  of  4,000 

2415  feet  of  water  passing  that  point  the  depth  would  be  five 
feet. 

Down  here  at  a place  near  the  left  hand  end,  labeled  “Economy 
Light  and  Power  Co.  Plant”  and  a vertical  line  drawn  there,  that 
represents  the  site  of  the  dam. 

Just  a little  to  the  west  of  the  18-mile  line,  the  4,000  feet  stage 
at  a slight  elevation  at  the  bottom  here,  is  6/16  or  3/8  of  an 
inch  away  from  the  line  marked  “Low  water  line.”  That  indi- 
cates a difference  in  the  elevation  of  3.75  feet, — three  and  three- 
fourths  feet  in  depth;  and  the  6,000  foot  line  at  that  point,  which 
is  a rather  strong  half  inch,  would  indicate  a depth  of  five  feet.  In 
the  stretch  of  the  Desplaines  River  shown  by  this  profile,  the 
shallowest  depth  of  water  at  the  low  water  mark  in  1883,— 

2416  the  point  of  least  depth  on  this  profile  is  within  100  yards  up 
stream  from  the  site  of  the  dam  of  the  Economy  Light  & 


817 


Power  Company.  The  indicated  depth  at  that  shallowest  point  is 
not  far  from  eighteen  inches.  I would  state  the  depth  of  water  at 
that  place  since  the  Sanitary  District  water  has  been  turned 

2417  in,  as  shown  on  this  profile — it  is  an  engineer  \s  scale — to  be 

2418  fifteen  inches.  I think  a fair  interpretation  of  those  lines 
as  draftsmen  draw  lines,  the  center  line  of  course,  and  no 

clearances  in  between,  make  about  aii  eighth  of  an  inch.  Using 
this  scale  I have  here,  the  depth  at  the  4,000  foot  line  above  that 
little  jut  that  is  just  at  the  right  of  the  dam,  is  slightly  in  excess 
of  three  feet;  and  at  the  6,000  foot  line,  in  excess  of  four  feet. 

Now,  toward  the  end  of  the  map,  the  northeast  end,  we  have  got 
Hickory  Creek  represented,  and  there  seems  to  be  a place,  per- 
haps 1,200  feet  to  the  left  of  Hickory  Creek,  just  below  Hickory 
Creek,  where  a little  nubbin  in  the  bottom  sticks  up,  which  I should 
say  is  from  16  to  18  inches. 

Those  represent  the  shallowest  places  in  this  reach  of 

2419  the  river  from  Dam  No,  1 to  the  mouth  of  the  river,  propor- 
tionately the  length  of  the  channel  through  which  those  shal- 
low spots  extend;  and  the  balance  of  the  river  in  depth,  I think 
there  are  depths  running  about  twenty  feet  on  that  profile,  and 
dowm  to  these  minimums  wdiich  have  been  stated,  which  are  for 
very  TTmifed  distances.  The  shallow  spot  just  below — about  a 
thousand  to  fifteen  hundred  feet  below  the  label  ‘‘DuPage  Kiver,” 
is  the  bar  formed  by  the  deposit  from  the  DuPage  River,  and  the 
depth  there  is  about  twenty  inches.  The  depth  there  since  the 
turning  in  of  the  Sanitary  District  water  is  from  slightly  under 
five  feet  to  something  over  six  and  a half. 

Dam  No.  1 is  represented  here  near  the  right  edge  of  the 

2420  profile  and  the  bed  of  the  river  is  indicated  as  coming  be- 
tween the  lines  50  and  60,  three-quarters  of  an  inch  down 

from  50  and  one-quarter  of  an  inch  above  60.  The  height  of  the 
river  as  indicated  at  that  point  on  the. profile — the  figure  as  stated 
would  be  574  feet  below  Chicago  datum.  And  the  bottom  of  the 
river  at  the  other  end  of  the  profile  where  the  site  of  the  dam  is 
marked  coming  between  the  lines  90  and  100  apparently  about 
9/16  of  an  inch  below  the  line  marked  90,  the  elevation  of  the  bed 
of  the  river  at  that  point  is  about  95.6  feet  below  Chicago  datum. 
The  difference  between  57U  the  bed  of  the  river  and  Dam  No.  1, 


818 


Cooley, — Direct  Exam. — Continued. 


and  95.6,  the  bed  of  the  river  at  the  proposed  dam,  would  give 
the  fall  in  the  bed  of  the  river  between  those  two  points;  that 
would  be  38.1,  I think;  that  would  be  the  fall  in  the  bed  of  the 
stream  between  the  points  named.  Dam  No.  1 is  shown  a little  to 
the  right,  or  northeast  of  the  three-mile  point,  about  1,500 

2421  feet  up  stream.  The  proposed  new  dam  is  marked  as  a little 
to  the  left  or  west  of  the  eighteen-mile  point.  Those  two 

points  are  15.6  miles  apart.  Then  there  would  be  a fall  of  38.1 
in  15.6  miles,  or  in  round  numbers  2^  feet  to  the  mile  as  an 

2422  average.  These  lines  here  across,  with  the  second  feet  level 
and  low  water  and  high  water  levels  indicate  totals  of  waters 

in  the  river  itself. 

I am  acquainted  with  the  dimensions  of  the  Sanitary  District 
Channel.  The  channel  in  the  Rock  Cut  for  something  less  than 
seventeen  miles  between  Willow  Springs  and  the  terminus  at  Lock- 
port  has  a bottom  width  of  160  feet  and  width  at  water  line  of  162 
feet,  and  depth  when  running  to  its  full  capacity  of  24  feet  at 
standard  low  water  of  Lake  Michigan,  when  filled.  By  full  ca- 
pacity, I mean  14,000  cubic  feet  of  water  per  second,  for  which  the 
Sanitary  Canal  is  designed.  It  never  has  run  that  much,  unless  pos- 
sibly in  an  endeavor  to  get  rid  of  some  flood  water  out  of  Chi- 
cago. 

2423  As  to  the  normal  and  ordinary  flow  in  the  Sanitary  Dis- 
trict Channel  at  this  time  and  since  it  was  opened  in  1900, 

the  channel  was  opened  on  the  basis  of  5,000  cubic  feet  of  water 
per  second,  but  was  limited  by  regulation  of  the  War  Department 
to  4,200  cubic  feet  of  water  per  second  during  the  season  of  nav- 
igation in  the  Chicago  River.  In  the  closed  season  it  has  been 
operated  for  5,000  feet  to  6,000  cubic  feet  of  water  per  second. 

The  closed  season  of  navigation  on  the  Chicago  River  is  that 
in  which  lake  boats  do  not  traverse  the  lakes  and  averages  about 
four  months.  That  would  be  the  winter  months,  some  time  in 
December  to  the  time  that  the  Straits  of  Mackinaw  open,  some 
time  in  April.  And  during  that  period  it  runs  say  up  to  6,000 
cubic  feet  of  water  per  minute.  The  Government  limit  has  not 
been  applied. 

But  when  the  navigation  season  is  open  on  the  Chicago  River, 


819 


then  it  is  under  the  Government  regulation  and  the  discharge  is 
limited  to  4,200  feet  per  second. 

The  Court.  (Addressing  Mr.  Starr)  You  said  per  min- 
ute. 

2424  Counsel  for  Complainant.  Yes,  I guess  I did.  It  would 
be  sixty  times  that. 

The  Court.  Q.  You  mean  per  second! 

A.  Yes,  252,000  cubic  feet  per  minute  that  would  be. 

The  Witness.  The  earth  cut  is  designed  with  a width  of  202 
feet  wide  on  the  bottom  and  300  feet  at  the  water  line,  with  the 
same  depth  of  water,  and  is  something  more  than  thirteen  miles 
long  from  Willow  Springs  to  a junction  with  the  west  fork  of  the 
south  branch  .at  Eobey  street  in  the  City  of  Chicago. 

(Indicating  on  map)  This  graded  part  here  is  all  rock  cut. 
and  this  part  is  earth  (indicating),  and  a little  rock  in  here  in 
between  at  Summit. 

I established  a gauge  at  Eiverside  in  May,  1886,  as  I recall  it. 
A continuous  record  has  been  maintained  ever  since  on  this  gauge, 
with  the  exception  of  the  years  1890  and  1891. 

2425  The  catchment  area  of  the  Desplaines  basin  is  633  square 
miles.  That  is  the  basin  above  the  gauge  at  Eiverside.  The 

catchment  area  of  the  lower  Desplaines  basin  from  that  point  to 
its  mouth  is  about  720  miles  additional,  as  I recall  it. 

The  catchment  area  is  the  watershed  or  gathering  ground  from 
which  the  waters  flow  which  the  river  has  to  drain. 

The  average  rainfall  in  this  district  is  33.9  inches  per  annum. 
That  is  taken  from  the  Government  record  from  1843  to  1907  in- 
clusive, a period  of  65  years.  The  average  is  33.9  inches. 

2426  1881  was  the  great  and  characteristic  flood,  which  we  have 
been  able  to  assign  and  study  most  closely.  The  volume  of 

water  in  the  Desplaines  Elver  at  the  time  of  that  flood  was  13,500 
cubic  feet  of  water  per  second.  The  date  when  the  water  reached 
that  amount  was  in  April.  The  exact  date  I do  not  recall.  I in- 
vestigated that  flood  and  had  a continuous  profile  made  of  it 
from  up  at  Feehanville  dowm  to  Eiverside,  and  further  down  the 
stream,  I think,  to  the  mouth,  as  I recall  I had  a number  of 


820 


Cooley, — Direct  Exam. — Contin  ued. 


marks  above  the  Eiverside  dam  by  which  I could  estimate  the 
depth  flowing  over  the  dam.  I had  marks  further  down  the  stream 
which  I could  refer  to  the  gauge  as  established  there,  and  after  we 
had  made  up  the  rating  curve  for  the  Eiverside  gauge  we  assigned 
a volume  to  that  flood  which  checked  very  closely  with  the  compu- 
tations which  we  made  by  means  of  the  depth  on  the  crest  of  the 
dam. 

Taking  the  22  years  inclusive  since  that  gauge  was  estab- 
lished,— the  gauge  is  in  charge  of  the  Sanitary  District  of 

2427  Chicago,  and  the  record  is  published  in  the  report  of  the 
Board  of  Engineers  for  1905j  House  document  263,  to  which 

reference  has  been  made,  contains  the  record  down  to  the  end  of 
1904.  What  is  compiled  in  the  Government  report  is  taken  from 
the  records  of  the  Sanitary  District. 

I have  classified  or  assembled  the  data  of  these  stages  of  water 
shown  in  the  Desplaines  Elver  by  the  Eiverside  gauge.  I have 
tabulated  for  19  full  years  since  1887  the  number  of  days  at  which 
the  gauge  at  Eiverside  has  stood  at  or  above  a certain  elevation. 
The  first  of  these  is  18  feet,  one  inch,  or  18  feet  above  Chicago 
datum  corresponds  to  a volume  of  4,500  second  feet,  which  is  a 
flood  stage  in  the  Desplaines  Eiver,  and  during  the  19  years  the 
river  has  been  at  or  above  such  flood  stage  for  an  aggregate  of  73 
days.  This  flood  stage  corresponds  for  great  floods  to  an  eleva- 
tion of  16  feet  and  upwards  in  the  twelve  mile  level  to  the  depth 
of  in  extreme  flood  five  feet  passing  over  the  original  Chi- 

2428  cago  divide  at  Kedzie  avenue  into  the  Chicago  Eiver.  T 
would  say  in  that  part  of  the  Chicago  Eiver  or  the  south 

branch  thereof  with  its  two  forks,  where  the  route  overflows  from 
the  time  of  the  discovery,  and  that  the  south  fork  was  maintained 
thereby — 

(Thereupon  counsel  for  defendant  objected  upon  the  ground 
the  the  answers  were  not  responsive. 

The  CouET.  He  may  state  whether  there  are  such  histori- 

2429  cal  data,  and  what  they  are,  I mean  where  they  are  to  be 
found. 

Counsel  for  Defendant.  Without  the  result  of  them. 

The  Court.  Yes. 


821 


The  Witness.  I can  giv^  tlie  kernel  of  what  I know,  but  T 
haven’t  an  index  on  all  the  husks,  so  I am  not  able  to  state  spe- 
cifically where  this  information  is  to  be  found,  except  that  I made  a 
study  of  all  the  data  that  could  be  ascertained  some  twenty  years 
ago,  and  I am  now  stating  my  best  recollection  in  regard  to  the 
conclusion  reached. 

I stated  that  this  elevation  of  18  feet  had  occurred  on  73  days. 
That  represents  a volume  of  4,500  second  feet  and  upwards. 
There  were  floods  in  that  period,  one  which  I measured  particu- 
larly in  1887  which  ran  something  over  10,000  feet,  and  7,000  feet, 
of  which  I got  measurements  in  the  west  fork  of  the  Chicago 
River. 

2430  An  elevation  of  18  feet,  as  recorded  on  the  Riverside 
gauge  as  producing  4,500  second  feet  of  water,  did  not  all 

go  down  the  Desplaines — it  does  in  nature.  It  divides,  a por- 
tion of  it  coming  by  way  of  the  old  Portage  trail  and  swamp 
through  the  Chicago  River.  I have  made  an  estimate  some  years 
ago  that  flood  stages  range  from  three  to  five  feet  in  depth  over 
the  Chicago  divide.  4,500  second  feet  of  Itself  would  probably 
cross  to  a depth  in  the  vicinity  of  three  feet  and  the  extreme 
floods  to  a depth  as  great  as  five  feet,  coming  into  the  Chicago 
River. 

2431  The  second  tabulation  which  I have  made  corresponds  to 
an  elevation  of  13.8  feet  upon  the  Riverside  gauge,  and  to 

a level  opposite  Summit  in  the  12  mile  level  and  in  the  Portage 
swamp  region  of  11.7  feet,  and  to  a depth  upon  the  original  Chi- 
cago divide  at  Kedzie  avenue  of  15  inches,  or  thereabouts.  At 
that  stage  of  water  and  for  the  number  of  days  a boat  could 
pass — The  zero  on  the  Riverside  gauge  is,  Chicago  City  datum, 
and  these  elevations  refer  to  elevations  of  water  surface  as  read 
upon  that  gauge  above  Chicago  City  datum.  That  is  the  top 
of  the  water ; the  elevation  of  the  bottom  of  the  river  at  this  River- 
side gauge  at  the  extreme  low  water  at  that  point  is  11.4  feet  above 
Chicago  datum.  That  is  the  low  water  level. 

2432  The  bottom  of  the  river  I do  not  now  recall.  They  are 
not  the  same.  There  is  a pool  there,  I believe. 

As  to  the  elevation  of  13.8  feet  on  the  Riverside  gauge,  it  has 
prevailed  in  a period  of  19  years  on  an  average  of  46.2  days  per 


822 


Cooley, — Direct  Exam. — Continued. 


year,  or  a total  of  879  days.  13.8  feet  would  be  about  two  feet  of 
water,  that  gives  in  the  Desplaines  Eiver, — about  1,052  second 
feet. 

2433  That  water,  under  original  conditions  would  divide,  and 
the  depth  of  the  Chicago  divide  I have  estimated  as  about 

fifteen  inches. 

I mean  during  those  46.2  days  per  annum,  during  these  nine- 
teen years  there  would  be  a stream  15  inches  deep  running  into  the 
Chicago  Eiver  from  Desplaines. 

The  next  class  into  which  I have  tabulated  these  gauges, — I 
have  tabulated  for  the  time  at  which  the  water  has  prevailed  at 
an  elevation  of  13  feet  or  more  upon  the  Eiverside  gauge,  said 
elevation  corresponding  to  a volume  of  600  second  feet,  and  cor- 
responding also  to  an  elevation  of  about  104  feet,  in  the  twelve- 
mile  level,  and  Portage  swamp,  or  the  elevation  as  nearly  as 
can  be  determined  of  the  original  divide  at  Kedzie  avenue. 

2434  That  stage  of  water  has  prevailed  for  1,329  days,  or  an 
average  of  70.4  days  per  year.  The  entire  body  of  water 

in  the  Desplaines  Eiver  at  that  elevation  would  go  down  the 
river, — in  the  absence  of  the  artificial  interferences  that  have  oc- 
curred since, — except  such  as  may  have  passed  through  the  nar- 
row drain  mentioned  by  Major  Long  as  being  cut  below  the  level 
of  the  divide. 

The  third  classification  which  I have  made  corresponds  to 
an  elevation  of  12.4  feet,  upon  the  Eiverside  gauge ; or  above,  and 
this  is  the  equivalent  of  305  second  feet  on  the  Eiverside  gauge, 
or  at  the  Eiverside  gauge,  and  of  an  elevation  of  9.6  feet  in  the  12 
mile  level.  The  river  was  at  or  above  this  gauge  in  19  years  for 
2,028  days,  or  an  average  of  106.7  days  per  year. 

The  average  rainfall  during  these  19  years  from  the  Govern- 
ment reports  is  30.75  inches  or  a deficiency  of  3.15  inches 

2435  per  annum  during  19  years.  I mean  that  this  period  of  19 
years  in  which  I have  tabulated  the  report  in  this  way,  that 

the  annual  rain  fall  is  3.15  less  inches  per  annum  than  the  fall  for 
the  entire  period  that  you  have  given.  This  was  a period  of  excep- 
tional draught.  -The  range  during  that  19  years  was  24  inches 
and  37  inches,  I think. 


823 


I have  summarized  this  tabulation  all  together  on  one  sheet  that 
I have  been  testifying  about. 

Thereupon  counsel  for  complainant  offered  in  evidence  this  tab- 
ulation. (See  infra,  Trans.,  p.  4174;  Abst.,  p.  1207.) 

2436  The  depth  of  water  at  an  elevation  of  13  feet  on  River- 
side gauge  which  would  all  go  down  the  Desplaines  River, 

except  that  which  would  run  through  the  narrow  trench  referred 
to  in  the  report  of  Major  Long  would  be  34  feet  deep  in  shoalest 
places  in  the  12  mile  level,  and  in  the  fourth  classification  at  an 
elevation  of  12.4  feet,  the  depth  of  water  in  those  places  would  be 
about  24  feet. 

2437  (Thereupon  objection  was  made  by  counsel  for  defense  to 
the  admission  of  the  tabulations  in  evidence.) 

2439  The  Couet.  I do  not  doubt  it  is  competent  testimony, 
that  is,  the  summary  is  competent  testimony,  but  I doubt 

the  right  of  counsel  to  offer  the  summary  without  the  original, 
where  the  original  is  available  and  the  other  side  objects. 

The  extreme  low  water  level  recorded  on  Riverside  gauge 

2440  was  11.4  feet.  The  extreme  low  water  level  in  the  12  mile 
level  was  8 feet  above  Chicago  datum.  That  would  be  about 

8 inches  at  the  minimum  places  in  the  river. 

Q.  You  have  spoken  of  interferences,  artificial  constructions 
and  obstructions  as  having  interfered  with  the  conditions  of 

2441  the  Desplaines  River  and  the  Chicago  Divide  during  these  19 
years;  you  may  state  whether  or  not,  from  your  experience 

and  observation  as  an  engineer,  you  are  able  to  tell  us,  whether 
in  a state  of  nature,  before  there  were  any  such  interferences, 
obstructions  and  disturbances,  how  the  amount  of  water  there 
flowing  compared  with  the  amount  shown  under  these  interfer- 
ences in  19  recorded  years. 

(Thereupon  the  counsel  for  defense  objected  upon  the 
ground  that  the  defendant  had  no  personal  knowledge  as  to 
the  condition  of  the  river  before  1848,  the  court  ruling  that 
he  might  answer  it  if  he  could.) 

2442  Q.  How  would  the  stage  of  water  in  a state  of  nature 


824 


Cooley, — Direct  Exa  m . — C out  in  ued. 


prior  to  these  artificial  obstructions  and  interferences,  compare 
with  the  stage  of  water  in  the  19  recorded  years? 

(Objected  to;  sustained.) 

Q.  Xow  I ask  yon  to  tell  ns  what  the  artificial  interferences 
and  obstructions  are  to  which  yon  have  referred? 

A.  The  first  was  the  construction  of  the  Illinois  and  Michi- 
2448  gan  Canal,  opened  in  1848  from  the  junction  of  the  two  forks 
of  the  south  branch  at  Bridgeport,  southwesterly  across  the 
southern  a nil  of  Portage  swamp  to  Summit,  thence  along  the  left 
side  of  the  valley  to  Joliet. 

The  second  interference  was  the  cutting  of  the  Chicago  divide 
in  the  vicinity  of  Kedzie  avenue  in  1852  by  the  Cook  County  Drain- 
age Commissioners.  They  cut  a channel  from  Mud  Lake,  some- 
times called  Portage  Lake,  La  Petit  Lac,  across  the  divide  from 
the  vicinity  of  California  avenue  to  the  vicinity  of  Western  ave- 
nue, which  enlarged  until  it  became  the  present  west  fork  and 
extended  into  the  Mud  Lake  region. 

The  third  change  was  the  ditching  of  the  Portage  swamp  re- 
gion by  Nickerson,  Ogden  and  Wentworth  ditch  to  the  old  Port- 
age slough  at  the  range  line  between  ranges  12  and  13  east,  on  or 
about  1871. 

Fourth,  between  1866  and  1871  the  Illinois  and  Michigan  Canal 
was  deepened  according  to  the  original  plans  for  the  construction 
of  said  canal,  so  that  its  summit  levef  was  at  the  level  of  the  Chi- 
cago Kiver  and  Lake  Michigan. 

2444  Fifth.  In  1876  and  1877  the  City  of  Chicago  constructed  at 
the  head  of  the  Ogden  ditch,  and  across  the  Portage  slough 

on  the  range  line  between  12  and  13  north  of  Summit,  the  Ogden- 
Wentworth  Dam. 

Sixth.  The  diversion  of  the  waters  in  the  Desplaines  both  be- 
fore ajid  after  deepening  by  the  Illinois  and  Michigan  Canal. 

Seventh.  The  construction  of  the  river  diversion  in  1892  to 
1894,  by  the  Sanitary  District  of  Chicago. 

Eighth.  The  construction  of  the  Sanitary  Canal,  opened  in 
January,  1900,  and  that  general  occupation,  inhabitation,  tillage 
and  reclamation  of  soil  would  be  considered  such  an  interference 
and  that  that  would  make  nine. 

2445  The  effect  of  the  Illinois  and  Michigan  Canal,  which  was 


825 


cut  through  from  Summit  to  Bridgeport  across  the  arm  of 
Portage  Lake,  was  to  intercept  so  mucli  of  the  watershed  as 

2446  ]ay  south  of  the  Illinois  and  Michigan  Canal  and  was  trib- 
utary to  Portage  Lake  and  thence  to  the  Desplaines  Eiver 

and  also  so  much  of  the  reservoir  of  the  Portage  Swamp  as  lay 
south  of  the  location  of  that  canal  and  tended  to  equalize  the  flow 
in  the  Desplaines  River. 

What  I mean  hy  the  reservoir  of  the  Portage  Swamp,  the  wa- 
ters from  the  Upper  Desplaines  and  from  the  watershed  trib- 
utary to  the  12-mile  level  and  Portage  Swamp  in  times  of  high 
water  flooded  these  lakes  and  marshes  and  streams  to  a consider- 
able depth  which  had  a very  large  ameliorating  effect  in  mitigat- 
ing floods  and  in  prolonging  the  stage  of  water. 

The  Illinois  and  Michigan  Canal  diminished  the  proper  water- 
shed of  the  Desplaines  River  and  to  that  extent  absolutely  dimin- 
ished a volume  tributary  to  it. 

In  addition  to  the  canal,  the  State  of  Illinois  constructed  a big 
drain  called  the  State  Ditch,  by  way  of  Brighton  to  the  South 

2447  Fork,  for  the  purpose  of  draining  the  area  which  had  been 
intercepted  south  of  the  Illinois  and  Michigan  Canal. 

The  effect  of  the  State  Ditch  as  a part  of  the  canal  system 
going  through  Mud  Lake  u])on  the  amount  of  water  flowing  into 
and  down  the  Desplaines  River  was  that  it  was  diminished  hy 
whatever  water  came  from  the  territory  which  has  been  thus  in- 
tercepted by  the  Illinois  and  Michigan  Canal. 

As  to  the  ditch  cut  by  the  Cook  County  Drainage  Commission- 
ers in  1852,  that  ditch  was  from  the  West  Pork,  in  the  vicinity 
of  the  present  site  of  the  bridewell  over  to  Mud  Lake  at  about 
California  Avenue,  half  a mile  west  of  Kedzie  Avenue.  The 
original  ditch  was  a very  small  affair,  four  feet  wide  and  three 
feet  deep,  but  in  the  course  of  two  seasons  they  enlarged  its  width 
to  forty  feet  and  cut  it  down  to  the  level  of  the  lake.  The  divide 
at  that  point  was  about  ten  or  twelve  feet  above  the  low  water 
level  of  Lake  Michigan. 

2448  As  to  the  Ogden-Wentworth-Nickerson  Ditch,  there  were 
several  operations  in  that  region;  one  known  as  the  Nick- 
erson ditch  and  the  other  the  Ogden-Wentworth  Ditch,  which  were 


82G 


Cool ey, — D irect  Exam. — Con tinue d . 


designed  to  drain  off  the  Portage  Lake  territory  and  Portage 
Swamp  laying  north  of  the  canal  and  east  of  the  range  line  at 
Summit.  One  of  these  ditches,  the  Ogden-Wentworth  ditch,  was 
carried  to  the  range  line,  to  the  Portage  Slough,  and  broke 
through  finally,  in  1871,  through  into  the  Desplaines  Eiver,  and 
all  the  water  with  some  interruptions,  up  to  the  time  of  the 
2419  construction  of  the  Ogden-Wentworth  Dam  in  1876-7,  came  to 
the  Chicago  Eiver,  that  is,  for  a period  of  between  five  and 
six  years,  the  Desplaines  Eiver  substantially  stopped  flowing 
southwest  and  ran  east  into  the  Chicago  Eiver.  There  were  some 
efforts  made  to  check  this  by  the  Commissioners  of  the  Illinois 
and  Michigan  Canal,  but  the  works  constructed  were  not  success- 
ful and  the  ice  interests  along  the  12-mile  level — they  were  a 
number  of  ice  houses  that  utilized  the  pools  of  the  Desplaines 
Eiver  along  the  12-mile  level  for  ice  fields.  When  it  turned  east 
and  ran  into  the  Chicago  Eiver,  it  tended  to  drain  away  the  waters 
of  their  fields,  the  lower  level.  At  the  approach  of  winter  they 
constructed  temporary  dams  of  brush  and  stone  for  the  purpose 
of  diverting  the  water  down  there,  which  were  promptly  washed 
out  in  the  succeeding  spring,  that  is,  they  would  prevent  the 
Desplaines  Eiver  temporarily  from  running  into  the  Chiago  Eiver 
and  hold  it  within  its  southwesterly  course,  and  in  the  high  water 
in  the  spring,  those  temporary  dams  would  again  be  destroy/ed 
and  the  Chicago  Eiver  would  again  run  through  the  Ogden-Went- 
worth Ditch,  and  would  run  down  to  the  south  of  Joliet.  It 
2450  was  a subject  of  complaint  during  those  years  by  the  peo- 
ple of  Chicago  and  by  the  Illinois  and  Michigan  Canal  Com- 
missioners that  by  the  bringing  in  of  a great  quantity  of  detritus, 
they  were  alleged  to  have  filled  up  and  checked  the  flow  through 
the  Illinois  and  Michigan  Canal.  The  City  of  Chicago  built  a 
substantial  dam  across  the  old  Portage  Slough  on  the  range  line 
in  the  winter  of  1876-7. 

That  is  known  as  the  Ogden-AVent worth  Dam,  and  they  fixed 
the  elevation  of  this  dam  at  11.73  feet  above  Chicago  datum,  by> 
or  as  nearly  as  might  be,  at  the  height  of  the  natural  bank  of  the 
Chicago  Eiver  in  that  vicinity,  by  some  arrangement  with  the 
people  who  were  interested  in  the  drainage  of  lands  in  that  vi- 
cinity. This  dam  did  not  attempt  to  control  any  flood  height 


827 


above  the  level  of  the  bank.  In  1887  I estimated  the  capacity  of 
the  river  in  the  12-mile  level,  when  the  water  stood  at  the  level 
of  this  dam,  and  depending  upon  the  season  of  the  year,  it  varied 
from  800  to  1,000  cubic  yards.  The  dam  was,  however,  not  fully 
etfective,  even  for  the  stages  of  water  for  which  it  was  designed, 
and  the  waters  ran  around  and  through  it;  usually  in  the  fall  of 
the  year,  in  low  water,  the  ice  interests  still  would  tighten  it  up 
for  the  purpose  of  controlling  the  flow  southward. 

2451  Making  the  flow  run  southward,  the  deep  cut  was  the  origi- 
nal design  of  the  canal  at  lake  level  but  it  was  actually  car- 
ried out  by  the  canal  trustees  with  the  Summit  level,  some  eight 
feet  above  Chicago  datum,  supplied  by  water  from  the  Desplaines 
E.iver,  the  Calumet  Eiver  and  at  times  assisted  by  contributions 
from  the  Chicago  Eiver.  In  1866  to  1871  this  cut  was  deepened 
so  as  to  take  a supply  of  water  direct  from  the  Chicago  Eiver. 
The  effect  of  the  making  of  that  deep  cut  on  the  flow  of  water  in 
the  Desplaines  Eiver  was  that  the  level  of  the  water  in  the  canal 
lies  at  eight  feet  below  the  low  water  level  of  water  in  the  12- 
mile  level  and  16  feet  or  more  below  the  extreme  flood  height,  and 
all  the  way  down  to  Eomeo  the  river  is  above  the  level  of  the 
canal  at  low  stages,  and  it  has  diminished  the  supply  of  water 
in  the  riter  to  the  extent  of  the  percolation  between — absolutely 
intercepted  the  drainage  on  that  side  and  further  underground 
percolation  by  reason  of  the  different  levels  of  two  bodies  so  near 

to  each  other,  two  bodies  of  water. 

2452  The  river  diversion  that  I had  in  mind  in  my  prior  testi- 
mony was  that  made  by  the  Sanitary  District  in  1892  to  1894. 

That  is  what  is  shown  by  the  black  line  connecting  the  green 
spaces  on  the  Hillebrand  exhibit.  That  was  designed  for  the 
purpose  of  shifting  the  location  of  the  Desplaines  Eiver  to  the 
west  side  of  the  valley  so  as  to  leave  the  ground  unencumbered 
by  water  between  Illinois  and  Michigan  Canal  and  this  river  in 
which  to  construct  the  Drainage  Canal. 

A heavy  embankment  was  built  between  the  sides  of  the  Drain- 
age Canal  and  adjacent  to  the  river  diversion  for  the  purpose 
of  restraining  the  floods  and  a spillway  was  constructed  about 
six-tenths  of  a mile  south  of  the  township  line  between  38  and 
39,  up  at  about  the  end  of  the  old  Portage  Trail  where  it  struck 


828 


C 0 0 1 ey, — Di rect  Exa  it / . — 'C o n tinued. 


the  12-mile  level.  This  spillway  was  of  concrete,  400  feet  long, 
at  an  elevation  of  16.25  feet  above  Chicago  datum  and  cor- 

2453  responds  to  the  18-foot  level  which  I have  referred  to  as 
the  flood  level  on  the  gauge  at  Kiverside,  that  is  shown  on  the 

Hillebrand  exhibit,  or  Sanitary  District  map  and  profile,  as 
swinging  oft  from  the  Desplaines  Eiver  just  below  Riverside  and 
swinging  around  into  the  Ogden  Ditch.  The  Ogden  Ditch  was  the 
outlet  for  the  spillway.  The  water  returns  to  the  Sanitary  Dis- 
trict channel  at  the  entrance  of  the  channel  where  it  joins  the 
West  Fork  near  Robey  street.  The  effect  of  the  construction  of 
that  spillway,  taking  the  spill  waters  from  the  Desplaines  River 
of  this  river  diversion,  upon  the  amount  of  water  flowing  down 
the  Desplaines  River  to  the  mouth  from  this  region  was  that  all 
the  waters  of  the  Desplaines  River  of  a volume  less  than  4,500  sec- 
ond feet  and  of  an  elevation  of  less  than  18  feet  on  the  River- 
side gauge,  were  controlled  southward  through  the  City  of  Joliet. 
Waters  in  excess  of  4,500  second  feet  passed  in  part  over  the 

2454  spillway  and  by  the  route  described,  the  Ogden- Wentworth 
Ditch  and  the  West  Fork  to  the  South  Branch  of  the  Chi- 
cago River.  The  purpose  was  to  so  design  this  work  that  in 
extreme  floods  the  volume  of  water  passing  the  City  of  Joliet  would 
not  be  increased  until  such  time  in  the  future  as  the  Joliet  situa- 
tion could  be  improved  as  to  care  for  the  same,  the  ultimate  design 
being  to  close  the  spillway  and  raise  the  levees  so  as  to  control 
all  the  waters  southward  in  flood  time.  Under  this  construction 
the  flood  waters  of  the  Desplaines  still  ran  out  into  the  South 
Branch,  but  in  place  of  the  level  being  controlled  by  the  Ogden- 
Wentworth  Dam,  at  1000  feet  per  second,  this  amount  controlled 
was  4500  feet  per  second.  The  Desplaines  River  was  one  of  the 
original  feeders  for  the  supply,  as  I understand  it,  and  was  act- 
ually used  for  the  feeding  of  the  Summit  level  of  the  Illinois  and 
Michigan  Canal.  It  always  was  used  as  a feeder  at  the  City  of 
Joliet  where  the  canal  crossed  it  in  a pool  and  a dam  absolutely 
intercepted  the  flow  of  the  river,  making  it  possible  to  flow  all  the 
water  of  the  river  in  all  stages  into  the  Illinois  and  Michigan  Canal 

at  the  City  of  Joliet. 

2455  The  Desplaines  River  was  one  of  the  sources  of  water 
supply  to  the  Illinois  and  Michigan  Canal,  prior  to  deepen- 


829 


ing,  in  1866  to  1871,  and  was  tapped  on  the  12-mile  level, 

2456  that  is  between  Summit  and  Lemont.  The  connection  was 
made  by  which  the  Desplaines  River  was  diverted  from  the 

river  and  turned  into  the  canal  in  that  strip. 

Then  there  was  a dam  No.  1 at  Joliet  which  crossed  the  Des- 
plaines River,  which  controlled  the  entire  water  suply  of  the  river, 
so  far  as  it  was  needed  for  the  canal,  and  after  the — both  be- 
fore and  after  the  deepening.  After  the  deepening  there  was  also 
an  inlet  from  the  river  into  the  canal  below  Lemont,  upon  the 
Summit  level.  As  to  what  extent  did  these  canal  diversions  and 
feeders  deplete  the  water  of  the  Desplaines  River,  I am  unable 
to  state  farther  than  at  times  it  would  take  all  the  water  that  went 
down  the  Desplaines  River  to  feed  the  canal.  The  Desplaines 
River  was  not  adequate  in  seasons  of  drought  to  feed  the 

2457  canal,  and  a feeder  was  made  to  the  Calumet  River  at  Blue 
Island,  and  resort  was  also  had  to  pumps  at  Bridgeport  in 

very  dry  seasons. 

The  effect  of  inhabitation  and  reclamation  of  the  land,  tillage, 
as  a depleter  of  the  river, — is  to  diminish  the  absolute  quantity 
of  water  flowing,  and  to  shorten  up  the  duration  of  stages  of 
water  and  increase  the  low  water  period. 

The  Desplaines  River  is  an  impermeable  watershed  or  basin. 
In  other  words,  the  ground  and  sub-soil  was  substantially  clay, 
so  that  there  is  very  little  ground  water  to  feed  the  stream  and 
maintain  the  flow  in  seasons  of  drought.  Originally,  from  30 
to  50  per  cent,  of  the  watershed  was  covered  with  timber;  there 
were  extensive  lakes  and  ponds  in  Lake  County,  marshes  at  head 
waters  and  in  the  valley  as  far  down  as  Guerney,  about  opposite 
Lake  Bluff,  in  Lake  County,  and  also  in  the  towns  of 

2458  Leyden,  Proviso  and  upon  Salt  Creek  which  enters  the  Des- 
plaines River,  at  Riverside  on  the  west.  All  these  crossings 

of  the  basin  exercise  a very  considerable  control  upon  the  man- 
ner of  the  run-off  of  the  stream. 

The  various  areas  and  swamp  areas  and  lake  areas,  and  forest 
areas  all  serve  to  mitigate  the  extreme  floods,  and  store  the 
waters  and  prolong  the  duration  of  moderate  stages  of  water  and 
diminish  the  time  of  extreme  low  water. 


830 


Cooley, — Direct  Exam, — Continued. 


There  is  a great  variety  of  streams  in  this  particular ; the  Kan- 
kakee Eiver,  for  instance,  and  the  Iroquois  have  very  large  marsh 
control  of  the  flow  in  the  stream,  and  the  flow  is  well  maintained 
throughout  the  year  except  in  some  years  of  extreme  drought,  when 
the  swamps  have  run  out  and  the  stream  will  suddenly  in  the  course 
of  a week  drop  to  one-third  or  one-fifth  of  its  normal  water 
volume. 

The  Desplaines  Kiver  did  not  have  this  control  to  the 

2459  characteristic  extent — to  the  same  characteristic  extent  as 
in  the  Kankakee  or  Iroquois,  but  still  it  was  a considerable 

and  large  influence  which  has  been  changed  for  the  worst  by  the 
effect  of  inhabitation,  which  has  drained  out  the  marshes,  lowered 
the  ponds,  taken  away  the  timber  so  that  the  storage  and  im- 
pounding areas  have  been  largely  destroyed  and  the  water  runs 
off  quickly,  and  there  being  no  permeable  ground,  the  low  water 
flow  in  seasons  of  drought  is  barely  sustained. 

The  area  of  Mud  Lake,  Portage  Lake,  La  Petite  Lac,  as  they 
were  Imown  at  different  times,  and  the  Portage  swamp,  in  all,  a 
basin  or  watershed  of  about  forty-eight  square  miles,  lying  east 
of  the  range  line  between  ranges  12  and  13  east,  has  been  drained 
out  to  the  Chicago  Kiver,  except  a small  fragment  which  is  near 
Summit,  which  I believe  drains  into  the  Illinois  and  Michigan 
Canal.  That  area  has  been  entirely  subtracted  from  the  feeding 
area  of  the  Desplaines  Kiver. 

2460  The  effect  of  the  drainage  out  of  Mud  Lake  has  been  very 
material.  It  has  diminished  the  absolute  water  supply  to 

the  extent  of  the  contribution  from  that  watershed,  and  has 
destroyed  a very  large  control  of  the  flow  by  the  draining  out 
of  this  impounding  area  which,  acted  as  an  equalizer  of  the  flow 
of  the  stream. 

What  I mean  by  that,  ^ ‘ equalizer  of  the  flow  of  the  stream,  ’ ^ 

2461  — an  area  of  this  character,  embracing  several  square  miles 
is  flooded  in  times  of  high  water  and  acts  like  any  reservoir, 

to  feed  any  water  at  lower — to  feed  the  river  at  lower  stages,  and 
greatly  prolong  the  duration  of  a given  stage  of  water  in  the 
stream  below. 

2462  The  three  stages  which  I have  compiled  from  the  Kiver- 
side  gauge,  ranging  from  13.8  to  12.4  feet  upon  said  gauge,  are 


831 


medium  stages  of  water.  I have  made  a tabulation  which  I gave 
liere  yesterday  of  the  duration  of  the  three  stages. 

The  best  judgment  which  I can  form  in  regard  to  that  matter 
is  that  the  effect  of  all  the  changes  which  have  been  made,  and 
allowing  for  a year  of  normal  rainfall,  assuming  the  average 
condition,  is  that  the  duration  of  these  three  stages  would  he 
prolonged  from  40  to  50  per  cent,  above  the  periods  which  I have 
estimated  from  the  Eiverside  gauge. 

2463  The  river-bed  of  the  Desplaines  River  is  not  an  evolution 
from  the  conditions  of  its  own  watershed,  hut  is  a remnant 
of  an  ancient  channel  which  formed  an  outlet  of  the  Great  Lakes 
up  to  a very  recent  geological  period,  and  the  influences  of  the  nat- 
ural watershed  have  not  been  sufficient  to  silt  up  the  pools  or  to 
otherwise  change  the  regimen  of  the  stream  so  as  to  conform  to  a 
normal  stream  for  a basin  of  that  character. 

■ 2464  The  profile  produced  here,  shows  us  a river  bed  here,  with 
very  deep  pools,  such  as  that  labeled  Lake  Joliet  and  that 
labeled  Lake  DuPage;  these  deep  pools  of  that  kind  in  formations 
of  this  character  are  not  a normal  type  of  a stream.  These  pools, 
Lake  DuPage  and  Lake  Joliet,  the  pools  of  the  12-mile  level  are 
all  remnants  of  an  ancient  stream  bed  in  which  there  are  some 
undergoing  processes  of  deterioration  and  shrinkage  through 
the  contributions  of  tributaries. 

This  dotted  line  that  I call  bottom  in  1899,  which  seems  to  have 
taken  off  about  a half  of  the  depth  of  Lake  Joliet  (referring  to 
plat),  is  due  to  the  silting  vfliich  has  occurred  between  the  profile 
of  1883  or  the  survey  of  1883  and  the  survey  of  1899.  The  culti- 
vation of  the  country  seems  to  have  greatly  accentuated  the  fill- 
ing up  of  these  pools. 

2465  The  best  deductions  that  can  he  made  in  regard  to  that 
are  that  the  flow  through  this  channel  and  to  the  southward 
did  n'ot  differ  for  a very  long  period  of  time,  very  little  from  that 
now  going  out  the  Niagara  River,  and  in  that  period  when  that  flow 
was  characteristic,  we  had  formed  the  beach  line  known  as  the 
west  ridge  at  Evanston,  and  the  Tolleston  beach,  the  beach  be- 
hind Pullman,  which  were  the  old  shore  lines.  The  water  ran 
out  of  the  Desplaines  River  not  less  than  twenty  feet  deep,  judging 


882 


C ooley, — Direct  Exam . — C on  tin  u ed. 


by  these  beach  lines.  The  lake  came  np  to  those  lines,  and  it 
was  a down  flow  from  that  place  on,  all  the  way  into  the  Desplaines. 

This  great  outlet  was  at  Eiverside.  That  was  the  way  of  it, 
and  when  the  lakes  lowered  to  their  present  level,  which  they  did 
by  two  successive  stages, — there  are  lower  stages  which  geologists 
recognize, — the  Desplaines  Eiver  was  tributary  to  Lake  Michigan, 
and  by  the  deposits  which  came  down  from  the  upper  Desplaines 
and  through  the  formation  of  a delta,  this  original  divide 

2466  was  created  at  Kedzie  avenue  and  gradually  shifted  the  water 
into  the  other  direction,  and  that  process — that  development 

or  evolution  was  no  doubt  in  process  at  the  time  Marquette  and 
Joliet  crossed  here,  and  that  divide  was  continually  rising,  turning 
more  and  more  water  to  the  south  in  flood  times. 

The  Chicago  Eiver  is  a navigable  stream.  The  Sanitary  Dis- 
trict Channel  is  a navigable  stream.  Take  a boat  on  Lake  Michi- 
gan, suppose  that  boat  were  to  enter  the  Chicago  Eiver  and  go  up 
the  South  Branch,  it  could  get  into  the  Drainage  Channel;  a 
boat  that  would  draw  for  instance,  from  two  to  two  and  a half 

2467  feet  of  water,  as  used  in  commerce,  can  go  completely  through 
the  Drainage  Channel  and  down  to  Dam  Xo.  1 at  Joliet. 

As  to  the  fall  in  the  bed  of  the  Sanitary  Canal  and  in  the  bed 
of  the  Desplaines  Eiver  between  the  controlling  works  at  Lock- 
port  and  Dam  Xo.  1, — I cannot  give  the  difference  in  the  beds  of 
the  streams  at  those  points,  1 can  give  the  difference  in  the  stand- 
ard surface  of  the  water  at  those  points.  I ran  the  levels  a great 
many  times  myself,  and  I planned  the  Sanitary  Canal  myself.  I 
am  talking  from  facts  within  my  knowledge,  and  it  would  be  42^ 
feet.  That  424  feet  occurs  in  one  lock  at  the  end  of  the  Sanitary 
Canal  opposite  the  power  station. 

2468  That  is  the  power  station  that  is  indicated  on  this  profile 
of  mine  where  I say  ''Miles  from  power  station”;  on  this 

Ilillebrand  Exhibit  (illustrating  on  map),  right  on  the  section 
line,  south  of  the  Township  of  Lockport,  the  map  at  that  point 
showing  in  red  two  channels,  between  Section  87  and  Section  84, 
where  the  red  line  of  the  channel  divides.  That  lock  takes  up 
the  entire  fall  between  the  Sanitary  Canal  and  the  level  of  the 
crest  of  Dam  Xo.  1,  amounting  to  424  feet  as  I have  stated.  That 
lock  was  built  by  the  Sanitary  District  of  Chicago  under  the 


83:5 


authorit}^  or  by  direction  of  an  Act  of  tlie  Legislature  passed  in 
1903. 

Among  hydraulic  engineers  and  navigators,  for  computing  the 
approximate  velocity  of  a stream,  there  are  a great  va- 

2469  riety  of  hydraulic  formulae  for  that  purpose;  all,  however,  de- 
pendent upon  one  or  two  simple  principles.  I have  a short  ap- 
proximate formula  which  is  accepted  among  engineers, — as  ap- 
proximately correct ; one  that  I have  used  in  my  own  calculations 
for  quick  determinations  in  regard  to  such  matters.  You  take  in 
streams  of  the  character  of  the  Des  Plaines  River,  and  of  the  Ogden 
Ditch,  upon  which  I have  verified  the  formula,  the  rule  is  that 
the  velocity  in  feet  per  second  is  equal  approximately  to  the  square 
root  of  the  declivity  in  feet  per  mile  multipled  by  the  mean  depth 
expressed  in  feet. 

Suppose  I have  a stream  with  a declivity  of  nine  feet  per  mile, 
and  a mean  depth  of  four  feet,  corresponding  to  a channel  depth 
perhaps  of  five  or  six  feet.  The  square  root  of  the  declivity 

2470  is  three,  the  square  root  of  the  mean  depth  is  two  and  their 
product  is  six.  In  other  words,  the  velocity  of  that  stream 

upon  that  declivity  will  he  six  feet  per  second,  or  four  miles  per 
hour.  There  will  he  variations  in  that  matter  according  to  the 
character  of  the  stream  bed,  of  course,  and  the  magnitude  of 
the  stream,  but  the  rule  as  T have  stated  it,  is  approximately  cor- 
rect. 

Counsel  for  complainant  then  referred  to  Exhibit  1-A  and  2-A 
here,  McCullough  Exhibit  1-A  and  McCullough  Exhibit  2-A,  on 
which  the  certificate  has  been  amended  so  as  to  read  as  follows : 

State  of  Illinois, 

Auditor’s  Office, 

Springfield,  May  9,  1908. 

‘M,  James  F.  McCullough,  Auditor  of  Public  Accounts,  of 
the  State  of  Illinois,  * and  by  law  custodian  of  the  field  notes 
and  plats  of  the  United  States  survey  of  lands  in  Illinois,  and 
keeper  of  the  seal  of  the  office  of  Auditor  of  Public  Accounts 
of  Illinois,  do  hereby  certify  that  the  foregoing  is  a correct 
copy  of  the  plat  of  the  United  States  survey,  transferred  from 
the  United  States  Surveyor  General’s  office  to  this  state,  pur- 

2471  suant  to  an  Act  of  Congress,  of  the  following  described  sec- 
tions of  land.  Townships,  36,  37,  38  and  39,  Sections  3,  4,  9, 
10,  15,  16,  21,  22,  28,  29,  30,  31,  32,”  and  so  on  down,  simply 


834 


describing  the  sections  of  land  without  any  other  descriptive 
language.’’ 

2472  The  witness  testified  as  follows: 

These  numbers,  circles  and  numbers,  on  the  said  plats 
referred  to,  46,  49,  50,  48,  47,  51,  52,  53,  54,  55,  56,  57,  58,  59  and 
60,  j)nt  on  in  red,  are  the  borings,  the  location  of  the  borings  shown 
in  the  Marshall  survey, — the  numbers  being  the  numbers  of  the 
borings.  I caused  Mr.  Edgar  AYilliams  to  place  those  on  that 
map. 

The  general  geographical  names  which  appear  on  the  map, 
Goose,  Lake,  Romeo,  Emmetsburg,  Keepotaw,  Lemont,  Archer 
and  Pearson’s  addition  to  Desplaines,  Summit,  Riverside,  Lyons, 
Spring  Forest,  M'illow  Springs,  and  so  on,  I caused  Mr.  Edgar 
AVilliams  to  place  on  that  map.  He  did  that  at  my  direc- 

2473  tion  and  under  my  supervision.  I checked  them  up  to  see 
that  they  were  in  the  proper  sections.  These  are  correctly 

located  on  this  map. 

The  legend  near  the  center  of  Section  30,  in  Township  39  North, 
Range  14,  east,  where  there  is  a small  dot  placed,  and  the  inscrip- 
tion apiDears: — ^‘Approximate  location  of  Marquette’s  cabin,  1674 
and  1675,”  I caused  that  inscription  to  be  placed  there. 

2484  Edgak  Willliams, 

a witness  for  complainant,  testified  as  follows: 

Direct  Examination. 

My  name  is  Edgar  Williams,  my  business,  civil  engineer.  I 
am  on  my  own  work  a good  deal  of  the  time,  and  a great  deal 
of  the  time  with  Mr.  Cooley  assisting  on  his  work.  I have  been 
acquainted  and  working  under  Mr.  Cooley  twenty  years.  I was 
under  him  in  the  employ  of  the  Sanitary  District  of  Chicago  as 
engineer. 

On  the  map  marked  McCullough  Exhibit  2-A,  I made  these  in- 
scriptions and  marks  and  representations;  beginning  down  here 
at  the  lower  left  hand  corner  in  Section  35,  Township  37, 

2485  Range  10  E.,  there  was  the  word  Romeo.  I wrote  that 

there  and  also  the  following:  Goose  Lake,  the  boundary  of 


tlie  Village  of  Emmetsbiirg,  and  its  name,  nothing  else.  Also  the 
Keepotaw,  an  old  subdivision  of  Lemont,  the  name  of  Lemont, 
and  the  name  of  the  subdivision  of  Keepotaw,  the  snb  of  the 
southwest  fraction  of  the  west  half  of  the  southeast  quarter  of 
the  south  fraction  of  the  northeast  quarter  of  Section  20  and  the 
color  which  indicates  it.  Then  next,  two  weeks  ago — I had  better 
take  these  others  first.  Near  the  Sag,  I put  on  the  ‘^Archer,’’ 
and  the  Pearson’^  additions  to  Desplaines,  and  its  red  color,  and 
nothing  else.  I put  on  the  name  of  Sag,  and  the  Archer  and  Pear- 
son additions.  The  name  of  Sag  at  that  last  place.  At  Willow 
Springs  I put  on  the  name  of  Willow  Springs  and  of  Spring 
Forest.  At  Summit  I put  on  the  name  of  Summit  and  the  boun- 
^dary  and  the  red  color.  I put  on  the  name  of  Lyons  and  of 
Riverside;  put  on  the  name  of  Bridgeport;  the  approximate 

2486  location  of  Marquette’s  cabin,  1674  to  1675,  and  the  house. 
The  name  of  Bridgeport.  I put  on  the  coloring  which  marks 

the  odd  numbered  sections  along  the  river.  Section  1,  Section  11, 
Section  15,  Section  25,  Section  33,  Section  5,  Section  7,  Section  1, 
Section  11,  Section  15,  Section  21,  Section  19,  Section  25,  Section 
35.  That  is  to  represent  the  sections  of  the  canal  lands  on  that 
McCullough  Exhibit  2- A.  I put  on  the  borings  in  red,  46,  49,  47, 
48,  50,  51,  52,  53,  54,  55,  56,  57,  58,  59  and  60.  I took  the  loca- 
tions of  those  from  the  Marshall  report  of  those  borings. 

I don’t  see  anything  else  from  these  colored  town  sites  that 
I have  indicated.  I had  the  certified  copies  of  the  plats  before  me 
when  I put  those  on.  They  are  correctly  located.  These  sev- 
eral geographical  locations  are  correctly  placed,  except  I 

2487  put  on  this,  Mr.  Cooley’s  location  of  Marquette’s  cabin.  My 
information  on  that  was  obtained  exclusively  from  Mr. 

Cooley. 

On  McCullough  Exhibit  1-A,  I placed  upon  that  map  beginning 
at  the  top  where  it  connects  with  the  other,  the  boundary  of 
west  lot  4 and  its  name,  and  the  color,  red  color.  The  boundary 
of  lot  4 and  its  name,  and  the  color.  The  location  and  the  name 
of  the  penitentiary.  The  location  of  the  Sanitary  District  gauge, 
and  its  name. 

In  Section  9 the  location  of  the  Economy  Light  & Power  gauge 
and  its  name,  at  Dam  No.  1.  Then  the  name  of  Dam  No.  1,  and 


836  Edgar  Williams, — Direct  Exam, — Continued. 

the  location  of  the  dam.  The  gauge  No.  1 of  the  survey  of  1883, 
the  name  and  the  location.  The  name  and  the  location  of  the 
Jetferson  street  bridge.  The  name,  color  and  boundary  of  the 
west  Juliet  subdivision  or  plat.  The  name,  color  and  location 
and  boundary  of  Juliet. 

The  name,  boundary  and  location  of  the  School  Section  Addition 
to  the  Town  of  Juliet  on  the  west  side  of  the  River,  and  the  name, 
boundary  and  color  of  the  School  Section  Addition  to  Juliet 

2488  on  the  east  side  of  the  river. 

The  name,  boundary  and  color  of  the  subdivision  of  Block 
96  of  the  School  Section  Addition  to  Juliet. 

The  name  and  location  of  Gauge  No.  4 of  the  survey  of  1883. 

The  name,  and  location  of  Haven’s  Dam. 

The  name  and  location  of  Brandon  bridge. 

The  name,  boundary  and  color  of  the  Buffalo  addition  of  the 
Buffalo  plat. 

The  name,  color  and  boundary  of  the  Vienna  plat. 

The  name  of  Lake  Joliet.  The  name  and  location  of  gauge 
No.  3 of  the  survey  of  1883. 

The  name  of  Treat’s  Island. 

The  name  of  Millsdale  and  the  location. 

The  name  and  location  of  gauge  No.  4 of  the  survey  of  1883. 
The  name  and  location  of  the  Sanitary  District  gauge  under 
Smith’s  bridge. 

The  name  and  location  of  the  United  States  gauge  near  Smith’s 
bridge. 

The  name  and  location  of  Smith’s  bridge. 

The  name  of  Lake  DuPage. 

The  name  and  location  of  the  Sanitary  District  gauge  a mile 
below  the  Smith  bridge. 

2489  The  name  and  location  of  the  Sanitary  District  gauge  a 
mile  and  a half  above  the  Kankakee  River  on  the  Desplaines 

River. 

The  name  and  location  of  the  Sanitary  District  gauge  half 
a mile  above  the  Kankakee  River  on  the  Desplaines  River. 


837 


The  name,  color  and  location  of  gauge  No.  5 of  the  survey  of 
1883,  a quarter  of  a mile  above  the  Kankakee  Eiver  on  the  Des- 
plaines  River. 

The  name  and  boundary  of  the  plat  and  location  of  Beard’s 
Part  and  the  Handy  Part  of  the  Town  of  Kankakee. 

The  name  and  location  of  the  Sanitary  District  gauge  and  of 
the  United  States  gauge  in  Section  27,  Town  34  North,  Range 
8 East,  two  and  a half  miles  below  the  Kankakee  River. 

Then  I colored  the  canal  lands  in  Town  36  North,  Range  10 
East,  Section  3,  Section  15,  Section  27.  In  Town  35  North,  Range 
10  East,  I colored  canal  lands.  Section  3,  Section  9. 

I also  wrote — put  on  the  name  of  Joliet  in  that  Section  9. 

I colored  Section  21,  Section  19,  Section  29  and  31,  all  in  Town 
35  North,  Range  10  East. 

In  35  North,  Range  9 East,  I colored  Section  25,  Section  35, 
Section  14,  Section  11,  Section  15,  Section  21,  Section  29,  and  Sec- 
tion 31;  all  in  Town  34  North,  Range  9 East. 

2490  In  Town  34  North,  Range  8 East  I colored  Section  25, 
all  canal  lands. 

There  is  not  anything  else  that  I put  on  there  on  either  of  them. 
But  for  what  I have  enumerated  McCullough  Exhibit  2 and  Mc- 
Cullough Exhibit  2- A are  in  the  condition  in  which  they  came  to 
me. 

And  thereupon  it  was  agreed  by  counsel,  as  follows: 

It  is  conceded  that  McCullough  Exhibit  No.  2- A,  which  is 
the  sheet  counsel  for  complainant  now  holds,  is  the  same  as 
McCullough  Exhibit  2,  in  so  far  as  counsel  for  the  defendants 
now  know  or  believe;  but  they  reserve  the  right  to  examine 
and  verify  it,  and  it  may  be  considered  as  a duplicate  unless 
they  raise  objection  hereafter. 

2491  Counsel  for  defendant  thereupon  reserved  their  objec- 
tion that  there  is  no  plat  of  this  nature  at  Springfield,  and 

further  that  the  note  ^ ‘ field-notes  of  the  meander  survey  shows 
this  point  as  head  of  navigation,  but  original  plat  shows  no 
indication  thereon,  did  not  appear  on  the  original  at  all. 

2494  Thereupon  the  court  held  that  the  same  ruling  would  apply 


838 


E dga r Will ia ms, — Di rect  Exam . — C onti nued. 


to  Exhibit  2-A  as  previously  applied  to  McCullough  Exhibit 
2,  and  the  said  note  would  he  omitted,  together  with  the  note 
^‘location  of  Marquette’s  cabin.” 

2495  And  thereupon  the  balance  of  the  map  was  admitted  in 
evidence.  (Atlas,  p.  3916;  Trans.,  p.  6486;  Ahst.,  p.  1915.) 

2496  •'  Cross-Examination. 

Q.  Mr.  Williams,  did  you  locate  the  situation  of  these  various 
gauges  and  bridges  and  so  on  by  yourself!  A.  I did. 

Q.  There  are  some  eleven  i)assenger  bridges  and  two  railroad 
bridges  over  the  river  in  the  part  shown  by  map,  McCullough  Ex- 
hibit A-1!  A.  Yes. 

Counsel  for  Complainant.  I object  to  that,  if  your  Honor 
please.  Just  a minute;  I am  not  sure  whether  I understand  Mr. 
Scott’s  question,  whether  he  means  to  say — to  ask  the  witness  to 
count  up  the  bridges  which  he  has  put  here,  and  give  the  total  of 
them,  or  whether  he  means  that  this  existing  situation  is  the  situa- 
tion in  that  territory  at  this  time  in  fact.  I do  not  know  which  the 
counsel  means. 

Counsel  for  Defendant.  Mr.  Williams  answered  the  questian. 
What  did  you  understand  me  to  mean,  Mr.  Williams! 

Counsel  for  Complainant.  Bead  the  question. 

(Question  read.) 

Counsel  for  Complainant.  Wait  a minute,  before  that  question 
is  answered  I want  to  know — 

The  Court.  It  has  been  answered,  so  it  is  proper  not  to  ask 
what  he  understood,  so  long  as  it  has  been  answered. 

2497  Counsel  for  Complainant.  But  before  it  goes  any  further 
I wish  to  interpose  the  objection  now,  if  it  means  what  in  fact 

exists  in  this  territory  at  this  time,  I object  to  it,  because  that  is 
no  part  of  the  matter  which  was  dealt  with.  The  fact  is,  there 
were  certain  specific  objects  that  had  appeared  in  evidence  in  var- 
ious ways  which  it  seemed  desirable  to  counsel  for  the  State  to 
have  delineated  and  illustrated,  so  that  the  evidence  would  be  illus- 
trative, and  we  got  this  witness  to  make  the  illustrations.  Now, 
if  counsel  is  asking  him  whether  there  are  not  some  other  things 
that  are  not  illustrated,  I say  it  is  not  cross-examination  of  this 


839 


witness  now,  and  I object  to  the  answer,  and  move  that  it  be 
stricken  out. 

Counsel  eor  Defendant.  As  to  that,  it  is  quite  important  that 
an  illustration  shall  illustrate  the  general  subject  matter  it  is  in- 
tended to  illustrate.  Now,  while  it  is  true  that  there  was  evidence 
showing  two  bridges  which  appear  here,  there  was  also  evidence 
showing  eleven  more  bridges  which  do  not  appear  here.  While 
it  is  true  that  there  was  a dam  shown  here,  it  is  also  true  that 
there  were  several  more  dams  shown  by  the  evidence  at  the  time 
this  was  made.  Now,  I simply  do  not  want  any  confusion  on  the 
part  of  the  court,  and  I am  asking  the  man  who  made  this  and  lo- 
cated these  obstructions,  whether  there  were  or  not  more 

2498  of  the  same  character  that  do  not  appear  on  the  map. 

A.  There  were  more  bridges  than  are  shown  here.  I only 
show  those  few  bridges  at  Joliet  and  the  Smith  bridge. 

We  show  Haven’s  Dam  here,  but  as  I understand  that  isn’t  in  the 
river  now.  Dam  No.  1.  There  is  Dam  No.  1. 

Q.  Well,  you  say  Haven’s  Dam  is  not  in  the  river.  How  many 
other  dams  were  there  not  in  the  river  at  the  time  you  made  this 
that  you  did  not  show? 

Counsel  for  Complainant.  I object  to  that,  if  your  honor  please, 
Please  repeat  the  question? 

(Question  read  by  the  stenographer.) 

2499  Counsel  for  Complainant.  I submit,  if  your  honor  please, 
it  is  not  part  of  the  proper  cross-examination  of  a witness  who 

comes  here  as  an  engineer  to  explain  a draft  or  plat,  which  he  has 
made,  to  ask  him  how  many  other  things  at  any  other  time  there  has 
been  that  he  has  not  shown.  It  is  certainly  not  proper  cross-ex- 
amination. 

. The  Court.  I should  rather  think  that  the  cross-examination 
should  be  confined  to  getting  at  the  purposes  and  the  reasons  why 
he  showed  it.  If  he  did  it  simply  because  he  was  instructed  to 
do  it,  why  that  ends  it,  so  far  as  he  is  concerned. 

Counsel  for  Defendant.  Well,  it  is  the  map  or  plat  that  is 
the  significant  thing,  and  not  the  witness,  and  when  they  put  in 
a map  it  either  ought  to  show  the  thing  as  it  is  or  we  ought  to 


840  Edga  r W illiams, — C ross-Exam.— Con  tin  tied. 

be  permitted,  it  seems  to  me,  to  have  the  man  who  made  it  show 
that  it  does  not  show  the  thing  itself. 

The  Court.  Yes,  you  may  do  it  by  showing  how  he  came  to  put 
in  certain  things  and  why  he  omitted  other  things,  and  if  it  is 
simply  because  he  put  in  the  things  he  was  instructed  to  put  in, 
why,  then  you  have  got  to  go  further  with  somebody  else,  not 
with  him. 

Counsel  for  Defendant.  First,  I must  establish  that  there 
were  things  he  did  not  put  in  before  I ask  him  why  he  did  not  put 
them  in. 

The  Court.  Yes,  but  in  a general  way,  not  as  to  the  details. 

In  addition  to  Haven’s  Dam,  that  I did  not  put  on  this  plat, 

2500  I think  there  was  a dam  at  Treat’s  Island  on  the  north  side. 
I have  never  been  down  to  Treat’s  Island,  and  what  I know 

of  it  comes  wholly  from  maps  and  profiles.  I put  on  the  work 
that  I was  directed  to  put  on.  I had  recourse  to  the  profile  of 
1866  and  1867  to  get  this  location.  I have  seen  the  profile.  United 
States  G-overnment  survey  profile  of  1867.  I have  worked 

2501  on  it  in  connection  with  this  river  a little. 

Q.  Didn’t  that  show  you  a dam  about  where  the  Economy 

2504  Dam  is  now  being  built!  A.  I think  it  does. 

Counsel  for  Complainant.  I object  to  this  as  not  the  best 
evidence. 

The  Court.  He  may  answer. 

Counsel  for  Defendant.  He  has  answered  that  he  thinks  it 
does.  Were  you  instructed  not  to  show  them  upon  this  map! 

A.  I had  no  instructions  at  all  about  that. 

Q.  Xo  instructions  as  to  it!  A.  Xo,  sir. 

Q.  Y7ere  your  instructions  simply  that  you  should  show  the 
bridges  that  you  do  show  specifically!  A.  Yes,  they  gave  a list 
and  I put  them  on  according  to  the  list. 

Q.  They  gave  you  a list  of  the  things  that  they  wished  you 
to  show  on  the  map  and  you  put  them  on!  A.  That  is  two  or 
three  times,  the  first  list  did  not  cover  all;  they  first  wanted 

2505  some  things  put  on  and  then  others. 

Q.  You  were  instructed  to  show  and  did  not  attempt  to 


841 


show  the  various  structures  of  the  same  kind  that  appeared  all 
the  way  down  the  river? 

. Counsel  for  Complainant.  I object. 

Counsel  for  Defendant.  As,  for  instance,  you  did  not  attempt 
to  show  all  the  bridges  or  all  the  dams  that  had  or  did  exist? 

The  Court.  Eead  that  question. 

(Question  read  by  the  stenographer.) 

Counsel  for  Complainant.  I object  to  that,  your  honor. 

A.  No. 

Counsel  for  Complainant.  I sumbit,  your  honor,  please,  there 
is  nothing  intended  there  but  an  argument. 

The  Court.  I think  he  is  entitled  to  the  benefit  of  the  argu- 
ment. 

Thereupon  the  said  maps  marked  respectively  McCullough 
250j6  Exhibit  1 and  1-A  and  McCullough  Exhibit  2 and  2-A  were 
then  received  in  evidence.  (McCullough  Exhibit  1,  Atlas 
p.  3913,  Trans,  p.  6480;  Abst.  p.  1914,  1-A  p.  3914,  Trans,  p.  6482, 
Abst.  p.  1914,  Exhibit  2,  3915,  Trans,  p.  6484,  Abst.,  p.  1916,  2-A, 
p.  3916,  Trans,  p.  6486,  Abst.  p.  1916.) 

Lyman  E.  Cooley. 

thereupon  resumed  the  stand  and  further  testified  as  follows : 

Direct  Examination. 

I have  seen  the  plans  under  which  the  proposed  dam  of  the 
defendant  is  proposed  to  be  constructed.  I have  examined  it.  I 
am  acquainted  with  the  site  of  the  dam  and  the  physical  condi- 
tions of  the  river  at  that  point,  above  and  below. 

A dam  built  according  to  the  plans  produced  for  the  building 
of  the  defendant’s  dam  across  the  Desplaines  River  will 
2507  close  the  river  from  bank  to  bank  and  absolutely  prevent 
any  navigation.  The  effect  upon  the  future  development 
of  navigation  would  be  greatly  to  the  injury  of  navigation.  The 
dam  is  not  located  at  the  proper  place  to  best  develop  the  inter- 
ests of  navigation.  It  is  situated  on  a rapids  with  a consider- 
able descent  below  for  a mile  and  a half,  and  all  modern  practice 


842  Cooley — Direct  Exam. — Continued. 

in  regard  to  tlie  treatment  of  a situation  of  that  kind  would 

2508  require  that  that  dam  should  be  put  at  the  foot  of  the  rapids 
and  as  far  down  stream  as  is  practicable,  that  is  a dam  for 

the  purpose  of  navigation,  not  this  particular  dam.  A dam  located 
at  the  lower  site  would  back  the  water  to  the  crest  of  this  dam 
and  require  its  removal  in  order  that  boats  might  pass  to  and 
fro.  I speak  of  the  location  a mile  and  a half  below  as  the  proper 
location  for  a navigation  dam  for  the  development  of  the  navi- 
gation of  the  stream.  I am  referring  to  the  particular  depth  for 
which  the  last  report  was  made,  fourteen  feet  with  a suggestion 
of  20,  and  more  particularly  to  a depth  of  24  feet  as  in  accord- 
ance with  the  plans  of  the  Internal  Improvement  Commission.  The 
larger  depth  makes  the  lower  site  more  and  more  advantageous  as 
you  proceed  toward  larger  depths.  So  that  if  we  were  to 

2509  consider  24  feet  of  water  in  the  river  as  something  to  be 
actually  produced  at  this  time,  and  the  dam  of  the  Economy 

Light  & Power  Company  there,  I should  be  disposed  to  think  that 
it  would  be  wiser  and  better  to  condemn  it  out,  then  to  shift  it 
down  stream  where  it  belongs. 

Thereupon  counsel  for  complainant  read  in  evidence  from  the 
House  Document  No.  263,  59th  Congress,  First  Session,  from 
which  passages  have  already  been  given,  the  following  extract  on 
pages  45  and  46: 

2510  ‘^Dams. 

In  order  that  there  may  be  no  damage  inflicted  on  the  bot- 
tom lands  above  the  level  of  the  crests  of  the  proposed  dams, 
the  Board  decided  that  all  of  the  dams  should  be  movable  in 
character.  In  accordance  with  your  instructions,  plans  and 
estimates  were  prepared  of  dams  of  the  Chanoine-wicket 
type.  This  form  was  adopted,  not  because  it  was  necessarily 
tile  best  that  might  be  devised,  but  because  this  tyjie  has  given 
satisfactory  service  on  the  Ohio  and  Kanawha  Divers,  and 
because  the  estimates  prepared  on  this  basis  will  cover  the 
cost  of  any  other  desirable  type  in  case  later  experience  should 
prove  that  some  other  type  is  preferable. 

The  longest  wickets  now  in  use  are  less  than  16  feet  in 
length,  and,  as  it  is  doubtful  whether  wickets  longer  than  18 
feet  can  be  handled  conveniently,  the  latter  length  has  been 
adopted  as  the  maximum  in  the  preparation  of  the  plans  and 
estimates.  The  width  of  wicket  adopted  is  the  standard  width 
of  3 feet  9 inches,  with  3-inch  spaces  between  wickets.  No 


843 


provision  has  been  made  for  service  bridges  from  wbicb  to 
operate  the  dams,  as  the  experience  at  Davis  Island  Dam  and 
Dam  No.  6 on  the  Ohio  Eiver  has  demonstrated  that  the 
wickets  can  be  safely  and  rapidly  operated  from  boats  or 
scows. 

The  design  prepared  by  Mr.  F.  B.  Maltby,  United  States 
assistant  engineer,  for  the  proposed  dam  across  the  Mis- 

2511  sissippi  Kiver  at  Alton,  III.,  in  connection  with  the  exten- 
sion of  this  project  to  St.  Louis,  Mo.,  has  embodied  in  it 

the  best  American  practice  on  Chanoin e-wicket  dams,  and  his 
design  has  been  followed  on  this  work. 

On  the  Ohio  Kiver  dams,  which  are  now  under  construction, 
as  well  as  on  those  in  operation,  Chanoine-wickets  are  used 
to  close  the  channel,  and  bear-trap  dams  of  various  widths  are 
used  to  control  the  water  levels.  On  the  Kanawha  River, 
however,  the  water  levels  have  been  controlled  by  the  Chanoine- 
wickets  without  the  assistance  of  any  other  form  of  dam.  The 
designs  for  the  present  projects  follow  the  Kanawha  River 
practice  and  make  no  provision  for  any  other  type  than  Chan- 
oine-wickets. The  entire  width  of  the  river  is  closed  by  a con- 
tinuous line  of  Chanoine-wickets  without  any  intermediate 
piers. 

The  cross  section  of  the  river  was  platted  at  each  of  the 
seven  proposed  dam  sites,  and  from  these  cross  sections  were 
determined  the  thickness  of  the  concrete  base  and  the  length 
of  wicket  for  each  of  the  nine  proposed  dams  required  under 
the  different  14-foot  projects. 

The  main  portion  of  each  abutment  has  been  designed  with 
a top  width  of  5 feet  and  a bottom  width  equal  to  about  four- 
tenths  of  the  height.  The  upper  wing,  which  extends  into  the 
bank  at  right  angles  to  the  main  portion,  has  a top  width  of 
3 feet.  These  two  parts  of  each  abutment  are  built  up  to 

2512  the  same  level  as  the  lock  walls  at  the  oposite  end  of  the 
dam,  or  about  2 feet  above  high  water.  The  lovrer  wing 

swings  the  bank  at  an  angle  of  30  degrees  with  the  main  por- 
tion of  the  abutment  and  is  stepped  down  from  4 to  14  feet, 
according  to  the  height  of  the  abutment  and  the  level  in  the 
pool  below  the  dam. 

The  location,  principal  elevations,  and  dimensions  of  the 
dams  required  under  the  different  14-foot  projects  are  given  in 
the  following  table: 


844 


Cooley j — Direct  Exam. — Continued. 


2513  PRINCIPAL  ELEVATIONS  AND  DIMENSIONS  OF  DAMS  RE- 
QUIRED UNDER  14-FOOT  PROJECTS. 


No. 

of 

Miles 

from 

Upper 
level 
at  low- 
water 
crest 

High 

water. 

in 

1904 

or 

Lower 
level 
at  low 

Dam.  Location. 

Station. 

Grafton. 

of  dam. 

1892 

water. 

bl 

Jackson  street, 
Joliet. 

1523.0 

288.5 

545 

549.6 

535.0 

2 

Foot  of  Treats 
Island. 

1473.9 

279.2 

515 

514.0 

505.0 

3 

1^  miles  below 
Kankakee  river. 

1434.1 

271.6 

505 

510.0 

494.0 

4 

At  Marseilles. 

1306.0 

347.3 

491 

493.2 

485.0 

5 

Head  of  Bulls 
Island. 

1273.0 

241.1 

472 

476.0 

J 466.0 
( 464.0 

6 

Head  of  Buffalo 
Rock. 

1243.0 

235.5 

466 

472.4 

460.0 

7 

Lovers  Leap. 

1220.2 

229.9 

460 

469.4 

451.6 

a7 

Lovers  Leap. 

1220.2 

229.9 

464 

469.4 

451.6 

8 

Foot  of  Plum 
Island. 

1213.8 

231.1 

460 

468.6 

451.2 

a8 

Foot  of  Plum 
Island. 

1213.8 

231.1 

464 

468.6 

451.2 

a Not  printed. 

b Dam  No.  1 of  the  Economy  Light  and  Power  Co.,  Joliet,  111. 


2514  PRINCIPAL  ELEVATIONS  AND  DIMENSIONS  OF  DAMS  RE- 
QUIRED UNDER  14-FOOT  PROJECTS. 


(Concluded.) 


Eleva- 

Eleva- 

No. 

Head 

Lengt  h 

tion  of 

tion  of 

Length 

No. 

of 

at  low 

of 

bed 

top  of 

of  V 

dckets. 

of 

Dam. 

•water. 

Project. 

Dam. 

rock. 

sill. 

Ft. 

in. 

map, 

bl 

10.0 

0 

0 

57 

2 

10.0 

600 

498 

503.8 

12 

0 

56 

3 

11.0 

840 

483 

488.2 

18 

0 

55 

4 

6.0 

830 

478 

481.7 

10 

0 

52 

5 

6.0 

B and  D- ) 

1 

8.0 

A and  C- J 

' c750 

455 

460.8 

12 

0 

52 

6 

6.0 

500 

443 

449.2 

18 

0 

7 

8.4 

B 

800 

439 

447.2 

13 

9 

51 

a7 

12.4 

A 

800 

439 

447.2 

18 

0 

51 

8 

8.8 

D 

600 

438 

443.2 

18 

0 

51 

a8 

12.8 

C 

600 

438 

447.2 

18 

0 

51 

a Not  printed. 

1)  Dam  No.  1 of  the  Economy  Light  and  Power  Co.,  Joliet,  111. 
c Section  470  feet  long  over  north  channel,  and  section  280  feet  long 
over  south  channel.’’ 


845 


2516  Q.  By  the  way,  Mr.  Cooley,  you,  earlier  in  your  testimony 
this  morning,  spoke  of  high  stages  and  medium  stages  and 

low  stages  of  water,  and  you  referred  to  the  natural  reservoirs 
as  prolonging  certain  of  the  stages.  Which  of  the  stages  would 
it  prolong?  A.  The  medium  stages. 

Q.  What  effect  would  it  have  on  the  low  stages!  A.  Shorten 
their  duration. 

The  practice  of  Government  surveyors  with  reference  to  mark- 
ing meander  lines  on  a river,  in  platting  a standard  plat  of  two 
inches  to  the  mile  is  to  plat  the  river  bank  as  the  meander  line. 
It  is  the  high  water  bank  which  is  the  theoretical  meander  line. 
The  secondary  lines  run  by  the  surveyor  for  the  purpose  of  de- 
termining that,  are  not  platted  but  the  bank  itself,  which  is  the 
object  of  the  survey,  is  platted.  The  treatment  upon  a map  of 
this  size, — and  I refer  to  McCullough  Exhibit  1 — in  a stream 
that  is  meandered,  would  differ  from  the  treatment  of  a 

2517  stream  that  is  not  meandered,  in  the  making  of  the  plat  on 
this  scale.  In  this  way,  the  stream  that  is  not  meandered 

would  be  shown  in  the  conventional  way,  by  a couple  of  parallel 
lines  if  it  was  a large  stream,  or  by  a single  line  for  a smaller 
stream.  The  meandered  stream  would  show  the  courses, — the 
meanders  as  actually  run  by  the  surveyor  and  actually  determined 
by  the.  surveyor.  Directing  my  attention  now  to  Township  34, 
Range  8,  on  McCullough  Exhibit  1,  and  to  Township  34,  Range  9 
on  McCullough  Exhibit  1,  this  ditference  to  which  I have  referred 
is  indicated  in  the  treatment  of  the  two  streams.  The  Dupage 
River  as  shown  upon  that  map  is  not  a meandered  stream.  The 
Desplaines  and  Illinois  and  Kankakee  are.  A surveyor  familiar 
with  the  custom  and  practice  of  the  Government  surveyors  in- 
specting that  map  would  be  informed  as  to  what  stream  was 
meandered  and  what  stream  was  not  by  the  manner  in  which  the 
streams  are  delineated;  also  by  the  figures  of  acreage  given  for 
the  fractional  sections  along  the  meandered  stream.  The  sec- 

2518  tion  in  and  through  which  the  Dupage  River  runs  would 
show  full  quarter  sections  unless  they  were  to  the  north  or 

west  of  the  township,  whereas  on  the  Desplaines  River  or  the 
other  meandered  streams  they  would  show  fractional  quarter  sec- 
tions where  in  contact  with  the  stream.  He  would  see  parallel 


846  Cooley, — Direct  Exam, — Continued. 

lines  in  one  and  a lack  of  parallel  lines  in  tlie  other.  That  would 
be  evidence  at  once  that  one  stream  was  conventionally  platted 
and  the  other  was  platted  by  the  notes  determined  in  survey. 

2520  I have  seen  the  site  of  this  proposed  dam  of  defendant 
with  the  coffer-dam  and  other  works  that  they  have  erected 

near  the  mouth  of  the  Desplaines  Eiver.  The  site  of  this  dam  and 
that  cotfer-dam,  and  that  work  that  I have  seen  there,  is  in 

2521  Grundy  County,  Illinois. 

If  the  towpath  bank  is  raised  two  feet  or  more  above  its 
height,  and  the  dam  placed  across  the  Desplaines  Eiver,  in  ac- 
cordance with  the  plans  that  have  been  submitted,  and  at  such  a 
height  as  indicated  upon  the  plans,  and  the  dam  is  main- 

2522  tained  at  that  height,  the  etfect  will  be  to  depreciate  the 
value  of  the  bank,  and  in  the  course  of  time  it  will  be  de- 
stroyed. 

2523  The  maintenance  of  a level  of  water  against  the  outside 
of  the  bank  is  a radical  change  in  conditions  so  far  as  ef- 
fects the  stability  of  the  bank  and  the  etfect  will  be  to  disintegrate 
the  bank  eventually  until  it  disappears  or  is  greatly  reduced. 

That  would  be  the  inherent  and  necessary  effect  of  a situa- 

2524  tion  of  that  character.  I mean  to  say  that  it  is  not  humanly 
impossible  to  build  the  bank — I do  not  undertake  to  say  that 

it  is  humanly  possible  to  build  a bank  which  would  be  safe,  but 
that  the  present  bank  with  such  amendments  thereto  as  I have 
seen  indicated  on  the  ground  and  in  the  plans  would  be  subject 
to  criticism. 

The  bank  of  the  canal  above  the  proposed  site  or  above  the 
actual  site  which  is  being  developed,  was  in  process  of  change 
for  a couple  of  thousand  feet  or  more,  and  it  had  been  staked  out, 
I judge,  for  nearly  a mile  up  stream,  and  had  the  appearance  of 
being  a completed  work  for  about  1,000  feet  up  stream.  The 

2525  bank  was  being  raised,  I judge,  for  about  two  feet.  It  was 
widened  on  the  canal  side. 

Eip-rap  usually  designates  rocks  that  are  loosely  dumped  or 
])laced,  and  a similar  rip-rap  on  the  face  of  the  slope,  on  the  other 
slope  of  the  canal,  and  between  this  was  placed  earth,  that  I judged 
to  be  in  part  taken  from  the  excavation. 


847 


That  is  the  spoil  bank  of  the  excavation.  This  rip-rap  slope 
was  as  steep  as  the  rock  would  stand  at  the  dump,  and  the  filling 
in  between  seemed  to  be  placed  without  care  and  without  any 
reference  to  forming  a proper  bond  between  the  original  surface 
and  the  new  material,  and  was  not  in  accordance  with  what  T 
should  call  good  practice. 

2526  It  is  a saturated  bank,  or  it  would  become  a saturated 
bank,  which  requires — which  greatly  diminishes  the  stability 

of  the  earthen  material,  and  which  tends  to  degrade  it  to  a flatter 
slope.  A flatter  slope  is  required  for  stability,  and  at  the  wave 
line  or  the  line  of  fluctuation  between  high  and  low  water  there 
are  wave  forces  coming  from  a very  extended  pond  or  lake,  which 
are  a constant  source  of  degradation.  There  are  ice  floes  which 
sometimes  shove  a bank  of  that  kind  very  severely  in  the  forma- 
tion of  ice  in  a pool,  and  there  are  depredations  committed  by 
vermin  such  as  crawfish  and  muskrats  which  have  caused  the  fail- 
ure of  more  earthen  dams  in  northern  climates  and  more  levees 
in  southern  climates  than  all  other  causes  put  together. 

2527  Q.  You  spoke  in  your  testimony  yesterday  of  a deep  cut 
running  along  the  side  of  the  canal,  and  in  fact  18  feet  below 

it  and  the  consequent  percolation  depleting  the  river  and  changing 
the  lines.  Now,  with  this  pool  placed  underenath  the  bottom  of 
the  canal,  what  would  be  the  effect  on  the  canal?  A.  Taking  the 
view  of  it  that  we  did  when  we  planned  the  Sanitary  District  Canal, 
we  thought  it  desirable  to  put  the  canal  up  the  river,  as  far  away 
as  practicable,  and  so  we  shoved  it  over  clear  to  the  opposite 
side  of  the  valley, — 

Q.  How  far?  A.  But  the  nearest  point  is  between  two  and 
three  hundred  feet,  where  we  were  forced  by  necessity  to  bring 
it,  and  at  other  points  we  kept  it  at  a minimum  of  800  feet,  where 
we  had  the  space  to  do  so. 

Q.  That  was  to  avoid  what?  A.  That  percolation  and  any 
possible  saturation  of  ground  which  would  produce  a slip  towards 
the  work  which  we  were  executing,  and  to  insure  better  security. 

Q.  That  you  regarded  as  a necessary  measure  of  safety  in 
paralleling  the  waterways?  A.  We  thought  is  was  the  wisest 
precaution. 


848 


C ooley, — Direct  Exa  rn . — C o n tin  tied. 


2528  Is  it  practicable  to  take  the  canal  and  shove  it  over  at  this 
place  on  the  side  hill?  A.  It  is  not.  The  Dresden  Blntls 

are  80  to  100  feet,  I should  judge,  above  the  level. 

Q.  How  wide  an  earthen  bank  would  reasonable  precaution 
call  for  between  two  such  bodies  of  water  at  these  two  levels?  A. 
I would  not  like  to  make  a specification  without  pretty  carefully 
considering  the  soil  conditions,  from  Channahon  down  to  the  site 
of  the  dam.  I think  I would  approve  possibly  of  the  specification 
which  the  company  has  already  made  in  regard  to  the  short  piece 
of  dam  between  the  power  station  and  the  towpath  bank  with  the 
top  of  it  doubled  or  tripled  in  width,  provided  that  in  place  of 
flat  pavemients  as  they  have  put  in  there,  that  they  put  in  genuine 
pavements  such  as  is  used  on  the  dikes  of  the  Hudson  Eiver  on 
the  Erie  Canal,  15  to  20  inches  in  depth,  stood  on  edge  at  the 
chafing  line  of  the  waves,  and  the  ice.  That  specification  calls 
for  a front  slope  two  and  a half  feet  to  one  and  for  a back  slope  of 
three  and  four  to  one,  as  the  company  has  drawn  it  for  its  own  em- 
bankment. 

2529  I referred  to  a bank  that  is  mentioned  in  the  specification 
and  plans  of  the  company,  connecting  the  site  of  the  power 

station  with  the  towpath  and  175  feet  long,  of  which  a specification 
is  given  as  shown  on  the  plan.  That  is  down  at  the  point  of  the 
junction  of  the  dam  across  the  stream  with  the  towpath  where 
there  is  a peninsula  of  ground  some  400  feet  wide  between  the 
towi^ath  and  the  river. 

In  looking  over  the  plans  it  occurred  to  me  that  that  was  the 
judgment  of  the  engineer  who  made  those  plans,  as  to  what  kind 
of  a bank  should  be  built. 

If  it  was  proposed  to  double  the  width  on  top  as  there  given 
with  the  same  slope  and  the  same  treatment  as  called  for  by  this 
specification,  I do  not  at  the  moment  think  that  bank  could  be  com- 
pleted on  the  present  right  of  way  of  the  canal  without  shifting 
the  canal  over  on  to  the  bluffs. 

2530  Q.  And  that,  you  say,  is  not  practicable? 

Counsel  fok  Defendant.  I object — oh,  he  said  he  could 
not  shift  it  over. 

A.  To  a limited  extent  only  on  account  of  the  height  of  the 


849 


bluff.  You  may  shift  it  for  perhaps  10  or  15  feet  without  en- 
countering great  difficulty. 

I know  what  the  character  of  a wicket  dam  is.  They  are  a part 
of  the  standard  practice  in  the  development  of  rivers  in  this  coun- 
try and  in  Europe  where  it  is  desired.  They  are  in  use  in  this 
country  upon  navigable  streams,  for  the  purpose  of  giving  in  low 
water  periods  the  depth  for  navigation  which  prevails  at  medium 
and  high  water  stages. 

The  nature  and  operation  of  such  a dam  is — a river  may  have, 
we  will  say,  seven  feet  of  water  in  it  for  three  to  five  months  of 
the  open  season  and  be  navigable  as  an  open  river  during  that 
period  and  to  that  depth,  but  a much  less  depth  of  water  in  the 
dry  season.  The  object  of  these  dams  is  to  produce  a slack  water 
navigation  during  the  dry  season  by  which  this  depth  of  7 

2531  feet  can  be  kept  open  the  year  around.  And  when  the  water 
in  the  stream  is  sufficient  to  produce  7 feet  wfithout  the  dam, 

why,  the  dam  is  dropped  down  upon  the  river  bed  and  the  river 
is  handled  as  an  open  river.  In  other  words,  it  is  an  open  river 
proposition  when  there  is  enough  water  in  the  river,  and  slack 
water  or  lock  and  dam  propositions  when  the  water  is  low. 

A Chanoine-wicket  is  one  of  the  types — there  are  other  types 
of  the  movable  dam.  They  have  been  in  use  in  this  country  from 
a very  early  date.  The  whole  system  originated  with  the  so- 
called  bear-trap  dam  in  the  Lehigh  navigation,  and  it  was  taken 
to  France  and  forgotten  and  again  brought  back  to  this  country 
within  the  last  forty  years.  The  improvement  of  the  Desplaines 
Eiver  in  the  last  project  is  an  open  river  for  14-foot  navigation 
whenever  there  is  that  volume  of  water  in  the  river  and  a closed 
or  slack  water  whenever  the  stage  of  water  is  insufficient  to  pro- 
duce 14  feet. 

2532  Thereupon  counsel  for  complainant  offered  and  read  in 
evidence  the  deposition  of  George  W.  Eaymond,  a witness 

for  complainant. 

(For  rulings  on  same  see  Abstract  of  Depositions  supra,  p. 
433.) 

Thereupon  counsel  for  complainant  offered  and  read  in  evidence 
the  deposition  of  Henry  E.  Pohl,  a witness  for  complainant. 


850 


(For  rulings  on  same  see  Abstract  of  Depositions  supra,  p. 
444.) 

Thereupon  counsel  for  complainant  offered  and  read  in  evidence 
the  deposition  of  James  E.  Flanders,  at  witness  for  complainant. 

(For  rulings  on  same  see  Abstract  of  Depositions  supra;  p. 
429.) 

Thereupon  counsel  for  complainant  offered  and  read  in  evidence 
the  deposition  of  Joseph  Countryman,  a witness  for  complain- 
ant. 

(For  rulings  on  same  see  Abstract  of  Depositions  supra,  p. 
476.) 

Thereupon  counsel  for  complainant  offered  and  read  in  evi- 
dence the  deposition  of  Arthur  C.  Clement,  a witness  for  com- 
plainant. 

(For  rulings  on  same  see  Abstract  of  Depositions  supra,  p. 
391.) 

Harold  T.  Griswold^ 

a witness  for  complainant,  testified  as  follows : 

Direct  Examination. 

2533  My  name  is  Harold  T.  Griswold.  I live  at  Evanston,  Illi- 
nois. I am  thirty  years  of  age.  I have  lived  at  Evanston 

2534  twelve  years.  I lived  prior  to  that  in  Chicago.  Illinois  is  my 
native  state.  I have  lived  here  all  my  life.  I am  in  the  whole- 
sale lumber  business.  I have  been  so  engaged  for  the  past  four 
months,  and  prior  to  that  I was  with  the  National  Bending  Ma- 
chine Company  for  four  years.  And  prior  to  that  I was  with  Gris- 
wold, Browning  & Company,  wholesale  cloaks.  I do  not  know 
]\[r.  W.  L.  Sackett,  one  of  the  Canal  Commissioners  of  Illinois; 
did  not  ever  see  him  that  I know  of.  I do  not  know  Mr.  Snively, 
who  is  another  of  the  Canal  Commissioners;  I have  not  ever  seen 
him  that  I know  of.  I do  not  know  Mr.  Newton,  one  of  the 
Canal  Commissioners  of  Illinois.  I did  not  ever  see  him  that  I 

know  of. 

2535  As  to  the  contracts  with  the  Canal  Commissioners  of  Illi- 
nois along  about  September  2,  1904,  I am  the  party  that 


851 


signed  those  contracts.  I did  not  personally  make  any  negotiations 
for  them.  Those  Commissioners,  or  either  of  them,  were  not 
present  at  the  time  I signed  these  several  contracts.  I signed 
them  in  Mr.  Munroe’s  office  in  the  Rookery  building. 

2536  I did  sign  some  papers,  however,  in  Mr.  Scott’s  office  per- 
taining to  these  matters,  these  contracts.  They  were  deeds 

running  to  the  Economy  Light  & Power  Company.  That  was  in 
1906. 

As  to  the  contracts  I made  with  the  Canal  Commissioners,  after 
executing  them,  I had  nothing  further  to  do  with  them.  I under- 
stand the  contracts  were  made  in  my  name  and  that  I signed 
them. 

2537  I suppose  those  contracts  stand  in  the  name  of  the  Econ- 
omy Light  & Power  Company.  Possibly  I assigned  them  to 

them;  my  memory  is  not  clear  on  that.  It  is  the  fact  that  when- 
ever papers  were  presented  to  me  by  Mr.  Munroe  to  be  signed 
I signed  them.  I read  them  over  at  the  time.  I had  some  un- 
derstanding at  least  of  what  the  subject  matter  was.  I don’t  re- 
member that  the  several  contracts  made  in  my  name  with  the  Canal 
Commissioners  were  by  me  assigned  to  the  Economy  Light  & Power 
Company,  or  to  Mr.  Munroe.  I cannot  tell  whether  I assigned 
them  in  blank,  or  whether  I assigned  them  to  some  com- 

2538  pany  or  individual.  I did  not  make  any  investment  myself 
in  those  contracts.  I paid  nothing.  I did  not  have,  in  fact, 

any  interest  in  them,  financial  interest,  I mean.  I consented  to 
the  taking  of  these  contracts  in  my  name  at  the  request  of  Mr. 
F.  Gr.  Logan.  That  is  the  same  Mr.  Logan  who  sits  here  in  Court 
now.  He  is  a relative  of  Mr.  Munroe— father-in-law.  He  resided 
in  the  City  of  Chicago  at  the  time  these  contracts  were  signed. 
I believe  he  lives  in  Joliet  at  present. 

Q.  Mr.  Griswold,  are  you,  or  have  you  been,  at  any  time  within 
the  last  five  or  ten  years,  financially  able  to  carry  out  a contract 
that  would  involve  the  expenditure  on  your  part  of  $100,000.00? 

Counsel  for  Defendant.  That  is  objected  to  as  immaterial. 
Counsel  for  Complainant.  I insist  upon  it  as  being  material. 
The  Court.  He  may  answer. 

The  MTtness.  Not  alone,  no,  sir. 


852 


G i isw old, — B irect  E xan i . — Con t inued. 


Counsel  for  Complainant.  Without  desiring  in  the  remot- 
est degree  to  pry  into  your  private  affairs  unnecessarily,  I 

2539  will  ask  if  you  have  been  financially  able  at  any  time  during 
the  past  five  or  ten  years  to  carry  out  a contract  that  would 

involve  the  expenditure  of  $50,000.00  on  your  part! 

A.  Yes,  sir. 

Q.  Have  you  been  able  to  do  that!  A.  Yes,  sir. 

Q.  Have  you  been  able  on  your  own  accord,  within  the  last 
five  or  ten  years,  to  carry  out  a contract  that  would  involve 
a $75,000.00  expenditure!  A.  Hardly. 

Q.  At  the  time,  however,  the  contracts  were  made  with  the  Canal 
Commissioners,  you  had  no  purpose  or  thought  or  design  of  carry- 
ing out  in  your  own  name  and  for  yourself  the  provisions  of  the 
contract! 

Counsel  for  Defendant.  I object  to  that  as  immaterial.  The 
contract  is  binding  on  the  party. 

The  Court.  He  may  answer. 

The  Witness.  I did  not. 

In  addition  to  contracts  with  the  Canal  Commissioners  I did 
execute  other  papers  in  my  name  and  did  take  the  title  to  real 
estate,  at  the  instance  and  request  of  Mr.  Logan  and  Mr.  Munroe. 
These  lands  were  situated  near  the  Desplaines  Eiver  and 

2540  near  the  site  of  the  proposed  dam  of  the  defendant  company. 
I did  not  ever  see  these  lands — ^do  not  know  what  was  agreed 

to  be  paid  for  them.  I did  not  pay  anything  for  them.  I conveyed 
the  title  after  it  was  given  to  me  to  somebody  else. 

Q.  In  fact,  then  you  have,  if  I understand  you  rightly,  Mr. 
Griswold,  allowed  the  use  of  your  name  to  take  title  to  a lot  of  land 
along  the  Desplaines  River  and  near  to  the  site  of  the  Economy 
Light  & Power  Company,  and  to  take  contracts  in  your  name  with 
the  Canal  Commissioners  at  the  instance  and  request  of  Mr.  Logan 
and  Mr.  Munroe,  without  any  personal  interest  in  them,  in  any  man- 
ner whatever!  A.  Yes,  sir. 

Q.  And  without  any  purpose  on  your  part  to  carry  out  the  pro- 
visions of  any  of  these  contracts!  A.  Yes,  sir. 

Q.  In  the  conveyance  of  these  lands  that  were  taken  in  your 


853 


name,  did  you  convey  by  quitclaim  or -warranty  deed,  if  you  know? 
A.  Quitclaim  deed,  I believe. 

Q.  You  understand  they  were  by  quitclaim  deeds?  x\.  AYs. 
sir. 

Q.  If  they  should  turn  out  to  be  warranty  deeds,  then  you 

2541  are  mistaken  in  that?  A.  Yes,  sir. 

Q.  That  is  all,  your  Honor. 

Cross-Examination. 

Mr.  Munroe  was  not  a relative  of  Mr.  Logan’s  at  the  time  I took 
those  titles,  and  did  not  become  so  until  the  last  few  months  when 
he  married  Mr.  Logan’s  daughter.  I knew  Mr.  Logan  to  be  finan- 
cially responsible  at  the  time  I acceded  to  his  request  to  take 
these  titles  and  contracts.  I felt  entirely  safe  in  assuming  such 
obligations  as  he  requested  me  to.  The  conveyance  to  the  Econ- 
omy Light  & Power  Company  was  made  in  Mr.  Scott’s  office 

2542  in  1906.  I did  not  meet  Mr.  Scott  on  that  occasion,  or  in  that 
connection.  It  was  all  done  with  Mr.  Lord  and  Mr.  Munroe, 

That  was  November,  1906,  I believe,  and  that  was  the  time  the 
enterprise  or  properties  were  taken  over  by  the  Economy  Light 
& Power  Company,  as  I understand  it.  I understood  that  Mr. 
Logan  was  to  carry  the  deal  through. 

Re-direct  Examination. 

Q.  Just  a moment.  Who  told  you  that?  A.  I understood 
it  from  the  fact  that  Mr.  Logan  had  asked  me  in  the  first  place 
to  act  as  trustee  for  the  property. 

Q.  The  fact  that  he  requested  you  to  act  as  trustee  or 

2543  take  the  deed  in  your  name  is  what  makes  you  think  that  he 
intended  to  carry  them  out?  A.  That  he  was  responsible 

for  it,  yes,  sir. 

Thereupon  counsel  for  complainant  offered  and  read  in  evidence 
the  deposition  of  Clarence  H.  Palmer,  a witness  for  complainant. 

(For  rulings  on  same  see  Abstract  of  Depositions,  supra, p. 316.) 
Thereupon  counsel  for  complainant  offered  and  read  in  evidence 
the  deposition  of  John  M.  Sweeney,  a witness  for  complainant. 
(For  rulings  on  same  see  Abstract  of  Depositions,  5?^pm,p.320.) 


854 


2544  Hon.  S.  R.  Van  Sant, 

a witness  for  complainant,  testified  as  follows : 

Direct  Examination. 

My  name  is  S.  R.  Van  Sant;  I live  at  Minneapolis,  Minnesota. 
That  has  been  my  home  about  two  years ; have  lived  in  Minnesota 
25  years.  I was  Governor  of  Minnesota  at  one  time.  I was  first 
elected  in  1900  and  served  in  1901  to  1905,  the  second  time. 

My  home  before  I went  to  Minnesota  was  Davenport,  Iowa, 
and  Rock  Island,  Illinois.  I am  in  the  transportation  business, 
principally  on  the  Mississippi  River.  I have  been  in  business 
connected  with  the  navigation  of  the  Mississippi  River,  actively  and 
as  an  owner  of  steamboats  since  1870.  Before  that  I was 

2545  employed  in  a boat  yard,  building  and  repairing  steamboats, 
and  as  a caulker  on  steamboats,  at  LeClaire,  Iowa.  It  was 

formerly  at  Rock  Island,  Illinois,  and  was  moved  from  Rock  Island 
to  LeClaire. 

My  father  was  in  the  business  of  manufacturing  and  repairing 
steamboats  there  for  many,  many  years. 

I have  been  licensed  as  a pilot  and  master  upon  the  Mississippi 
River  by  the  Federal  Government.  My  first  trips  on  the  river  were 
in  1857,  when  quite  a small  boy.  I have  been  engaged  contin- 
uously in  the  business  of  piloting,  handling  and  operating  steam- 
boats upon  the  Mississippi  River,  or  in  the  business  of  manu- 
facturing and  repairing  steamboats  continuously  from  that  time 
up  until  the  present.  I was  in  the  Civil  War,  of  course,  but  I 
worked  in  the  boat  yard  as  a boy  with  my  father.  Of  course,  I dis- 
continued working  while  I was  in  the  army.  Barring  the  time 
I was  in  the  Civil  War,  1861  to  1865,  my  life  has  been  connect- 

2546  ed  with  navigation  upon  the  Mississippi  River  continuously 
from  1857. 

I am  connected  with  a navigation  company  at  this  time,  the  Van 
Sant  Navigation  Company,  and  with  the  Carnival  City  Packet  Com- 
pany. Those  companies  own  and  operate  ten  steamboats  on  the 
Mississippi  River  at  this  time.  In  the  course  of  my  life  on  t}ie 
river  my  companies  have  owned,  I should  say,  thirty  to  forty 
boats. 


I have  made  the  trip  on  the  Mississippi  River,  the  Upper  Mis- 
sissippi, in  the  course  of  by  business  and  duties  which  I have  de- 
scribed,— well  that  would  be  hard  to  tell  exactly, — I suppose  at 
least  five  hundred  or  a thousand  trips.  These  steamboats  on  the 
Mississippi  River  make  a dozen  or  more  trips  a season;  quite  fre- 
quently as  many  as  twenty  trips  a season,  25  in  some  cases. 

2547  The  trip  would  usually  commence  at  LaCrosse,  the  rafting 
works.  West  Newton  and  the  mouth  of  the  Chippewa,  Reeds 

Landing  and  Stillwater  and  Prescott.  These  boats  that  I am  speak- 
ing of  are  tow  boats,  and  they  would  go  to  all  points  on  the  river 
above  St.  Louis  and  to  St.  Louis  occasionally.  Those  were  Min- 
nesota and  Wisconsin  points  where  we  got  our  tows.  The  boats 
I was  operating  upon  as  pilot  and  master  were  engaged  in  the 
carrying  of  freight  and  passengers  upon  the  river,  in  some  in- 
stances, but  not  very  much.  They  were  mostly  towboats,  but  we 
have  carried  excursions  with  them,  and  carried  freight  in 

2548  some  instanecs.  But  the  principal  business  of  the  boats  I 
personally  operated  on  was  towing,  of  course,  and  bringing 

lumber  down  the  river  to  the  points  mentioned. 

The  boats  that  belonged  to  the  companies  with  which  I am  con- 
nected were  engaged  in  the  business  of  transporting  freight  and 
passengers,  and  are. 

In  the  early  days  they  did  not  tow  rafts  by  means  of  steam- 
boats, they  floated  them  with  sweeps,  with  men  on  the  cars.  Sweeps 
are  large  paddles  with  an  oar  stem,  a long  stick  you  might  call  it, 
a stick  of  timber  with  an  oar  placed  on,  and  they  are  hung  on  a 
pivot  on  the  bow  and  stern  of  the  raft,  and  the  rafts  are  steered 
with  these  sweeps  or  oars.  To  operate  those  sweeps  would  re- 
quire the  etforts  of  twenty-five  men,  12  or  14  at  each  end.  It  main- 
ly depends  upon  the  size  of  the  raft.  They  were  used  principally  in 
steering.  These  lumber  rafts  were  largely  put  up  in  what 

2549  we  call  cribs,  tiered  one  course  above  the  other,  usually  ten 
feet  wide  and  thirty- two  feet  long.  These  were  put  in  the 

rafts.  Courses  of  plank,  timber  or.  boats, — suppose  you  had  a raft 
of  ten  courses,  that  would  mean  ten  inches.  Each  course  was 
called  an  inch.  Twelve  courses  would  be  twelve  inches  deep.  Six 
one  inch — the  boats  would  be  equal  to  six  inches  of  timber.  Six 
inches  of  timber  would  be  called  six  inches  deep.  And  to  make 


856 


Fan  Sant, — Direct  Exam. — Continued. 


a 12-course  raft  then,  if  it  was  made  of  two-inch  plank  it  would  be 
only  six  layers  of  plank,  hut  it  would  be  called  a 12-course  raft. 

The  business  of  towing  rafts  by  means  of  steamboats  first  came 
in  on  the  Missisippi  River  about  1866  to  1867.  It  came  about — I 
don’t  know,  because  during  the  Civil  War  when  men  were  so  scarce, 
for  they  were  in  the  army,  they  got  a small  class  of  boats  and  used 
the  men  only  on  the  stern.  They  did  not  keep  the  men  on  the 
bow.  I did  in  our  boat  yard  manufacture  boats  for  that  ser- 

2550  vice  and  install  them  in  service  in  the  ’60s, — in  1869. 

The  first  boat  that  I remember  was  a boat  called  the  James 
Lyon.  That  was  in  1857.  Well,  as  I remember,  she  was  a boat  160 
to  170  feet  long,  and  with  a 32  or  36-foot  beam.  Her  draft  line 
would  be  about  26  to  30  inches.  When  I was  on  her  she  was  en- 
gaged in  taking  corn  in  sacks  from  Fulton,  a point  on  that  river 
reached  by  rail  to  Minneapolis  and  St.  Paul.  That  was  the  cus- 
tomary form  of  traffic  on  the  river  at  that  time. 

From  Rock  Island,  where  the  boat  yard  was,  up  to  the  Minne- 
sota points  I have  named,  during  the  winter  months  we  stopped 
navigation  about  the  I5th  of  November  and  commenced  again 

2551  about  the  1st  of  April.  Then  in  certain  seasons  when  the 
water  was  low,  boats  of  heavy  draft  could  not  run.  It  would 

be  perhaps  two  months,  quite  frequently,  that  navigation  would  be 
suspended.  I am  speaking  of  before  the  river  was  improved.  It 
would  be  two  or  three  months.  It  depends  on  the  stage  of  the 
river.  In  some  seasons  it  would  be  more,  and  in  some  less. 

December,  January,  February,  March,— and  one-half  of  Novem- 
ber, that  is  four  and  a half  months  that  they  would  go  out  for 
the  winter,  and  two  months  for  low  water  in  the  summer,  that  would 
be  six  and  a half  months  that  there  would  be  no  navigation  and 
five  and  a half  when  there  would  be  navigation,  when  the  low 
water  interruption  would  be  two  months.  The  winter  months  we 
couldn’t  run  at  all,  and  quite  frequently  in  those  years  during 
the  season  of  low  water  it  was  impossible  to  navigate  on  account 
of  bars  and  rapids  and  other  obstructions  when  the  water  was 
low.  The  period,  then,  of  actual  navigation,  taking  the  years  as 
they  run  on  an  average,  would  be  five  or  six,  and  in  some  cases 
seven  months,  not  to  exceed  that. 

2552  The  season  of  low  water  when  the  larger  boats  could  not 
make  the  through  trip,  I would  say,  would  be  a couple  of 


months,  it  depends.  Some  seasons  we  would  have  a rainy,  wet 
season,  and  they  would  run  more.  It  is  a question  of  the  draft  of 
the  boats  and  the  stage  of  water  in  the  river.  It  is  wholly  gov- 
erned by  that.  It  may  be  more  and  may  be  less.  I have  seen 
it  more.  In  1864  we  couldn’t  run  at  all.  That  was  known  as  the 
‘‘Low  Water  Season.”  Navigation  was  practically  suspended  ex- 
cept for  very  light  draft  rafts  and  light  draft  crafts,  practically  the 
whole  season. 

2553  The  little  boats  could  run  from  intermediate  points,  but 
what  we  called  the  big  boats  were  through  boats  from  St. 

Louis  to  St.  Paul.  And,  let  me  state,  too,  if  I may  be  permitted 
to  do  so:  that  at  certain  parts  of  the  river  the  water  would  be 
lower  than  at  others.  That  is,  there  wmuld  be  more  obstruction. 
For  instance,  the  upper  river  would  be  low  and  some  of  the  big 
boats  would  go  up  to  certain  points,  and  the  little  boats  would 
then  take  their  passengers  and  freight  on  above.  That  was  quite 
a common  occurrence. 

Quite  frequently  the  boats  would  go  to  Hastings,  Minnesota. 
The  river  from  Hastings  up  was  a very  bad  piece  of  river.  The 
water  was  low  and  the  big  boats  could  not  go  all  the  way  and 
they  would  connect  with  the  smaller  boats,  and  still  that  would 
make  the  through  trip.  They  would  take  passengers  and  freight 
up  to  St.  Paul  and  then  bring  passengers  and  freight  back  to  St, 
Louis.  Hastings  from  St.  Paul  is  thirty  miles;  LaCrosse  from 
St.  Louis,  is — well,  I can’t  tell  exactly, — I think  about  600 
miles. 

2554  We  had  a boat  in  that  business  taking  a transshipment 
from  a large  boat  at  Hastings  and  carrying  it  to  St.  Paul. 

It  was  called  the  “Cheever.”  It  was  a light  boat,  built  purposely 
for  low  water  navigation,  very  wide  and  with  light  power,  in  or- 
der to  make  her  light  draft.  The  draft  of  the  “Cheever”  was, 
oh,  I should  judge  not  to  exceed  16  to  18  inches,  empty. 

A sternwheel  boat,  about  which  there  was  some  discussion  a 
moment  ago, — always  draws  more  at  the  stern  than  the  bow,  for 
the  reason  that  the  stern  is  built  out  beyond  the  bearing-up  capacity 
of  the  hull.  That  makes  it  heavier  at  the  stern  and  light  at  the 
bow,  and  frequently  we  would  put  20  or  30  tons  on  the  boat,  and  she 
would  draw  no  more  than  when  empty.  That  was  true  of  the 


858 


17/;?  Sant, — Direct  Exam. — 'Continued. 


''Cheever.’’  She  would  carry  her  fuel  and  passengers  and  likely 
a few  tons  of  freight,  on  18  inches  of  water.  That  was  a 

2555  sternwheel  boat,  and  the  bottom  was  flat.  Her  draft  at 
the  bow  was  less  than  at  the  stern. 

The  ‘‘Phil  Sheckel,’’  that  used  to  be  on  the  upper  river,  I re- 
member her  very  well.  8he  “Phil  SheckeP’  was  110  feet  long  with 
a 26  foot  beam.  Her  draft  wasnT  over  14  or  15  inches  of  water, 
a sternwheeler.  That  boat  was  built  to  run  up  the  Chippewa  Eiver. 
That  was  a very  scanty  stream  of  water.  The  water  was  very 
scanty,  and  she  was  built  in  connection  with  a lumber  com- 
pany to  run  up  to  LeClaire,  and  up  to  points  on  the  Chippewa 
River  to  carry  up  men  who  floated  the  rafts  down  and  the  freight, 
kitchen,  and  so  forth,  and  the  men  lived  on  the  boat,  and  when 
they  brought  the  raft  down  she  took  them  back.  They  find  14 
inches  of  water  on  the  Chippewa,  at  certain  stages  of  the  year. 
Sometimes  it  would  get  so  low  that  that  boat  could  not  run,  because 
the  river  would  pretty  near  go  dry.  But  when  there  was  a great 
rise  on  the  river,  sometimes  five  hundred  million  feet  of  lum- 

2556  ber  would  come  down  that  river  in  a year.  They  would  some- 
times have  to  wait  with  their  lumber  until  a freshet  or  the 

rain  came,  and  then  they  would  go  down  to  the  Mississipi.  I 
would  just  say  I am  familiar  with  this  boat  and  I give  the  details 
because  I afterwards  owned  her.  We  used  her  for  several  years 
on  the  Mississippi.  In  the  towing  of  these  rafts  we  used  her  as 
what  you  would  call  a bowboat.  A bowboat  is  put  right  across 
the  bow  of  the  raft,  and  she  steers  or  directs  the  bow  of  the  raft, 
and  now  instead  of  taking  one  raft  we  take  two  down  the  river, 
and  this  boat  was  used  for  that  purpose.  The  big  boat  was 
behind  and  was  the  propelling  power,  but  this  bowboat  was  the 
steering  boat  and  kept  the  raft  off  of  islands  and  obstructions. 
It  pointed  the  course.  We  used  the  “Sheckel”  on  the  Mississippi 
River  about  four  or  five  years.  We  sold  her  and  she  is  now  at 
Miami,  Florida,  engaged  in  the  building  of  the  railroad  from 
Miami  to  the  Keys.  She  went  there  with  her  own  power.  Slie 

2557  crossed  the  Gulf  and  went  there  in  safety, — down  the  Missis- 
sippi and  into  the  Gulf,  and  1,200  miles  out  into  the  ocean,  the 

bay. 

I remember  a boat  called  the  “Jeannette  RobarJ^  and  I think 


859 


there  was  a boat — I know  more  about  the  ‘^Jeannette  Robar,’’  my 
father  built  her.  It  was  a very  light  draft  boat.  She  was  built 
to  run  up  the  Minnesota  River  in  her  early  days.  She  was  about 
150  feet  long  and  30  feet  beam.  Her  draft  was  18  to  20  inches; 
she  was  a very  light  draft  boat.  That  boat  was  engaged  in  the 
transportation  of  freight  on  the  Minnesota. 

The  condition  of  water  on  the  Minnesota  River  differed,  but 
it  was  very  desirable  in  those  days  to  have  light  draft  boats 
that  would  navigate  as  long  as  they  possibly  could.  This  boat  was 
built  especially  for  that  trade. 

It  was  customary  in  the  boat  yards  in  the  Mississippi  in  the 
periods  when  I was  maintaining  a boat  yard,  to  build  boats  that 
were  especially  adapted  for  these  shallow  tributaries.  They 

2558  did  carry  on  successful  commerce  on  them. 

The  ^‘Des  Moines  Valley’’  I think  was  built  at  Rock  Island. 

I remember  of  seeing  the  boat  and  know  of  her.  She  was  on  the 
Des  Moines  River  in  the  early  days.  I am  not  veiy  well  acquainted 
with  the  Des  Moines  River. 

I remember  the  Black  Hawk”  very  well.  My  father  built  the 
first  Black  Hawk.”  She  was  a little  boat  built  purposely  to  run 
up  the  Rock  River,  a light  draft  and  small  craft  to  run  up  the  Rock 
River.  She  was  100  feet  long,  breadth  twenty-two  feet,  draft  about 
sixteen  inches,  a very  light  boat.  There  used  to  be  draw-bridges 
on  Rock  River  at  that  time.  I should  think  she  would  carry  40 
or  50  tons.  She  was  a small  boat. 

2559  I remember  the  ‘‘Enterprise”  very  well.  She  operated  at 
one  time.  She  was  first  operated  on  the  Mississippi  River 

below  St.  Paul,  but  she  was  afterwards  taken  around  the  Falls 
by  land  and  operated  above  Minneapolis.  They  took  her  around  on 
wheels,  skids,  blocks  and  tackle.  They  had  to  go  seven  miles  by 
land  with  her.  I mean,  she  navigated  on  the  Mississippi  above 
the  Falls  of  St.  Anthony.  She  was  a very  light  draft  boat.  I don’t 
remember  her  exact  size,  but  I remember  her  as  a very  light  draft 
boat,  in  the  same  class  of  boats  as  the  “Cheever,”  if  not  lighter. 

There  used  to  be  a type  of  craft  used  on  the  Mississippi  called  ' 
‘ ‘ wood  boats.  ’ ’ Those  wood  boats  were  flat-bottom  boats  with  scow 
bows,  made  very  light  to  go  up  the  creeks  and  rivers  and  get 


860 


Van  Sant, — Direct  Exam, — Continued. 


wood  and  bring  it  out  into  the  Mississippi,  and  propelled  with 
poles.  They  are  in  use  some  yet. 

2560  I remember  a boat  called  the  ‘‘Silas  AYright,”  very  well. 
That  boat  was  used  on  the  Chippewa.  The  “Silas  WrighC^ 

was  built  to  operate  on  the  Chippewa  River,  but  they  found  that  she 
was  too  heavy  draft  and  so  they  built  two  hulls,  put  one  on  each 
side  of  her  and  rigidly  fastened  them  to  the  boat  to  bring  her  up, 
and  she  successfully  navigated  the  river  there  for  years;  at  a 
depth  of  12  or  14  or  16  inches  of  water,  although  she  was  originally 
built  for  a draft  of  18  or  20  inches  of  water. 

I remember  the  “Lady  Van  Sant.’’  She  is  a light  draft 

2561  boat,  105  feet  long  and  24  feet  wide;  draft  I would  say  20 
inches.  She  was  what  you  would  call  a bowboat. 

I remember  the  “Harriet.”  Her  draft  was  not  over  18  inches. 
She  was  in  the  same  business,  only  she  was  two  feet  wider  than 
the  other  boat;  and  was  used  on  the  Mississippi  and  these  Other 
tributaries  where  the  rafts  come  from. 

The  “Keokuk,”  we  just  built  her  last  year.  She  made  her  first 
trip  this  spring.  That  boat  is  140  feet  long  and  has  a 30-foot  beam. 
She  draws,  trimmed  up,  I would  say  26  inches.  I mean  by  trimmed 
up,  carrying  20  tons.  She  would  carry  20  tons  on  that  depth. 

2562  As  to  the  currents,  the  varying  currents  were,  which  I en- 
countered on  the  Mississippi  River, — well,  there  are  places 

where  it  it  much  swifter  than  others.  The  Moline  chain  is  on  the 
Upper  Rapids.  We  have  very  swift  water  on  the  Lower  Rapids; 
but  the  swiftest  water  I know  of  is  on  the  Moline  Chain. 

C ro  ss-E  xa  mina  ti  o n . 

As  to  being  able  to  say  what  the  velocity  of  these  currents  are, 
or  of  these  rapids,  without  having  measured  them,  I think  I 

2563  would  be  a moderately  fair  judge.  I have  navigated  them 
and  navigated  them  with  others,  and  lived  practically  in  the 

engineer’s  office. 

I never  measured  the  current  at  anj^  point.  I am  able  to  esti- 
mate the  rapidity  of  the  current  by  comparing  it  with  other  points. 
I stated  the  swiftest  place  on  the  river;  I can  judge  that,  can’t 
I.  As  to  how  many  miles  per  hour  water  runs  at  any  particular 
place, — that  would  be  more  sometimes  than  at  others.  It  would 


861 


be  more  when  the  water  is  highest.  There  would  be  a greater  vol- 
ume to  come  down  through  the  chain. 

The  Court.  The  point  is,  how  can  you  determine,  Governor, 
unless  you  were  an  engineer  and  measured  those  things,  what  the 
actual  velocity  is! 

A.  I cannot  accurately.  I said  I cannot. 

Q.  Even  fairly  accurately!  A.  I could  only  judge  by  what 
our  boats — the  usual  time  they  would  make  up  stream,  and  the 
time  they  make  going  up  stream  in  this  swift  current.  I can  esti- 
mate in  that  way  how  much,  perhaps,  it  is  swifter  than  at  other 
points  on  the  river. 

2564  Counsel  for  Complainant.  I think  if  we  have  the  ‘ 
geography,  if  a man  knows  the  number  of  miles  he  is  going  to 

make  and  knows  the  number  of  hours  it  takes  to  make  the  trip,  and 
then  compares  the  velocities  that  he  encounters  on  his  way,  those 
that  are  swifter  and  those  that  are  slower,  he  would  have  a stand- 
ard by  which,  from  long  use,  he  could  form  a judgment. 

The  Court.  I donT  think,  for  the  purposes  of  a case  like  this, 
that  that  would  be  proper. 

Van  Sant, — Direct  Exam. — Continued. 

There  has  considerable  work  gone  on  in  improving  the  Moline 
Chain.  That  work  was  instituted  and  carried  on  by  the  Govern- 
ment. I would  just  state  now  that  they  have  built  a canal  so  that 
we  avoid  going  up  stream  through  this  swift  water. 

With  the  work  of  making  some  of  these  improvements, — our 
boats  were  engaged  with  the  contractors,  chartered  to  them,  and 
were  on  that  work  almost  constantly.  The  Governments  engineer’s- 
office  by  which  that  work  was  carried  on  was  at  Eock  Island ; 

2565  our  office  at  that  time  was  at  LeClaire,  just  at  the  head  of  the 
Eapids,  and  this  was  the  foot  of  the  Eapids.  The  Eapids 

were  about  eighteen  miles  long,  and  we  had  a boatyard  there  at  one 
end,  and  the  Government  office  at  the  other.  I was  very  familiar 
with  it  because  we  built  their  boats,  their  chisel-boats,  built  their 
dredge-boats,  and  chartered  them  steamboats,  and  was  in  constant 
communication  with  them. 

Q.  State  whether  or  not  in  the  requirements  as  communicated 
to  you  by  Government  engineers  for  the  purpose  of  getting  boats 


862 


Vcni  Sant, — Direct  Exam. — Contimied. 


that  would  perforin  this  work,  the  velocities  were  stated  to  you  by 
the  Government  engineers. 

Counsel  for  Defendant.  That  is  objected  to. 

The  Court.  Sustained. 

The  Witness.  Before  these  improvements  were  made,  naviga- 
tion was  actually  carried  on  up  stream  against  this  swift  current. 
In  certain  stages  of  water,  certain  boats  would  have  to  warp 
over  the  chain,  especially  Moline  Chain. 

2566  A boat  would  come  up  into  the  chain  in  the  swift  water  as 
fast  as  she  could,  she  would  be  either  anchored  there  or  hold 

herself  there  with  her  prow,  and  they  would  put  a coil  of  line 
and  an  anchor  out  in  a yawl.  They  would  go  to  the  side  where  the 
current  was  not  so  swift  and  there  would  be  water  enough  for  the 
yawl  or  boat,  and  they  would  go  up  to  this  point  and  cast  their 
anchor  and  drift  right  down  to  the  line,  as  it  is  a very  easy  matter, 
and  then  they  would  put  a line  on  the  steam  capstan  and  wind  up 
the  line,  after  the  anchor  was  laid.  That  was  a common  practice 
in  passing  Moline  Chains.  They  used  it  until  the  Eapids  were  im- 
proved; well,  from  the  time  of  the  earliest  navigation  until  say, 
1868-9  or  ’70,  when  the  first  improvement  in  the  channel  was 
made. 

2567  Counsel  for  Complainant.  Now,  I will  ask  you.  Gov- 
ernor, to  take  the  case  of  a river,  which  for  a period  of  three 

or  five  months  each  year,  exclusive  of  the  time  it  was  frozen  over 
and  exclusive  of  the  time  of  extreme  low  water,  presenting  a depth, 
which  would  range  from  fifteen  inches  to  ten  feet  and  upwards 
of  water,  and  in  a channel,  which  would  range  from  250  feet  wide 
to  a quarter  of  a mile  wide,  and  which  had  a current  which  varied 
from  almost  an  imperceptible  current  in  some  of  the  wide  spots 
where  it  was  a quarter  of  a mile  wide  and  ten  feet  deep,  to  a cur- 
rent much  of  the  way  two  and  a half  miles  an  hour,  one  or  two 
places  three  and  a half,  one  or  two  places  five  miles  an  hour,  and 
one  or  two  places  seven  and  seven  and  a half  miles  an  hour,  the 
swiftest  current  in  one  place  being  in  the  shallow  part,  and  in 
another  instance  where  the  water  was  somewhat  deeper;  a stream 
which  had  such  course  of  sinuosities  as  appears  on  this  McCul- 
lough Exhibit  lA,  this  map  which  is  before  you.  It  is  the  one  that 
is  marked  McCullough  lA,  and  shows  the  course  of  the  river  from 


863 


Lockport,  Joliet,  down  to  the  mouth  of  the  Eiver  Desplaines.  That 
is  a map  that  is  drawn  on  a scale  of  two  inches  to  the  mile.  I 
will  ask  you  to  state  whether,  in  your  judgment  as  a practical 
navigator,  a stream  possessing  those  qualifications  would  be  a nav- 
igable stream. 

Counsel  for  Defendant.  That  is  objected  to.  In  the  first  place, 
the  curves  are  a very  important  feature.  It  is  impossible  that 

2568  a witness  can  know  from  a map  two  inches  to  a mile  what  the 
curves  of  the  stream  were.  The  general  pronounced  bends 

of  the  stream  would  be  shown,  but  the  curve  from  point  to  point 
would  not  be  shown.  It  is  objected  to  again  because  to  state  that 
it  has  certain  spaces  of  practically  a level  character,  no  slope,  and 
certain  others  with  a fall  of  so  much,  without  indicating  within 
what  limits  that  fall  comes,  and  what  the  extent  of  the  level  is, 
gives  no  indication,  it  does  not  describe  the  river  as  the  evidence 
shows  it  in  this  case,  and  from  such  a hypothetical  question,  no 
such  judgment  or  knowledge  of  the  river  can  be  given  to  the  witness 
that  he  can  form  a judgment  on  it.  Secondly,  that  it  assumes 
the  widths  of  channels  that  have  not  been  proved  in  this  case. 
There  are  no  such  channels  at  the  declivities  and  slopes  as  have 
been  assumed  in  this  question  and  they  are  not  proved  in  the  case. 
Now,  to  say  that  the  river  has  in  some  places  no  slope  and  in  some 
other  places  a slope  of  so  many  feet  to  the  mile— it  may  be  twenty 
miles  of  slope  and  one  mile  of  level.  I submit  the  whole  question 
is  not  one  upon  which  an  intelligent  answer  can  be  made. 

Counsel  for  Complainant.  If  every  word  that  counsel  has 
stated  is  true,  which  we  deny,  but  if  every  word  of  it  was  true, 
the  question  is  proper  as  a hypothetical  question.  We  have  a riglit 
to  show  what  it  was. 

2569  The  Court.  Eead  the  question,  please. 

(Question  read  by  reporter.) 

Counsel  for  Complainant.  I will  add  to  that  that  in  one  place 
about  a mile,  where  there  is  an  island  in  the  stream,  the  chan- 
nel narrows  up  to  one  hundred  feet  and  part  of  that  narrow  channel 
along  the  island  narrows  down  to  a little  less  than  one  hundred 
feet,  about  sixty  feet  wide. 

Counsel  for  Defendant.  There  is  one  other  objection  that  I 


864 


Va?i  Sant, — Direct  Exam, — Continued. 


wish  to  make  in  addition  to  this  made  by  Mr.  Seott,  that  is,  that 
the  answer  calls  for  a conclusion  upon  the  word  ‘‘navigable.”  The 
question  should  be,  whether  the  river  in  his  judgment  was  capable 
of  carrying  commerce  for  useful  purposes,  whether  boats  could 
be  taken  up  and  down  the  river.  We  donT  know  what  the  wit- 
ness understands  by  the  word  “navigable.” 

Counsel  for  Complainant.  I will  accept  the  last  suggestion  as 
to  the  question  and  put  it  up  a stream  answering  these  qualifica- 
tions, if  it  would  be  such  that  boats  carrying  freight  would  be 
capable  of  being  operated  up  and  down  the  river. 

The  Court.  For  commercial  purposes! 

Counsel  for  Complainant.  For  commercial  purposes. 

Counsel  for  Defendant.  The  question  is  still  objected  to. 

The  Court.  Governor,  do  you  believe  you  have  sufficient  data  to 
give  an  intelligent  answer  to  that  question! 

A.  I think  I have. 

2570  The  Court.  You  may  answer  it. 

A.  In  my  judgment  it  could. 

Counsel  for  Complainant.  Then  I will  ask  the  further  question 
separately,  in  your  judgment  would  or  would  not  the  stream  pos- 
sessing these  qualifications  be  a navigable  stream! 

Counsel  for  Defendant.  That  is  objected  to. 

The  Court.  I sustain  that  objection. 

Cross-Examination, 

2573  I worked  in  the  boat  yard  when  I was  13  or  14  years  old. 
That  would  be  about  the  year  1856.  I began  to  run  on  the 

river  as  a business  as  a boy.  Those  boats  that  I have  testified 
about  and  gave  their  draft,  were  usually  light  draft.  A boat  like 
the  “Phil  Sheckel,”  110  feet  long,  could  carry  a certain  number 
of  tons  without  adding  very  much  to  her  draft.  The  capacity  of 
the  “Sheckel”  in  tonnage,  freight  tonnage,  I don’t  know;  don’t 
remember.  Her  draft  when  loaded  to  her  capacity  would  be  three 
feet  and  a half.  That  would  be  usually  true  of  all  those  boats, 

2574  those  smaller  boats  I have  mentioned.  They  are  generally 
about  four  feet  depth  of  hull,  and  you  can  load  them  down  to 


six  inches  of  the  guards.  It  is  a fact,  that  the  etfort  was  to  built 
boats  adapted  to  the  small  streams,  so  as  to  make  them  available 
for  commerce,  and  wherever  there  was  a river  that  could  be  used 
for  commerce  in  some  way  or  other,  they  built  a boat  to  navigate 
it.  In  those  early  days  they  resorted  to  the  rivers  as  a matter 
of  course,  if  the  river  could  be  used,  and  they  build  some  kind  of 
a boat,  if  one  were  possible,  to  navigate  every  stream  where  com- 
merce can  be  carried  on. 

These  rapids  at  Eock  Island,  Moline — sometimes  called  Eoch 
Island,  I notice,  and  sometimes  Moline  by  Mr.  Starr  m-  Pt-  me,  and 
sometimes  the  LeClaire  Eapids,  I think  they  are  laid  down 

2575  in  the  Government  report  as  Eock  Island  Eapids,  extending 
from  LeClaire  to  Eock  Island,  about  fourteen  and  a half 

miles,  and  the  fall  in  that  distance  is  about  I think  twenty  feet; 
I didn’t  measure  this;  that  would  be  a fall  of  about  18  inches  to 
the  mile.  I know  of  Major  Eutfner,  but  I never  was  acquainted 
with  him,  and  he  wasn’t  there  when  I was  about  the  Eapids. 

2576  It  is  always  dangerous  to  pass  the  Eock  Island  Eapids. 
This  improvement  I spoke  of  I think  was  taken  up  about  1868 

or  ’69.  I don’t  remember  whether  the  first  work  was  done  in 
1852 ; it  might  have  been.  I know  they  were  very  difficult  of  naviga- 
tion before  any  work  was  done  on  them,  because  we  repaired  the 
steamboats  damaged  on  the  rapids;  it  was  quite  a frequent  thing 
to  have  to  repair  steamboats. 

The  Missisippi  Eiver  was  nearly  half  a mile  wide,  I should  say 
about  that.  Some  places  it  was  much  narrower  and  some  places 
a little  wider.  At  Moline  Chain  it  would  not  be  a quarter  of  a 
mile  wide.  That  is  Moline  Chain,  which  is  now  shut  off  by  the 
dams.  When  we  are  passing  the  rapid  places  like  that  in  the 

2577  river,  we  have  to  follow  the  channel ; the  channel  there  is  quite 
narrow,  but  deep.  The  channel  at  the  narrowest  point  is  I 

think  200  feet  wide.  That  has  been  excavated  by  the  Government 
by  means  of  cofferdams. 

As  a navigator,  without  knowing  the  width  of  the  channel  where 
I was,  to  determine  whether  it  was  navigable  or  not,  and  at  the 
place  where  the  velocity  was  the  greatest,  without  knowing  the 
width  of  the  channel  but  knowing  the  velocity,  I would  be  able 
to  state  whether  or  not  the  river  at  that  point  was  navigable.  If 


8()6  Van  Sant, — Cross-Exam. — Continued. 

I know  the  depth  of  the  water  in  warping,  I would  carry  the 

2578  cable  and  the  anchor,  a thousand  or  1,200  feet.  It  depends 
on  the  length  of  the  line,  carrying  it  along  the  side  of  the 

channel  where  it  was  not  so  swift. 

The  movement  of  the  boat  during  the  warping  is  as  follows: — 
They  steer  the  boat  just  the  same.  They  use  her  wheels  but  this 
helps  the  boat  over.  Her  power  does  not  quite  overcome  the  cur- 
rent and  they  pull  her  up  with  the  anchor.  They  usually  try  to  get 
the  anchor  above  the  chain.  If  not,  they  lay  it  twice.  They  are 
supposed  to  pull  in  the  channel.  When  I say  such  a river  as  de- 
scribed in  the  hypothetical  question  used  by  Mr.  Starr,  can  be 
used  for  boats,  I refer  to  light  draft  boats,  I should  judge  125  to 
thirty  or  forty  feet  in  length.  For  useful  commerce,  the  dimen- 
sion of  a boat  would  depend  upon  the  commerce  and  the  na- 

2579  ture  of  the  stream.  If  you  want  to  build  a boat  of  sufficient 
light  draft  to  navigate  the  river  to  make  it  profitable,  I say  a 

boat  without  a cabin  and  a very  little  upper  works,  built  with 
veiy  light  draft  from  the  very  start,  you  can  make  her  so  that 
she  will  draw  not  to  exceed,  say,  about  twelve  inches  of  water; 
about  one  hundred  and  forty  feet  long ; thirty  feet  wide,  26  to  30. 

Q.  Now,  Governor,  will  you  please  consider  a river  of  the  de- 
scription which  I will  now  state  and  tell  me  whether  you  think 
such  a boat  as  you  described  could  be  successfully  navigated  on  it ; 
beginning  at  a point  sixteen  miles  from  its  mouth.  We  are  now 
coming  down  to  the  mouth  on  this  part,  and  are  going  to  consider 
whether  it  is  navigable  or  not.  No,  we  will  begin  higher  up.  We 
will  begin  at  a point  20  miles  from  its  mouth;  and  in  the  first 
four  and  a half  miles  a fall  of  42^  feet,  in  the  next  5,500  feet  a fall 
of  nine  feet ; that  is  to  say,  one  and  eight-tenths  feet  per  thousand ; 
then  the  natural  channel  there  being  less  than  100  feet  in  width  in 
places;  the  next  stretch  being  2,000  feet  with  a fall  of  3.75 

2580  feet,  there  then  being  a level  of  44  miles,  then  a sharp  curve 
and  a fall  of  5.5  feet  in  2,000  feet  and  a channel  60  feet  wide. 

A.  How  deep? 

Q.  About  15  inches  deep  ? I say  channel  60  feet  wide,  I mean  the 
entire  river.  A.  The  whole  water  of  the  river  goes  through 
there. 


8G7 


Q.  Fifteen  inches  dee]),  and  as  described  in  the  evidence  in  this 
case,  boulders  protruding  above  the  surface?  A.  i^es,  sir. 

Q.  Then  a distance  of  two  miles  of  comparatively  level  water, 
and  then  a fall  of  3.2  feet  in  2,000  feet,  being  1.6  per  1,000  feet. 
Now,  I will  ask  you  to  state  whether  a river  of  that  description, 
without  improvement  of  the  channel,  could  be  navigated  for  the 
purposes  of  useful  commerce. 

Counsel  for  Complainant.  I object  to  that,  if  the  Court  please. 

The  Court.  He  may  answer. 

The  Witness.  You  will  have  to  state  that  question  again. 

(Question  read  by  the  reporter.) 

Q.  Before  you  answer  the  question,  assume  wherever  I have 
said  ^‘channel,”  that  I mean  the  width  of  the  river,  and  not  the 
width  of  the  channel!  A.  Now,  let  me  ask  a question.  You 
say  whether  the  river  is  narrowed  up  to  60  feet  there  are  boulders 
protruding  ! 

Q.  Yes,  sir!  A.  How  close  together  or  how  many  boulders  are 
there! 

2581  Q.  They  are  so  close  together,  according  to  the  evidence 
here,  that  a canoe  has  to  dodge  to  get  through  them. 

Counsel  for  Complainant.  There  is  nothing  in  this  case  on 
either  side,  in  my  judgment,  to  hypothecate  that  question  on,  but 
I will  not  object. 

The  Court.  I cannot  judge  what  the  defendant’s  case  is  going 
to  be,  but  they  have  a right  to  put  tjheir  hypo'thetical  ques- 
tions. 

Counsel  for  Defendant.  But,  your  Honor  has  a good  memory 
and  Mr.  Clements,  their  witness,  last  night  testified  as  to  boulders. 

Counsel  for  Complainant.  Not  in  the  way  you  say. 

The  Witness.  Now,  I want  to  be  right  on  this.  Now,  what  is 
the  fall  in  the  first  5,500  feet! 

Counsel  for  Defendant.  That  is  not  first,  but  in  5,500  feet  the 
fall  is  nine  feet. 

The  Witness.  What  is  the  first  42  feet! 


868 


J^an  Sant, — Cross-Exam.— Continued. 


Counsel  for  Defendant.  That  is  a fall  of  42|  feet  in  five  miles, 
a little  less  than  five  miles,  as  a matter  of  fact. 

A.  Well,  if  that  stream  where  the  60 -foot  channel  is — 

Q.  60-foot  river.  A.  Sixty-foot  river  has  boulders  sticking 
up,  so  that  a canoe  only  can  dodge  them,  why,  it  could  not  be 
navigable.  I would  say  that  in  my  judgment.  That  is  answering 
the  question  on  those  suppositions.  That  is  the  point  right  there. 
If  those  boulders  are  sticking  up  there,  so  that  it  takes  a 

2582  canoe  to  dodge  them,  it  would  not  be  navigable  for  a steam- 
boat. That  is  distinctly  understood. 

Counsel  for  Defendant.  Assuming  now,  for  the  purposes 
of  this  question,  that  the  boulders  were  not  there,  and  that  it  was 
sixty  feet  wide  and  fifteen  inches  deep. 

A.  Well,  are  the  boulders  there? 

Q.  Yes,  sir,  they  are.  A.  But  I am  asking  a question. 

Q.  Yes,  sir,  they  are  there.  People  walk  over  them  dry-shod 
in  summer.  But,  assuming  that  they  were  not  there  and  that  that 
river  is  sixty  feet  wide  and  you  have  a fall  of  2.78  feet  per  thou- 
sand feet.  Can  you  take  a steamboat  by  them,  in  its  natural  condi- 
tion ? A.  I could  if  the  water  was  deep  enough. 

Q.  I said,  fifteen  inches  of  water.  A.  I think  it  could  be 
done. 

Q.  For  the  purposes  of  profitable  commerce?  A.  Oh,  yes,  sir. 

Q.  On  15  inches  of  water?  A.  Oh,  yes,  sir. 

Q.  On  such  a boat  as  you  have  described?  A.  On  such  a boat 
as  I have  described. 

0.  The  boat  which  you  have  described  when  it  was  loaded  would 
rest  on  the  bottom  in  that  place?  A.  I would  not  load  it  so 
heavy.  I would  load  it  according  to  the  water.  I have  always 
done  that. 

Q.  How  would  you  go  up  that  slope  of  ten  feet  a mile,  in  a 60- 
foot  river,  with  a boat  over  100  feet  long?  A.  I might  have 

2583  to  warp. 

Q.  You  would  have  to  warp  if  you  could  do  it  at  all, 
wouldn’t  you?  A.  Well,  I don’t  know. 


869 


Q.  Governor,  did  you  ever  go  up  a river  in  a channel  sixty 
feet  wide  at  a slope — river  60  feet  wide,  at  a slope  of  ten  feet 
to  the  mile,  and  if  so,  where?  A.  I never  did;  no,  sir. 

Q.  The  Eock  Island  Eapids  are  about  as  bad  as  you  care  to 
navigate,  arenT  they?  A.  I have  never  had  a bit  of  trouble  with 
our  boats  passing  Moline  Chain. 

Q.  But  you  helped  to  repair  others?  A.  I repaired  others, 
and  helped  others  run  over  it,  but  I built  my  boats  to  run  them 
through  the  chain.  And  they  always  did  it. 

Q.  You  never  heard  of  anybody  building  a boat  to  run  up  the 
Desplaines  Eiver?  A.  No,  sir. 

Q.  And  you  never  heard  of  rivermen  talking  about  the  Des- 
plaines Eiver  as  a river  of  commerce,  did  you? 

Counsel  for  Complainant.  I object  to  that. 

The  Court.  Objection  sustained. 

The  Witness.  Shall  I answer  the  question? 

The  Court.  No. 

2584  Q.  Now,  Governor,  as  a man  who  has  spent  his  life  in 
this  business,  taking  such  a river  as  I have  described  20 
miles  long,  with  those  natural  difficulties  and  obstructions,  and 
there  being  no  river  above  atfording  profitable  commerce,  so  as 
to  make  it  worth  while  to  overcome  those  obstructions,  would  you 
say  that  that  20  miles  of  river  in  its  natural  condition  would  be 
an  avenue  for  profitable  commerce? 

2587  Counsel  for  Defendant.  Insert  in  the  question  ‘^overcom- 
ing those  obstructions  by  methods  of  warping  or  cordelling, 
which  have  been  described.  ’ ’ 

(Counsel  for  complainant  objecting  on  the  ground  that  the 
hypothetical  question  was  not  a fair  one  considering  the  actual 
facts  in  the  case.) 

2589  The  Witness.  I supposed  your  question  would  be  along 
the  same  lines  as  the  question  which  the  other  side  proposed, 
and  I answered  it.  Now,  if  the  facts  are  as  you  state  them, 
and  upon  the  assumption  that  there  is  nothing  on  either  bank  or 
nothing  at  the  head  to  come  down  the  river,  no  freight  or  no  peo- 
ple, it  would  not  pay  to  navigate  the  river. 


870 


Assuming  that  at  this  particular  point  where  the  fall  was  5X 
feet  in  2,000  feet,  that  within  that  2,000  feet  there  was  a very 
sharp  bend  of  the  river,  as  to  how  that  would  affect  the  ability  to 
bring  a boat  up  in  that  velocity,  it  would  make  it  more  difficult, 
2590  but  we  frequently  turn  very  sharp  turns  in  the  river.  I never 
have  done  that,  because  I never  navigated  a river  that  had 
those  questions  to  meet.  Going  down  a point  like  that  I have  de- 
scribed, in  such  a boat  as  you  have  described,  we  would  have  to 
what  we  call  check’’  around  a place  like  that,  back  off  and  go 
ahead,  back,  back,  just  twist  the  boat  around  those  points.  We 
did  that ; we  did  it  safely. 

2599  Whereupon  counsel  for  complainant  offered  and  read  in 
evidence  the  deposition  of  Geo.  B.  Fox. 

(For  rulings  on  said  deposition,  see  Abstract  of  Depositions, 
supra,  page  329.) 

Thereupon  complainant  offered  in  evidence  a certified  copy  of 
United  States  Letters  Patent  No.  733,010  for  the  Propulsion  of 
Vessels,  being  the  Coen  patent  referred  to  by  the  witness  Fox. 

(Objected  to  as  incompetent,  irrelevant  and  immaterial.  Ob- 
jection overruled  and  said  document  received  in  evidence.  Ap- 
pendix II,  p.  3891;  Trans.,  p.  5860;  Abst.,  p.  1725.) 

Whereupon  counsel  for  complainant  offered  and  read  in  evidence 
the  deposition  of  William  L.  Sackett. 

(For  rulings  on  said  deposition,  see  Abstract  of  Depositions, 
supra,  page  218.) 

William  H.  Zarley, 

a witness  for  the  complainant,  testified  as  follows: 

2600  My  name  is  William  H.  Zarley.  Eesidence,  Joliet,  Illinois. 
Am  County  Surveyor  Will  County.  Have  been  surveyor  for 

about  four  years  and  understand  making  measurements  of  lands, 
distances  and  things  of  that  kind;  know  where  Treat’s  Island 

2601  is  in  Desplaines  Eiver,  was  there  yesterday  afternoon.  Went 
at  the  request  of  Mr.  Starr  and  Mr.  Eeeves.  Had  with  me 

Mr.  O’Callahan  and  my  assistant.  I made  measurements  of  the 
widths  of  the  two  channels  of  the  Desplaines  Eiver,  one  on  each 


871 


side  of  Treat  Island.  I mean  the  width  of  the  water  in  each 
channel.  I measured  the  width  of  each  channel  at  the  head  of  the 
island  and  at  the  foot  of  the  island  and  at  the  narrowest  points. 
I made  these  measurements  of  both  channels.  The  right  hand 

2602  channel  at  the  upper  end  of  the  island  is  527  feet  wide.  At 
the  foot  of  the  island  it  was  209.3  feet.  At  the  bridge  or  cen- 

2603  tral  part  of  the  island  it  was  145  feet.  That  is  the  width  of 
the  river.  We  considered  the  place  at  the  bridge  the  narrow- 
est point,  it  was  145  feet  in  width.  The  left-hand  channel  at  the 
head  of  the  island  was  276.6  feet  and  at  the  foot  of  the  island  185.3 
feet  and  at  the  narrowest  point  128  feet.  The  water  is  now  wider 

than  in  the  normal  stage  of  the  river.  At  the  head  of  the  island 

2605  in  the  right-hand  channel  there  is  very  little  difference  be- 

2606  tween  the  width  of  the  river  now  and  at  its  normal  stage. 
Not  very  much  difference  between  the  width  now  and  at  the 

normal  stage  at  the  foot  of  the  island  in  the  right-hand  channel. 
In  the  middle  or  narrowest  point  of  the  right  hand  channel  it  is  now 
probably  fifteen  or  twenty  feet  wider  than  at  normal  stage.  In 
the  left-hand  channel  at  the  head  of  the  island  it  is  about  what 
it  is  at  the  normal  width.  There  is  a swamp  there  with  shallow 
water  but  we  did  not  count  that  in  the  width  of  the  river.  At  the 
foot  of  the  island  in  the  left-hand  channel,  where  I said  it  was  185 
feet  yesterday,  that,  too,  represents  about  the  normal  flow  but  the 
river  was  wider  there  yesterday  than  185  feet.  I meant  the  185  feet 
was  about  the  normal  width  at  that  point.  The  narrowest  place  in 
the  left-hand  channel  was  128  feet  and  that  is  about  the  normal 
condition  of  the  river. 

C ross-Examination, 

Am  thirty  years  old.  Lived  at  Joliet  all  my  life.  My  testimony 
as  to  the  normal  stage  of  the  river  refers  to  the  normal  stage 
since  the  Drainage  Canal  water  has  been  turned  into  river. 

2608  Re-direct  Examination. 

The  right-hand  channel  of  the  river  at  the  head  of  the  island 
is  some  twenty-five  to  forty^  feet  wider  than  it  was  in  its  normal 
condition  prior  to  January  17,  1900,  when  the  water  of  the  Drain- 
age Canal  was  turned  in,  and  that  channel  at  the  foot  of  the  island 


872 


Zarleify — Re-direct  Exam. — Continued. 


about  twenty  to  twenty-five  feet  wider  and  at  the  narrowest  point 
about  fifteen  feet  wider.  In  the  left-hand  channel  at  the  head  of 
the  island  it  is  about  twenty-five  or  thirty  feet  wider  than  the  nor- 
mal condition  prior  to  January  17,  1900.  At  the  foot  of  the  island 
the  width  is  about  the  same  and  I would  say  that  at  the  narrowest 
l^oint  it  was  about  the  same  that  it  is  now. 

2609  Re-cross  Examination. 

Have  no  personal  knowledge  as  to  the  condition  of  the  river 
before  the  water  of  the  Illinois  and  Michigan  Canal  was  turned  in 
in  1871.  I never  made  measurements  of  the  points  prior  to  yes- 
terday. My  comparison  with  the  normal  stage  of  the  river  since 
the  Drainage  District  turned  in  its  water  is  an  estimate  of  what  I 
think  the  change  was.  I would  not  place  that  estimate  as  against 
official  surveys,  if  such  have  been  made.  Wherever  I have  said 
channel  I mean  the  river  itself.  (Witness  here  indicates  on  map 
the  location  of  the  head  of  the  right  hand  channel.)  There  is  an- 
other little  island  in  the  right  hand  channel  between  the  head 

2610  of  Treat  ^s  Island  and  the  narrowest  point  given  in  my  state- 
ment. I did  not  measure  the  channel  on  either  side  of  that 

little  island.  That  little  island  is  about  150  feet  wide,  I guess. 
The  greatest  dimensions  I gave  were  just  at  the  point  where 

2612  you  enter  the  channels  on  either  side  of  the  island  at  its  head. 
Attention  of  witness  called  to  page  25  of  Ogle  & Company’s 
Plat  Book  of  Will  County,  Illinois,  1893. 

2613  Counsel  for  Defendant.  You  have  put  a line  across  the 
river  marked  ‘‘A,”  is  that  the  point  where  you  took  the  first 

measurement  f 
A.  Yes,  sir. 

What  appears  on  the  map  in  the  right  hand  channel  below  the 
head  of  Treat’s  Island  as  a small  island  is  there,  as  a matter  of 
fact.  I did  not  measure  the  stream  on  either  side  of  that  island. 
My  measurement  of  the  left  hand  chanel  was  taken  at  the  point  of 
entry  to  the  channel,  at  the  place  where  I have  marked  it 

2611  “B.”  What  appears  to  be  a continuous  roadway  across  the 
right-hand  channel  indicates  the  place  where  the  bridge  is. 

My  measurement  at  the  foot  of  the  island  are  marked  “D”  and 
‘‘E.”  The  place  marked  ‘‘F”  on  the  right-hand  channel  is  near 


the  bridge  and  is  the  narrowest  place.  We  did  not  follow  the  bank 
of  the  river  on  the  east  side  yesterday.  We  measured  the  two 
points  at  the  upper  end  of  the  island  and  we  came  down  about 
the  middle  of  the  island  across  the  mill  race  that  is  in  the  island 
and  went  down  the  west  side  of  the  island,  and  we  oame  back 
2615  up  the  river  on  the  west  side.  We  crossed  the  race  on  the 
bridge.  We  saw  the  whole  of  the  river  on  the  west  side;  did 
not  follow  the  river  along  the  east  side,  and  think  I am  prepared 
to  say  that  those  narrowest  places  were  as  a matter  of  fact  the 
narrowest  places  in  the  river.  I think  I can  swear  to  this.  I 
think  I can  swear  that  the  river  at  the  bridge  is  narrower  than  it 
is  one  hundred  feet  south  of  that. 

Map  of  Treat’s  Island  and  vicinity  surveyed  in  accordance  with 
Act  of  Congress,  August  11,  1880,  under  direction  of  W.  L.  Mar- 
shal], Corps  of  Engineers,  U.  S.  Army,  by  L.  L.  Wheeler,  U.  S.  As- 
sistant Engineer,  1888  and  1889,  which  is  identified  and  marked 
‘‘Zarley  1” — I see  what  it  is.  I don’t  think  I have  had  occa- 

2617  sion  to  use  it.  (Witness  not  sure  that  he  has  ever  seen  this 
map  before.)  With  this  map  before  me  I think  the  point  in 

the  left-hand  channel  that  we  measured  as  the  narrowest  point  is,  • 
in  fact,  the  narrowest  point.  (Witness  indicates  point  of  bridge 
in  left-hand  channel.)  This  point  marked  I marked 

2618  the  point  of  the  bridge  in  the  right  hand  channel  as  ‘‘H.” 
Tlie  place  where  I took  the  measure  at  the  head  of  the  island 

is  marked  The  points  of  measurement  at  the  foot  of  the 

island  are  marked  ‘‘K”  and  ^Mj.”  The  left-hand  at  the  top  was 
marked  The  smaller  island  in  the  right  hand  channel  of  the 

river  I should  say  is  somewhere  in  the  neighborhood  of  150  feet 
wide,  I think  about  800  feet  long. 

Q.  You  took  no  measurements  of  the  size  of  the  river  from  any 
point  on  that  island  to  the  shore  or  to  the  main  island,  did  you  I 
A.  No,  sir. 

2619  Q.  In  what  manner  did  you  take  the  measurements  I A 
We  had  a fixed  base  line  along  the  island  and  triangulated 
across. 

2620  I suppose  this  map  is  drawn  to  scale.  It  took  about  an 
hour  and  a half  to  make  these  measurements.  It  has  been 


874  ^ Zarley, — Re-cross  Exam. — Continued. 

raining  most  of  the  time  for  a conple  of  weeks.  I should  say 
2621  the  river  is  np  two  or  three  feet  above  normal  flow.  Well, 
by  normal  flow  I mean  the  ordinary  flow  in  the  summer.  This 
is  Sanitary  District  water  added  to  the  low  water  stage  in  the 
Desplaines  River.  This  normal  flow  continues  generally  during  the 
summer.  When  I say  normal  width  I mean  width  in  the  summer 
without  any  high  water.  There  is  very  little  difference  between  the 
width  of  the  right-hand  channel  at  the  head  of  the  island  now  and 
its  normal  width.  At  the  bridge  in  that  channel  the  difference  is 
possibly  fifteen  or  twenty  feet,  I cannot  tell  within  a few  feet.  At 
the  left-hand  channel  at  the  head  of  the  island  I would  say  that 
the  measurement  now  would  represent  the  normal  width.  A part 
of  what  is  swampy  on  that  side,  we  did  not  take  into  account,  but 
the  parf  we  measured  is  just  as  wide  in  summer  as  it  is 

2624  now.  At  the  foot  of  the  island  on  the  left-hand  channel  the 
measurement  I gave  would  be  the  normal  width,  and  the  nar- 
rowest point  would  be  the  same  too,  and  the  east  channel  the  nar^ 
rowest  point  yesterday  would  be  about  normal  condition  since 
1900.  On  the  right-hand  channel,  the  narrowest  point  the  differ- 

. ence  between  normal  condition  and  now  would  be  about  fifteen  feet, 
the  difference  somewhere  about  fifteen  or  twenty  feet. 

2625  The  map  marked  ^‘Zarley  Exhibit  1”  offered  and  received 
in  evidence.  (Atlas,  p.  3949;  Trans.,  p.  6567;  Abst.,  p.  1924.) 

At  the  point  we  have  marked  the  scale  shows  the  river  to 
be  about  110  feet  wide.  The  scale  used  is  300  feet  to  the  inch. 

2627  Further  up  the  stream  where  there  is  a point  marked  ‘‘71,” 
the  width  shown  by  the  scale  is  practically  the  same  as  at 

the  point  marked  “G.  ” At  the  point  you  pointed  out  to  me  it  is 
more  than  100  feet,  it  is  about  110  feet  at  that  narrow  place.  On 
the  east  side  of  the  small  island,  measuring,  it  shows  about 

2628  75  feet.  I marked  the  same  “M.”  Measuring  from  the  map, 
the  left-hand  channel  at  the  foot  of  the  island  is  115  feet. 

.U  the  lower  part  of  the  island  on  left-hand  channel,  measuring 
from  the  map,  it  appears  to  be  a little  over  210  feet.  That  is 

2629  where  we  had  185  feet.  Measuring  again,  I think  that  width 
to  be  about  215  feet,  but  it  may  not  be  exactly  the  same 

place  I had  it  before.  In  the  left-hand  channel  going  down  at  the 
final  tip  of  the  island,  close  to  that  marked“ Boring  No.  17”  it 


shows  about  115  feet.  At  the  point  in  the  right-hand  channel  where 
we  measured  it  yesterday  as  527  feet,  measuring  by  the  map, 
it  shows  520  feet.  In  the  left-hand  channel  where  I gave  the 
figures  as  276.6  feet,  measuring  by  the  map,  shows  a Jit  tie  over 
270  feet,  about  275  feet.  What  I call  normal  is  just  from  my 
general  knowledge  of  the  way  the  river  is,  not  from  measurements. 
What  has  been  called  the  mill  race  there  is  no  connection  with  at 
the  present  time.  I have  heard  it  called  the  mill  race,  that  is  all  I 
know  about  it.  There  has  been  no  mill  race  there  within  my  mem- 
ory. The  narrowest  place  of  the  right-hand  channel  on  the  right 
of  the  little  island  in  that  channel  is  about  90  feet,  that  is  the  point 
marked 

2632  Field-note  Exhibits  1,  2 and  3 are  offered  with  the  original 
certificate. 

(Objected  to,  objection  sustained.) 

Then  otfered  with  the  new  certificate,  and  there  being  no  objec- 
tion, admitted  in  evidence. 

2633  Here  follows  the  first  certificates  of  J.  S.  McCullough,  aud- 
itor public  accounts  of  the  State  of  Illinois,  to  the  three  docu- 
ments above  mentioned. 

2635  Thereupon  counsel  for  complainant  offered  and  read  in  evi- 
dence the  deposition  of  John  M.  Snyder.  Whereupon  counsel 

for  defendant  read  the  cross-examination. 

(For  rulings  on  same  see  Abstract  of  Depositions,  supra,  p.  250.) 

Thereupon  counsel  for  complainant  otfered  and  read  in  evidence 
the  deposition  of  Leon  McDonald,  a witness  for  complainant. 

(For  rulings  on  same  see  Abstract  of  Deposition,  s'utpra,  p.  265.) 

Thereupon  counsel  for  complainant  otfered  and  read  in  evidence 
the  deposition  of  Charles  Dimmick,  a witness  for  complainant. 

(For  rulings  on  same  see  Abstract  of  Depositions,  supra,  p.  500.) 

Thereupon  counsel  for  complainant  otfered  and  read  in  evidence 
the  deposition  of  J.  H.  Hildebrand,  a witness  for  complainant. 

(For  rulings  on  same  see  Abstract  of  Depositions,  supra, 
p.  292.) 

2636  Thereupon  Hildebrand’s  Exhibits  1,  2 and  3 were  admitted 


876 


in  evidence.  Said  exhibits  appear  in  Atlas,  pp.  3950,  3951, 
3943.  (Trans.,  pp.  6555,  6569,  6571;  Abst.,  pp.  1922,  1925,  1926.) 

Thereupon  counsel  for  complainant  offered  and  read  in  evidence 
the  deposition  of  William  Kramer,  a witness  for  complainant. 

(For  rulings  on  same  see  Abstract  of  Depositions,  supra,  p.  354.) 

Thereupon  counsel  for  complainant  offered  and  read  in  evidence 
the  deposition  of  Benezette  Williams,  a witness  for  complain- 
ant. 

(For  rulings  on  the  same  see  Abstract  of  Depositions,  supra, 
p.  336.) 

2641  The  following  documents  were  admitted  in  evidence,  to- 
wit : 

Sanitary  District  of  Chicago,  Tabulation  of  Grange  reading 
for  the  years  1900,  1901,  1902,  1903,  1904,  1905,  1906  and  1907, 
respectively,  Cooley  Exhibits  4,  5,  6,  7,  8,  9,  10  and  11.  (Ap- 
pendix II,  3902,  Trans.,  p.  6014;  Abst.,  p.  1730.) 

Also  pages  478  to  5^0,  both  inclusive  House  Documents 
No.  263,  59th  Congress,  First  Session,  published  by  United 
States  Government,  marked  Cooley  Exhibit  12.  (Appendix  II, 
p.  3901;  Trans.,  p.  6011;  Abst.,  p.  1730.) 

2642  Also  pages  944  to  962,  both  inclusive,  from  document  en- 
titled, ^^Proceedings  of  Board  of  Trustees  of  Sanitary  Dis- 
trict of  Chicago,  Eegular  Meeting  Wednesday,  November  27, 
1907,  2 o’clock  P.  M.,”  marked  Cooley  Exhibit  13.”  (Appen- 
dix II,  p.  3903;  Trans.,  p.  6028;  Abst.,  1730.) 

Map  marked  Cooley  Exhibit  15  is  received  in  evidence.  (Atlas, 
p.  3953;  Trans.,  p ; Abst.,  p ) 

2646  Lymax  Cooley, 


recalled,  testified: 

Direct  Examination  {Continued). 

The  date  I visited  the  site  of  this  dam  with  Mr.  Benezette  Wil- 
liams was,  I think,  the  14th  of  April.  I had  with  me  at  that  time 
two  prints,  one  the  general  print  of  the  Desplaines  River,  from 
Lockport  to  its  mouth,  the  other  was  a local  print  showing  the 
works  projected,  at  the  mouth  of  the  stream  by  the  defendant. 
2647  I received  that  blue  print  from  J.  W.  Woerman,  Chief  En- 
gineer in  charge  of  the  work,  upon  my  request  to  the  manager 
of  the  company.  The  blue  print  shown  me  maked  'topographical 


map  of  the  power  site  of  the  proposed  Morris  Hydro-electric  Light 
Plant  for  the  Economy  Light  & Power  Company,  scale  fifty  feet 
equals  one  inch,  D.  W.  Mean,  Consulting  Engineer,  is  the  one 
which  I received.  That  was  referred  to  and  discussed  in  the  course 
of  the  examination  when  Mr.  Benezette  Williams  was  there. 

2648  I have  read  the  contract  between  the  Canal  Commissioners 

and  Harold  F.  Griswold,  which  is  Exhibit  of  the  bill. 

The  requirements  of  that  contract  of  the  party  of  the  second  part 
I state  as  an  engineer,  could  not  be  performed  for  less  than  the 
sum  of  $100,000.00. 

Counsel  for  Complainant.  I direct  your  attention  particularly, 
]\Ir.  Cooley  to  Clauses  6 and  9 of  that  contract.  The  sixth  says: 

‘Ht  shall  be  the  duty  of  the  said  party  of  the  second  part, 
subject  to  the  direction  of  the  Canal  Commissioners  or  other 
officer  or  agent,  as  hereinafter  indicated,  to  raise  the  towpath 
or  bank  of  the  Illinois  and  Michigan  Canal  from  its  present 
height  not  less  than  two  feet  and  to  any  additional  height 
that  may  be  necessary  to  prevent  overflow  and  to  perpetually 
thereafter  maintain  the  same  in  good  condition.  The  said  rais- 
ing of  the  same  towpath  shall  extend  from  a point  in  said 
Grundy  County  where  dams  or  other  structures  of  the  said 
party  of  the  second  part  intercept  said  towpath  bank  to  Lock 
No.  7 in  Section  17,  Township  34  North,  Range  9 East  of 
the-Third  P.  M. ; and  when  raised  the  width  of  the  top  of  the 
towpath  bank  shall  conform  to  the  width  of  the  towpath  as  it 
exists  at  present.’^ 

2649  The  ninth  clause  is  as  follows : 

‘ ^ That  the  said  party  of  the  second  part  is  hereby  authorized 
to  enter  upon  the  lands  or  premises  of  the  State  of  Illinois, 
part  and  parcel  of  the  Illinois  and  Michigan  Canal,  and  to 
enter  upon  said  canal  itself  in  the  manner  and  to  the  extent 
that  shall  be  necessary  to  raise  and  maintain  the  towpath  as 
above  provided  and  to  attach  and  build  said  dam  or  other 
works  on  to  said  towpath  bank  as  herein  provided,  and  to  re- 
pair, maintain  or  renew  the  same  as  shall  become  necessary 
to  the  preservation  thereof.’^ 

Then  I direct  your  attention  to  the  third  whereas,”  the  final 
whereas”  before  the  ^ therefore”  of  the  contract: 

‘AVhereas,  said  party  of  the  second  part  is  desirous  of  ob- 
taining the  right  to  use,  overflow  and  damage  (in  such  man- 
ner as  will  not  interfere  with  navigation  on  the  Illinois  and 
Michigan  Canal)  so  much  of  the  said  property  as  may  be  nec- 
essary in  the  construction  of  the  said  dam  and  other  works, 


878 


Cooley, — Direct  Exam. — Continued. 


and  the  improvement  of  said  Desplaines  Eiver  and  in  the  deep 
ening  of  the  channel  of  said  Illinois  Eiver.  ’ ’ 

I also  call  your  attention  to  Clause  4 of  the  contract : 

2650  ''That  said  party  of  the  second  part  shall  have  the  right 
to  erect,  attach,  repair  and  maintain  said  dam  and  other  works 
or  structure  up  against  the  towpath  bank  of  the  Illinois  and 
Michigan  Canal,  in  Section  25,  Township  4 North,  Eange  8 
East  of  the  Third  P.  M.,  Grrundy  County,  Illinois,  but  not  so 
as  to  interfere  with  the  use  of  towpath  in  connection  with  said 
canal.  ’ ’ 

Q.  I ask  you  as  an  engineer,  Mr.  Cooley,  whether  it  is  practic- 
able to  do  the  things  provided  by  Clause  6 and  Clause  9 which  I 
read  first,  in  such  a manner  as  will  not  interfere  with  the  naviga- 
tion on  the  Illinois  and  Michigan  Canal?  A.  It  is  not  practical  to 
do  the  things  provided  in  Clauses  6 and  9 so  as  not  to  interfere  in 
any  manner  with  the  use  of  the  towpath  in  connection  with  said 
canal. 

2652  The  Desplaines  Eiver  in  1886  and  1887,  before  Sanitary 
District  of  Chicago  had  interfered,  the  Desplaines  Eiver, 

2653  was  a navigable  stream.  The  navigability  has  been  ma- 
terially increased  by  the  increase  in  depth  and  by  the  in- 
crease in  the  duration,  or  made  continuous  throughout  the  year. 
The  Desplaines  Eiver  from  Dam  No.  1 to  its  mouth,  since  the 
turning  in  of  the  waters  of  the  Sanitary  District  of  Chicago,  is  a 
navigable  stream. 

Q.  Is  there  any  question,  gentlemen,  that  this  blue  print  rep- 
resents the  dam  which  is  the  subject  of  this  lawsuit. 

Counsel  for  Defendant.  No  question. 

2654  The  Witness.  The  dam,  meaning  thereby  the  structures 
which  close  the  river,  extend  from  the  towpath  bank  of  the 

Illinois  and  Michigan  Canal  across  an  intermediate  strip  of  land, 
across  the  bed  of  the  river,  the  opposite  bank  and  for  some  dis- 
tance further.  It  has  an  elevation  of  75  feet  below  Chicago 
datum  and  about  22.5  feet,  as  I remember  it,  above  the  lower  part 
of  the  river  bed.  The  crest  of  the  dam  is  above  the  level  of  the 
bottom  of  the  Illinois  and  Michigan  Canal.  Taking  the  tow- 
path  as  shown  at  the  point  upon  the  exhibit  of  the  company  as 
84  feet  Hennepin  datum,  the  crest  of  the  dam  is  77  feet  datum, 
Hennepin  datum,  and  they  have  used  it,  making  a difference  of 


879 


Beven  feet.  I would  explain  there  that  the  official  bottom  of  the 
canal  is  six  feet  below  the  water  line,  something  more  than  a foot. 
I had  assumed  two  feet  below  the  top  of  the  towpath  but  I am 
not  sure  about  that. 

2659  Q.  You  may  state  what  is  re(|uired  by  proper  practice 
on  canals  in  this  latitude  in  the  matter  of  emptying  them  of 

water  during  the  winter  months?  A.  It  is  customary  to  empty 
the  canals  of  water  during  the  closed  season.  They  consider  it 
better  practice  in  maintaining  the  canal  to  do  that,  rather  than 
to  keep  the  water  in.  I do  not  know  any  specific  theory  except 
that  it  has  always  been  done. 

2660  There  are  very  bad  effects  and  were  very  bad  effects  for 
some  levels  on  the  Erie  Canal  due  to  ice  shoves,  the  ex- 
pansion of  ice  upon  the  bank,  and  I assume  that  it  is  in  part  for 
that  reason, — the  forming  of  the  ice  and  the  shoving  of  the  banks 
and  the  slope.  It  has  been  the  practice  of  the  Illinois  and  Mich- 
igan Canal  to  empty  the  canal.  I have  seen  portions  of  it  so 
emptied  and  on  the  summit  levels  the  custom  has  been  to  retain 
the  water  in  the  canal  from  here  to  Lockport.  I have  never  seen 
the  particular  level  where  the  site  of  this  dam  is  in  the  win- 
ter time,  so  I could  not  give  positive  information  as  to  that  par- 
ticular place.  The  volume  referred  to  as  containing  the  maps  on 
the  navigability,  the  profile  is  survey  of  1883,  as  reported  by 
Capt.  W.  L.  Marshall  in  1886,  volume  labelled  Survey  of  Water- 
way from  Lake  Michigan  to  Illinois  Eiver  at  La  Salle,  Illinois,’’ 

and  on  the  inside,  beginning  with  the  designation  House 

2661  of  Representatives,  Executive  Document  264,  Part  2,  51st 
Congress,  1st  Session.”  After  leaving  the  stand  I will  take 

out  and  mark  with  my  name  the  ones  that  were  assembled  or  that 
were  referred  to. 

Q.  A further  instruction  appears  upon  the  profile : 

^^The  data  has  been  compared  with  that  of  surveys  of  1889, 
1900  and  of  1902-1904,  and  represents  the  official  levels  of  the 
last  survey.” 

Are  those  surveys  there  referred  to  indicated  in  the  maps  which 
are  part  of  what  you  have  called  the  Survey  of  1904-5,  as  pub- 
lished in  Document  No.  263  in  House  of  Representatives,  59th 
Congress,  1st  Session.  A.  It  is  the  same. 


880 


Cooley, — Direct  Exam. — Continued. 


The  plats  there  show  for  publication  purposes,  the  data  on  a 
small  scale.  We  used  the  large  scales  which  are  not  in  that  par- 
ticular— we  got  them  from  the  U.  S.  Engineer’s  office. 

2662  Cross-Examination. 

I understand  that  the  water  is  not  let  out  of  the  canal  on  the 
summit  levels  in  the  winter.  The  Channahon  level  begins  at 
Joliet.  Have  seen  it  at  Joliet  in  the  winter  and  the  water  was 
not  out  of  it  where  I saw  it.  The  level  of  the  canal  below  where 
the  Dresden  Heights  plant  is  being  constructed  is  the  Au  Sable 
level.  I have  never  seen  that  in  the  winter.  It  would  not  be  pos- 
sible to  let  the  water  out  of  the  canal  and  use  it  in  supplying 
water  for  hydraulic  purposes.  Since  January,  1904,  I under- 
stand the  AuSable  level  has  been  supplying  power  at  Ottawa. 
I understand  that  that  is  so  since  the  breaking  of  the  feeder  at 
Dayton  on  the  Fox  Eiver.  The  water  has  been  passed  down 

2664  through  this  level  to  Ottawa  under  these  conditions.  I do, 
indeed,  feel  a great  interest  in  the  outcome  of  this  suit.  I 

began  my  observation  and  study  of  the  Desplaines  River  about 
1885,  that  was  the  first  systematic  study  of  the  question  that  I 
made.  I became’  interested  in  it  as  early  as  1878.  1885  fur- 

nished the  opportunity  to  present  the  proposition  in  connection 
with  the  drainage  of  Chicago  of  the  possible  development  of  a 
deep  waterway  down  this  river.  A very  considerable  portion  of 
my  time  has  been  occupied  in  the  direction  of  making  that  plan 
a reality.  I have  regarded  it  as  necessary  for  the  State  to  con- 
trol the  flow  of  water  and  the  river-bed  in  its  own  proper 

2665  right,  whether  by  this  suit  or  some  other.  I have  deemed  it 
essential  as  a matter  of  course,  that  whoever  improved  the 

river,  if  it  be  the  State  or  the  United  States,  would  necessarily 
control  the  river-bed  and  the  flow  of  water  therein.  In  the  re- 
port of  the  Internal  Improvement  Commission,  submitted  in  1907, 
I first  advanced  the  idea  that  the  State  should  control  the  water- 
power so  as  to  derive  the  means  to  pay  for  the  improvement.  I 
worked  up  a complete  exhibit  on  the  waterways  question  in  1893 
and  4,  and  there  was  some  matter  published  in  that  connection. 
I would  not  say  at  the  moment  that  the  financial  scheme  of  1907 


881 


was  covered  by  it,  and  I would  not  say  to  the  con- 
2666  trary. 

Q.  IsnH  it  true  that  the  financial  plan  of  having  the  State 
assume  the  ownership  of  the  water-power  was  developed  by  you, 
when  you  found  that  your  plan  involved  such  expense  that  it  was 
impossible  to  carry  it  out  unless  that  were  done?  A.  No,  that  is 
not  true.  It  is  true  that  the  scheme  of  1893  and  4 which  was  pre- 
sented to  the  Legislature,  that  we  did  succeed  in  getting  a Com- 
mission Bill  for  a waterway  commission  which  was  vetoed  by 
Governor  Altgeld.  At  that  time  it  was  contemplated  that  the 
State  would  take  the  matter  up  as  a result  of  an  examination  by 
the  Commission  which  had  been  provided  for.  Governor  Altgeld 
vetoed  the  hill  and  made  his  specific  objection  to  the  hill  on  the 
ground  that  the  State  could  not  enter  upon  that  kind  of  an  im- 
provement. The  question  of  whether  the  State  owned  or  did  not 
own  the  bed  of  the  stream  was  never  a subject  of  discussion  or 
doubt  in  my  mind.  The  theory  was  not  advanced  that  the  State 
was  the  owner,  it  was  taken  for  granted  by  myself  and  by 
2668  all  the  reports  that  I have  ever  read  and  by  all  of  the  peo- 
ple that  I have  discussed  the  matter  with  up  to  the  time  of 
the  interpolation  upon  the  stream  of  the  projects  of  the  Economy 
Light  & Power  Company,  that  the  title  to  the  bed  of  the  stream 
was  owned  by  the  State.  There  is  not  an  official  report  that  I 
have  ever  read  that  assumed  to  the  contrary.  (Last  statement 
stricken  out.)  I referred  in  a previous  answer  to  the  reports 
— the  exhibits  before  the  Legislature  of  1893-4,  which  I prepared, 
but  I am  unable  to  recall  at  the  moment,  whether  that  matter  was 
discussed  in  that  connection  or  not.  I think  it  is  correct  that  in 
my  testimony  before  the  Legislative  Committee  in  Springfield 
which  had  this  matter  under  consideration  last  winter,  that  I an- 
swered that  I had  not  included  the  development  of  water-power 
by  the  State  in  any  official  report.  I do  not  know  of  any  affirma- 
tive act  either  of  the  State  or  Federal  Government  showing 
2671  the  intention  to  develop  water-power  in  connection  with  the 
Desplaines  Kiveiv  prior  to  1907.  Neither  the  State  nor  Fed- 
eral Government  have  contemplated  developing  water-power  in 
connection  with  Desplaines  Biver  project,  if  you  come  to  strictly 
legal  proposition,  but  the  matter  has  been  under  consideration  by 


882 


Cooley, — Cross-Exam. — Continued. 


myself  and  by  officials  ever  since  I can  remember.  I don^t  know 
that  I am  the  author  of  anything  that  appears  in  the  Governor’s 
message.  The  Governor  has  been  good  enough  to  ask  for  my 
advice  in  connection  with  his  message  and  other  matters  of  State 
government.  I did  take  part  and  endeavor  to  procure  passage 
by  the  Legislature  of  the  bill  under  which  this  suit  is  brought.  I 
was  there  at  Springfield  throughout  a large  portion  of  the  session 
of  the  Legislature  up  to  the  time  that  this  bill  was  passed. 

2674  I am  the  identical  fellow  who  swore  to  the  bill  filed  in  thig 
case.  I was  in  Nebraska  City  in  1878  and  1879.  During 

the  last  two  years  I was  at  Nebraska  City,  I had  oversight  over 
thirteen  works  on  the  Missouri  Eiver  from  Yankton  to  the  mouth, 
and  had  general  supervision  of,  and  investigation  of  the  physical 
data  relating  to  the  western  rivers  in  general  so  far  as  that  of- 
fice was  concerned.  I do  not  mean  to  be  understood  that  I had 
supervision  generally  of  the  work  of  improving  the  Mississippi 
and  other  western  rivers,  aside  from  the  Missouri.  I did  do  work, 
or  made  surveys,  and  investigation  of  data  respecting  the  Missis- 
sippi Eiver.  Such  data  as  was  gathered  in  regard  to  all  western 
rivers,  relating  to  the  records  of  gauges  at  different  sides,  the 
measurements  of  discharge  at  different  points,  the  studying  of 
the  movements  of  stream  beds  at  different  points,  and  all  matters 
concerning  the  phenomena  of  the  streams.  The  Missouri  Eiver, 
if  I remember,  is  about  2,400  miles  from  the  mouth  of  Ft.  Benton. 
Its  drainage  area  is  five  hundred  thousand  square  miles.  We 

2675  know  that  the  low  water  discharge  runs  down  to  about 
25,000  or  26,000  cubic  feet  of  water  per  second.  The  high 

water  of  1881  ran  up  to  about  400,  nearly  450,000,  and  the  great 
flood  that  carried  out  everything,  I think  it  reached  nearly 

2676  600,000.  That  river  has  the  April  rise  and  the  June  rise. 
The  water  does  not  usually  run  out  until  sometime  in  August. 

The  low  water  velocity  of  the  Missouri  Eiver  differs  very  much 
under  local  conditions  and  circumstances  of  the  bar  crossings.  In 
pools  it  is  nominal.  At  bar  crossings  it  will  run  to  2,  24  and  34 
miles  an  hour,  and  in  exceptional  cases,  even  5.  The  flood  ve- 
locity is  from  5 to  7 miles  per  hour  generally  speaking  from 
Sioux  City  to  the  mouth.  The  general  slope  of  the  river  averages 
between  10  and  11  inches  to  the  mile.  The  ordinary  low  water 
depth  is  about  2^  feet  and  it  ranges  up  to  the  top  of  the  bank 


883 


10  or  15  feet.  I consider  Major  Suter  pretty  good  authority  on 
the  Missouri  River.  I do  not  know  that  there  is  any  better.  If 
he  states  that  low  water  is  3 feet  I would  say  that  he  is  mistaken. 
I was  working  out  on  the  Nebraska  City  works  to  maintain  and 
improve  navigation. 

Q.  Was  it  not  particularly  at  Nebraska  City  for  the  pur- 

2678  pose  of  protecting  the  water  front  from  destruction!  A. 
The  law  says  otherwise. 

Q.  How!  A.  The  law  said  otherwise. 

Q.  We  are  not  speaking  of  the  law  we  are  speaking  of  the 
fact!  A.  I assume  the  fact  to  be  responsive  to  the  law. 

The  protection  of  the  banks  was  part  of  the  work ; we  also  built 
banks  for  the  purpose  of  controlling  and  directing  the  flow  over 
the  bars.  It  has  always  been  a part  of  the  policy  of  improving 
the  river  and  has  always  been  regarded  as  a necessary  element  in 
such  improvement.  It  has  always  been  the  experience  that  a 
large  percentage  of  dykes  go  out  and  prove  a failure.  The  pro- 
tection of  the  railroad  bridge  at  St.  Charles  was  an  incidental  part, 
if  we  could  not  maintain  the  river  under  the  bridge,  it  could 

2679  not  he  navigated.  Well,  you  may  say  that  up  to  a very  re- 
cent time  the  work  has  been  experimental,  or  has  not  settled 

down  to  a state  of  practice  at  which  it  could  he  definitely  said  as 
to  whether  you  could  hold  a hank,  or  direct  the  current  with 

2680  certainty  within  the  limit  of  cost.  I have  kept  pretty  close 
watch  of  these  great  highways  of  commerce,  the  rivers  of 

the  country.  There  has  been  some  local  use  of  the  stream  (Mis- 
souri River)  that  I know  something  about.  The  general  use  of  the 
stream  has  not  been  maintained.  The  last  I heard  of  it  a com- 
pany at  Kansas  City  was  about  to  put  a barge  line  upon  the 
stream  a few  months  ago.  I don’t  know  whether  they  have 
actually  done  so.  I do  not  think  it  is  true  that  for  the  last  twenty- 
five  years  there  have  been  reports  about  somebody  who  is  going 
to  put  some  sort  of  a line  on  the  Missouri  River  and  these  lines 
did  not  materialize.  There  were  lines  when  I was  on  the  stream 
in  actual  operation  between  Kansas  City  and  the  mouth.  I be- 
lieve they  have  disappeared.  We  had  general  maps  of  the  stream 
(Missouri  River)  which  were  in  the  nature  of  recognizance  maps 
and  had  under  the  direction  of  the  office  which  I was  connected  with 


884 


Cooley, — C ross-Exam.— Continued. 


a survey  party  that  actually  reached,  I think,  Three  Forks, 

2681  I think  in  1890.  They  were  surveying  the  river  in  1884.  I 
don’t  know  that  Mr.  Woerman  had  charge  of  the  level  party 
on  that  survey  and  that  it  was  done  in  1890.  The  answer  to 

2682  which  I refer  is  say  we  had  a survey  party  which  was 
making  a complete  survey  of  the  Missouri  Eiver  whose  ope- 
rations extended  up  to  the  Three  Forks  above  Fort  Benton.  I 
don’t  know  when  it  was  completed.  It  was  not  completed  when  I 
left  the  river.  I received  some  maps  that  were  compiled  later.  I 
do  not  remember  further  about  navigation  above  Fort  Benton  than 
that  there  were  reports  describing  the  upper  stream;  I believe 
there  were  some  small  boats  running  upon  Hie  river,  the  Jeffer- 
son or  the  Gallatin,  I have  forgotten  which,  above  Helena.  I do 

not  undertake  to  give  definite  information  as  to  any  part  of 

2683  the  stream  above  Fort  Benton.  The  work  on  the  Mississippi 
Eiver  referred  to  as  the  Plum  Point  Eeach  is  about  forty 

miles  long  and  in  high  water  10,000  feet  wide.  I have  seen  the  bar 
four  feet  above  low  water  line  all  the  way  across.  At  flood  stages 
the  water  would  be  25  to  30  feet  deep  and  at  low  water  we  have 
got  points  as  low  as  7 feet,  not  in  every  year  but  in  some  years. 
I would  not  undertake  to  say  against  what  current  we  took  the 
boat  we  had  at  Nebraska  City  16  feet  wide,  and  possibly  2^  to 

2684  3 feet  deep  and  from  60  to  70  feet  long,  40  to  60  tons.  We 
propelled  it  and  we  got  up  the  river  against  any  current 

that  was  in  the  stream  during  season  of  1878.  The  sweeps  were 
used  for  the  channel,  for  steering  the  boat  in  crossing,  and  we 
had  sails  we  could  use  when  the  wind  was  proper  and  at  other 
times  the  boat  was  cordelled  by  means  of  a line  and  men  on  the 
bank  along  the  shore.  The  sweeps  were  not  ordinarily  used  for 
the  propelling  power  but  they  would  be  used  for  crossing  the 
stream.  The  strongest  current  that  we  propelled  that  boat  against 
under  those  conditions,  was  three  or  three  and  a half  miles  per- 
haps. I want  to  explain  further  that  we  operated  boats  by  Cor- 
dells and  at  Glascow  through  the  flood  of  1874,  and  to  do  that 

2685  we  handled  them  there  against  much  higher  velocities,  five 
or  six  miles.  I think  that  the  current  of  12  miles  per  hour 

which  we  measured  at  Wyoming  Bluff  was  not  reported  in  any 
Government  report.  We  were  engaged  at  that  time  in  covering 
some  16  miles  of  river  by  a system  of  cross  sections  for  the  pur- 


885 


pose  of  tracing  tlie  movements  of  the  bottoms  and  that  was  one 
of  the  regular  series  of  cross  sections  that  was  found  in  that 
condition  at  the  time  I described  it.  I have  never  seen  a boat 
personally  climb  a 12  mile  current  except  as  w'e  had  to  deal  with 
them  in  measuring  that  cross  section. 

2686  I have  heard  of  Major  Rutfner,  who  is  an  engineer  of  the 
army.  He  was  on  the  Mississippi  with  headquarters  at 

Quincy  at  that  time,  and  later  he  was  at  Butfalo.  I don’t  know  of 
his  connection  with  the  lower  Mississippi.  The  highest  velocity 
that  I have  ever  seen  a boat  cordelled  against  is  five  or  six  miles,  I 
think.  In  cordelling,  the  banks  must  be  accessible,  of  course.  If 
the  banks  are  wooded  it  makes  cordelling  difficult,  but  in  the  history 
of  the  Louisiana  purchase  a towpath  route  was  reserved  the  whole 
length  of  the  Missouri  Eiver.  If  there  was  no  towpath  and  the 
bank  had  trees  growing  down  to  the  water,  that  would  render  it 
more  difficult. 

The  Court.  What  was  that  statement  about  a towpath  re- 
served by  the  United  States  Government? 

The  Witness.  No,  in  the  cession  of  the  Territory  of  Louisiana 
to  the  United  States  in  1803,  a towpath  right  was  reserved  the 
whole  length  of  the  Missouri  River,  as  I recall. 

2687  I am  only  familiar  with  the  Gasconade  River  by  the  of- 
fice records  and  seeing  it  at  the  mouth.  I think  Vienna  is 

100  miles  from  the  mouth.  I do  not  know  that  the  Government  has 
built  any  locks  in  that  hundred  miles.  There  were  none  there  in 
my  days.  The  Ohio  River  has  reached  a stage  as  low  as 

2688  1,500  cubic  feet  per  second,  I do  not  remember  the  year. 
The  subject  of  the  ratio  of  dilution  in  the  Sanitary  Canal 

was  a very  graphic  one  in  my  mind  as  the  responsibility  for  fix- 
ing that  was  upon  me.  I don’t  know  what  the  standard  low  water 
for  the  Ohio  River  is.  1867  was  taken  for  several  of  our  western 
rivers.  I say,  to  the  best  of  my  recollection,  knowledge  and  belief 
that  the  flow  of  the  Ohio  River  was  1,500  cubic  feet  per  second.  I 
remember  the  fact  of  using  them  at  90,000  feet  and  putting  them 
in  my  memorandum  at  the  time,  90,000  cubic  feet  per  minute. 

2689  That  was  somewhere  between  Pittsburg  and  Beaver.  It  was 
known  as  a Glass  House  Ripple. 


886  C ooley, — C ross-Exam.—Con  tin  ued. 

Q.  You  have  testified  that  the  Ohio  at  times  in  the  channel 
got  down  as  low  as  eight  to  ten  inches.  Will  you  name  any  place 
in  the  Ohio  Eiver  where  a low  water  record  of  eight  to  ten  inches 
was  ever  made?  A.  That  was  made — the  figures  that  I have  in 
mind  in  connection  with  this  1,500  feet  discharge  as  the  depth  upon 
the  ripples  between  Pittsburg  and  Beaver  did  not  exceed  that. 

The  place  was  between  Beaver  and  Pittsburg — I cannot  tell 
the  year.  At  that  time,  I was  very  familiar  with  the  river  and 
harbor  reports  and  records  of  the  United  States  from  1868  down 
and  I presume  I found  it  in  connection  with  that  or  possibly  with 
Colonel  ElletUs  report.  That  report  (Colonel  Ellett^s)  was  a re- 
port on  reservoirs  at  a very  early  day  along  in  the  ’50 ’s  for  the 
Ohio  Eiver. 

2690  That  is  my  best  recollection  and  is  still  as  to  the  minimum 
depth  on  Ohio  Eiver.  It  would  take  evidence  to  remove  it. 

I cannot  refer  you  to  data  at  this  minute.  I don’t  understand 
that  the  improvements  of  the  Ohio  Eiver  up  to  this  time  have 
covered  more  than  a very  small  fraction  of  it,  and  I only,  except 
in  the  case  in  which  I had  occasion  to  go  up  the  river,  I only 
know  it  by  the  reports  and  by  its  reputation.  It  may  be  true 
that  the  official  records  for  the  Ohio  Eiver  for  24  years, 

2691  from  1855  to  1878,  showed  that  a 3 foot  navigation  was  pos- 
sible on  that  river  and  existed  for  an  average  of  285  days 

in  the  years  and  they  might  show  a six  foot  navigation  for  155 
days  in  the  year.  Speaking  of  the  Hiawassa,  Gasconade,  Little 
Tennessee  and  French  Broad  having  five  or  six  inches  over  the 
bars  and  improved  to  15  or  18  inches  of  water  continuously  over 
the  ripples,  I don’t  know  what  has  been  done  upon  those  par- 
ticular streams  in  the  last  ten  or  twelve  years.  Up  to  the  time  I 
was  following  it,  they  were  making  improvements  which  were  a 
little  more  than  clearing  out  the  snags  and  boulders  and  cut- 

2692  ting  overhanging  trees,  and  making  hand-dikes  and  hand- 
placed  stone  upon  the  ripples,  blasting  out  holes  through 

them  so  push  boats  could  pass  throughout  the  season.  The  boats 
that  were  navigated  were  flat  push  boats.  My  statement  to  Mr. 
Starr  that  the  canal  at  the  Des  Moines  Eapids  was  to  connect  the 
navigation  in  the  Des  Moines  above  the  rapids  with  that  below 


887 


was  an  error.  It  was  to  connect  the  navigation  of  the 

2693  Mississippi  Eiver  below  the  rapids  with  the  navigation  of 
the  Mississippi  above  the  rapids.  The  Des  Moines  Eapids 

are  in  the  Mississippi  Eiver,  above  the  junction  of  the  Des 
Moines  Eiver.  I cannot  refer  to  any  records  as  to  the  depth  of 
the  water  over  Des  Moines  Eapids.  I don’t  know  when  the  first 
appropriation  was  made  for  the  improvement  of  the  Des  Moines 
Eapids.  It  may  have  been  an  appropriation  of  $100,000  in  1852. 
I know  that  early  appropriations  were  made  for  improving  on 
both  the  Eock  Island  and  Des  Moines  Eapids,  and  finally  at  the  Des 
Moines  Eapids,  it  was  ordered  to  open  a canal  which  was  along 
in  the  ’70 ’s.  I have  designed  the  Cheesemond  Dam  in  Colorado 
which  was  actually  constructed.  I made  a design  or  some  de- 

2694  signs  for  the  dam.  I afterwards  recommended  Mr.  Qharles 
Harrison  as  resident  engineer  there  and  he  finished  up  the 

design,  which,  with  amendments  made  by  myself,  was  adopted 
by  the  company  and  constructed.  Mr.  Harrison  is  not  considered 
to  be  the  designer  of  that  dam  by  myself,  I don’t  know  how  it  is 
by  others.  I never  had  occasion  to  make  any  claims  or  defend  my 
connection  with  it.  Whether  Mr.  Harrison  has  or  not,  I don’t 
know.  I don’t  know  that  I can  mention  any  other  dam  that  I 
designed  that  was  actually  constructed  other  than  the  works  of 
the  Sanitary  District  with  which  I may  have  had  as  much  to  do  as 
anybody  had. 

2695  Q.  Did  you  prepare  the  plans  on  which  the  bear  trap 
dam  was  constructed.  A.  I did  not  as  a draftsman  have 

anything  to  do  with  it. 

Q.  Did  you  prepare  the  plans  for  the  bear  trap  dam  of  the 
Sanitary  District?  A.  I suggested  the  principle  upon  which 
those  plans  should  be  worked  out  by  Mr.  Johnson  and  my  brother. 

Mr.  Johnson  was  one  of  my  assistants  when  I was  chief  engi- 
neer and  later  was  principal  assistant  of  the  District.  The  plans 
for  the  bear  trap  dam  were  prepared  while  I was  trustee  not 
while  I was  chief  engineer.  I had  to  do  with  the  spillway  up  at 
the  head  of  the  river  diversion.  I did  not  prepare  the  plans  for 
that. 

Q.  Aside  from  the  Cheesemond  Dam  and  such  work  as  you  have 
been  connected  with  for  the  Sanitary  District,  is  there  any  dam 


888 


Cooley, — Cross-Exam. — Continued. 


that  you  ever  prepared  the  plans  for  which  has  been  erected  any- 
where! A.  I would  have  to  think  about  that.  I would  state  in 
this  connection  that,  if  you  will  consult  the  article  in  Encyclopedia 
Americana  upon  the  subject  of  dams,  it  was  prepared  by  the  wit- 
ness and  that  is  considered  a very  good  authority  among  techni- 
cal men.  If  I think  of  any  more  I will  tell  you  later.  I could  not 
state  the  distance  from  Eiverside  to  Dam  No.  1 without  consulting 
the  profile,  but  I would  say  about  25  miles,  perhaps  27  miles. 
From  Eiverside  to  Lockport  is  about  21  miles.  From  the  end  of 
the  12  mile  level  to  Lake  Joliet  is  about  17  miles.  The  char- 
acter of  the  stream  (Desplaines)  from  Eiverside  to  Lockport 
other  than  the  12  mile  level  is  a shallow  rock  bed  below  the  12 
mile  level.  I have  described  it  as  a mere  surface  stream.  That 
was  not  a continuous  description  of  the  stream.  That  does  not 
apply  to  the  stream  continuously.  It  was  a larger  proportion  of 
it  where  broad  expanses  like  Goose  Lake  and  Eound  Lake 

2698  and  other  portions  of  the  stream  connect  up  by  currents  in  a 

shallow  rock  bed.  Goose  Lake  is  in  the  12  mile  level.  I recog- 
nize this  description  as  made  by  myself:  ‘‘From  the  end  of  the 

12  mile  level  to  Lake  Joliet  was  17  miles,  a mere  surface  stream 
with  a steep  declivity  over  the  lower  half  of  the  distance  discharg- 
ing it  to  a level  of  76.5  feet  below  Lake  Michigan.’’  Made  as  late 
as  1907,  and  further,  half  of  the  sixteen  miles  of  the  rock  bed  to 
Lake  Joliet  has  a slope  of  one  or  two  feet  per  mile,  and  the  lower 
half  eight  to  ten  feet  per  mile  to  the  pool  level,  76.5  feet  below 
Lake  Michigan.  I do  not  remember  writing  the  following:  “Des- 
plaines Eiver  practically  goes  dry  above  Lake  Joliet.”  The  en- 
tire report  of  the  Lakes  to  the  Gulf  Waterway,  a report  by  the 
Internal  Improvement  Commission  of  Illinois,  was  written  by 
myself,  except  the  letter  of  transmittal.  If  the  language  you 

have  quoted  is  in  there,  I will  acknowledge  it.  The  period 

2699  of  navigation  is  spring,  summer,  any  time  that  the  water  is 
there.  You  could  not  navigate  when  there  is  ice.  The  gauge 

at  Eiverside  is  a vertical  sta:ff,  the  foot  of  which  is  in  the  water, 
set  to  Chicago  datum.  There  was  a little  depression  in  the  stream 
bed  which  made  a slight  pool  at  the  side  of  the  gauge,  a bar  be- 
low. We  actually  measured  the  water  at  various  heights  of  the 
gauge  so  as  to  know  the  volume  of  water  passing.  The  bar  would 
fix  the  level  of  the  pool  in  which  the  gauge  is  situated  at  such  time 


889 


when  no  water  flowed  in  the  stream.  I think  11.4  is  the  zero 

2701  of  the  discharge  and  represents  no  discharge.  As  a matter 
of  fact,  I have  never  seen  a case  of  no  discharge.  I have 

examined  the  Sanitary  District’s  reports  that  have  been  offered 
in  evidence  here.  There  are  several  periods  in  that  record  that 
show  no  discharge,  but  that  means  a very  small  discharge  which 
I have  measured  myself. 

Q.  I want  you  to  answer  whether  it  is  so  or  not,  that  there  is  no 
discharge  at  all  at  that  time.  A.  I should  say  no.  I should  say 
there  is  a dfscharge  at  that  time.  Not  so  much  as  to  amount 
to  anything.  I have  never  seen  it  so  low  you  could  put  it  through 
a six  inch  pipe. 

2702  Q.  Let  me  make  another  computation.  You  say  there  are 
thirteen  and  a half  feet, — no,  that  at  thirteen  and  a half  feet 

at  the  gauge  there  was  that  for  an  average  of  70.4  days  in  how 
many  years!  A.  I think  nineteen  years  on  that  record,  if  I re- 
member right,  that  is,  600  second  feet;  that  amounts  to  600  cubic 
feet  per  second,  36,000  feet  per  minute.  If  I remember,  it  is  thir- 
teen feet  on  the  gauge.  The  remaining  days,  after  the  227  days,  it 
was  lower  than  12.4.  Part  of  that  time  would  be  in  the  winter 
time  when  it  was  frozen  up,  and  tile  late  summer,  before  the 
equinoctial,  not  all  of  them  between  May  and  September,  nor 
nearly  all  of  them.  Generally  speaking,  those  days  when  there 
was  no  discharge  was  in  the  late  summer;  did  not  begin  in  May 
and  run  until  September  but  begin  the  latter  part  of  July.  The 
May  record  would  give  a low  May  water  in  some  years  when  the 
ground  is  frozen  and  we  had  a frozen  ground  flood  and  the  water 
was  not  replenished,  then  you  get  a low  May  water  which  con- 
tinues for  the  year,  but  in  other  years  you  don’t.  When  there 
was  no  discharge  shown  there  was  eight  inches  in  the  mimimum 
on  the  12  inch  level.  The  balance  of  the  river  consisted  of 

2704  expanses  with  shallow  connections  in  the  rock,  and  these 
lakes  or  pools  would  be  full  just  the  same  as  the  12  mile 

level,  but  the  intermediate  water  would  be  nominal,  connecting 
them.  I never  have  seen  it  completely  dry.  I have  never 

2705  known  of  a measurement  being  made  to  find  it  absolutely 
dry.  It  is  a negligible  quantity  and  it  refers  to  a condition 

that  has  existed  since  man  has  changed  the  conditions  there  and 


890 


Cooley, — Cross-Exam. — Continued. 


they  have  drained  all  the  water  away  that  would  normally  flow. 
That  report  deals  with  the  natural  condition  of  the  stream  from 
the  end  of  the  12  mile  level  down.  I don’t  undertake  to  say,  Mr. 
Scott,  that  the  river  may  not  substantially  run  dry  in  some  years 
for  a season  or  a portion  of  the  year.  I won’t  undertake  to  say 
that  it  might  be  frozen  absolutely  to  the  bottom  so  that  no  water 
would  run  at  all,  and  that  those  conditions  have  been  accentuated 
during  the  time  when  inhabitation  has  taken  place  or  since  it  took 
place  upon  the  water  shed  and  by  the  works  of  man,  hut  that  that 
is  a condition  when  the  stream  is  not  navigated  as  on  other  west- 
ern rivers  when  the  water  is  extremely  low  and  there  is  no  water 
to  navigate. 

2706  I personally  have  been  over  it  in  a boat  several  times.  Have 
seen  the  Desplaines  Eiver  used  above  Dam  No.  1.  Have  seen 

a yawl  go  through  there  with  a party  of  twenty  men  in  it  which 
was  propelled  by  oars,  during  the  month  of  June  or  July,  1888  or 
1889.  The  party  in  the  boat  was  Mayor  Eoach  and  some  other 
gentlemen  who  went  down  there  to  look  over  the  stream. 

2707  I was  with  them.  We  went  down  over  the  twelve  mile  level. 
We  covered  a portion  of  the  12  mile  level.  In  the  summer  of 
1892  the  Sanitary  District  ran  a yawl.  I remember  there  was 

2708  such  an  occasion  on  which  the  yawl  was  sent  out  there.  I 
don’t  think  I was  in  that  party.  Other  than  the  journeys  I 

took  myself,  I have  seen  skiffs  and  row  boats  along  the  stream. 
I went  over  the  twelve  mile  level  so  many  times  that  I cannot  give 
you  any  year.  I have  been  on  other  portions  of  the  stream..  The 
longest  single  trip  I ever  took  was  on  Adam’s  Dam  to  the  mouth, 
in  March,  1887.  Went  all  the  way  in  a boat,  did  not  get  out 

2709  anywhere;  we  got  out  repeatedly  because  our  mission  was  to^ 
ascertain  flood-marks  and  all  the  facts  we  could  get  from  res- 
idents along  the  river.  It  was  after  high  water  had  subsided. 
The  stage  of  the  river  was  about  the  same  as  I should  judge  has 
been  produced  by  the  flow  of  the  Sanitary  District.  We  went 
through  into  the  Illinois  Eiver,  stopped  at  the  aqueduct  and  went 
down  the  river.  We  ran  the  rapids  and  stopped  at  the  foot  of 
the  rapids.  We  also  stopped  at  the  head  of  the  rapids  before  run- 
ning them. 

Q.  What  is  the  longest  trip  you  took  on  the  river  from  Eiver- 


891 


side  down!  A.  We  ran  the  river  from  Lemont  down  to  Lock- 
port  in  the  year  1892,  that  was  during  the  high  water  of  1892  or 
about  the  time  the  high  water  was  receding.  I do  not  recall  the 
exact  time.  Went  in  row  boat. 

2710  Never  went  from  Eiverside  to  Joliet  in  one  journey.  Cap- 
tain Ed.  Napier  was  with  me  on  the  journey  to  the  mouth 

I told  you  about,  no  one  else.  I don^t  know  what  has  become  of 
him.  I have  not  made  report  that  the  discharge  in  the  river 

2711  fell  to  4.27  cubic  feet  per  second  and  that  the  water  was  all 
going  through  the  dam.  That  would  mean  that  there  was 

no  water  going  down  into  the  12  mile  level  except  the  local  drain- 
age. There  would  be  some  local  drainage.  The  flood  elevation 
in  nineteen  years  continued  at  an  average  of  about  four  or  five 
days  in  the  year.  The  Eiverside  gauge  shows  an  elevation  of 
18  feet,  which  would  mean  4,500  second  feet.  The  depth  would  he 
about  7 feet. 

Q.  You  spoke  of  the  cutting  out  of  the  Illinois  and  Michigan 
Canal  from  Bridgeport  across  the  arm  of  tKe  Portage  Lake,  in- 
tercepting such  part  of  the  watershed  as  lay  south  of  the  Illinois 
and  Michigan  Canal  and  tributary  to  Portage  Lake  and  also  the 
Portage  Swamp,  as  being  one  of  the  events  which  deprived  the 
Desplaines  Eiver  of  all  its  water.  Did  not  all  of  that  intercepted 
water  come  into  the  river  again  at  Joliet!  A.  Prior  to 

2712  1866,  it  was  drained  out  by  the  State  ditch  through  Brighton. 

I spoke  of  the  canal  of  1847  in  that  connection;  it  did  not 
eventually  return  the  water  it  intercepted,  but  on  the  contrary, 
the  State  constructed  a ditch  to  drain  that  way  until  the  canal  was 
finally  deepened  between  1876  and  1871.  A portion  of  that  terri- 
tory at  some  point  west  of  California  avenue,  I think  still  drains 
to  the  canal,  but  I am  not  positive  as  to  that;  that  is,  it  was  re- 
turned to  the  canal  later.  There  was  a loss  to  the  Desplaines 
by  reason  of  the  percolation  into  the  canal.  It  had  to  go  into  the 
canal  above  the  dam.  The  amount  of  water  to  the  river,  the  canal 
was  contributed  to  at  times  from  the  Calumet  by  way  of  the  feeder, 
and  also  by  the  operation  of  the  pumping  station  at  Bridgeport, 
and  to  that  extent  was  a contribution  to  the  river  above  Joliet, 
which  was  probably  taken  out  to  feed  the  canal  below  Joliet.  I 
have  no  means  of  knowing  how  much  it  did  contribute  above 


892 


Cooley, — Cross-Exam. — Continued. 


Joliet.  Whatever  was  necessary  to  keep  the  canal  in  operation  or 
supplied,  and  which  the  Desplaines  could  not  furnish,  was  supplied 
from  those  other  two  sources  and  so  much  of  that  as  was  neces- 
sary to  operate  the  canal  below  Joliet  was  taken  out  again.  The 
Desplaines  Eiver  was  all  in  the  canal,  that  is  the  way  I under- 

2714  stand  it.  At  times  in  extreme  drought  the  Desplaines  Eiver 
was  used  to  the  extent  of  its  capacity  for  feeding  the  canal 

and  this  was  supplemented  from  the  Calumet,  and,  at  times,  also 
by  the  Bridgeport  pumping  station.  I assume  whatever  was 
necessary  to  maintain  the  prism  of  the  canal  on  the  Summit  level 
would  he  substantially  necessary  to  continue  the  navigation  be- 
low Joliet,  and  that  all  of  it  that  came  into  the  Summit  level  went 
down  in  the  canal  down  from  Joliet.  The  Joliet  feeder  was  built 
because  at  times  the  Desplaines  Eiver  was  not  adequate  to  sup- 
ply the  canal.  The  Bridgeport  pumps  were  put  in  because  both 
of  them  at  times  were  not  adequate  to  supply  the  canal. 

Q.  Why  didn’t  the  canal  originally  go  down  the  Desplaines  ' 
Eiver!  Because  there  was  not  water  enough  for  the  pur- 
pose of  feeding  it! 

2715  A.  No,  sir.  The  history  of  that  is  a matter  about  which 
eveiy  engineer  who  has  examined  the  river  has  speculated, 

to  a greater  or  less  extent,  and  asked  the  question  why  they  did 
not  take  the  river. 

I have  not  found  the  reports  of  the  earliest  engineers  as  to  why 
they  did  not.  After  the  deep  cut,  the  amount  of  water  the  canal 
contributed  to  the  river  varied  greatly  according  to  the  stage  of 
water  in  Lake  Michigan. 

I looked  it  up  at  one  time  and  I can  only  state  my  recollection. 

I think  at  one  very  high  stage  of  the  lake  when  the  canal  was 
open,  it  carried  close  to  40,000  feet  per  minute,  in  1871,  and  it 
got  down  to  12,000  per  minute  or  less  at  the  lower  stage  of  the 
river.  I have  made  measurements  on  the  canal  and  fixed  a rating 
scale  for  it,  and  I believe  that  rating  scale  has  been  used  ever 
since.  I think  the  rating  scale  showed  several  occasions  when  it 
was  below  15,000.  There  has  been  a very  ordinary  range  be- 

2716  tween  15,000  and  35,000  feet  per  minute.  I would  not  under- 
take to  give  a definite  estimate  as  to  how  much  water  the 

canal  has  taken  out  per  minute  from  the  river  below  Joliet.  I as- 


893 


smne,  in  a general  way,  that  what  was  necessary  to  take  care  of  the 
canal  above  Joliet  would  be  necessary  below.  I have  not  any  posi- 
tive information  as  to  the  actual  draft  of  the  Illinois  and  Michi- 
can  Canal  below  the  City  of  Joliet.  I have  not  examined  the 

2717  official  report  to  see  how  much  of  the  time  the  pumps  at 
Bridgeport  were  used  further  than  this  that  a statement 

was  made  that  they  were  operated  at  times  at  the  cost  and  by 
the  request  of  the  City  of  Chicago  to  increase  the  sanitary  condi- 
tion of  the  river,  and  also  in  the  interest  of  the  water  power  at 
Lockport.  How  much  was  necessarily  occupied,  I do  not 

2718  know.  It  is  not  true  that  in  the  state  of  nature  Mud  Lake 
and  Portage  Lake  drained  into  the  Chicago  Elver.  It  is  not 

true  that  the  construction  of  the  canal  added  this  area  to  the  I)es- 
plaines  watershed.  I am  unable  to  say  how  much  water  was 
added  to  the  Desplaines  Eiver  by  the  opening  of  the  Illinois  and 
Michigan  Canal.  I have  never  made  any  investigation  on  that 
subject  and  do  not  know  how  it  could  be  arrived  at.  As  much 
water  was  added  when  the  Deep  Cut  was  opened  in  1871  as  the 
canal  drew  from  the  Chicago  Elver.  The  canal  was  to  have  a ca- 
pacity of  24,000  cubic  feet  of  water.  I do  not  know  how  the  open- 
ing of  the  Deep  Cut  affected  the  level  of  the  Illinois  Eiver  at  La 
Salle.  You  could  not  add  water  to  the  river  without  raising 

2719  it.  I do  not  know  how  much  it  raised  it,  not  as  much  as  a 
foot  at  La  Salle.  Not  having  given  the  matter  any  thought, 

I cannot  answer  it  off  hand.  From  1884  to  1887  the  water  was 
pumped  in  and  that  increased  the  flow  from  thirty  to  as  high  as 
sixty  thousand  cubic  feet  per  minute.  The  canal,  in  all  the  infor- 
mation of  the  period,  is  supposed  to  have  greatly  shrunk  in  its  ca- 
pacity, something  much  less  than  30,000  feet.  The  effect  of  the 
erection  of  the  Bridgeport  pumping  station  under  the  Munn  res- 
olution was  to  require  that  a pumping  works  at  Bridgeport  should 
furnish  60,000  feet,  or  as  much  thereof  as  the  canal  could  be  made 
to  carry.  As  a matter  of  fact,  the  pumps  never  did  furnish 
60,000  feet,  and  the  greatest  record  that  was  made  by  them  was 
an  average  of  about  52,000  feet,  I believe,  for  something 

2720  like  three  months  in  the  year  1889  or  1890.  I should  say 
that  after  the  building  of  the  Henry  Dam  the  addition  of  the 

waters  by  reason  of  the  pumping  did  not  have  the  effect  of  raising 
the  natural  low  water  at  LaSalle  a foot. 


* 


894 


Cooley, — Cross-Exam. — Continued. 


It  is  a long  time  since  I constructed  a navigability  profile 

2722  below  LaSalle.  I am  the  author  of  a brief  entitled,  ‘‘The 
Lakes  to  the  Gulf  Waterway,’^  published  in  1888.  If  I stated 

that  at  that  time  that  from  1871,  when  the  Deep  Cut  was  built,  to 
1884,  the  canal  carried  by  gravity  to  the  Illinois  Kiver  from  15,000 
to  35,000  cubic  feet  per  minute,  sufficient  to  raise  the  low  water  at 
LaSalle  from  five  inches  to  a foot  and  a half — as  much  in  the 
lower  stretches  of  the  river,  it  was  correct  and  is  still  correct.  I 
presume  I stated  that  from  the  spring  of  1884  to  the  spring  of 
1887  the  water  pumped  “has  increased  from  30,000  to  40,000 
cubic  feet  to  60,000  cubic  feet,  the  latter  amount  being  sufficient 
to  raise  the  natural  flow  at  LaSalle  about  one  and  two  thirds 
feet,”  but  as  a matter  of  fact  the  Bridgeport  pumping  station 
never  realized  the  efficiency  which  we  anticipated,  never  realized 
the  60,000  cubic  feet  which  we  anticipated.  I made  the  official 
test  in  Bridgeport  in  1886  myself. 

2723  Q.  When  in  1888  you  wrote  this,  however,  in  which  you 
stated  “from  the  spring  of  1884  to  the  summer  of  1887  the 

water  pumped  has  increased  from  30,000  to  40,000  cubic  feet  to 
60,000  cubic  feet,”  I ask  you,  did  you  not  know,  when  you  wrote 
that,  what  those  pumps  had  been  performing  from  1884  to  1887! 
A.  I thought  I did.  I am  not  a man  likely  to  make  a statement 
of  that  sort  in  a document  of  that  nature  without  verifying  the 
fact.  I would  like  to  explain  in  regard  to  that  matter.  At  that 
time,  in  1886,  as  I have  stated,  I made  a test  of  the  Bridgeport 
pumping  station  to  ascertain  what  the  capacity  was  of  the  pumps 
at  that  point,  and  made  a rating  scale  which  was  used  for  some 
years  afterwards  for  the  capacity  of  the  canal.  And  we  did 
operate  the  pumps  up  to  the  proper  head  to  get  60,000  feet,  and 
attempts  were  made  for  a time  to  maintain  that  volume  of  water, 
and  the  limit  was,  as  stated  in  the  report,  from  30,000  to  60,000 
feet,  but  as  a matter  of  fact  there  was  great  disappointment  in 
the  result,  as  the  pumps  were  not  able  to  maintain  an  operating 
capacity  of  60,000  feet,  and  did  not  succeed  in  doing  so  for  any 
length  of  time. 

2724  I made  the  test  in  1886.  The  article  I think  was  written 
in  1887,  possibly  published  in  1888.  At  the  time  I wrote  it 


895 


I presume  I had  the  date  of  operation  from  the  spring  of  1884 
to  the  summer  of  1887. 

I would  like  to  ask  for  the  privilege  of  correcting  two  or  three 
errors  of  statement  and  improper  answers  which  I made  yester- 
day. 

The  Court.  Very  well. 

2725  I have  looked  up  the  matter  in  regard  to  the  area  of  the 
Missouri  river  basin,  and  now  state  it  at  531,000  square 

miles.  In  the  record  that  I gave  at  Glascow,  Missouri,  which  I 
think  was  1874,  I should  have  said  1878,  during  the  high  water  of 
1878,  they  were  using  the  river  for  navigation  without  the 

2726  aid  of  steam.  In  regard  to  the  depth  of  the  Missouri  Eiver, 
I would  now  say  that  the  statement  quoted  from  Major 

Siiter  of  three  feet,  probably  applies  to  the  river  between  Kansas 
City  and  the  mouth;  that  our  last  snagging  boat  which  was  es- 
pecially built  for  the  Missouri  River  known  as  the  Suter,  was  de- 
signed to  work  on  a 2^  feet  of  water  in  order  that  she  might  work 
the  Missouri  River  in  low  water. 

In  regard  to  the  Keokuk  matter,  the  canal  at  that  point  is  5 
feet  deep.  The  Des  Moines  Rapids  Canal  is  5 feet  and  the  im- 
provement of  the  upper  Mississippi  River  has  proceeded  on  a basis 
of  4|  feet  with  an  ultimate  depth  of  6 feet  in  contemplation. 

In  regard  to  the  question  about  the  title  to  the  bed  of  the 
stream,  I would  like  to  supplement  that  by  a statement  that  I 
did  not  understand  the  question  to  go  to  the  matter  of  the  public 
easement  in  the  stream,  or  the  question  of  the  control  of  the 

2727  water  itself.  I refer  to  the  Desplaines  River.  I said  at  that 
time  that  I did  not  know  that  the  matter  had  been  discussed 

in  the  courts  of  the  co-temporary  period.  I say  now  that  I have 
not  examined  those  reports,  and  so  do  not  know  for  that  reason. 

In  regard  to  the  water  supply  to  the  summit  level  of  the  Illi- 
nois and  Michigan  Canal,  I wish  to  supplement  by  stating  the 
fact  that  between  1848  and  1871  that  summit  level  fed  both  ways; 
it  locked  down  from  the  Chicago  River  as  well  as  in  the  direction 
of  Lockport  so  that  the  water  supply  was  divided,  perhaps  half 
of  it  for  the  purposes  of  navigation  being  used  in  opposite  di- 
rections, each  half  in  opposite  directions.  That  was  from  1848 


89()  Cooley,— Cross-Exam. — Continued. 

to  1871,  up  to  the  time  that  the  deepening  of  the  canal  was  made 
operative.  The  summit  level  supply  of  water  fed  in  both  direc- 
tions down  the  valley  and  into  the  Chicago  River. 

Now,  in  regard  to  the  matter  that  was  asked  me  as  to  my  con- 
nection with  the  Denver  work,  the  construction  of  the  Cheeseman 
Dam,  without  going  into  any  of  the  details  in  that  connec- 
2728  tion,  I desire  to  state  for  the  purpose  of  the  record  that  I 
was  connected  with  the  Union  Water  Company  for  five  years 
during  the  incumbency  of  three  distinct  chief  engineers,  and  had 
more  to  do  with  bringing  to  pass,  and  in  determining  the  char- 
acter of  that  structure  than  any  other  man.  I would  make  the 
same  statement  in  regard  to  the  Sanitary  District  and  my  connec- 
tion therewith,  from  1885  to  1897.  And  I would  add  to  that, 
perhaps  all  other  men  together,  and  the  other — and  that  there 
may  be  unimportant  details  in  which  I-  was  not  specifically  the 
originator,  but  nothing  was  done  during  that  period  which  was 
not  subject  to  my  approval. 

I will  say  further  that  on  all  projects  which  I have  reported 
affirmatively,  since  1897,  they  have  either  been  carried  out,  or 
are  now  being  carried  out,  or  are  in  a fair  way  to  be  carried  out. 
I wish  to  say  that,  in  view  of  some  of  the  questions  being  raised 
about  my  practical  experience. 

I want  to  make  a further  statement,  and  then  I will  conclude. 
That  almost  from  the  inception  of  the  Sanitary  District,  the  pos- 
sibility, or  even  the  probability  that  the  State  would  be  required 
to  undertake  the  work  as  a waterway  was  uppermost  in  the  minds 
of  the  promoters  of  that  enterprise,  I will  modify  that  by  saying 
that  that  possibility  was  always  one  as  an  alternative  which  we 
’might  have  to  undertake,  and  not  only  that  but  I will  state  that 
the  project  prepared  under  my  direction  in  1893  and  1894  for  a de- 
velopment of  the  Desplaines  River  was  substantially  followed  in 
a report  which  I drew  in  1906  and  1907  for  the  State  of  Illinois, 
and  was  essentially  and  substantially  a combination  of  nav- 
2730  igation  water  power.  A great  number  of  blue  prints  have 
been  prepared  of  my  report  of  1893  and  4,  and  it  was 
publicly  presented  in  the  Legislative  Session  of  1895.  The  State 
was  not  specifically  mentioned  in  that  report. 

I caused  to  be  prepared  and  introduced  a bill  at  the  last  Leg- 


897 


islature,  wliicli  did  not  provide  for  a commission  to  assess  com- 
pensation to  the  owners  of  water  power  along  the  river  in  connec- 
tion with  the  deep  waterway  project.  I had  nothing  to  do 

2731  with  the  Schmidt  bill.  Mr.  Humphrey  presented  the  hill  I 
prepared.  I approved  the  plans  for  the  project  at  Lowell, 

2732  Michigan,  in  which  a dam  was  involved  and  executed.  I 
projected  the  water  power  development  of  the  Muskegon 

River  upon  which  two  dams  have  since  been  constructed.  I pro- 
jected the  water  power  development  of  the  Huron  River  which  in- 
volves a number  of  dams. 

Q.  Where  was  thisJast  one?  A.  Huron  River,  Michigan, 
which  is  in  process  of  development.  I projected  the  flood  treat- 
ment of  the  Grand  River,  Michigan,  for  the  City  of  Grand  Rapids, 
on  two  separate  reports,  1904  and  1907,  which  involves  walls, 
levees,  dikes  and  dams,  and  that  proposition  is  nearly  half  car- 
ried out  and  is  in  process  of  carrying  out  as  rapidly  as  the  City 
of  Grand  Rapids  can  undertake  it.  And  I projected  the  treatment 
of  the  river,  the  harbor  and  the  location  of  the  barge  canal  for 
the  City  of  Rochester,  and  my  plans  in  that  connection  have  been 
adopted  in  part,  not  all  of  them. 

I do  not  know  that  they  treated  the  Muskegon  River  according 
to  my  plans.  The  draftsmen  in  my  office  prepared  the  plans 
2735  for  all  of  these  projects.  Mr.  Williams,  who  is  here  in 
court,  designed  the  plans  subject  to  my  approval.  There  was 
no  final  plan  prepared  at  any  of  those  places  except  Lowell. 

The  Illinois  River  at  LaSalle  varies  through  that  reach  from 
600  to  800  feet  wide,  and  widening  out  to  1,000  feet  in  places. 
The  Desplaines  River,  at  its  mouth,  is  about  300  feet,  I think. 
On  the  site  of  the  Economy  Light  & Power  Company,  I think  I 
made  that  measurement. 

I do  not  know  how  much  water  was  taken  out  of  the  river 
2737  for  the  purpose  of  navigation  on  the  canal  below  Joliet,  from 
1884  to  1887.  I have  only  looked  up  the  question  in  a gen- 
eral way.  I know  that  the  water  has  been  carried  down  the  Chan- 
nahan  level  for  the  purpose  of  feeding  some  of  the  water-power 
below  Joliet.  It  was  carried  down  to  supply  that  level,  and  then 
the  Kankakee  feeder  came  in  below  that  point.  I never  made  a 


898 


Cooley, — C ross-Exa  m . — Contin  ued. 


measurement  of  it  to  see  liow  much  was  passed  down  the 
2 / 38  canal  below  the  City  of  J oliet.  I do  not  remember  making' 
any  measurements  of  the  volume  flowing  in  the  canal  below 
the  City  of  Joliet.  I knew  that  there  had  been  a contest  con- 
nected with  that' matter  and  some  compromise  by  which  water  was 
taken  down  to  feed  certain  wheels  on  the  Channahon  level.  I 
do  not  know  how  much  was  taken.  I don’t  know  that  5,000  cubic 
feet  per  minute  was  the  amount. 

I was  consulting  engineer  of  the  State  Board  of  Health  in  1888 
and  1889,  and  also  in  1891.  I prepared  considerable  matter  for 
them  on  general  questions  and  prepared  also  a report,  or  started 
out  to  prepare  one,  dealing  with  the  water  supply  of  Illinois.  I 
think  it  was  published  in  1899,  in  the  publication  known  as 
2740  ‘‘the  Water  Supplies  of  Illinois.”  I would  not  say  at  the  mo- 
ment, without  refreshing  my  mind,  whether  I did  or  did  not, 
subsequent  to  that  time,  publish  any  work  for  the  use  of  the  Board 
of  Health. 

The  drainage  area  of  Kankakee  Eiver  is  somewhere  about  5,000 
miles;  a little  over.  The  drainage  area  of  the  Hesplaines  Eiver 
is  about  1,400  miles  or  a little  less.  They  together  form  the  Illi- 
nois. 

By  the  term  “low  water  volume  of  a river  is  nominal”  is  meant 
that  it  is  too  small  to  take  any  particular  account  of. 

Morris  is  nine  miles  below  the  mouth  of  Kankakee  Eiver.  I 
think  there  is  a measurement  at  Morris  of  less  than  600  feet  per 
second.  I would  not  consider  600  feet  nominal  in  itself.  It  might 
be  nominal  in  relation  to  the  average  flow  of  the  stream.  I mean 
to  be  understood  that  there  has  been  one  year  of  record  in  the 
Desplaines  and  Illinois  Eivers  when  the  rivers  practically 
2742  went  dry.  There  was  no  water  in  them  at  all  to  speak  of, 
and  that  was  the  extraordinary  year  of  1867.  I do  not  recall 
now  whether  there  was  not  a lower  record  than  600  cubic  feet  per 
second  at  Morris.  I can  recall  that  there  was  a measurement 
at  the  mouth  of  the  Kankakee  Eiver  of  about  550  feet;  that  is 
the  lowest  I know  of.  I would  not  undertake  to  say,  without  mak- 
ing a specific  examination,  how  much  water,  what  depth  there 
would  be  in  the  Illinois  Eiver  at  Morris,  with  600  cubic  feet  per 


899 


second.  My  recollection  is  it  is  about  800  feet  wide  there. 

2745  My  estimate  is  something’over  a foot. 

(Witness  here  handed  book,  ''Lakes  to  Gnlf  Waterway, 

1906”). 

Q.  That  is  page  25,  that  is  a very  good  page,  25,  you  ought  to 
]-ead  it  through.  Natural  low  water  volume,  you  refer  to  its  con- 
dition when  not  interfered  with  by  any  extraneous  influences,  ex- 
cept those  of  nature,  do  you  not  ? A.  That  is  true,  and  it  is  also 
true  that  the  words  "natural  low  water  volume”  does  not  refer, 
in  engineering  parlance,  to  the  habitual  low  water,  but  to  the 
known  extreme.  And  I want  to  further  add  in  that  connection 
that  these  known  extremes  are  base  lines  in  which  it  is  recog- 
nized that  rivers  cannot  be  used  for  navigation  at  all,  and  that 
the  actual  stages  that  are  useful  lie  about  it.  They  are 

2746  limits. 

For  authority,  I could  only  refer  you  to  the  fact  that  in  the 
early  surveys  of  the  Illinois  Kiver,  and  in  all  of  the  discussions 
for  portions  of  it  up  to  the  survey  of  the  Ernst  Board  reported 
in  1905,  and  also  on  the  upper  Mississippi,  the  low  water  of  1867 
is  used  as  a datum  plan  of  reference. 

Q.  But  it  is  not  used  as  defining  the  natural  low  water  volume, 
is  it?  A.  The  two  are  synonymous.  The  natural  low  water  vol- 
ume and  the  lowest  record  are  synonymous  in  engineering 

2747  parlance.’  I don’t  know  that  you  can  find  the  definition,  ex- 
cept as  you  take  the  individual  words  and  go  through  a dic- 
tionary. I know  from  some  thirty  years  in  contact  with  the  river 
that  that  is  the  way  in  which  it  is  habitually  used. 

I do  not  say  that  it  is  true  that  other  engineers  besides  me 
use  the  term  in  that  way.  We  speak  ordinarily  of  the  normal  low 
water  and  the  extreme  low  water.  In  that  case  it  refers  to  the  ex- 
treme low  water.  What  I mean  in  that  report  is  the  natural  low 
water  volume. 

Q.  In  the  next  paragraph,  we  find  that  you  used  the  term  again 

"extreme  floods,  may  be  assigned  to  two  causes: — Heavy 
winter  snow  on  a frozen  ground  surface  produces  a great 
break-up  rise,  followed  by  extreme  low  water,  as  in  1867  and 
1887.  Again,  long  continued  rains  fill  the  ground  and  marshes 

2748  to  overflowing,  and  the  excess  runs  away  in  a great  flood,  as 


900 


Cooley, — Cross-Exam. — Continued. 


in  the  several  great  floods  of  May  and  June.  In  long  continued 
dry  periods  the  storage  of  marshes  and  ponds  is  exhausted, 
and,  as  the  subsoil  is  generally  impermeable,  extreme  low 
water  follows.  In  ordinary  years,  the  floods  are  moderate  and 
the  low  water  volume  well  sustained.  ’ ^ 

did  you  mean  when  you  used  the  term  ‘‘and  the  low  water  vol- 
ume well  sustained,^’  the  lowest  recorded  water?  A.  No,  sir. 

Q.  You  have  used  the  words  “low  water  volume.”  That  is 
what  I had  in  mind.  In  these  two  paragraphs  what  different 
2749  meanings  have  you?  A.  I have  used  it  generically  and  speci- 
fically, I think.  The  low  water  volume,  generically,  refers  to 
the  low  stage  of  the  season,  and  in  some  seasons,  this  low  water 
volume  is  well  sustained,  or  much  higher  than  in  other  seasons, 
and  in  that  connection  I was  discussing  the  subject  of  marsh  ef- 
fect, which,  in  ordinary  seasons  maintained  a good  water  volume. 
I don’t  think  I have  used  the  words  in  different  senses  in  the  two 
paragraphs.  Their  meaning  is  perfectly  plain  in  the  context.  The 
addition,  or  prefixing  of  the  word  “ ‘natural’  low  water  volume” 
gives  a different  sense  when  you  use  the  word  nominal  in  con- 

2751  nection  with  it.  That  is  the  best  answer  I can  make  in  view 
of  what  has  been  read  to  me. 

2752  CouxsEL  FOR  Defendant.  Professor  Cooley  you  have  said 
that  there  is  a record  of  600  cubic  feet  per  second  at  Morris. 

As  a matter  of  fact,  is  it  not  true  that  there  is  a record  of  250  to 
350  second  feet  in  1887  at  that  point?  A.  I do  not  recall  it. 

I made  the  measurement  at  Morris  in  1887  and  set  the  gauge 
to  whatever  I said  in  regard  to  that,  having  the  facts  before  me,  it 
would  be  correct. 

Counsel  for  Defendant  (reading  from  book)  : “The  natural 

low  water  volume  of  the  Illinois  at  Morris  in  nominal,  not  exceed- 
ing 250  to  350  second  feet  in  1887,  practically  at  extreme  low 
water,  after  allowing  for  canal  water  from  Lake  Michigan.”  Was 
that  a correct  statement  at  that  time?  A.  I think  I had  the 
facts  before  me  at  that  time.  I think  the  statement  is  true.  That 
is  the  only  year  in  which  I made  the  observations  personally. 

2753  I think  also  the  low  water  at  1887  was  lower  than  it  has 
been  since  the  bridge  was  built  at  Morris  in  1876.  I know 

the  condition  of  the  bed  at  Morris  in  a general  way.  I did  know 


901 


it  at  the  time  I was  examining  the  stream.  I think  it  was  actually 
navigable  at  that  time.  At  that  time  I would  say  it  was  three 
or  four  feet  deep.  It  was  in  a pool  that  extended  clear  to  the 
Marseilles  Dam,  something  like  fifteen  miles  or  more,  and  extended 
up  stream  pretty  nearly  to  Kankakee,  so  a boat  could  run  as  long 
as  there  was  water  enough  to  supply  it  for  that.  The  water 

2754  was  250  to  350  second  feet.  I think  the  depth  was  from 
three  to  four  feet.  The  depth  varied  from  twelve  to  fifteen 

feet  deep  up,  to  limits  of  less  than  three  or  four  feet  over  that 
entire  reach  of  16  or  17  miles  to  Marseilles  and  it  extended  up 
practically  to  the  foot  of  the  rapids,  about  7 or  8 miles.  I did 
not  see  any  steamboats  on  the  river.  I saw  a large  number  of 
skiffs.  When  I saw  it  the  water  from  the  Illinois  and  Michi- 

2755  gan  Canal  was  mingled  with  the  water  of  the  Desplaines  and 
the  Kankakee.  I think  the  average  contribution  throughout 

the  year  was  pretty  nearly  in  proportion  to  the  relative  drainage 
area,  about  as  5,000  is  to  1,379.  I would  say,  as  I have  said  in  re- 
ports, that,  owing  to  the  very  large  marsh  area  from  the  watershed 
to  the  Kankakee,  the  low  water  flow  is  well  sustained  except  in 
some  extreme  years  of  drought  when  it  suddenly  drops  to  a very 
small  limit.  The  Desplaines  Diver  has  not  the  same  propor- 

2756  tion  or  character  of  gathering  ground,  at  least,  to  the  same 
extent.  It  runs  out  somewhat  quicker.  The  general  descrip- 
tion of  the  Desplaines  valley  that  it  is  an  impermeable  soil  is  cor- 
rect. The  Kankakee  is  morasses  and  marshes,  and  maintains  its 
water  and  yields  it  gradually.  I think  that  550  second  feet  was 
the  low  water  on  the  Kankakee  near  its  mouth,  in  1867,  that  is  vol- 
ume reported  by  General  Wilson  as  reported  by  Worral.  I have 

in  my  mind  a figure  like  27,000  feet  per  minute.  There  has 

2757  been  some  other  figures.  I have  stated  sometime  since,  I 
think,  that  it  was  550  feet  when  I should  have  stated  it  wms 

450  feet,  because  what  I had  in  mind  at  that  time  was  something 
like  27,000  feet  per  minute.  I made  the  mental  deduction 
wrong.  I have  no  recollection  of  a measurement  respecting  the 
low  water  of  1867  in  the  Illinois  Diver,  except  at  LaSalle  where 
the  volume  is  reported  at  633  feet  per  second,  I believe.  Claypool 
had  a mark  of  reference  to  which  he  referred  the  stage  of  water 


902 


C ooley, — C ross-Exam. — Continued. 


, at  Morris,  which  I took  into  my  levels  in  1887  with  a view 

2758  to  interpreting  the  records  kept  by  Mr.  Claypool  in  his  diary 
from  1834  down.  My  remembrance  is  that  the  Claypool  plans 

were  about  three  inches  above  the  low  water  of  1887.  The  amount 
of  water  being  contributed  by  the  drainage  district  to  Desplaines 
River  has  varied  from  about  4,200  feet  per  second  up  to  6,000  feet 
per  second.  It  is  normally  running  6,000  and  down  as  low  as 
4,200.  I could  only  guess  how  much  that  water  would  raise 

2759  the  level  of  the  Illinois  River  at  Morris  in  the  absence  of 
the  rating  curve  but  would  guess  it  at  about  three  feet.  I 

don’t  think  that  the  Kankakee  River  is  three  times  as  wide  as 
Desplaines  River  at  the  mouth.  Then  the  Desplaines  River  as  a 
whole  has  a very  variable  width.  My  best  recollection  is  it  was 
about  300  feet  wide  at  the  mouth  and  the  Illinois  River  at 

2761  Morris  600  to  800  feet.  I don’t  think  it  averages  as  wide  as 

2762  800  feet,  probably  nearer  600  feet. 

I think  I have  said  that  it  (Desplaines  River),  goes  sub- 
stantially dry,  not  absolutely,  at  times.  The  river  below  Joliet  is 
characteristically  different  from  the  stream  above  Joliet.  It  is  a 
succession  of  navigable  pools,  with  very  small  intermediate  in- 
terruptions so  that  a boat  could  pass  through  it,  whether  there 
was  any  water  in  the  river  or  not.  The  river  differs  very  radi- 
cally above.  It  had  a very  large  swamp  control  on  the  Chicago 
summit,  which  the  upper  part  of  the  river  did  not  have  to 

2763  the  same  extent.  The  swamp  control  reaches  the  Desplaines 
River  at  Summit  and  in  the  Portage  swamps  and  lakes,  and 

in  the  12-mile  level.  It  maintains  a surface  stream  in  such  con- 
dition that  the  original  explorers  gave  to  it  the  name  of  Plein, 
which  was  a full  river.  The  swamp  control  is  below  Riverside. 
There  is  marginal  land  that  overflows  there  from  Joliet  to  the 
mouth  of  the  river.  Some  of  the  marginal  lands  might  be 
2765  classed  as  swamp  lands.  I don’t  know  the  area  in  acres.  I 
went  over  that  acreage  once  for  the  purpose  of  putting  a 
value  on  it.  They  are  called  marginal  marshes  along  the  shores 
of  Lake  Joliet  and  some  down  below  the  mouth  of  the  DuPage  which 
I would  call  swamps.  They  are  not  swamps  in  the  sense  of  the 
Kankakee  swamps.  They  are  feeding  sources  only  in  the  sense 
that  every  swamp  and  every  bottom  land  from  which  flood,  over 


90:] 

which  floods  gather,  will  later  run  out,  prolong  a flood.  They  are 
not  feeding  sources  in  the  sense  that  the  swamp  in  the  neighbor- 
hood of  Summit  is.  The  supply  for  the  lower  river  below 

2766  Joliet,  aside  from  above  Lockport,  is  Hickory  Creek  and  the 
DuPage  Kiver,  Jackson  Creek  and  Kock  Kun.  I don’t  think 

the  DuPage  Piver  ever  dries  up.  I would  not  say  that  any  of  them 
absolutely  dry  up  because  I never  saw  them  dry.  I won’t  under- 
take to  say  where  I got  the  information  to  put  into  the  re- 

2767  port,  I probably  got  it  from  some  citizens  along  the  stream. 
There  are  streams  with  impermeable  sub-soils,  which  you 

might  call  surface  streams  with  the  exception  of  the  Desplaines, 
with  the  exception  of  the  DuPage  Eiver,  which  has  a considerable 
control  through  a large  area  of  permeable  ground  in  the  vicinity 
of  Plainfield.  The  other  three  streams  all  come  in  above  DuPage 
Kiver.  I don’t  know  of  any  considerable  body  of  swamp  land  on 
any  of.  them.  I would  answer  in  regard  to  Hickory  Creek  that 
there  has  been  sufficient  water  in  Hickory  Creek  to  operate  a mile. 
Riley’s  Creek  comes  in  through  what  is  known  as  the  Kanka- 

2768  kee  Cut-off,  it  is  very  near  the  mouth  of  the  river.  The  mill 
at  Hickory  Creek  was  up  above  the  city  limits  of  Joliet  some- 
where. I don’t  know  that  there  was  enough  to  warrant  the  plac- 
ing of  a mill  there.  I think  I have  seen  some  gasoline  launches  or 
steam  launches  or  something  like  that,  down  on  Illinios  River,  be- 
tween the  mouth  of  Desplaines  and  LaSalle.  I think  I have  but 
my  recollection  is  not  sure  on  that.  They  were  pleasure  boats  and 
I think  they  were  owned  along  the  pool,  and  I have  seen  them  on 

the  river,  but  I would  not  be  positive  about  that. 

2769  Q.  What  value  did  you  attach  to  the  upper  Desplaines  as 
a feeder  for  your  deep  waterway?  A.  We  have  treated  the 

proposition  as  a supply  of  water  from  Lake  Michigan.  That  is 
the  24-foot  waterway.  I don’t  think  we  used  the  upper 

2770  Desplaines  in  that  connection;  in  fact,  I think  that  our  early 
project  contemplated  removing  it  entirely  except  to  maintain 

the  low  water  volume.  The  early  recommendation  of  1885  was 
that  the  flood  volume  be  diverted  into  Lake  Michigan  north  of 
Chicago.  The  ordinary  volume  was  to  be  retained  in  the  stream, 
as  I recall  it. 

Q.  Wasn’t  your  project  that  the  river  itself,  the  upper  river 


904 


Cooley  y — Cross-Exam. — Continued. 


should  be  diverted  so  as  to  enter  Lake  Michigan  north  of  the 
City  of  Chicago. 

A.  That  is  true,  as  I have  stated,  in  respct  to  the  flood 

2771  volume. 

The  river  comes  down  the  upper  Despl nines.  Whatever 
volume  comes  down  the  upper  Desplaines  plus  contribution  along 
the  course  of  the  stream  below  Riverside  goes  into  what  we  call 
the  river  diversion  channel,  which  is  a new  channel  in  part  and 
mi  old  channel  in  part  below  the  Santa  Fe  Railroad.  I think  out 
of  the  total  correction  of  the  river  extending  over  twenty  miles  a 
little  more  than  half  of  it  was  new  channel.  The  old  channel  has 
been  in  part  filled  up  and  part  used  as  a site  for  the  main  drain- 
age channel.  The  old  channel  where  this  drainage  canal  does  not 
follow  is  substantially  filled  up  with  the  spoil  banks  from  the 
drainage  channel.  I think  there  is  no  water  in  it. 

Q.  And  when  you  get  down  to  Joliet  the  river  has  been  di- 
verted from  its  old  channel  here  in  the  lower  right  hand  corner,  has 
it  not!  (Indicating  on  map.)  A.  I believe  it  has.  I think  there 
is  no  water  in  that  old  channel  now. 

2772  The  penitentiary  and  steel  works  are  now  on  that  old 
channel.  The  river  swung  out  in  the  vicinity  of  the  E.  J. 
& E.  Railroad,  came  in  below  Dam  No.  1,  and  in  the  con- 

2773  struction  of  the  I.  & M.  Canal  that  bend  v;as  cut  out  in  the 
development  of  that  waterway.  I don’t  show  the  low  water 

line  of  profile  of  1867  simply  for  the  reason  that  ever  since  the 
standard  low  water  line  of  1883  has  been  established,  it  has  been 
habitually  used  in  all  surveys  as  standard  reference.  I will  say, 
however,  that  1 did  examine  the  low  water  line  of  1867  and  also 
of  1874,  the  profiles  of  General  Wilson  and  Colonel  Macomb  in  that 
connection.  "We  have  attempted  to  reduce  these  profiles  to  the 
same  scale,  and  to  make  a supplemental  diagram,  but  lound  that 
we  could  not  adjust  the  datums,  that  was  the  reason — and  we 
found  further  that  the  profiles  were  very  fragmentary,  and  the 
data  very  incomplete,  as  compared  to  the  1883  profile.  The  1883 
])i‘ofile  was  made  after  the  addition  to  the  volume  of  the  water  in 
1871.  1 did  not  use  the  profile  prior  to  that  time.  I think 

2774  that  possibly  the  party  that  I sent  through  the  valley  in 
1890  and  1891,  picked  up  a lot  of  bench  marks  of  the  Wilson 


905 


survey,  but  in  the  time  at  my  disposal  I was  unable  to  check  that 
matter  up,  and  the  general  data  upon  the  profile  of  1867  did  not 
seem  to  be  competent  for  comparison  with  that  of  1883.  I was 
thoroughly  persuaded  that  it  was  not  competent  as  a comparison. 
I would  have  given  it  more  time  and  attempted  to  look  up  these 
bench  marks  if  I had  it  at  my  disposal.  It  is  given  on  the  face 
of  the  original  profile  as  so  many  feet  below  the  lower  water  of 
Lake  Michigan,  given  in  reference  to  the  canal  bottom,  I 
2775  think.  The  low  water  of  Lake  Michigan  is  a well  known 
elevation.  The  low  water  of  1847  is  the  standard  and  has 
been  used  ever  since  so  far  as  I know.  There  is  difficulty  in  com- 
paring that  data  with  later  surveys.  Different  lines  of  levels 
differ  by  one  to  three  feet  from  here  to  the  moutli  of  the  Des- 
plaines.  You  can  adjust  and  take  into  account  those  differences 
if  you  have  got  the  bench  marks  by  which  you  can  put  the  last  set 
of  levels  upon  the  bench  marks  of  1867.  You  can  make  the  ad- 
justment perfectly.  I know  that  there  was  a long  standing  dis- 
crepancy in  the  level  from  here  to  Joliet  of  about  a foot.  I ran 
or  had  run  the  precise  level  to  the  mouth  of  the  Kankakee  River. 

I don’t  know  whether  they  w^ere  used  in  the  last  survey  or 
2276  not.  I believe  they  were.  I endeavored  to  pick  up  in  those 
different  investigations  all  the  bench  marks  that  could  be 
found.  I do  not  know  that  we  succeeded  in  picking  up  any  in 
that  vicinity  by  which  we  could  make  a definite  comparison.  What 
I wish  to  say  is  that  our  examination  of  the  profile  did  not  show 
that  it  was  comparable  or  that  the  data  was  exact,  or  the  sound- 
ings frequent,  or  a proper  profile  to  compare  as  to  accuracy 
2777  with  the  profile  of  1883  and  later  dates.  The  line  I was  seek- 
ing was  a reliable,  certain  and  definite  base  line  such  as  could 
be  assigned  and  had  no  reference  to  whether  the  1867  was  higher 
or  lower,  or  anything  else.  If  the  1867  base  line  had  been  a base 
line  that  could  have  been  determined  as  certain  and  about  which 
we  had  as  much  data  as  1883,  it  would  have  been  adopted  without 
any  reference  to  date  or  time. 

Q.  Then  let  me  put  it  in  another  way.  Professor  Cooley.  As 
a matter  of  fact,  the  base  line  you  did  ascertain  was  one  without 
reference  to  the  condition  of  the  river  prior  to  the  adding  of  the 
water  by  reason  of  the  deep  cut  and  the  pumps  I I would 


906  Cooley, — Cross-Exam. — Continued. 

prefer  to  state  what  I actually  did,  and  the  reason  why  I did 
it. 

2780  Q.  The  low  water  line  shown  upon  the  profile  that  you 
have  made,  does  not  show  the  low  water  line  as  it  was  before 

the  introduction  of  the  water  in  1871,  by  the  deep  cut  and  by  the 
pumping  works,  is  that  correct!  A.  That  is  correct.  The  profile 
was  made  between  December  and  February,  1907  and  1908.  It 
was  made  after  the  navigability  bill  was  passed,  and  part  of  the 
motive  was  to  exhibit  the  conditions  in  issue  in  this  case,  not  to 
satisfy  myself  upon  that  question  but  to  exhibit  the  relation  of 
the  different  parts  of  the  stream  graphically.  I do  not  know  of 
any  other  way  to  do  it  except  by  constructing  such  a profile  show- 
ing the  stages  of  water  and  their  relation  to  the  bed  of  the 
stream. 

2781  The  profile  of  1867  of  which  I have  a copy  on  a very  con- 
densed horizontal  scale  has  not  the  certainty  of  the  profile 

of  1883.  I simply  adopted  the  1883  profile  because  it  has  been 
used  by  everybody  since  then  in  all  official  reports  and  to  save 
confusion  in  interpreting  recent  data.  It  shows  the  bed  of  the 
stream  and  the  low  water  line  of  1867. 

2782  A navigable  stream  is  a stream  that  has  a bed  of  sufficient 
capacity  and  enough  water  therein  to  be  used  for  a suffi- 
cient part  of  the  year  to  be  useful  for  the  purposes  of  navigation. 
In  some  sections  of  the  country  row  boats  would  be  used.  I do 
not  undertake  to  sa}"  in  the  State  of  Illinois.  I doiiT  know  that  it 
has  been  settled  finally  in  this  State  as  to  what  does  constitute  a 
navigable  stream.  When  I say  the  Desplaines  Diver  is  a navigable 
stream,  I mean  that  it  was  used  as  such  navigable  stream  from 

the  beginning,  or  the  discovery  by  such  conveyances  as  were 
2783'  in  use  in  that  period,  and  has  never  been  divested  of  that 
character.  I mean  further  that  the  condition  of  water  there- 
in and  the  condition  of  the  bed  are  such  that  it  is  capable  to  use 
it.  I do  not  know  that  I have  seen  flat  boats  there,  but  other  than 
that  I VvX)uld  not  say  that  I have  actually  seen  anything  like  a 
steaml)oat,  i)ossibly  a steam  launch.  My  idea  of  a navigable 
stream  is  a stream  that  is  capable  of  use.  The  fact  that  it  had 
boulders  in  it  or  snags  in  it  or  that  it  needs  some  improvement  in- 
cidentally does  not  go  to  the  question  at  all  as  I understand  it. 


1)07 


2784  Q.  Is  it  your  idea  of  a navigable  stream  that  it  is  one 
which  can  he  made  navigable?  A.  It  is  already  navigable, 

as  I understand  a stream,  if  it  has  a proper  bed  and  sufficient 
water  therein  to  be  capable  of  use.  If  you  ask  me  the  question 
in  view  of  the  court  decisions  in  Illinois,  I would  not  know  how 
to  answer  the  question.  If  you  are  asking  the  question  as  to  the 
practice  of  the  United  States  and  the  practice  of  the  profession,  I 
say  yes,  that  all  streams  that  are  capable  of  use  are  public  waters 
in  a broad  expression,  and  various  states  have  taken  various  views 
of  it. 

2785  I think  the  Desplaines  Eiver  is  navigable  in  fact  and  never 
has  been  divested  of  that  character. 

Q.  You  w^ere  asked  whether  the  building  of  this  dam  at  this 
point  would  obstruct  navigation  and  your  answer  was  that  it 
would.  As  a matter  of  fact,  there  is  no  navigation  on  the 

2786  Desplaines  Eiver  to  be  obstructed,  is  there?  I would 

say  no.  I use  the  word  navigation  as  referring  to  the  condi- 
tion of  a stream. 

Boats  pl^dng  up  and  down  a river  is  commerce.  I don’t  think 
there  is  any  commerce  to  obstruct  at  present. 

Q.  If  a dam  were  built  at  that  point  where  you  understand  this 
dam  is  to  be,  the  stream  would  be  usable,  would  it  not,  for 

2787  boats  from  the  head  of  Lake  Joliet  to  that  dam?  A.  It  is 
usable  without  and  won’t  be  more  usable  with  it. 

The  depth  for  that  river  and  its  navigability  is  limited  by  con- 
dition at  Treat’s  Island  and  at  the  head  of  it.  The  build- 

2788  ing  of  the  dam  at  that  point  does  not  change  those  condi- 
tions. The  further  effect  of  the  dam  is  to  prevent  any  boat 

from  going  down  stream.  I did  not  understand  that  it  was  in  the 
proposition  to  deepen  the  river  at  Treat’s  Island,  unless  you  have 
a back  water  effect  which  raises  the  level  of  Lake  Joliet  very  ma- 
terially and  extends  your  flood  line  clear  up  to  Brandon’s  Bridge 
and  above  it.  There  is  no  elevation  seventeen  feet  deep  except 
at  one  point  for  a limited  distance. 

2793  Q.  There  was  a matter  I was  mistaken  about  yesterday 
when  I asked  you  the  average  number  of  days,  or  the  num- 
ber of  days  for  which  you  gave  no  averages  in  the  Desplaines 


908 


Cooley, — Cross-Exam. — Continued. 


Kiver  at  and  below  Eiverside,  the  actual  number  for  which  you 
gave  no  data  for  each  year,  wag  258.3  days,  wasn’t  it?  A.  The 
difference  between  the  lowest  figure  which  I gave,  107  days,  I 
think  was  in  that  period  of  nineteen  years  the  dischztrge  was  less 
than  305  second  feet  for  the  period  given. 

2794  Q.  Mr.  Cooley,  can  you  cite  any  report,  document  or 
communication  prior  to  1906  in  which  the  Desplaines  Eiver 

was  referred  to  as  a navigable  stream!  A.  From  my  interpreta- 
tion of  those  reports  they  all  refer  to  it  in  that  way.  I think  that 
some  of  them  do  mention  it  as  a navigable  stream.  I would  have 
to  refresh  my  memory  b}^  looking  them  over  to  ascertain  that. 

Q.  You  gave  some  testimony  yesterday  that  the  things  re- 
quired to  be  done  by  Griswold  in  the  contract  of  September  2, 
1904,  could  not  be  performed  for  less  than  the  sum  of  $100,000. 
What  are  the  things  required  by  Griswold  to  be  done  under  that 
contract,  which  could  not  be  performed  for  less  than  the 

2795  sum  of  $100,000!  A.  As  I recall  the  language  that  was  read 
to  me  from  the  contract  it  referred  to  changes  in  the  towpath 
bank  for  some  miles  between  the  site  of  the  power  dam  and 

2796  the  Channahon  crossing  of  the  DuPage  Eiver.  That  is  what 
I testified  to  as  the  thing  which  would  cost  more  than  $100,000. 

It  referred  to  all  the  matters  mentioned  in  the  agreement  or  con- 
tract that  was  read  to  me,  which  I don’t  recall,  the  qualifica- 

2797  tions  that  were  in  it  yesterday.  As  I understood  the  contract  it 
was  required  to  put  the  matter  in  substantial  condition  and 

forever  maintain  it  so  that  it  would  maintain  itself  automatically. 
That  is  the  construction  I put  upon  it.  It  is  some  time  since  I 
read  the  contract  through  in  full  and  I would  not  undertake 

2798  to  say  what  was  or  what  was  not  in  it.  I had  in  mind  that 
he  was  required  to  put  that  towpath  bank  of  the  Illinois  and 

Michigan  Canal  in  condition  so  that  it  would  practically  maintain 
itself  automatically  for  an  indefinite  time  in  the  future.  That  is 
what  I had  in  mind  in  making  the  statement  respecting  the  $100,- 
000.  I could  not  state  how  much  of  the  $100,000  applies  to  rais- 
ing the  towpath  bank  two  feet.  I could  make  no-  estimate  at  all. 
That  was  a judgment  of  delivery.  I have  not  examined  the  ground 
in  detail.  I have  never  seen  a plan  for  it.  The  plans  submitted 
by  the  company  did  not  contain  that  feature  of  tlie  work  so  I have 


909 


no  details  by  which  I could  make  a detailed  estimate  on  that  sub- 
ject. It  is*  not  practicable  to  do  the  things  provided  by  clause  six 
or  clause  nine  of  that  contract  without  interfering  with  the  navi- 
gability of  the  canal,  because  the  works  provided  thereby  en- 
croach upon  the  prism  of  the  canal.  By  the  prism  of  the  canal  I 
mean  the  parallel  sides  of  the  canal  which  contain  the  water,  the 
parallel  sides  and  bottom.  The  official  width  is  60  feet  at  the 
water  line,  I believe. 

2799  Q.  Do  you  mean  that  if  it  encroached  upon  the  canal  five 
feet  you  could  not  navigate  the  canal?  A.  I mean  precisely 
what  I answered,  that  it  would  interfere  with  navigation.  It 

2800  would  not  prevent  navigation  of  the  canal. 

I do  not  know  whether  the  cross-sections  of  the  drainage 
canal  are  shown  there  or  not.  The  term  prism  is  that  part  below 
the  top  of  the  water  line,  that  is  the  water  prism.  The  canal  prism 
would  extend  to  the  top  of  the  slope  as  far  as  the  banks  are  formed. 
I could  not  describe  that  further  than  that  I noted  there  was  a 
slope  from  the  top  of  the  towpath  down  to  the  water  line  which 
I took  showing  the  water  line. 

2802  The  Coukt.  Let  me  understand.  Do  you  mean  that  you 
assumed  that  there  was  a five-foot  reduction  of  the  water 

prism? 

A.  Yes,  sir.  I assume  that  the  angle  of  the  slope  would  be 
the  same.  I did  not  assume  that  they  would  be  permitted  to  make 
a steeper  slope  there  than  originally  existed. 

Q.  Now,  Professor  Cooley,  if  it  should  prove  that  that  slope 
is  not  a continuous  slope  from  the  top  of  the  towpath  but  that 
down  to  the  water  level  it  is  a very  much  sharper  slope  and  that 
then  there  is  a bench,  and  that  then  the  slope  proceeds  to  the  bot- 
tom and  that  this  filling  in  makes  the  whole  slope  continuous 
from  the  top  of  the  towpath  down  to  the  bottom  of  the  canal  and 
continues  in  the  line  of  the  present  slope  below  the  water  line, 
your  conclusion  that  they  had  filled  in  five  feet  of  the  navigable 
water  of  the  canal  would  not  be  correct,  would  it?  A.  No, 

2803  on  the  statement  of  that  hypothetical  question  it  would  not. 

I looked  along  there  to  see  whether  a wave  berm  had  formed. 
There  is  in  localities  such  an  exhibition  which  produces  this  bench 


910 


Cooley,— Cross-Exam. — Continued. 


that  you  speak  of.  I did  not  notice  in  the  mile  of  the  bank  that  I 
looked  at  with  more  or  less  care  that  that  would  affect  the  mat- 
ter so  as  to  require  a different  statement  from  what  I have  men- 
tioned. I don’t  know  that  a berm  was  ever  designed  or  left  at  or 
near  the  water  line  in  the  original  construction  of  the  canal. 

Q.  Did  you  make  any  examination  to  see  whether  my  hypothe- 
sis was  correct?  A.  I don’t  think  it  was  from  my  examination. 

I did  not  make  any  examination  for  the  specific  purpose  of  such 
a hypothesis. 

2805  I made  an  examinnation  of  that  bank  for  a mile,  but  I did 
not  see  such  conditions  as  described  by  counsel  except  as 
I have  already  explained.  I made  it  for  the  purpose  of 

2806  photographing  in  my  mind.  I will  say  that  I saw  nothing 
in  connection  with  the  towpath  and  banks  which  I did  not 

assume  had  come  about  through  natural  causes  since  the  canal  was 
constructed.  I did  not  make  the  examination  with  respect  to  any 
explanation  of  it.  I made  the  examination  for  the  purpose  of 
ascertaining  the  facts.  I said  that  I had  discovered  such  a bench 
in  one  of  my  answers  extending  along  the  canal  in  the  part  which 
I described  as  a wave  term.  I did  not  notice  any  such  bench  con- 
tinuously. 

2807  Q.  For  how  long  a portion  did  you  discover  inroads  into 
the  bank?  A.  For  a portion  of  the  bank.  I could  not 

give  the  percentage  of  friction,  such  degradation  as  occurred  from 
the  action  of  the  water  and  the  elements  and  the  excavation  of 
the  wave  berm,  where  the  bank  is  not  properly  protected.  I did 
not  notice  as  a matter  of  fact,  any  bench  where  filling  occurred.  I 
did  not  find  any  bench  outside  the  line.  The  canal  was  below 
what  I considered  normal  and  I don’t  believe  there  was  any. 

2812  Q.  In  addition  to  the  filling  in  of  the  prism  of  the  canal 
to  which  you  have  testified,  what  other  reason  have  you  to 
give  why  the  contract  between  Mr.  Griswold  and  the  Canal  Com- 
missioners cannot  be  carried  out  without  injuring  the  canal?  A. 
The  raising  the  towpath  would  be  an  interruption  of  the  use  of 
the  towpath. 

In  the  absence  of  the  specific  plans  of  the  company,  I do  not 
think  that  I can  properly  cover  that  question.  I would  have  to 
assume  a treatment  of  my  own  which  would  not  necessarily  be 


911 


the  treatment  proposed  by  tlie  company.  If  I should  put  my 
own  interpretation  upon  what  would  he  recpiired  there,  then,  I 
should  say  that  in  order  that  the  canal  should  not  be  damaged, 
the  banks  would  have  to  be  greatly  reinforced.  It  is  possible 

2813  to  reinforce  them.  It  is  possible  to  do  anything  in  engi- 
neering, at  a large  cost,  not  less  than  I have  stated,  $100,000. 

I would  not  undertake  to  say  that  it  could  be  done  for  that  sum.  I 
have  already  stated  that  it  could  not.  The  effect  of  waves  and 
degrading  the  banks,  and  the  elements.  The  difficulty  of  making 
a proper  bond  between  an  old  and  a new  bank,  the  amount  of 
material  required  to  build  a bank  of  sufficient  width  and  suitable 
grades. 

2814  Q.  Have  you  ever  known  of  a dam  to  be  attached  to  a 
towpath  bank?  A.  Yes,  at  Dresden  Heights.  I do  not 

for  the  moment  think  of  such  a dam  elsewhere.  I do  not  recall 
any  at  the  moment  which  has  existed  on  the  Desplaines  Elver. 

I did  know^  the  Adam  Dam  when  it  was  in  existence.  I donT 
know  how  long  it  was  in  existence.  It  was  condemned  about  1898 
or  1899  by  the  Sanitary  District.  It  was  in  existence  when 

2815  I first  became  familiar  with  the  river,  somewhere  between 
1885  and  1887.  I would  not  say  that  in  examining  the  his- 
tory of  the  river  I found  it  was  placed  there  about  1840.  It  had 
been  there  for  a long  time.  I do  not  think  that  the  made  bank 
came  down  to  that  point,  as  a matter  of  fact.  I think  it  was 
attached  to  the  proper  bank  of  the  river.  I would  say  it  was 
attached  to  the  river  bank  on  the  towpath  side  of  the  canal.  At 
Dresden  Heights  it  is  a made  bank  clear  down  to  the  water  level 

of  the  river.  I would  not  undertake  to  say  exactly  how  far 
2817  that  condition  exists.  It  may  be  half  a mile  or  more.  On 
this  16-acre  tract  it  is  not  a made  bank.  I might  say  I had 
in  mind  the  general  question,  along  the  Desplaines  River,  and  not 
the  amount  involved  in  this  issue. 

Q.  You  sa}^  now  it  was  more  than  a half  mile,  I want  to  know 
how  much  above  the  dam  which  this  pool  would  rest  against  is 
made  bank?  A.  Oh,  I think  it  is  1,000  feet  or  more;  quarter  of 
a mile — something  like  that.  I would  not  be  able  to  tell  without 
scaling  it,  how  far  it  is  up  to  the  16  acres  from  the  dam.  About 
1,000  or  1,100  feet  from  the  point  of  land  where  the  towpath  starts 


Cooley—Cross-Exum.— ■Continued. 

to  the  begiiming  of  the  land  that  runs  out  into  the  river  from  the 
towpath. 

2820  Q.  If  it  were  a side  hill  construction,  what  would  be  good 
practice,  would  it  be  good  practice  to  dig  out  all  the  lower 
side  of  the  hill  and  then  fill  it  up  again  to  make  a bank?  A.  It 
would  be  very  effective.  I don’t  think  it  is  done  in  that  way  as  a 
matter  of  fact. 

I did  not  dig  into  this  towpath  bank  to  see  what  material  it 
is  constructed  of.  I could  only  judge  by  the  surface  appearance. 
I assume  that  it  was  material  taken  off  of  the  bluff,  which  is  clay, 
in  large  part;  it  would  be  impermeable  clay.  As  far  as  I could 
judge  that  same  general  character  prevails  all  the  way  up  the 
canal  and  towpath  bank.  I don’t  know  of  any  means  by  which 
you  could  avoid  saturation  if  the  bank  is  in  position  to  be  satu- 
rated. 

2822  My  professional  judgment  is  that  under  the  conditions 
which  are  to  exist  here,  the  bank  should  be  greatly  widened 

and  the  prism  of  it  greatly  increased,  and  the  slopes  greatly 
flattened  and  the  top  of  it  increased  in  width  and  suitably  pro- 
tected by  rip-rap  on  the  outside.  I gave  that  opinion  on  the  di- 
rect examination,  and  I gave  it  with  some  hesitation  because  I 
had  not  critically  examined  the  entire  locality  near,  nor  had  I 
seen  the  plans.  Saturation  demands  very  flat  slopes.  The 
widening,  making  a wide  top  to  a bank  is  simply  an  insurance 
against  the  effects  of  slips  due  to  saturation.  My  judgment  is 
that  if  the  slope  of  this  bank  were  protected  with  ruble  stone 

2823  that  the  saturation  would  result  in  the  destruction  of  the 
bank,  in  combination  with  the  other  forces,  the  effect  of 

the  waves  and  of  the  ice,  the  general  degrading  influences  of  the 
atmosphere;  muskrats  and  crawfish,  and  all  other  vermin  attack 
banks.  That  pool  would  be  a reservation  for  muskrats,  and  that 
bank  will  be  a suburb  all  the  way  up  to  Channahon.  The 
2825  danger  from  vermin  is  both  above  and  below  the  water.  I 
think  with  the  pool  of  water  there  would  be  greater  danger 
from  muskrats  than  now.  I have  seen  them  work  under  a great 
many  circumstances;  used  to  trap  them;  know  somewhat  of  their 
habits  of  getting  into  a bank  beneath  the  water  and  climbing  up 
into  the  bank  to  build  their  houses  in  the  heart  of  the  bank.  I 


913 


have  fallen  into  such  houses  where  they  have  made  an  excavation 
big  enough  for  a bullock,  and  I saw  a muskrat  the  other  day  down 
inspecting  the  premises  when  I was  down  there.  I understood  that 
they  were  nearby,  ready  to  emigrate.  I have  never  known  them 
to  build  in  deep  water,  they  build  their  houses  in  shallow  water. 

I have  known  them  to  build  in  banks.  They  build  homes  in  rushes 
and  marshes;  in  shallow  water  and  in  lily  pads;  the  roots  of  a 
lily  are  the  choice  food  of  muskrats,  and  they  much  inhabit  such 
places.  I believe  it  is  a part  of  the  official  records  that  th^ 

2826  dams  for  reservoirs  at  the  headquarters  of  the  Mississippi 
Elver  and  embankments  were  greatly  injured,  or  destroyed 

from  muskrat  depredations. 

I have  been  along  that  bank  a great  many  times,  and,  as  I 
have  already  stated,  I don’t  know  that  the  lower  part  of  the  bank 
is  a made  bank.  I never  noticed  any  particular  amount  of  seep- 
age; it  seemed  to  be  a tight  bank. 

Q.  That  bank,  let  me  see  if  I describe  it  correctly.  The  canal 
leaves  the  Desplaines  Elver  below  Dam  No.  1 at  Jackson  street. 
Adams  street  dam  was  2,600  feet  below  at  Waller  street.  Where 
the  canal  leaves  the  river,  it  is  separate  from  the  river  by  a bank 
12  feet  wide,  at  the  top,  extending  2,600  feet  down  to  the  dam, 
an  artificial  bank,  with  the  canal  on  one  side  and  that  river  on 
the  other,  isn’t  that  true?  A.  It  is  true  in  part.  I think 

2827  all  the  way  down  to  the  Eock  Island  Eoad,  it  is  behind  an 
island,  or  is  excavated  inland  in  solid  ground.  I don’t  think 

2,600  feet  of  it  is  an  artificial  bank.  I do  not  think  so  much  of 
that  is  of  an  artificial  character  and  I would  not  say  at  this  time  ^ 
that  it  was  not  excavated  in  the  rock  along  that  portion. 

Q.  Is  it  not  true  that  it  is  an  earthen  bank  for  the  portion 
that  I speak  of,  and  that  it  is  vertical  on  the  canal  side,  and  is 
the  same  slope  as. the  slope  at  Dresden  Heights  on  the  river  side? 
A.  It  could  not  be  vertical  on  the  canal  side,  unless  there  is  a 
wall  there.  There  may  be  a wall  there.  I don’t  know. 

2828  Q.  As  a matter  of  fact,  is  there  any  danger  whatever  of 
destruction  from  saturation  of  the  bank  at  Dresden  Heights, 

built  of  impermeable  clay,  standing  since  1848?  A.  I don’t  think 
there  is  any  danger  from  the  canal  side.  I think  there  is  actual 
danger  from  the  opposite  side. 


914 


Cooley  y — Cross-Exam. — Continued. 


2830  In  regard  to  the  pool  created  by  the  Adams’  Dam,  I should 
say  that  I am  not  sure.  I think  I did  say  as  to  whether  that 

made  bank  extended  down  to  the  water  level  or  not.  My  im- 
pression is  that  the  river  and  the  pool  there  was  always  in  the 
natural  formed  bed  of  the  stream.  If  that  was  an  artificial  bank, 
the  toe  of  which  was  subject  to  saturation  by  a continued  pool  of 
water,  good  practice  would  require  that  a very  considerable  berm 
be  made  out  at  the  foot  of  that  bank  in  order  to  insure  its  staying 
there. 

2831  Q.  I did  not  ask  you  about  good  practice.  I want  you  to 
• answer  that  question  and  assume,  in  addition,  that  the  pool 

level  bore  the  same  relation  substantially  to  the  water  in  the 
canal  as  that  proposed  at  Dresden  Heights.  A.  I think  that 
would  be  a case  of  ‘Hrust  in  God.”  I don’t  think  an  engineer 
would  urge  the  proposition  on  that  basis.  I wish  to  explain  that 
a canal  bank,  built  as  canals  were  originally  built  in  this  coun- 
try, was  a matter  of  trial  and  error  to  a certain  extent.  I simply 
want  to  state  the  bank  stood  there  for  sixty  years,  that  is  all  there 
was  in  explanation  of  that. 

2832  Experience  has  changed  practice  somewhat  in  that  regard. 
That  an  existing  canal  bank  is  in  the  nature  of  a survival  from 

perhaps  many  breaks  and  destruction  and  refills.  In  the  early 
history  of  the  canals  the  breaking  of  banks  is  a very  common  phe- 
nomena and  in  the  course  of  sixty  years  they  all  become  stable. 
The  lines  of  drainage,  of  the  embankment  are  formed,  and  the 
front  of  them  are  puddled  naturally  by  the  silts  from  the  canal, 
where  the  similar  practice  on  a new  canal  would  be  intolerable. 
The  bank  to  which  it  is  proposed  to  attach  is  of  the  same  general 
formation  of  the  clay  strata,  I believe.  The  same  drift. 

2833  A larger  proportion  of  the  bank  is  beneath  the  proposed  flow 
line  of  the  river.  A larger  proportion  would  be  covered 

by  the  pool.  It  is  a much  higher  bank  also.  The  one  at  the  north 
of  Desplaines  Eiver  is  the  higher  bank,  perhaps  ten  feet  higher. 
By  the  heights  of  the  bank  I mean  to  the  foundation  of  the  em- 
bankment. To  the  bed  of  the  river. 

Q.  You  have  stated  a formula  for  determining  the  velocity. 
Is  that  given  in  any  works  on  hydraulics,  your  formula!  A.  The 
princi])les  upon  which  it  is  based  are  given  in  all  works  on  by- 


915 


draulics.  The  standard  formula  as  given  in  works  on  hydraulics 
is  Kutter  and  Chezy. 

2835  Q.  Do  you  know  where  the  high  water  line  down  at  this 
point  and  on  the  side  of  the  river  where  the  canal  is,  is  lo- 
cated? A.  I do  not. 

Q.  If  it  be  true  that  it  is  located  upon  the  bluffs,  and  that 
the  meander  line  is  down  near  the  margin  of  the  stream,  your 
statement  would  not  apply  to  that  place,  would  it?  A.  I would 
have  to  distinguish  in  that  matter  what  the  theory  meander  line 
as  to  the  practice  of  individual  surveyors  in  locating  them. 

I cannot  say  that  it  was  or  was  not.  I was  not  thinking  of 
that  particular  location  when  I gave  the  definition.  I do  not 
mean  to  say  that  the  meander  line  down  here  conforms  to  the 
high  water  mark.  The  only  point  I was  trying  to  bring  out  in 
that  connection,  if  I might  explain,  was  that  the  meander  theoretic- 
ally corresponds  to  high  water  on  the  shore  of  the  sea  and  that 
in  practice,  surveyors  run  out  to  the  top  of  the  bank,  which  is  at 
or  near  mesne  high  water  upon  those  streams.  The  head  of 

2836  navigation  on  Illinois  Eiver  is  at  Eiverside.  Eeferring  to 
the  Illinois,  as  geographically  known  it  is  at  the  forks  of 

the  Kankakee  and  Desplaines.  In  January,  1888,  it  was  geo- 
graphically known  as  the  head  of  the  Illinois  Eiver. 

Q.  I read  from  the  pamphlet,  the  Lakes  to  the  Gulf  Water- 
way, a brief  with  illustrations  and  notes  by  Lyman  E.  Cooley: 

‘^Two  channels  have  been  supposed,  viz.:  One  from  Lake 

Michigan,  by  way  of  the  Chicago  Eiver,  with  a branch  unit- 
ing at  the  west  fork  of  the  South  Branch,  near  the  city  limits; 
thence  by  artificial  channel  southwesterly  in  the  bed  of  Mud 
Lake  to  the  Desplaines  Eiver  at  Summit,  eight  miles;  thence 
southerly  by  a channel  in  the  rock  bed  of  the  Desplaines  to 
.Joliet  Lake,  28  miles;  thence  by  a slack  water — locks  and 
dams  and  channel  improvement  in  the  bed  of  the  Illinois  and 
Desplaines  (64  miles)  to  LaSalle,  the  present  head  of  navi- 
gation on  the  Illinois.” 

Was  there  any  difference  between  the  head  of  navigation 

2837  on  the  Illinois  then  and  now?  A.  As  used  in  that  book,  there 
is  not. 

The  steamboats  have  not  been  in  the  habit  of  coming  above  La 
Salle  since  the  opening  of  the  canal.  Ottawa  was  at  one  time 


916 


Cooley, — Cross-Exam. — Continued. 


the  point  of  departure  for  steamboats,  and  the  Illinois  and  Micln 
igan  Canal  was  contemplated  originally  with  a terminus  at  Ot- 
tawa. The  low  water  period  is  stated  usually  at  sixty  to  ninety 
days,  and  the  locks  and  darns,  however,  I corrected  that  so  the 
navigation  is  continuous  throughout  the  year. 

2838  Q.  When  were  those  locks  and  dams  erected?  A.  The 
one  at  Henry  was  put  in  about  1872  by  the  State  of  Illinois. 

2839  The  one  at  Copperas  Creek  I think  in  1878.  They  were  both 
in  when  I wrote  my  brief  on  the  Lakes  to  the  Gulf  Waterway 

in  1888. 

Q.  In  that  you  said,  did  you  not: 

‘‘From  LaSalle  to  the  Mississippi,  ten  feet  deep  on  bars  at 
low  water,  immediately,  and  ultimately  fourteen  feet.  Dur- 
ing a large  part  of  the  year  the  Illinois  Elver  is  shallow,  slug- 
gish, and  at  times  stagnant  and  unhealthy  and  unfit  for  profit- 
able navigation.’^ 

A.  In  its  natural  condition,  I think  was  the  condition  which 
I was  referring  to  there. 

Re-direct  Examination. 

2840  Q.  Mr.  Cooley,  I think  on  your  direct  examination  you 
indicated  drainage  lock  between  Lockport  and  Joliet,  not 

on  Hillebrand  Exhibit  1,  but  on  the  unmarked  facsimile.  I wish 
you  would  indicate  it  on  Hillebrand ’s  Exhibit  1. 

Where  the  red  lines  make  a triangle  around  the  white  spot, 
on  the  line  between  Sections  27  and  34.  There  is  a dam  across 
the  Illinois  Eiver  at  Marseilles.  That  is  up  the  river  from  Ot- 
tawa and  between  Ottawa  and  the  confluence  of  the  Kankakee 
and  the  Desplaines,  the  dam  that  was  provided  with  no  lock  or 
other  means  for  the  passage  of  boats.  Adams’  Dam  never  had 
the  flood  of  the  Sanitary  District  coming  continuously  against 

2841  it  or  over  it,  nor  the  bank  which  was  built  up  above  the 
Adams’  Dam.  When  they  destroyed  the  Adams’  Dam  they 

took  out  and  to  a large  extent  destroyed  and  removed  traces  of 
the  whole  bank  that  stood  there  in  connection  with  and  as  a part 
of  the  bank.  The  river  bed  has  been  cleared  out.  It  has  been 
cleared  out  now  for  some  nine  years  or  more,  so  that  the  cus- 
tomary land  marks  have  been  entirely  altered  for  that  length  of 


917 


time.  I have  not  made  any  specific  measurements  of  the  hanks 
at  that  spot. 

In  using  the  term  ‘Miigher”  with  reference  to  an  elevation, 
like  Hennepin  datum  or  Chicago  datum,  I suppose  the  Adams’ 
Dam  would  be  higher.  The  bed  of  the  river  at  that  point  is  rock. 
The  toe  of  the  bank  would  come  down  to  rock. 

2844  Q.  Now,  I will  ask  you  with  reference  to  the  depredations 
of  vermin,  whether  the  greatest  depredations  have  been  above 

or  below  the  water  line?  A.  At  and  above  the  water  line,  that  is, 
the  ordinary  water  line. 

2845  The  crest  of  the  pool  on  the  river  side  is  on  the  level  with 
the  bottom  of  the  canal  on  the  other  side.  It  is  twenty- 

four  feet  from  the  top  of  the  towpath  down  to  the  river  and  it 
will  be  seven  feet  afterwards. 

2846  The  Court.  Why  haven’t  those  vermin  been  getting  in 
all  the  way  up  the  towpath  from  the  river? 

A.  No  food  supply  in  the  canal,  on  the  riverside. 

Muskrats  will  start  in  beneath  the  water  line  and  then  work 
up  into  the  bank,  and  they  make  an  excavation  up  above  the 
ordinary  water  level.  They  would  not  work  24  feet  above  the 
level,  nor  15  feet  above  the  level,  but  from  a foot  to  a yard 
8247  above  the  water  level.  With  the  water  24  feet  down  they 
never  would  get  up  to  the  point  where  the  canal  is.  The 
water  on  a level  with  the  water  of  the  canal,  you  would  raise  the 
danger  point  of  attack;  and  furthermore,  such  a point  would  be 
productive  of  food  supply  for  such  vermin  and  they  are  like  mi- 
crobes, they  get  against  the  food  supply,  wherever  it  is. 

Q.  To  what  area  would  the  occupation  by  those  vermin  be 
limited  by  means  of  the  erection  of  this  dam  and  the  putting  in 
of  this  pool?  A.  The  towpath  bank  and  some  areas  of  ground 
that  are  out  of  water  in  that  vicinity,  and  some  shallows  upon  that 
shore. 

2848  A bench,  or  a shelf,  or  a wave  berm  in  the  slope  of  the 
towpath  is  described  by  the  forces  that  make  it,  as  a wave 
berm  usually.  It  is  caused  by  the  action  of  the  waves  in  the  canal, 
produced  naturally  by  the  wind  or  by  the  passage  of  boats,  it  ex- 
cavates a shelf  at  the  water  line  or  bench  or  berm,  as  it  is  called 


918 


Cooley, — Re-direct  Exam. — Continued. 


sometimes  six  or  eight  feet  wide,  in  a canal  of  the  magnitude  of 
the  Illinois  and  Michigan  Canal.  I did  not  see  such  a berm 
where  the  towpath  had  been  raised,  but  in  the  portions  of  the 
tow-path  that  were  undisturbed  there  was  a wave  berm  excavated 
for  a part  of  the  distance,  not  continuously.  If  in  the  filled  por- 
tion of  that  bank  there  had  a wave  berm  which  was  covered  up 
and  obliterated  by  the  filling,  the  action  of  the  water  in  the  canal 
upon  the  new  slope  and  bank  formed  by  the  filling  would  bd 

2849  to  degrade  it  to  the  natural  slope,  the  natural  condition.  It 
would  go  down  into  the  canal.  Where  I saw  filling  put  in 

upon  the  towpath  bank,  and  upon  the  canal  side  of  the  tow- 
path,  it  was  much  steeper  than  where  I saw  it  unfilled.  In 
fact,  I judge  it  to  be  as  steep  as  the  material  would  stand.  The 
new  filling  encroached  upon  the  actual  water  occupation  of  the 
canal,  a foot  or  more  in  places.  It  encroached  upon  the  prism 
of  the  canal  at  the  new  level  of  the  towpath  bank  about  five  feet. 
The  new  filling  at  this  steeper  angle  of  inclination  will  not 

2850  maintain  itself.  In  my  cross-examination,  I assumed  that 
the  ultimate  formation  of  the  bank  would  correspond  or  be 

parallel  to  the  present  or  the  sloping  of  the  canal  as  it  formerly 
existed,  and  that  the  widening  in  at  the  bottom  of  the  canal  would 
correspond  to  the  widening  at  the  top  of  the  towpath.  The 
plans  submitted  by  witness  Heyworth  do  not  show  any  provision 
for  that  part  of  the  work. 

Jackson  Creek  and  Eiley  Creek  are  on  the  left  bank  of  the 
Desplaines  Eiver,  or  south  side.  They  are  rather  parallel 

2851  in  their  general  courses  with  the  Kankakee.  The  land  over 
there  is  the  upland,  hilly  and  passes  through,  both  creeks 

pass  through  a subordinate  plain  in  their  course  to  the  river  lying 
between  the  Desplaines  and  the  Kankakee  Eivers.  Their  general 
watersheds  are -hilly  and  broken.  That  along  Eiley  Creek  is 
marshy  to  a limited  extent  upon  this  plain.  I refer  to  a triangu- 
lar area  across  which  the  Chicago  & Alton  road  is  located,  be- 
tween the  two  rivers. 

I said  my  idea  of  a navigable  stream  was  a stream  having  a 
bed  of  sufficient  capacity  and  with  sufficient  water  therein  to  be 
capable  of  use,  for  a sufficient  portion  of  the  year,  to  make  it 


919 


available  for  use.  The  word  ‘^use’^  means  use  in  navigation,  in 
commerce,  for  conducting  commerce. 

Q.  You  spoke  of  the  profile  of  1867  as  having  certain  dis- 
crepancies of  data.  Are  there  several  different  data  or  datum 
lines  which  at  different  periods  have  been  in  use  in  the  Mississippi 
Valley  in  surveys  of  this  character?  A.  Yes,  sir.  The 

2852  datum  referred  to  in  1867  is  the  low  water  of  1847  in  Lake 
Michigan.  I think  the  datum  used  in  1874  is  identical,  but  I 

will  not  be  sure  about  that  without  reference.  In  the  1883  sur- 
veys, under  Major  Benyuard,  Hennepin  datum  was  established 
and  there  are  three  or  four  variations  of  that  wliich  have  been 
used  in  later  surveys  which  make  the  profile  of  different  periods 
somewhat  difficult  to  adjust.  These  several  datums  are  taken 
up  in  the  precise  level  line  as  finally  run  in  the  survey  of  1903 
and  1904,  but  there  is  a very  considerable  discrepancy  which 
makes  it  difficult  to  adjust  different  profiles  with  exactness. 

Q.  That  dam  at  Marseilles,  with  the  raising  of  the  water  at 
La  Salle  below  this  dam  at  Marseilles  by  means  of  the  discharge 
of  the  I.  & M.  canal  water  into  it,  would  it  have  any  effect  upon 
the  water  in  the  Desplaines  Eiver  at  its  mouth?  A.  None  what- 
ever. The  condition  of  the  bed  of  the  Illinois  Eiver  at  Mar- 

2853  seilles  does  not  correspond  to  a true  prism  with  a plane  bot- 
tom. There  is  a natural  pool  10  to  12  feet  deep,  extending 

up  stream,  12  miles  or  more  from  Marseilles,  within  about  3 miles 
of  Morris.  Above  that  the  depths  are  less,  3 feet  or  more,  as  I 
remember,  up  to  the  vicinity  of  the  mouth  of  the  Kankakee. 

These  pools  have  banks  sloping  to  the  center  where  the  depth 
is  greater.  The  contribution  of  the  Kankakee  and  Desplaines 
Eivers  in  a state  of  nature,  compares  substantially  as  their 

2854  basin  areas  figured,  about  as  1,400  and  as  5,000.  The  rela- 
tive quantity  of  water  from  the  Kankakee  and  by  way  of  the 

Desplaines  Eiver  to  the  Illinois  Eiver  below  their  confluences  would 
be  in  the  proportion  of  about  40  to  60,  40  for  the  Kankakee  and 
60  for  the  Desplaines.  In  other  words,  the  average  contribution 
throughout . the  year  by  the  Kankakee  ought  to  be  in  a normal 
year,  about  4,000  second  feet.  The  average  flow  from  the  Des- 
plaines Eiver,  plus  the  average  flow  through  the  Sanitary  Canal, 
would  be  in  the  vicinity  of  6,000  feet  per  second.  I made  a map  of 


920  Cooley, — Re-direct  Exam. — Continued. 

the  watershed  of  Desplaines  Eiver  in  1888.  (Witness  iden- 

2855  tides  map.)  The  dotted  line  referred  to  as  entering  the 
lake  in  the  vicinity  of  Kenilworth  on  the  north  shore  and 

extending  to  87th  street  on  the  south,  and  west  along  the  boundary 
of  Cicero,  and  including  a part  of  Lyons  in  the  Sanitary  District 
as  outlined  in  the  petition  of  the  petitioners  for  a Sanitary  Dis- 
trict. That  was  modified  as  far  as  the  north  limits  of  the  area 
was  concerned.  The  various  colorings  on  the  map  show  the  dif- 
ferent compartments  of  the  streams,  or  basins  are  shown  in  dif- 
ferent colors,  and  a figure  put  upon  the  map  indicating  the  area 
of  that  particular  color.  Under  the  head  of  ‘^memoranda’’  there 
is  compiled  a statement  which  represents  the  areas  shown 

2856  upon  the  map  and  some  additional  data;  those  statements 
were  made  by  me  from  observations  taken  at  the  time. 

There  was  a portion  of  this  watershed  that  was  determined  by 
sending  men  out  and  actually  wmlking  the  divide  out  and  locat- 
ing it  in  that  way.  Other  portions  are  taken  from  topographical 
maps  representing  the  best  information  that  was  available  at 
the  time  it  was  produced.  The  map  represents  truly  the  mat- 
ters which  it  purports  to  represent  to  the  best  of  the  extant  in- 
formation and  the  statements  assembled  state  truly  the  facts. 

2857  Counsel  for  Defendant.  Professor,  is  this  the  watershed 
as  it  existed  in  nature,  or  did  it  contain  the  contemplated 

work  of  diverting  the  water,  the  natural  flow  in  certain  directions 
and  other  directions! 

2858  A.  The  watershed  as  it  existed  at  the  time  the  map  was 
made.  There  is  a compartment  of  the  watershed  shown  by 

dotted  lines  which  represented  an  area  which  could  be  diverted  to 
Lake  Michigan  under  the  Act,  I think,  of  1887,  authorizing  the 
diversion  of  the  water  of  the  Desplaines  River. 

I don’t  think  there  are  other  lines  bearing  upon  prospective, 
proposed  or  suggested  work,  other  than  there  was  put  upon  this 
map  as  a matter  of  convenience  the  boundaries  of  the  Sanitary 
District  as  originally  petitioned  for,  and  as  finally  adopted.  The 
boundaries  of  the  Sanitary  District  were  put  upon  the  map  later. 
The  dotted  lines  simply  contain  a convenient  division  of  the 

2859  watershed.  I will  state  in  regard  to  the  history  of  the  map 
that  it  was  made  up  for  the  use  at  the  time  of  the  Boundary 


021 


Commission,  in  1889,  I think;  and  in  making  it  up  we  obtained 
such  maps  as  had  been  printed  to  a scale  of  half  an  inch  to  the 
mile,  and  proceeded  to  delineate  section  by  section  the  watersheds 
from  the  best  information,  and  when  that  had  been  compiled  in 
that  matter,  a tracing  was  taken  thereof,  of  which  this  is  a print, 
with  such  corrections  of  some  of  the  watershed  lines  as  may  have 
been  made  since. 

Said  map  received  in  evidence.  Atlas,  p.  2)954;  Trans.,  [).  6578; 
Abst.,  p.  1927. 

2862  The  following  portion  of  Keport  of  the  Internal  Imi)rove- 
ment  Commission  of  Illinois  was  here  read  in  evidence. 

‘‘8.  The  Upper  Illinois. 

‘^The  Upper  Illinois  division  covers  56.2  miles  from  the 
head  of  Lake  Joliet  at  Brandons  bridge,  on  the  Desplaines 
Kiver,  to  the  head  of  the  Henry  pool  at  Utica  bridge,  though 
geographically,  the  Illinois  Kiver  is  formed  by  the  union  of 
the  Desplaines  and  Kankakee  Elvers,  thirteen  miles  below 
Brandons  bridge. 

2863  ^‘The  valley  of  erosion  headed  for  Lake  Michigan,  is  a 
case  of  arrested  development,  with  declivities  adjusted  to  the 

resisting  rock  stratification.  Through  the  valley  bottom,  the 
modern  stream  has  defined  its  course  and  a normal  stream-bed 
has  developed  with  true  flood  plains,  though  unfilled  remnants 
of  an  older  and  greater  stream-bed  still  exists,  showing  pro- 
gressive shrinkage  in  the  survey  period.  These  old  pools 
still  aggregate  a length  of  22  miles  and  still  carry  a good  depth 
of  water — Lake  Joliet,  at  76.5  feet  below  Chicago  datum  (low 
water  of  1847  in  Lake  Michigan),  Lake  DuPage  at  90.2  feet, 
and  Marseilles  pool,  originally  above  the  Kickapoo  reef,  but 
now  controlled  by  the  dam,  at  101.4  feet.  All  elevations  refer 
to  the  low  water  of  1883. 

^‘Between  the  Lakes  Joliet,  DuPage,  are  sharp  pitches. 
Treat’s  Island,  and  the  dump  of  the  DuPage  Kiver  mouth, 
and  again  over  Cincinnati  limestone,  below  Lake  DuPage  and 
opposite  the  mouth  of  the  Kankakee.  The  Marseilles  dam 
is  25.8  miles  below  the  mouth  of  the  Kankakee,  and  38.8  miles 
below  Brandons  bridge.  It  is  at  the  head  of  a descent,  on 
the  coal  measures,  dropping  some  28  feet  in  six  miles,  and 

2864  at  Ottawa,  at  the  mouth  of  the  Fox,  the  level  is  132.2  feet 
below  Chicago  datum.  From  Marseilles  to  Utica  bridge  is 

17.4  miles,  the  bed  below  the  rapids  in  St.  Peters  sandstone, 
with  a fall  of  about  half  a foot  per  mile  to  the  lower  end 
of  Butfalo  Eock ; thence  some  12  feet  in  four  miles  to  Starved 
Eock,  the  declivity  terminating  on  the  water-line  out-crop 
0.3  miles  above  Utica  bridge.  The  original  low  water  eleva- 


922 


Int.  Imp.  Com.  Hep. — Continued. 


tion  (1871)  at  this  point,  was  approximately,  147  feet  below 
Chicago  datum;  but  the  pool  level  produced  by  the  dam  at 
Henry,  is  142.2  feet  below  Chicago  datum  (low  water  of  1883), 
with  a declivity  of  some  0.6  feet  on  the  following  two  and  a 
half  miles,  the  channel  at  the  head  of  the  pool  having  greatly 
silted  in  recent  times. 

^^From  the  head  of  Lake  Joliet  to  the  head  of  the  pool  at 
Starved  Eock,  also  the  head  of  the  alluvial  valley  of  the  lower 
Illinois  is  then,  55.9  miles,  with  an  original  fall  of  70.5  feet, 
and  a present  fall  of  4.8  feet  less.  The  river  throughout 
this  distance  has  an  average  width  of  about  600  feet,  gen- 
erally subdivided  by  islands  below  Ottawa,  and  the  bank 
heights  vary  from  8 to  23  feet.  These  banks  are  overflowed, 
more  or  less,  in  two  years  out  of  three. 

flood  record  was  kept  at  Morris  by  M.  L.  W.  Claypool 
for  the  56  years,  1834  to  1890.  This  shows  twenty  years  in 
which  the  river  was  not  out  of  banks,  and  fifty-three  floods  in 
the  other  36  years.  Of  these  seventeen  exceeded  17  feet  above 
low  water,  nineteen  ranged  from  14  to  17  feet,  and  seventeen 
ranged  from  10  to  14  feet.  The  time  out  of  l3anks  averaged 
nine  days  for  the  flood  years. 

2865  ‘^Mr.  Claypool ’s  estimate  of  the  overflowed  lands  above 

Marseilles  Dam,  in  LaSalle  and  Grundy  Counties,  is  still 
the  most  satisfactory,  and  these  lands  cover  75  per  cent,  of 

the  values  between  Joliet  and  Utica.  The  estimate  is  as 

follows : 

‘‘Under  10  feet  905  acres  11% 

“From  10  to  14-15  feet 4,050  acres  52% 

“14-15  to  18  feet 2,085  acres  27% 

“18  to  20  feet  739  acres  10% 


'‘Total 7,779  acres  100% 

“(20  to  23  feet  390  acres) 

“On  a comparable  basis,  the  total  overflowed  lands  in  Will 
County  were  estimated  at  1,000  acres,  250  of  which  are  mar- 
ginal lands  of  little  value,  and  the  remiander  chiefly  in  Treat’s 
Island,  and  the  bottoms  of  DuPage  Eiver  and  Jackson  Creek. 

“The  lands  between  Marseilles  and  Utica,  for  the  equivalent 
stage  of  20  feet  at  Morris,  having  been  estimated  at  3,050 
acres,  about  two-thirds  of  the  area  being  in  the  four  miles 
below  Pmffalo  Creek,  and  more  affected  by  back  water  from 
the  lower  river  than  by  head  water  floods.  These  lands  are 
largely  infertile. 

“The  value  of  all  these  lands  was  carefully  estimated  in 
3890,  as  follows:  11,829  acres,  $618,240.00. 

2866  “Mr.  Claypool ’s  plane  of  reference  happens  to  be  an 
even  hundred  feet  below  Chicago  datum,  by  the  last  survey, 
and  0.3  feet  above  the  low  water  of  1883  at  Morris  bridge 
(built  in  1856)  and  0.66  above  the  low  water  of  1887,  and 


923 


less  than  a foot  above  the  lowest  known  water.  The  highest 
kno^n  flood  at  Morris  was  23  feet,  and  was  observed  by 
William  Marquis,  in  March,  1830.  The  Claypool  record  be- 
gins with  Mr.  Claypool’s  arrival  in  Morris  in  March,  1834. 
In  the  thirty-four  years  (1834-67),  thirteen  floods  occurred 
exceeding  17  feet,  and  seven  of  these  ranged  between  19.5  and 
20.5  feet.  The  four  notable  floods  in  the  twenty-two  follow- 
ing years  (1868-89),  all  ranged  between  17  and  18  feet,  the 
excessive  height  of  1883  being  due  to  the  breaking  of  the  ice 
gorge  and  the  great  dam  at  Wilmington,  and  the  loosing  of 
the  water  stored  in  the  12-mile  pool  above.  The  two  most 
notable  floods  since  1890  are,  1892  at  20.6  feet,  and  1904  at 
19.2  feet. 

^‘Of  the  fifty-three  floods,  from  1834  to  1890,  thirty-eight 
have  occurred  in  the  three  months,  February,  March  and 
April,  the  majority  being  identified  with  the  spring  break- 
up. The  Kankakee  usually  breaks  up  and  runs  out  before 
the  ice  moved  at  Morris  and  at  other  points  in  the  upper 
Illinois,  thus  producing  gorges  and  abnormal  stages  of  water. 
Such  action  has  been  less  frequent  since  the  shores  and  islands 
were  cleared  of  their  timber. 

2867  ‘‘The  ice  flood  of  February,  1887,  was  one  of  the  four 
notable  floods  in  the  1868-89  period,  and  its  volume  was 
carefully  estimated  from  the  heights  on  dams,  as  follows: 

Second-feet. 


“Joliet,  Desplaines  Eiver  5,575 

“Wilmington,  Kankakee  Kiver  25,225 

“Marseilles,  Illinois  Eiver 45,000 

“Dayton,  Fox  Eiver 13,680 

“Ottawa  (sum  of  the  above)  58,680 

“La  Salle,  estimated  60,000 


.“The  greatest  flood  at  Joliet  in  thirty-three  years  prior  to 
1890,  was  estimated  at  6,550  feet.  The  greatest  flood  at 
Wilmington,  in  the  nineteen  years  prior  to  1890  (ice  gorge 
flood  of  1883  excepted)  was  estimated  at  35,600  second  feet. 
The  flood  of  1887  was  considered  extraordinary  for  the  Fox. 

“Full  measurements  made  at  Morris  after  1890,  indicate 
that  the  ice  flood  of  1887  was  abnormally  high  by  about  two 
feet,  or  that  the  estimated  volumes  from  the  dams  were  short 
by  15  to  20  per  cent,  which  is  not  probable. 

2868  “The  flood  of  20.6  feet  at  Morris,  in  May  1892,  is  prob- 
ably the  greatest  in  the  historic  period,  that  of  March,  1830, 
being  no  doubt  abnormal  from  ice  effects.  This  flood  was 
measured  by  Charles  L.  Harrison,  Assistant  Engineer  Sani- 
tary. District  of  Chicago,  on  May  6,  and  the  volume  found  at 
73,730  gecond  feet.  All  the  available  data  were  reduced  for 
the  Sanitary  District  by  James  A.  Seddon,  in  1901,  and  the 
equivalents  for  Morris  deduced  as  follows:  (Claypool 

datum.) 


Int.  Imp.  Com.  Rep. — Continued. 


“70,000  second  feef 20.30  feet  in  height 

“65,000  second  feet 19.47  feet  in  height 

“60,000  second  feet 18.60  feet  in  height 

“55,000  second  feet 17.68  feet  in  height 

“50,000  second  feet 16.70  feet  in  height 

“45,000  second  feet 15.65  feet  in  height 

“40,000  second  feet 14.52  feet  in  height 

“35,000  second  feet 13.29  feet  in  height 

“30,000  second  feet 11.94  feet  in  height 

“25,000  second  feet 10.43  feet  in  height 

“20,000  second  feet  8.79  feet  in  height 

“15,000  second  feet  6.92  feet  in  height 

“10,000  second  feet 4.79  feet  in  height 

“The  basin  areas  of  the  Upper  Illinois  are  as  follows : 
“Distance  from  Brandon ^s  Bridge 

“Desplaines  K.,  1392  Sq.  mi.  ) 

“Kankakee  E.,  5148  sq.  mi.  i 6,540  sq.  mi.  13  mi. 

“Morris 7,300  sq.  mi.  22.7  mi. 

“Marseilles 7.500  sq.  mi.  38.8  mi. 

“Ottawa  (Pox  K.) 10,230  sq.  mi.  46.2  mi. 

“Utica  Bridge 10,365  sq.  mi.  56.2  mi. 

“The  extreme  flood  expectation  in  the  Morris-Marseilles 
reach,  is  70,000  second  feet,  taking  the  basin  as  normal.  The 
flood  of  1892  seems  to  have  reached  the  limit  for  streams  in 
this  region  of  the  country. 

“The  natural  low  water  volume  of  the  Illinois  at  Morris 
is  nominal,  not  exceeding  250  to  350  second  feet  in  1887, 
practically  at  extreme  low  water,  after  allowing  for  canal 
water  from  Lake  Michigan.  A measurement  of  456  second 
feet  was  made  on  the  Kankakee  Eiver  near  its  mouth,  in  Sep- 
tember, 1867.  Extreme  low  water  at  Wilmington  for  twelve 
years,  1871-83,  was  estimated  at  420  second  feet.  The  Des- 
plaines Eiver  practically  goes  dry  above  Joliet.  The  Mazon 
was  dry  in  1867.  The  Fox  measured  526  second  feet  in 
September,  1867.  The  canal  authorities  have  measured  a 
low  water  of  633  feet  at  La  Salle. 

“Assuming  an  ordinary  low  water  volume  of  1,000  second 
feet,  the  effect  of  introducing  10,000  second  feet  from  Lake 
Michigan,  at  Morris,  will  be  to  raise  the  water  5.2  feet  above 
the  Claypool  plane,  and  for  14,000  feet  to  6.9  feet. 

0 “Extreme  floods  may  be  assigned  to  two  causes: — Heavy 
winter  snow  on  a frozen  ground  surface,  produces  a great 
break-up  rise,  followed  by  extreme  low  water,  as  in  1867  and 
1887.  Again,  long  continued  rains  fill  the  ground  and  marshes 
to  overflowing  and  the  excess  runs  away  in  a great  flood,  as  in 
the  several  great  floods  of  May  and  June.  In  long  continued 
dry  periods  the  storage  of  marshes  and  ponds  is  exhausted, 
and  as  the  sub-soil  is  generally  impermeable,  extreme  low 


water  follows.  In  ordinary  years,  the  floods  are  moderate 
and  the  low  water  volume  well  sustained. 

‘‘It  is  evident  that  any  improvement  for  navigation  should 
modify  the  regimen  of  the  stream  as  greatly  as  possible, ' 
rather  than  as  little  as  possible,  as  in  all  official  projects.  In 
adapting  the  Mohawk  Kiver  (N.  Y.)  to  a deepwater  naviga- 
tion, the  Board  of  Engineers  on  Deep  Waterways  (1897-1900) 
projected  a depth  of  30  feet,  even  for  a navigable  limit  of 
21  feet,  in  order  to  bring  flood  velocity  and  slope  within 
moderate  limits.  In  like  manner  the  capacity  of  the  prism 
in  the  Upper  Illinois  is  conditioned  by  flood  volumes,  without 
regard  to  the  depth  required  for  navigation.  A project  de- 
veloped on  such  principles,  not  only  provides  a deep  water 
channel,  but  substantially  does  away  with  overflows,  and 
makes  possible  water-power  development.” 

2871  Q.  You  make  state,  if  you  know,  whether  the  contributions 
by  the  I.  & M.  Canal  to  the  Desplaines  Kiver,  to  which  your 

attention  was  directed  on  your  cross-examination,  equal  in  amount 
the  depletion  from  the  Desplaines  River  concerning  which  you 
testifled  on  your  direct.  A.  I don’t  think  I could  make  a rela- 
tive estimate  of  that.  I would  say  that  from  1848  to  1871  con- 
tributions from  extraneous  sources  probably  did  not  equal  the  de- 
pletion by  the  canal.  After  the  deepening  of  the  canal  in  1871 
I should  doubt  whether  the  aggregate  volume  of  water  contributed 
to  the  Illinois  River  by  means  of  the  Illinois  and  Michigan  Canal 
from  Lake  Michigan  was  equal  to  the  amount  that  went  from  the 
Desplaines  Valley  to  Lake  Michigan. 

2872  Q.  I will  ask  you  to  state  whether  it  is  not  the  fact  that 
with  the  invention  of  the  motor  boat  there  has  not  been  a 

great  revival  of  shallow  draft  navigation  in  the  same  region?  A. 
There  has  been. 


Be-cross  Examination, 

2873  Q.  Where  has  the  invention  of  the  motor  boat  revived 
greatly  water  navigation?  A.  On  the  canals  of  the  State 
of  Ohio,  where,  on  account  thereof,  two  years  ago  the  Legislature 
appropriated  half  a million,  something  over  half  a million  dollars, 
and  the  Legislature  which  has  just  adjourned  has  appropriated  an- 
other half  million  dollars  for  the  purpose  of  cleaning  out  these  old 
canals,  and  rebuilding  the  locks,  rehabilitating  the  commerce  of 
the  canals. 


926  Cooley,— Re-cross  Exam. — Continued., 

A number  of  bayous  of  Louisiana  and  in  tbe  delta  country  the 
invention  of  the  motor-boat  has  caused  a revival  of  navigation. 
In  respect  to  that  particular  development  I refer  you  to  a memoir 
by  Judge  R.  S.  Taylor  of  the  Mississippi  River  Commission  pub- 
lished within  the  last  few  months,  I think.  When  I was  mak- 
ing the  investigation  for  the  City  of  Rochester  in  the  year  1905, 
I found  that  motor  boats  were  used  upon  the  Erie  Canal  for  de- 
livery by  the  grocers  there  in  the  City  of  Rochester,  in  delivering 
their  products  along  the  canal  for  a distance  of  forty  miles  or 
more  from  Rochester,  in  competition  with  two  railways  which  ran 
on  either  bank  of  the  canal.  I don’t  know  of  their  actual  use 
upon  a stream  like  the  Desplaines  River.  The  art  is  very  young 
yet.  I have  seen  some  kinds  of  motor  boats.  I have  not 

2875  had  any  experience  in  the  operation  of  them  personally.  The 
towpath  bank  at  Dresden  Heights  would  come  down  on 

rock.  Steam  canal  boats  go  from  Ottawa  through  the  canal  to 
Marseilles.  They  do  not  go  into  the  canal  from  the  river  at  Ot- 
tawa. 

Q.  If  it  were  true  that  the  largest  portion  of  the  water  con- 
tributed through  the  canal  went  down  the  Desplaines  River,  then 
it  materially  increased  the  low  water  level  of  that  river,  did  it 
not?  A.  The  extreme  actual  volume  would  be  accentuated.  The 
extent  of  the  contribution  of  the  depth  on  the  ruling  bar  would  be- 
increased. 

The  discrepancies  between  various  data  would  not  affect 

2876  the  ability  to  determine  the  depth  at  any  particular  point 
from  the  markings  and  plattings  upon  any  individual  pro- 
file. 

Q.  Which  bank,  a new  bank  or  an  old  bank,  would  be  most 
susceptible  to  the  injurious  influences  which  you  have  described 
from  the  raising  of  a pool,  one  side  of  it  resting  upon  such  bank? 

A.  I assume  that  the  new  bank  would  be  built  with  especial 
reference  to  the  condition,  and  the  old  bank  might  not  be.  I 
do  not  know  that  I could  discriminate.  AWiere  the  old  bank  is 
subject  to  a new  condition  I am  inclined  to  think  that  it  might 
be  better  to  have  an  entirely  new  bank  adapted  to  the  new 

2877  conditions.  It  is  a nice  question  in  raising  a dam  or  em- 
bankment whether  it  is  wise  to  attempt  to  utilize  the  old 


927 


bank  or  to  construct  a new  one.  In  the  absence  of  any  knowledge 
to  the  contrary  in  regard  to  the  conditions  existing,  I should  as- 
sume that  the  old  bank  was  preferable, 

Q.  Speaking  of  the  relative  contributions  of  the  Kankakee  and 
the  Desplaines  Kiver  to  the  Illinois,  since  the  drainage  water  is 
turned  in,  isn’t  it  true  that  the  maximum  flow  of  the  Desplaines 
Eiver  is  1,500,000  cubic  feet  per  minute  including  600,000  cubic 
feet  per  minute  from  Chicago  and  that  the  maximum  flood  of 
2878  the  Kankakee  Eiver  is  3,500,000  cubic  feet  per  minute?  A. 

I think  that  the  statement  is  substantially  correct,  barring 
as  to  the  maximum  in  the  two  streams  since  the  Drainage  Canal 
was  opened,  barring  the  fact  that  I do  not  know  that  the  maxi- 
mum includes  the  600,000  feet  mentioned  in  the  question.  I 
would  like  at  the  proper  time  to  qualify  that  by  explanation. 

Q.  I understand  you  to  mean  that  the  bank  at  Dresden  Heights 
itself  was  actually  higher  in  number  of  feet  than  the  bank  above 
Adams’  Dam,  is  that  what  you  meant  or  not?  A.  It  is  what 
I meant  and  also  that  the  elevation  above  in  the  plane  was  higher. 

li  e- re-di  rect  Exa  ni  in  at  ion. 

2881  At  the  height  of  the  Dresden  Dam  there  is  a considerable 
intermediate  width  of  earth  between  the  canal  and  the  river 
upon  which  and  across  which  the  works  shown  on  the  plan  intro- 
duced here  are  proposed  to  be  located  and  have  been  located.  At 
the  Adams’  Dam  there  is  no  such  intermediate  strip  of  ground. 

Q.  Suppose  that  a man  were  here  on  the  Drainage  Canal  in 
a boat;  got  down,  descended  this  lock  which  he  has  described, 
42^  feet  of  lockage  down  between  Dockport  and  Joliet,  and  he 
was  there  in  his  boat  in  the  Drainage  Canal,  and  was  going  by 
way  of  Desplaines  Eiver  and  the  Illinois  Eiver  to  St.  Louis,  what 
dams  would  he  encounter?  A.  He  would  encounter  Dam  No.  1 
at  Joliet,  the  Marseilles  Dam  and  the  four  dams  upon  the  old 
Illinois  Eiver  belonging  to  the  State  and  the  United  States.  That 
is  all  below  the  Drainage  Canal.  These  dams  were  navigation 
dams  put  in  for  increasing  the  duration  of  the  navigation  periods. 
They  were  not  used  for  milling  purposes. 


928 


2883  Cooley  R, e-re-cross  Examination. 

The  dam  at  Marseilles  is  used  for  milling  purposes. 

Q.  How  many  bridges  would  a man  encounter  starting  at  the 
point  that  Mr.  Starr  suggested,  such  bridges  as  would  be  an  ob- 
struction to  steamboat  navigation?  A.  Thirteen:  Nine,  I think, 

are  in  the  Desplaines  Eiver.  The  first  one  you  would  reach 
would  be  the  E.  J.  & E.  Eailroad  bridge.  I think  there  is  a tow- 
path  bridge  in  there.  The  next  is  the  Eobey  street  bridge,  the 
next  Jackson  street  bridge,  the  next  Cass  street,  the  next  Jeffer- 
son street,  the  next  Chicago,  Eock  Island  & Pacific  Eailway  bridge, 
the  next  the  McDonough  bridge,  the  next  Brandon  road  bridge, 
the  next  Millsdale  bridge,  the  next  Smith’s  bridge.  I omitted 
Brandon’s  bridge,  and  the  towpath  bridge  which  I did  not  have 
in  mind.  The  piers  below  Smith’s  bridge  are  right  in  the  stream 
ready  for  the  restoration  of  the  aqueduct  on  those  piers? 

2884  Q.  Would  you  ever  restore  the  aqueduct  on  those  piers? 
A.  I hope  never  to  see  it  done.  I think  if  we  had  to  re- 
store the  aqueduct  it  would  be  restored  on  those  piers. 

2886  Thereupon  counsel  for  complainant  offered  in  evidence  the 
blueprint  exhibit  which  constitutes  part  of  what  is  known  as 

tlie  Flowage  Contract  under  date  of  September  2,  1904,  furnished 
by  counsel  for  defendant. 

Said  blueprint  exhibit  was  received  in  evidence.  (Atlas,  p.  3955, 
Trans.,  p.  6580;  Al)st.,  p.  1928.) 

Counsel  fok  Complaix^ant.  I have  furnished  the  other  side  with 
a list  of  exhibits  here  which  ai'jpear  in  the  deposition,  and  with  the 
document  itself.  They  have  examined  them  and  I believe 

2887  most  of  them  have  been  formally  offered  as  the  reading  went 
along.  There  were  two  or  three  instances,  however,  where  it 

was  not  done. 

Counsel  for  complainant  read  said  list  and  offered  in  evidence 
documents  as  follows: 

Hildebrand  Exhibit  3,  referred  to  in  the  deposition  at  ])age  19; 
(Atlas,  i>age  3943;  Trans.,  \k  6555;  Abst.,  p.  1922); 

Will  County  Plat  Book,  page  15  (Atlas,  page  3917;  Trans,  p. 
6488;  Abst.,  [).  1916),  and  ])age  25  of  said  ])lat  book  (Atlas, 


929 


page  3918;  Trans.,  p.  6490;  Abst.,  p.  1916),  referred  to  in  deposi- 
tion at  page  15 ; 

Also  the  following  exhibits  offered  at  the  taking  of  the  deposi- 
tion of  Kobert  E.  Orr:  Orr  Exhibit  1 (Atlas,  page  3923;  Trans., 
p.  6511;  Abst.,  p.  1917) ; Orr  Exhibit  2 (Atlas,  page  3923a;  Trans., 
p.  6513;  Abst.,  p.  1918) ; Orr  Exhibit  3 (Atlas,  page  3924;  Trans., 
p.  6515;  Abst.,  p.  1918) ; Orr  Exhibit  4 (Atlas,  page  3925;  Trans., 
p.  6517;  Abst.,  1919) ; Orr  Exhibit  5 (Atlas,  page  3925;  Trans.,  p. 

6517;  Abst.,  p.  1919) ; Orr  Exhibit  6 (Atlas,  page  3926;  Trans.,  p. 

6521;  Abst.,  p.  1919); 

Also  the  Eeport  and  accompanying  memorandum  of  the  Com- 
missioners to  survey  the  northern  boundary  line  of  Illinois,  1833, 
offered  at  the  taking  of  the  deposition  of  Christian  T.  Heydecker 
(App.  II,  page  3884;  Trans.,  p.  5706;  Abst.,  p.  1723)  ; 

Also  exhibit,  blueprint  of  boat  offered  at  the  taking  of  the  depo- 
sition of  John  M.  Sv/eeney  (Atlas,  page  3946;  Trans.,  p.  6561; 
Abst.,  p.  1924) ; 

Also  the  following  exhibits  offered  at  the  taking  of  the  deposi- 
tion of  Geo.  B.  Fox:  Fox  Exhibit  1 (Atlas,  page  3947;  Trans.,  p. 

6563;  Abst.,  p.  1924) ; Fox  Exhibit  2 (Atlas,  page  3948;  Trans.,  p. 

6565;  Abst.,  1924) ; 

Also  Exhibit , Map  of  Chicago,  offered  at  the  taking  of  the  depo- 
sition of  Benezette  Williams  (Atlas,  page  3952;  Trans.,  p.  6574; 
Abst.,  p.  1926). 

All  of  the  said  documents  were  received  in  evidence. 

Also  certified  copies  of  the  following  exhibits  to  the  bill  of  com- 
plaint herein: 

Exhibit  ‘‘A”  of  the  bill  referred  deposition  p.  23,  Abst.,  p.  28. 

Exhibit  ‘‘B”  of  the  bill  referred  deposition  p.  56,  Abst.,  p.  34. 

Exhibit  ‘MC”  of  the  bill  referred  deposition  p.  62,  Abst.,  p.  47. 

Exhibit  ‘‘D”  of  the  bill  referred  deposition  p.  70,  Abst.,  p.  40. 

Exhibit  ‘^E”  of  the  bill  referred  deposition  p.  71,  Abst.,  p.  41. 

Exhibit  of  the  bill  referred  deposition  p.  73,  Abst.,  p.  42. 

Exhibit  ‘‘G”  of  the  bill  referred  deposition  p.  74,  Abst.,  p.  43. 

• Exhibit  of  the  bill  referred  deposition  p.  74,  Abst.,  p.  44. 

Exhibit  of  the  bill  referred  deposition  p.  75,  Abst.,  p.  44. 

Exhibit  ‘M”  of  the  bill  referred  deposition  p.  75,  Abst.,  p.  46. 

Exhibit  ‘X”  of  the  bill  referred  deposition  p.  76,  Abst.,  p.  36. 


930 


The  said  documents  which  were  made  exhibits  to  the  bill  of  com- 
plaint herein  were  received  in  evidence  and  reference  is  hereby 
made  to  the  copy  of  each  of  said  documents  as  attached  to  said 
bill,  and  each  thereof  is  hereby  incorporated  herein  by  such  refer- 
ence. 

Counsel  for  complainant  offered  and  put  in  evidence  Complain- 
ant’s Exhibit  1,  as  follows: 

2888  ^‘This  Indentuke,  made  this  fifth  (5th)  day  of  January,  A. 
D.  1905,  between  The  Canal  Commissioners  of  the  State  of 
Illinois,  party  of  the  first  part,  and  Charles  A.  Munroe,  of  the 
City  of  Chicago,  County  of  Cook,  and  State  of  Illinois,  party 
of  the  second  part, 

WiTNESSETH,  That  the  said  party  of  the  first  part  in  con- 
sideration of  the  covenants  of  the  said  party  of  the  second 
part  hereinafter  set  forth  does  by  these  presents  lease  to  the 
said  party  of  the  second  part  the  following  described  prop- 
erty, to-wit: 

The  bed  and  banks  of  what  is  known  as  the  Kankakee  Feed- 
er, and  the  reserve  strip  on  each  side  thereof,  in  Section  Nine 
(9),  Township  Thirty-three  (33)  North,  Eange  Nine  (9)  East 
of  the  Third  Principal  Meridian,  Will  County,  Illinois. 

To  have  and  to  hold  the  same  to  the  said  party  of  the  sec- 
ond part  from  the  fifth  (5th)  day  of  January,  A.  D.  1905, 
until  the  fifth  (5th)  day  of  January,  A.  D.  1925. 

And  the  said  party  of  the  second  part  in  consideration  of 
the  leasing  of  the  premises  as  above  set  forth  covenants  and 
agrees  with  the  said  party  of  the  first  part  to  pay  to  the  said 
party  of  the  first  part  as  rent  for  the  same  the  sum  of  Sev- 
enty-five ($75.00)  Dollars  per  annum,  payable,  to-wit:  On 
the  fifth  (5th)  day  of  January  of  each  and  every  year. 

The  said  party  of  the  second  part  further  covenants  with 
the  said  party  of  the  first  part  that  at  the  expiration  of  the 
time  mentioned  in  this  lease  peaceable  possession  of  the  said 
premises  shall  be  given  to  the  said  party  of  the  first  part 
and  that  upon  the  non-payment  of  any  annual  installment  of 
said  rent  on  the  fifth  day  of  January  of  any  year  and  upon 
a failure,  for  thirty  days,  from  the  fifth  day  of  January,  in 
any  year,  to  make  pay- 

ment of  said  annual  rental,  said  lease  shall  terminate  and  be 
at  an  end  said  first  party  shall  recover  possession  as  if  the 
same  was  held  by  forcible  detainer. 


931 


It  is  further  stipulated  and  agreed  by  and  between  the  par- 
ties hereto,  that  said  party  of  the  second  part  will  not  sub-let 
said  premises  or  any  portion  thereof,  for  the  erection  of  build- 
ings, without  the  consent  in  writing  of  the  said  The  Canal 
Commissioners. 

It  is  further  stipulated  and  agreed  that  in  case  The  Canal 
Commissioners  or  the  State  of  Illinois  shall  determine  to  sell 
said  Kankakee  Feeder,  then  in  that  event  said  State  of  Illi- 
nois or  said  The  Canal  Commissioners,  shall  have  the  right 
to  cancel  this  lease  upon  giving  said  ])arty  of  the  second  part 
thirty  (30)  days’  notice  in  writing  of  said  determination  to 
sell  said  feeder;  and  at  the  expiration  of  said  thirty  (30)  days 
this  lease  shall  become  null  and  void  and  said  State  of  Illinois 
or  said  The  Canal  Commissioners  shall  have  the  right  to  take 
immediate  possession  of  the  premises  hereby  leased. 

The  covenants  herein  contained  shall  extend  to  and  be  bind- 
ing upon  the  heirs,  executors  and  administrators  of  the  par- 
ties to  this  lease. 

In  witness  whekeof,  the  party  of  the  first  part  has  caused 
this  instrument  to  be  signed  by  its  President  and  attested  by 
its  Secretary  and  duly  authorized  its  corporate  seal  to  be 
hereto  attached,  and  said  party  of  the  second  part  has  here- 
unto set  his  hand  and  seal  the  day  and  year  first  above  writ- 
ten. 

The  Canal  Commtssioneks  of  the  State  of  Illinois, 

By  C.  E.  Snively, 

President. 

(Seal)  By  Chakles  A.  Munroe, 

W.  R.  Newton, 

Secretary. 

The  Seal  of  the  Canal  Commissioners.” 

Certificate  of  John  M.  Snyder,  Acting  Secretary,  that  the 
above  is  a true  copy. 

2891  Counsel  for  complainant  offered  in  evidence  Complain- 
ant’s Exhibit  2,  which  vras  excluded. 

Said  document  so  offered  and  excluded,  is  as  follows : 

Memorandum  of  Agreement  made  and  entered  into  between 
the  Canal  Commissioners  of  the  State  of  Illinois,  party  of 
the  first  part,  and  the  Economy  Light  & Power  Company  of 
Joliet,  Illinois,  a corporation  organized  and  doing  business 
under  the  laws  of  the  State  of  Illinois,  party  of  the  second 
part. 


931a  Complainant’s  Ex.  2, — Pole  Line  Contract  Dam  No.  1. — Con. 

WiTNESSETH,  that  tile  Canal  Commissioners  in  considera- 
tion of  the  covenants  and  agreements  hereinafter  set  forth, 
to  be  kept  and  performed  by  the  said  party  of  the  second  part, 
hereby  grants  to  said  party  of  the  second  part  the  right  to 
place  and  thereafter  maintain  a line  of  poles  along  the  tow- 
path  bank  of  the  Illinois  and  Michigan  Canal  between  the 
Economy  Light  & Power  X^ompany’s  plant  in  Joliet  and  Ash- 
land avenue,  in  the  City  of  Chicago,  Cook  County;  said  poles 
to  be  used  for  the  sole  and  only  purpose  of  stringing  thereon 
the  wires  of  the  said  party  of  the  second  part  to  carry  elec- 
tricity from  and  generate  it  at  the  present  plant  of  the  said 
Economy  Light  and  Power  Company  at  Dam  No.  1 in  Joliet. 

To  HAVE  AND  TO  HOLD  Said  privilege  to  the  party  of  the 
second  part,  its  successor  and  assigns,  until  the  seventeenth 
day  of  July,  A.  D.  nineteen  hundred  and  sixteen  (1916)  so 
long  as  it  shall  perform  the  obligations  required  of  it  by 
this  agreement:  Pkovided  that  the  Canal  Commissioners  re- 
serve the  right  at  any  time,  to  require  any  change  to  be  made 
in  the  location  of  the  said  line  of  poles. 

2892  Said  line  of  poles  and  wireE  shall  be  located  and  built  under 
the  direction  and  supervision  of  the  Superintendent  of  said 
Canal,  and  where,  in  the  judgment  of  said  Superintendent, 
the  topography  of  the  ground  makes  it  necessary  or  expedi- 
ent the  berm  bank  of  said  Canal  shall  be  used  for  a short 
distance  for  said  line  of  poles,  authority  is  hereby  given  to 
said  party  of  the  second  part  to  cross  said  Canal  and  place 
poles  along  said  berm  bank;  the  necessity  or  expediency 
therefor,  the  place  and  manner  of  crossing  and  placing  said 
poles  along  said  berm  bank  to  be  subject  to  the  approval  of, 
and  done  under  the  direction  and  supervision  of  said  Super- 
intendent. 

In  consideeation  of  the  above,  the  said  party  of  the  sec- 
ond part,  for  itself,  its  successor  and  assigns,  covenants  and 
agrees  to  furnish  to  the  Canal  Commissioners  and  maintain 
during  the  continuance  of  this  contract,  free  of  all  expense 
to  the  said  Canal  Commissioners,  or  the  State  of  Illinois, 
one  group  of  five  incandescent  lights  of  sixteen  candle  power 
each,  at  each  and  every  lock  between  Jackson  street,  Joliet, 
and  Ashland  avenue,  Chicago,  including  the  locks  at  Jackson 
street  and  Bridgeport,  and  all  lights  required  by  said  Canal 
Commissioners  at  the  State  Yards,  shops  and  offices,  between 


931b 


Jackson  street,  Joliet,  and  Ashland  avenue,  Chicago,  and  the 
Superintendent’s  house  and  grounds  at  Lockport. 

In  further  consideration  hereof,  the  said  Economy  Light 
and  Power  Company  covenants  and  agrees  to  furnish  the 
Canal  Commissioners,  during  the  continuance  of  this  con- 
tract, free  of  expense  to  the  State,  sufficient,  continuous  elec- 
trical power  to  drive  one  fifty  or  twenty-five  horse-power 
alternating  current  electric  motors  to  their  full  capacity;  the 
2893  current  required  to  do  this  work  to  he  delivered  at  the  motor 
or  motors  to  be  installed  by  the  said  Canal  Commissioners 
at  Lockport. 

The  said  party  of  the  second  part  further  covenants  and 
agrees  that  it  will  construct  and  maintain  said  pole  line  and 
wires  in  a good  and  workmanlike  manner  and  will  so  main 
tain  and  operate  the  same  as  not  to  interfere  with  business 
along  said  Canal,  or  the  business  or  property  of  other  per- 
sons or  corporations ; and  also  assume  all  liability  for  all 
debts  of  personal  injuries,  or  injury  to  property  of  others 
which  may  occur  by  reason  of  the  construction  or  operation 
of  said  pole  line;  and  that  it  will  forever  indemnify  and  save 
harmless  the  Canal  Commissioners  and  the  State  of  Illinois 
from  and  against  all  claims  or  liabilities  for  or  by  reason  of 
any  damages,  the  risk  of  which  is  hereb}^  assumed  by  the 
party  of  the  second  part;  and  also  from  and  against  all 
claims,  liabilities  or  judgments  on  account  of  any  death  or 
injury  or  damage  to  personal  property,  the  liability  for 
which  is  assumed  by  the  party  of  the  second  part;  that  the 
party  of  the  second  part  agrees  to  pay  all  charges  and  ex- 
penses that  may  be  incurred,  or  any  judgments  that  may  be 
rendered  by  reason  thereof. 

Whereof  the  parties  hereto  have  caused  this  agreement  to 
he  signed  by  their  respective  officers,  thereunto  duly  author- 
ized the  respective  seals  to  be  hereunto  attached  and  attested 
by  their  respective  secretaries  this  fifth  day  of  December,  A. 
D.  1901. 

The  Canal  Commissioners 


By  C.  E.  Snively, 
Prest. 

W.  K.  Newton, 
Secy. 


931c 


2894  Here  follows  certificate  of  John  M.  Snyder,  Acting  Secre- 
tary, that  the  above  is  a true  and  correct  copy. 

2895  Counsel  for  Complainant  offered  in  evidence  Complainant’s 
Exhibit  3,  which  was  excluded.  Said  document  so  offered 

and  excluded,  is  as  follows : 

2896  This  agkeement,  made  and  entered  into  this  third  (3rd) 
day  of  October,  A.  D.,  1902,  between  the  Canal  Commission- 
ers of  the  State  of  Illinois,  party  of  the  first  part,  and  Rob- 
ert Gaylord,  of  the  City  of  Chicago,  County  of  Cook,  and  State 
of  Illinois,  party  of  the  second  part: 

Witnesseth,  That  Whereas,  the  said  parties  hereto  have 
this  day  and  contemporaneonsly-  herewith,  executed  a cer- 
tain contract  with  eacll  other  of  even  date  herewith,  in  rela- 
tion to  the  building  of  a dam  in  the  Desplaines  River  and 
the  connection  by  locks  of  the  waters  of  said  Desplaines  River 
with  said  Illinois  and  Michigan  Canal  between  South  street 
and  Jackson  street  in  the  City  of  Joliet  as  in  said  contract 
more  particularly  set  forth,  and  with  reference  to  the  rais- 
ing of  the  water  of  said  Desplaines  River  as  a result  of  the 
building  of  said  dam,  and  the  raising  of  the  tow-path  on  the 
bank  of  said  Canal,  and  to  pay  compensation  to  said  party 
of  the  first  part  for  the  right  to  flow  the  bank  of  said  canal 
and  the  banks  of  said  river,  reference  to  which  contract  is 
hereby  made  for  greater  certainty;  and 

Wheeeas,  The  said  party  of  the  first  part  insists  that  the 
said  water  of  said  Desplaines  River  shall  not  be  raised  by 
said  dam  until  compensation  is  paid  said  party  of  the  first 
part  by  said  party  of  the  second  part  for  such  flowage,  etc. 

Now^  THEREFORE,  it  is  hereby  expressly  agreed  by  and  be- 
tween the  parties  hereto  that  said  party  of  the  first  part 
does  not  consent  to,  nor  shall  said  contemporaneous  contract 
be  construed  as  a consent  to  the  erection  of  said  dam  or  to 
the  raising  of  the  water  in  said  Desplaines  River  as  above 
contemplated,  until  said  party  of  the  second  part  shall  have 
agreed  with  the  party  of  the  first  part  upon  the  compensation 

2897  to  be  paid  to  the  said  party  of  the  first  part  for  the  right 
to  flow  said  water  of  said  Desplaines  River  upon  said  Canal 
banks  and  banks  of  said  river,  and  for  the  destruction  of  the 
water  power  on  said  Channahon  level  and  paid  said  com- 
pensation to  said  party  of  the  first  part. 

And  said  party  of  the  second  part  in  consideration  of  the 


931(1 


promises  and  tlie  execution  of  said  contemporaneous  con- 
tract, above  referred  to,  hereby  covenants  and  agrees  to  and 
with  said  party  of  the  first  part,  that  be  will  not  raise  the 
water  in  said  river  or  cause  any  water  to  be  backed  up  to  or 
on  said  Cliannalion  level,  until  lie,  the  said  party  of  the  sec- 
ond part,  has  agreed  with  said  party  of  the  first  part  upon 
the  amount  of  such  compensation  for  the  right  to  flow  said 
water  upon  said  canal  banks  and  the  banks  of  said  river 
and  for  the  destruction  of  the  water  power  of  said  party  of 
the  first  part  on  said  Channahon  level,  and  shall  also  have 
paid  the  amount  of  such  compensation,  so  agreed  upon,  to 
said  party  of  the  first  part. 

It  is  further  herein  stipulated  liy  and  between  the  parties 
hereto,  that  all  })rovisions,  covenants  and  agreements  herein 
shall  extend  to  and  be  binding  on  the  successors  and  legal 
representatives  of  the  respective  parties. 

In  witness  whereof,  the  said  ]iarty  of  the  first  part  has 
caused  this  instrument  to  be  executed  by  its  President  and 
Secretary,  and  corporate  seal  attached,  and  said  party  of 
the  second  part  under  his  hand  and  seal. 

The  Canal  Commissioners, 

By  C.  E.  Snively, 

President. 

By  W.  R.  Newton, 

Secretary. 

The  seal  of  the  canal 
commissioners  of  the 

2898  State  of  Illinois. 

Robert  Gaylord,  (Seal) 

Here  follows  certificate  of  John  M.  Snyder,  Acting  Secretary, 
that  the  above  is  a true  and  correct  copy. 

2899  Thereupon,  counsel  for  complainant  offered  in  evidence 
Complainant’s  Exhibit  4,  which  was  excluded.  Said  docu- 
ment so  offered  and  excluded,  is  as  follows : 

2900  This  agreement,  made  and  entered  into  this  third  day  of 
October,  A.  I).  1902,  between  The  Canal  Commissioners  of 
The  State  of  Illinois,  party  of  the  first  part,  and  Robert  Gay- 
lord, of  the  City  of  Chicago,  County  of  Cook  and  State  of 
Illinois,  party  of  the  second  part: 

Witnesseth,  that  whereas,  the  said  Gaylord  is  about  to 
construct  in  the  Hesplaines  River  a dam  at  a point  in  said 


931e  Exhibit  4, — Gaylord  Contract. — Continued. 

river  known  as  the  head  of  Lake  Joliet,  and  as  indicated  on 
the  blue  print  deposited  with  the  said  Canal  Commissioners 
and  identified  by  the  signature  of  said  Gaylord,  for  the  pur- 
pose of  developing  water  power,  to  be  used  in  operating  a 
grist  mill  which  he  is  about  to  erect. 

And,  whereas,  the  said  Eohert  Gaylord  proposes  thereby 
to  improve  the  navigation  of  the  Desplaines  Eiver,  and  after 
such  improvement  shall  he  made,  desires  to  connect  said 
river  with  the  Illinois  and  Michigan  Canal,  so  that  grain 
and  merchandise  in  boats  may  he  transported  upon  said 
canal  and  river  to  docks  convenient  to  said  mill. 

And  whereas,  the  said  Gaylord  claims  that  the  construc- 
tion of  said  dam  as  contemplated  by  him,  with  its  crest  at 
minus  fifty-three  ( — 53)  Chicago  City  Datum,  will  raise  the 
water  of  said  Desplaines  Eiver  to  the  Channahon  level  of 
said  canal,  in  case  the  flow  in  the  Desplaines  Eiver  shall  he 
made  equal  to  six  hundred  thousand  (600,000)  cubic  feet  per 
minute;  and  that  it  will  not  injure  the  water  power  at  Jack- 
son  Street  Dam  in  any  way. 

And  whereas,  it  is  believed  that  a connection  of  said  Illi- 
nois and  Michigan  Canal  with  the  Desplaines  Eiver,  between 
South  street  in  the  City  of  Joliet,  and  Jackson  street,  in  said 
city,  would  by  reason  of  the  transportation  of  materials  to 
and  from  said  mill,  and  the  traffic  which  would  necessarily 
2901  be  created,  materially  increase  the  business  upon  and  the 
revenue  from  said  canal,  provided  that  the  slack  water  cre- 
ated by  said  dam  in  said  Desplaines  Eiver  be  so  created  by 
said  dam  in  said  Desplaines  Eiver  be  so  created  that  it  will 
not  injure  the  water  power  at  said  dam,  at  Jackson  street. 

And  whereas.  The  said  Gaylord  recognizes  the  right  of 
the  said  party  of  the  first  part  to  compensation  for  the 
flowage  of  the  canal  and  river  banks  as  a result  of  the  erec- 
tion of  said  dam,  as  well  as  to  compensation  for  the  destruc- 
tion of  the  water  power  on  the  said  Channahon  level  and 
agrees  to  pay  them  therefor. 

Noav,  therefore,  the  said  party  of  the  first  part  in  con- 
sideration of  the  foregoing  and  the  covenants  and  agree- 
ments of  said  party  of  the  second  part  hereinafter  speci- 
fied, hereby  agrees  that  the  said  Eohert  Gaylord,  party  of 
the  second  part,  shall  have  the  right  and  authority,  under 
the  direction  and  supervision  of  the  said  party  of  the  first 


931f 


part,  to  connect  the  said  Illinois  and  Michigan  Canal  with 
the  said  Desplaines  liiver,  at  such  a point,  between  South 
street  in  the*  City  of  Joliet  and  Jackson  street  in  said  city, 
by  a suitable  lock  of  the  kind  and  character  to  be  designated 
by  said  party  of  the  first  part.  Said  lock  shall  be  constructed 
at  the  sole  cost  and  expense  of  the  said  party  of  the  second 
})art  and  under  the  direction  and  supervision  and  to  the 
satisfaction  of  said  party  of  the  first  part. 

It  is  herein  further  expressly  provided  by  and  between  the 
|)arties  hereto  that  the  said  lock  shall  thereafter  be  main- 
tained and  operated  at  the  sole  cost  and  expense  of  said 
party  of  the  second  part;  and  said  party  of  the  second  ])art, 
in  consideration  of  the  premises  hereby  agrees  to  pay  the 
cost  of  the  original  construction  of  said  lock  and  of  the  main- 
tenance and  renewal  thereof  and  all  the  expenses  of  0})erat- 
ing  the  same. 

And  said  party  of  the  second  ]>art,  in  consideration  of  the 
2902  premises,  hereby  agrees  that  when  the  waters  of  said  Des- 
plaines Elver  are  raised  by  said  dam,  with  a crest  at  minus 
fifty-three  ( — 53)  Chicago  City  Datum,  he  will,  at  his  own 
sole  cost  and  expense  connect  said  Illinois  and  Michigan 
Canal  with  said  Desplaines  River  with  a suitable  lock  the 
same  to  be  built  under  the  supervision  of  said  party  of  the 
first  part  and  to  be  thereafter  subject  to  the  exclusive  con- 
trol of  the  said  party  of  the  first  part;  and  that  he,  the  said 
party  of  the  second  part,  will  pay  all  the  expense  of  main- 
tenance and  operation  of  said  lock  to  said  party  of  the  first 
part  on  demand. 

And  said  party  of  the  second  part  further  covenants  and 
agrees  with  the  said  party  of  the  first  part  that  at  no  time 
subsequent  to  the  construction  of  said  dam,  shall  the  level 
of  the  said  Desplaines  River  be  more  than  one  foot  below 
the  Channahon  level  of  said  Illinois  and  Michigan  Canal,  nor 
shall  the  level  of  said  river  be  raised  to  a point  that  it  will 
at  any  time  interfere  with  the  water  power  created  by  said 
dam  at  Jackson  street. 

And  said  party  of  the  second  part  further  covenants  and 
agrees  to  and  with  said  party  of  the  first  part  that  before 
the  level  of  the  water  of  said  Desplaines  River  shall  be 
raised  as  hereinbefore  contemplated,  he  will  raise  the  tow- 
path  bank  of  said  canal  to  such  a height  as  will  prevent  all 


931g  Exhibit  4, — Gaylord  Contract.— Continued. 

overflow  from  said  Desplaines  Eiver  at  its  highest  stage, 
and  in  so  raising  the  tow-path,  he  will  do  it  in  such  a manner 
as  not  to  interfere  with  its  present  uses,  and  under  the  di- 
rection and  supervision  of,  and  in  a.  manner  satisfactory  to 
the  said  party  of  the  first  part,  and  that  in  case  it  shall  be 
' necessary  in  the  opinion  of  the  said  party  of  the  first  part 
to  riprap  said  tow-path  hank  so  raised,  he  will  do  so  at  his 
own  sole  cost  and  expense,  or  notice  from  said  party  of  the 
first  part. 

And  said  party  of  the  second  part  covenants  and  agrees 
in  consideration  of  the  premises  to  and  with  the  said  party 
2903  of  the  first  ])art,  that  he  will  pay  and  compensate  said  party 
of  the  first  part  for  the  right  to  flow  the  bank  of  said  canal 
and  banks  of  said  river,  such  compensation  to  be  hereafter 
agreed  upon  by  and  between  the  parties  hereto,  and  all  dam- 
ages which  said  party  of  tlie  first  part  may  sustain  by  rea- 
son of  the  flowage  of  such  water  upon  and  the  taking  of  the 
banks  of  said  canal  and  river,  for  such  flowage  of  water;  and 
that  he  will  also  pay  to  said  party  of  the  first  part  the  full 
value  of  and  compensation  for  the  destruction  of  the  water 
power  of,  or  under  the  control  of  said  party  of  the  first 
part  on  the  said  Channahon  level,  by  reason  of  the  backing 
up  and  raising  of  the  water  of  said  river  by  said  dam,  so 
to  be  erected  as  aforesaid. 

It  is  further  expressly  agreed  by  and  between  the  parties 
hereto  that  the  said  party  of  the  first  part  reserves  and  shall 
have  the  right  to  annul  this  contract  whenever  in  their  judg- 
ment the  same  shall  be  found  to  conflict  with  the  interests 
of  the  State  of  Illinois  or  said  canal  and  in  case  the  con- 
stniction  of  said  dam  or  of  said  lock,  or  either  of  them,  shall 
be  found  to  interfere  with  or  prevent  the  proper  operation 
of  said  canal  or  shall  have  the  etfect  in  any  manner  to  injure 
the  water  power  at  said  Jackson  Street  Dam;  that  then  and 
in  such  case  the  said  party  of  the  second  part  will,  upon 
written  notice  from  the  said  party  of  the  first  part,  so  cor- 
rect said  dam  or  lock  as  to  remove  such  injury  and  on  failure 
so  to  do,  said  party  of  the  first  part  shall  have  the  right  to 
enter  upon  the  said  dam  or  lock  and  make  such  alterations 
therein  as  shall  or  may  he  necessary  in  their  judgment  to  re- 
move such  interference  with  the  proper  o])eration  of  said 
canal  and  to  restore  said  water  power  to  its  former  con- 


931h 


dition,  at  tlie  sole  cost  and  expense  of  the  said  party  of  the 
second  part. 

It  is  further  herein  stipulated  by  and  between  the  parties 
2904  hereto,  that  all  provisions,  covenants  and  agreements  herein, 
shall  extend  to  and  be  binding  on  the  successors  and  legal 
representatives  of  the  respective  parties. 

It  is  further  covenanted  and  agreed,  on  the  part  of  the 
said  party  of  the  second  part,  that  he  will  not  assign  this 
contract  or  any  part  thereof,  without  the  consent,  in  writing, 
of  the  party  of  the  first  part. 

Ix  WITNESS  WHEREOF,  the  Said  party  of  the  first  ]iart  has 
caused  this  instrument  to  be  executed  by  its  President  and 
Secretary  and  corporate  seal  attached,  and  said  ]iarty  of  the 
second  part  under  his  hand  and  seal. 

The  Canae  Commissioners 
By  C.  E.  S NIVEL Y, 
President; 

By  W.  R.  Newton, 
Seeretary. 
Robert  Gaylord. 

The  Seal  of  the  Board  of 
Canal  Commissioners  of 
the  State  of  Illinois. 

Here  follows  certificate  of  John  M.  Snyder,  Acting  Secretary, 
that  the  above  is  a true  and  correct  copy. 

Counsel  for  complainant  read  in  evidence  Complainant’s  Ex- 
hibit 5,  as  follows: 

2907  ‘Elugust  10,  1907. 

Dear  Sir: 

In  accordance  with  contract  provisions  you  are  hereby  noti- 
fied that  Mr.  William  Keough  will  act  as  inspector  for  The 
Canal  Commissioners  in  connection  with  your  work  at  the 
mouth  of  the  Kankakee  River. 

Very  respectfully. 

General  Superintendent. 

Mr.  Chas.  A.  Munroe, 

Economy  Light  & Power  Co., 

Joliet,  111.” 


932 


Counsel  for  complainant  offered  in  evidence  Senate  Eesolution 
No.  26  of  the  45tli  General  Assembly,  as  follows : 

2908  ^‘Senate  Joint  Eesolution  No.  26. 

Eesolved  by  the  Senate,  the  House  of  Eepresentatives  con- 
curring Herein,  That  there  shall  be  submitted  to  the  ele'ctors 
of  this  State  at  the  next  election  of  members  of  the  General 
Assembly,  a proposition  to  amend  the  constitution  of  this 
State,  to-wit: 

Eesolved,  That  the  separate  section  of  the  constitution  of 
this  State  relating  to  the  canal  be  amended  to  read  as  follows : 

The  Illinois  and  Michigan  Canal,  or  other  canal  or  water- 
way, owned  by  the  State  shall  never  be  sold  or  leased  until  the 
specific  proposition  for  the  sale  or  lease  thereof  shall  first 
have  ])een  submitted  to  a vote  of  the  people  of  the  State  at  a 
general  election,  and  have  been  approved  by  a majority  of  all 
the  votes  polled  at  such  election.  The  General  Assembly  shall 
never  loan  the  credit  of  the  State  or  make  appropriations  from 
the  treasury  thereof  in  aid  of  railroads  or  canals. 

Provided,  That  any  surplus  earnings  of  any  canal,  waterway 
or  water  power  may  be  appropriated  or  pledged  for  its  en- 
largement, maintenance  or  extension;  and. 

Further  Provided,  That  the  General  Assembly,  by  suitable 
legislation,  provide  for  the  construction  of  a deep  waterway 
or  canal  from  the  present  water  power  plant  of  the  Sanitary 
District  of  Chicago,  at  or  near  Lockport,  in  the  Township  of 
Lockport,  in  the  County  of  Will,  to  a point  in  the  Illinois  Elver 
at  or  near  Utica,  which  may  be  practical  for  a general  plan 
and  scheme  of  deep  waterway  along  a route  which  may  be 
deemed  most  advantageous  for  such  plan  of  deep  waterway; 
and  for  the  erection,  equipment  and  maintenance  of  power 
plants,  locks,  bridges,  dams  and  appliances  sufficient  and  suit- 
able for  the  development  and  utilization  of  the  water  power 
thereof;  and  authorize  the  issue,  from  time  to  time,  of  bonds 
of  this  State  in  a total  amount  not  to  exceed  twenty  million 
dollars,  which  shall  draw  interest,  payable  semi-annually,  at 
a rate  not  to  exceed  four  per  cent,  per  annum,  the  proceeds 
whereof  may  be  applied  as  the  General  Assembly  may  pro- 
vide, in  the  construction  of  said  waterway  and  in  the  creation, 
equipment  and  maintenance  of  said  power  plants,  locks, 
bridges,  dams  and  appliances. 

All  power  development  from  said  waterway  may  be  leased  in 
part  or  in  whole,  as  the  General  Assembly  may  by  law  pro- 
vide, but  in  the  event  of  any  lease  being  so  executed,  the  ren- 
tal specified  therein  for  water  power  shall  be  subject  to  a 
revaluation  each  ten  years  of  the  term  created  and  the  income 
therefrom  shall  be  paid  into  the  treasury  of  the  State. 

Adopted  by  the  Senate  October  16,  1907.” 


Counsel  for  complainant  offered  in  evidence  case  of  the  Mon- 
tello,  20  Wallace,  page  439,  as  follows: 

2915  ‘‘This  court  held  in  the  case  of  The  Daniel  Ball,  that  those 
rivers  must  he  regarded  as  public  navigable  rivers  in  law 
which  are  navigable  in  fact.  And  they  are  navigable  in  fact 
when  they  are  used,  or  are  susceptible  of  being  used,  in  their 
ordinary  condition,  as  highways  for  commerce,  over  which 
trade  and  travel  are  or  may  be  conducted  in  the  customary 
modes  of  trade  and  travel  on  water.  And  a river  is  a navi- 
gable water  of  the  United  States  when  it  forms  by  itself,  or  by 
its  connection  with  other  waters,  a continued  highway  over 
which  commerce  is,  or  may  be  carried  with  other  States  or 
foreign  countries  in  the  customary  modes  in  which  such  com- 
merce is  conducted  by  water.  Apply  these  tests  to  the  case  in 
hand,  and  we  think  the  question  must  be  answered  in  the  af- 
firmative. 

The  Fox  River  has  its  source  near  Portage  City,  Wiscon- 
sin, and  flows,  in  a northeasterly  direction,  through  Lake 
Winnebago  into  Green  Bay,  and  thence  into  Lake  Michigan, 
and  by  means  of  a short  canal  of  a mile  and  a half  it  is  con- 
nected with  Portage  City  with  the  Wisconsin  River,  which 
empties  into  the  Mississippi.  From  its  source  to  Oshkosh 
the  river  is  frequently  spoken  of  as  the  ‘Upper  Fox.’  From 
Lake  Winnebago  to  Green  Bay  it  is  called  the  ‘Lower  Fox.’ 
There  are  several  rapids  and  falls  in  the  river,  but  the  ob- 
structions caused  by  them  have  been  removed  by  artificial 

2916  navigation,  so  that  there  is  now,  and  has  been  for  several 
years,  uninterrupted  water  communication  for  steam  vessels 

of  considerable  capacity  from  the  Mississippi  to  Lake  Michi- 
gan, and  thence  to  the  St.  Lawrence,  through  the  Wisconsin 
and  Fox  Rivers;  and  steamboats  have  passed,  and  are  con- 
stantly passing,  over  these  rivers  with  passengers  and  freight 
destined  to  points  and  places  outside  of  the  State  of  Wiscon- 
sin. 

It  is  said,  however,  that  although  the  Fox  River  may  now 
be  considered  a highway  for  commerce,  over  which  trade  and 
travel  are,  or  may  be,  conducted  in  the  ordinary  modes  of 
trade  and  travel  on  water,  it  was  not  so  in  its  natural  state, 
and,  therefore,  is  not  a navigable  water  of  the  United  States 
within  the  purview  of  the  decisions  referred  to. 

It  is  true,  without  the  improvements  by  locks,  canals  and 
dams.  Fox  River,  through  its  entire  length,  could  not  be  navi- 
gated by  steamboats  or  sail  vessels,  but  it  is  equally  true  that 
it  formed,  in  connection  with  the  Wisconsin,  one  of  the  earliest 
and  most  important  channels  of  communication  betvv^een  the 
Upper  Mississippi  and  the  lakes.  It  was  this  route  which 

2917  Marquette  and  Joliet  took  in  1673  on  their  voyage  to  dis- 
cover the  Mississippi;  and  the  immense  fur  trade  of  the  North- 


934 


The  Montello,  20.  Wall.^  439. — Continued. 


west  was  carried  over  it  for  more  than  a century.  Smith,  in 
his  History  of  Wisconsin,  says:  ‘At  this  time  (1718),  the 

three  great  avenues  from  the  St.  Lawrence  to  the  Mississippi 
were,  one  by  the  way  of  the  Fox  and  Wisconsin  Rivers,  one 
by  way  of  Chicago,  and  one  by  way  of  the  Miami  of  the  Lakes, 
when,  after  crossing  the  i^ortage  of  three  leagues  over  the 
summit  level,  a shallow  stream  led  into  the  Wabash  and  Ohio.’ 
It  is,  therefore,  apparent  that  it  was  one  of  the  highways 
referred  to  in  the  Ordinance  of  1787,  and,  indeed,  among  the 
most  favored  on  account  of  the  short  portage  between  the 
two  rivers.  In  more  modern  times,  and  since  the  settlement 
of  the  country,  and  before  the  improvements  resulting  in  an 
unbroken  navigation  were  undertaken,  a large  interstate  com- 
merce has  been  successfully  carried  on  through  this  channel. 
This  was  done  by  means  of  Durham  boats,  which  were  vessels 
from  seventy  to  one  hundred  feet  in  length,  with  twelve  feet 
beam,  and  drew  when  loaded  two  to  two  and  one-half  feet  of 
water.  These  boats,  propelled  by  animal  power,  were  able  to 
navigate  the  entire  length  of  the  Fox  River,  with  the  aid  of 
a few  portages,  and  would  readily  carry  a very  considerable 
tonnage. 

In  process  of  time,  as  Wisconsin  advanced  in  wealth  and 
population,  and  had  a variety  of  products  to  exchange  for 
the  commodities  of  sister  States  and  foreign  nations,  Dur- 
ham boats  were  found  to  be  inadequate  to  the  wants  of  the 
country,  and  Congress  was  appealed  to  for  aid  to  improve 
the  navigation  of  the  river,  so  that  steam  power  could  be 
used.  This  aid  was  granted,  and  since  the  river  has  improved 
commerce  is  carried  over  it  in  one  of  the  usual  ways  in  which 
commerce  is  conducted  on  the  water  at  the  present  day.  But 
commerce  is  conducted  on  tlie  water  even  at  the  present  day, 
through  other  instrumentalities  than  boats  propelled  by  steam 
or  wind.  And,  independently  of  the  Ordinance  of  1787,  de- 
claring the  ‘navigable  waters’  leading  info  the  Mississippi 
and  St.  Lawrence  to  be  ‘common  highways,’  the  true  test  of 
the  navigability  of  a stream  does  not  depend  on  the  mode  by 
which  commerce  is,  or  may  be,  conducted,  nor  the  difficul- 
ties attending  navigation.  If  this  were  so,  the  public  would  be 
deprived  of  the  use  of  many  of  the  large  rivers  of  the  coun- 
try over  which  rafts  of  lumber  of  great  value  are  constantly 
taken  to  market. 

2918  It  would  be  a narrow  rule  to  hold  that  in  this  country, 
unless  a river  was  capable  of  being  navigated  by  steam  or 
sail  vessels,  it  could  not  be  treated  as  a public  highway.  The 
capability  of  use  by  the  public  for  purposes  of  transporta- 
tion and  commerce  affords  the  true  criterion  of  the  naviga- 
bility of  a river,  rather  than  the  extent  and  manner  of  that  use. 
If  it  is  capable  in  its  natural  state  of  being  used  for  purposes 
of  commerce,  no  matter  in  what  mode  the  commerce  may  be 


935 


conducted,  it  is  navigable  in  fact,  and  becomes  in  law  a public 
river  or  highway.  Vessels  of  any  kind  that  can  float  upon 
the  water,  whether  propelled  by  animal  power,  by  the  wind, 
or  by  the  agency  of  steam,  are,  or  may  become,  the  mode  by 
which  a vast  commerce  can  be  conducted,  and  it  would  be  a 
mischievous  rule  that  would  exclude  either  in  determining  the 
navigability  of  a river.  It  is  not,  however,  as  Chief  Justice 
Shaw  said,  ‘every  small  creek  in  which  a fishing  skiff  or 
gunning  canoe  can  be  made  to  float  at  high  water  which  is 
deemed  navigable,  but,  in  order  to  give  it  the  character  of  a 
navigable  stream,  it  must  be  generally  and  commonly  useful 
to  some  purpose  of  trade  or  agriculture.’ 

2919  The  learned  judge  of  the  court  Telow  rested  his  decision 
against  the  navigability  of  the  Fox  liiver  below  the  DePere 
Eapids  chiefly  on  the  ground  that  there  were,  before  the  river 
was  improved,  obstructions  to  an  unbroken  navigation.  This 
is  true,  and  these  obstructions  rendered  the  navigation  dif- 
ficult, and  prevented  the  adoption  of  the  modern  agencies  by 
which  commerce  is  conducted.  But  with  these  difficulties  in 
the  way  commerce  was  successfully  carried  on,  for  it  is  in 
proof  that  the  products  of  other  States  and  countries  were 
taken  up  the  river  in  its  natural  state  and  from  Green  Bay 
to  Fort  Winnebago,  and  return  cargoes  of  lead  and  furs  ob- 
tained. And  the  customary  mode  by  which  this  was  done  was 
Durham. boats.  As  early  as  May,  1838,  a regular  line  of  these 
boats  was  advertised  to  run  from  Green  Bay  to  the  Wiscon- 
sin Portage.  But  there  were  difficulties  in  the  way  of  rapid 
navigation  even  with  Durham  boats,  and  these  difficulties  are 
recognized  in  the  Ordinance  of  1787,  for  not  only  were  the 
‘navigable  waters’  declared  free,;  but  also  the  ‘carrying- 
places’  between  them,  that  is,  places  where  boats  must  be  par- 
tially or  wholly  unloaded  and  their  cargoes  carried  on  land  to 
a greater  or  less  distance.  Apart  from  this,  however,  the 
rule  laid  down  by  the  district  judge  as  a test  of  navigability 
cannot  be  adopted,  for  it  would  exclude  many  of  the  great 
rivers  of  the  country  which  were  so  interrupted  by  rapids 
as  to  require  artificial  means  to  enable  them  to  be  navi- 
gated without  break.  Indeed,  there  are  but  few  of  our 
fresh-water  rivers  which  did  not  originally  present  serious 
obstructions  to  an  uninterrupted  navigation.  In  some  cases, 
like  the  Fox  River,  they  may  be  so  great  while  they  last  as  to 
prevent  the  use  of  the  best  instrumentalities  for  carrying  on 
commerce,  but  the  vital  and  essential  point  is  whether  the  nat- 
ural navigation  of  the  river  is  such  that  it  affords  a channel 
for  useful  commerce.  If  this  be  so,  the  river  is  navigable  in 
fact,  although  its  navigation  may  be  encompassed  with  dif- 
ficulties by  reason  of  natural  barriers,  such  as  rapids  and 
sand-bars. 

2921  The  views  that  we  have  presented  on  this  subject  receive 


936 


The  Montello,  20  Wall.,  439. — Continued. 


support  from  the  courts  of  this  country  that  have  had  occa- 
sion to  discuss  the  question  of  what  is  a navigable  stream. 

From  what  has  been  said,  it  follows  that  Fox  River  is  within 
the  rule  prescribed  by  this  court  in  order  to  determine 
whether  a river  is  a navigable  water  of  the  United  States. 
It  has  always  been  navigable  in  fact,  and  not  only  capable  of 
use,  but  actually  used  as  a highway  for  commerce,  in  the  only 
mode  in  which  commerce  could  be  conducted,  before  the  nav- 
igation of  the  river  was  improved.  Since  this  was  done,  the 
valuable  trade  prosecuted  on  the  river,  by  the  agency  of 
steam,  has  become  of  national  importance.  And  emptying, 
as  it  does,  into  Green  Bay,  it  forms  a continued  highway  for 
interstate  commerce.  The  products  of  other  States  and  for- 
eign countries,  which  arrived  at  Green  Bay  for  points  in  the 
interior,  were  formerly  sent  forward  in  Durham  boats,  and 
since  the  completion  of  the  improvements  on  the  river  these 
products  are  reshipped  in  a small  class  of  steamboats.  It 
would  be  strange,  indeed,  if  this  difference  in  the  modes  of 
conducting  commerce,  both  of  which,  at  the  times  they  were 
employed,  were  adapted  to  the  necessities  of  navigation, 
should  operate  a change  upon  the  national  character  of  the 
stream. 

2922  Before  the  Union  was  formed,  and  while  the  French  were 
in  possession  of  the  territory,  the  Wisconsin  and  Fox  Rivers 
constituted  about  the  only  route  of  trade  and  travel  between 
the  Upper  Mississippi  and  the  Great  Lakes.  And  since  the 
territory  belonged  to  us  this  route  has  been  regarded  as  of 
national  importance.  To  preserve  the  national  character  of 
all  the  rivers  leading  into  the  Mississippi  and  St.  Lawrence, 
and  to  prevent  a monopoly  of  their  waters,  was  the  purpose  of 
the  Ordinance  of  1787,  declaring  them  to  be  free  to  the  pub- 
lic; and  so  important  was  the  provision  of  this  ordinance 
deemed  by  Congress  that  it  was  imposed  on  Wisconsin  as  a 
condition  of  admission  into  the  Union. 

Congress,  also  when  the  State  was  admitted,  made  to  it  a 
grant  of  lands,  in  order  that  the  Fox  and  Wisconsin  might  be 
united  by  a canal,  their  navigation  improved,  and  the  rivers 
made  in  fact,  what  nature  meant  they  should  be,  a great  ave- 
nue for  trade  between  the  Mississippi  and  Lake  Michigan. 
The  grant  was  accepted,  the  navigation  improved,  and  the 
canal  constructed.  These  objects  were,  however,  accom- 
plished by  a private  corporation  chartered  for  the  purpose, 
which  was  allowed  to  charge  tolls  as  a source  of  profit.  The 
exaction  of  these  tolls  created  dissatisfaction  outside  of  the 
State,  and  Congress,  in  1870,  in  response  to  memorials  on  the 
subject  of  the  importance  of  these  rivers  as  a channel  of 
commerce  between  the  States,  passed  an  act  authorizing  the 
general  Government  to  purchase  the  property,  and  after  it 
was  reimbursed  for  advances,  to  reduce  the  tolls  to  the  lowest 


937 


point  wMch  should  be  ascertained  to  be  sufficient  to  operate 
the  works  and  keep  them  in  repair.  Although  this  legisla- 
tion was  not  needed  to  establish  the  navigability  of  these 
rivers,  it  shows  the  estimate  put  by  Congress  upon  them  as 
a medium  of  communication  between  the  lakes  and  the  Upper 
Mississippi.  It  results,  from  these  views,  that  steamboats 
navigating  the  waters  of  the  Fox  River  are  subject  to  Gov- 
ernmental regulation.  ’ ^ 

Counsel  for  complainant  offered  and  put  in  evidence  Chap- 
ter 4,  Imiay’s  America,  page  485,  as  follows: 

No.  IV. 

2935  A topographical  description  of  Virginia,  Pennsylvania, 

Maryland,  and  North  Carolina;  comprehending  the  Rivers 
Ohio,  Kanhaway,  Sioto,  Cherokee,  Wabash,  Illinois,  Missis- 
sippi, &c.,  the  climate,  soil,  and  produce,  whether  animal, 
vegetable,  or  mineral;  the  mountains,  creeks,  roads,  distances, 
latitudes,  &c.,  of  these  countries.  By  Thomas  Hutchins,  cap- 
tain in  the  60th  regiment  of  foot.  With  a plan  of  the  rapids 
of  the  Ohio,  a plan  of  the  several  villages  in  the  Illinois 
country,  a table  of  the  distances  between  Fort  Pitt  and  the 
mouth  of  the  Ohio;  and  an  appendix,  containing  Mr.  Pat- 
rick Kennedy’s  journal  up  the  Illinois  River;  and  a correct 
list  of  the  different  nations  and  tribes  of  Indians,  with  the 
number  of  fighting  men,  &c.  (1778.) 

The  present  topographical  description  of  the  parts  above 
mentioned,  comprehends  almost  the  whole  of  the  country  lying 
between  the  34th  and  44th  degrees  of  latitude,  and  the  79th 
and  93d  degrees  of  longitude,  and  describes  an  extent  of  ter- 
ritory of  about  850  miles  in  length,  and  700  miles  in  breadth; 
and  one  which,  for  healthiness,  fertility  of  soil,  and  variety 
of  productions,  is  not  perhaps  surpassed  by  any  on  the  habit- 
able globe. 

Those  parts  of  the  country  lying  westward  of  the  Allegany 
mountains,  and  upon  the  Rivers  Ohio  and  Mississippi,  and 
upon  most*  of  the  other  rivers  and  lakes  here  described,  were 
done  from  my  own  surveys,  and  corrected  by  my  own  obser- 
, vations  and  latitudes,  made  at  different  periods  preceding  and 
during  all  the  campaigns  of  the  last  war,  in  several  of  which 
I acted  as  engineer,  and  since  in  many  reconnoitering  tours, 
which  I made  through  various  parts  of  the  country  between 
the  years  1764  and  1775. 

2936  I have  compared  my  own  observations  and  surveys,  re- 
specting the  lakes,  with  those  made  by  Captain  Brehm,  of  the 
60th  regiment  of  foot  (who  was  for  many  years  employed  as 
an  engineer  in  North  America),  and  I find  that  they  corres- 
pond with  more  exactness  than  surveys  usually  do,  which  are 
made  by  different  persons  at  different  times ; and  I am  happy 


988 


Extract , — 1 mlay’s  Arne  rica . — C out  in  uecl . 


in  this  opportunity  of  expressing  my  obligations  to  this  gen- 
tleman, for  the  cheerfulness  with  which  he  furnished  me  with 
his  surveys  and  remarks. 

It  is  tit  also,  that  I should  take  notice  that,  in  the  account 
which  I have  given  of  several  of  the  branches  of  the  Ohio  and 
Allegany  Eivers,  I have  adojited  the  words  of  the  late  in- 
genious Mr.  Lewis  Evans,  as  I found  he  had  properly  de- 
scribed them  in  the  analysis  to  his  map  of  the  middle  colo- 
nies. And  as  do  that  portion  which  represents  the  country 
lying  on  the  eastern  side  of  the  Allegany  mountains  I take 
the  liberty  of  informing  my  readers,  that  my  reason  for  in- 
serting it,  was  to  show  the  several  communications  that  are 

2937  now  made,  and  others  which  may  be  hereafter  easily  made, 
between  the  navigable  branches  of  the  Ohio  and  Allegany 
Rivers,  and  the  rivers  in  Virginia  and  Pennsylvania,  which 
fall  into  the  Atlantic  Ocean  from  the  west  and  northwest. 

London,  November  1,  1778.” 

P.  489. 

2938  The  navigation  of  the  Ohio  in  a dry  season  is  rather  trou- 
blesome from  Port  Pitt  to  the  Mingo  town  (about  75  miles), 
but  thence  to  the  Mississippi  there  is  always  a sufficient  depth 
of  water  for  barges  carrying  from  100  to  200  tons  burden, 
built  in  the  manner  as  those  are  which  are  used  on  the  river 
Thames  between  London  and  Oxford; — to-wit,  from  100  to 
120  feet  in  the  keel,  16  to  18  feet  in  breadth,  and  four  feet 
in  depth,  and  when  loaded,  drawing  about  three  feet  water. 

The  rapids,  in  a dry  season,  are  difficult  to  descend  with 
loaded  boats  or  barges,  without  a good  pilot;  it  would  be  ad- 
visable therefore  for  the  bargemen,  in  such  seasons,  rather 
than  run  any  risk  in  passing  them,  to  unload  part  of  their 
cargoes,  and  reship  it  when  the  barges  have  got  through  the 
rapids.  It  may,  however,  be  proper  to  observe,  that  loaded 
boats  in  freshets  have  been  easily  rowed  against  the  stream 
up  the  rapids,  and  that  others,  by  means  only  of  a large  sail, 
have  ascended  them. 

In  a dry  season,  the  descent  of  the  rapids  in  -the  distance  of 
a mile,  is  about  12  or  15  feet;  and  the  passage  down  would 
not  be  difficult,  except  perhaps  for  the  following  reasons : two. 
miles  above  them  the  river  is  deep,  and  three  quarters  of  a 
mile  broad ; but  the  channel  is  much  contracted,  and  does  not 
exceed  250  yards  in  breadth  (near  three-fourths  of  the  bed 
of  the  river,  on  the  southeastern  side  of  it,  being  tilled  with  a 
flat  limestone  rock,  so  that  in  a dry  season  there  is  seldom 
more  than  six  or  eight  inches  water)  ; it  is  upon  the  northern 
side  of  the  river,  and  being  confined  as  above  mentioned,  the 
descending  waters  tumble  over  the  ra})ids  with  a consider- 
able degree  of  celerity  and  force.  The  channel  is  of  different 
depths,  but  nowhere,  I think,  less  than  five  feet;  it  is  clear. 


'939 


and  upon  each  side  of  it  are  large  broken  rocks,  a few  inches 
under  the  water.  (See  footnote.)  The  rapids  are  nearly  in 
latitude  38°  8';  and  the  only  Indian  village  (in  1766)  on  the 
hanks  of  the  Ohio  River  between  them  and  Fort  Pitt,  was  on 
the  northwest  side,  75  miles  below  Pittsburg,  called  the  Mingo 
town:  it  contained  60  families. 

2939  (Footnote.) 

Colonel  Gordon,  in  his  journal  down  the  Ohio,  mentions 
Ghat  these  falls  do  not  deserve  that  name,  as  the  stream  on 
the  north  side  has  no  sudden  ])itch,  hut  only  runs  rapid  over 
the  ledge  of  a flat  rock;  several  boats,’  he  says,  ‘passed  it  in 
the  dryest  season  of  the  year,  unloading  one-third  of  their 
freight.  They  passed  on  the  north  side,  where  the  carry- 
place  is  three-quarters  of  a mile  long.  On  the  southeast  side 
it  is  about  half  that  distance,  and  is  reckoned  the  safest 
passage  for  those  who  are  unacquainted  with  it;  but  it  is  tjie 
most  tedious,  as  during  part  of  the  summer  and  fall  the  hat- 
teaux-men  drag  their  boats  over  the  flat  rock.  The  fall  is 
about  half  a mile  rapid  water;  which,  however,  is  passable, 
by  wading  and  dragging  the  boat  against  the  stream,  when 
lowest,  and  with  still  greater  ease,  when  the  water  is  raised  a 
little.  ’ 

2941  Big  Kanhaway  falls  into  the  Ohio  upon  its  southeastern 
side,  and  is  so  considerable  a branch  of  this  river,  that  it  may 
be  mistaken  for  the  Ohio  itself  by  persons  ascending  it.  It  is 
slow  for  ten  miles,  to  little  broken  hills;  the  low  land  is  very 
rich,  and  about  the  same  breadth  (from  the  Pipe  Hills  to  the 
falls)  as  upon  the  Ohio.  After  going  ten  miles  up  Kanhaway 
the  land  is  hilly,  and  the  water  a little  rapid  for  50  or  60 
miles  further  to  the  falls,  yet  batteaux  or  barges  may  be  easily 
rowed  thither.  These  falls  were  formerly  thought  impassa- 
ble; but  late  discoveries  have  proved,  that  a wagon-road  may 
be  made  through  the  mountain  which  occasions  the  falls,  and 
that  by  a portage  of  a few  miles  only,  a communication  may  be 
had  between  the  waters  of  Great  Kanhaway  and  Ohio,  and 
those  of  James  River  in  Virginia. 

The  Illinois  River  furnishes  a communication  with  Lake 
Michigan,  by  the  Chicago  River,  and  by  two  portages  between 
the  latter  and  the  Illinois  River;  the  longest  of  which  does  not 
exceed  four  miles. 

The  Illinois  country  is  in  general  of  a superior  soil  to  any 
other  part  of  North  America  that  I have  seen. 

2943  Mr.  Patrick  Kennedy’s  journal  of  an  expedition  undertaken 
by  himself  and  several  coureurs  de  hois  in  the  year  1773, 
from  Kaskaskias  village  in  the  Illinois  country,  to  the  head 
waters  of  the  Illinois  River. 

‘July  23,  1773.  We  set  out  from  Kaskaskias  in  search  of 
a copper  mine,  and  on  the  31st  reached  the  Illinois  River;  it 
is  84  miles  from  Kaskaskias.  The  same  day  we  entered  the 


940 


Extract, — Imlay^s  America. — Continued. 


Illinois  Eiver,  which  is  18  miles  above  that  of  the  Missouri. 
The  water  was  so  slow  and  the  sides  of  the  river  so  full  of 
weeds,  that  our  progress  was  much  interrupted,  being  obliged 
to  row  our  boat  in  the  deep  water,  and  strong  current.  * * * 

2944  ‘August  1.  About  twelve  o’clock,  we  stopped  at  the  Piorias 

wintering  ground.  About  a quarter  of  a mile  from  the  river, 
on  the  eastern  side  of  it,  is  a meadow  of  many  miles  long, 
and  five  or  six  miles  broad.  In  this  meadow  are  many  small 
lakes,  communicating  with  each  other,  and  by  which  there 
are  passages  for  small  boats  or  canoes,  and  one  in  particular 
leads  to  the  Illinois  Eiver;  the  timber  in  general  very  tall 
oaks.  We  met  with  some  beautiful  islands  in  this  part  of  the 
river  (48  miles  from  the  Mississippi),  and  great  plenty  of  buf- 
falo and  deer.  * * * 

2945  ‘August  9.  At  ten  o’clock  we  passed  the  Eiviere  de  I’isle 
de  pluys,  or  Eainy; Island  Eiver;  on  the  southeast  side  it  is  15 
yards  wide,  and  navigable  nine  miles  to  the  rocks.  After 
passing  this  river,  which  is  255  miles  from  the  Mississippi, 
we  found  the  water  very  shallow,  and  it  was  with  difficulty 
that  we  got  forward,  though  we  employed  seven  oars,  and  our 
boat  drew  only  three  feet  water.  The  grass  which  grows  in 
the  interval  or  meadow  ground,  between  the  Illinois  Eiver  and 
the  rocks  is  finer  than  any  we  have  seen,  and  is  thicker  and 
higher  and  more  clear  from  weeds  than  in  any  of  the  meadows 
about  Kaskaskias  or  Fort  Chartres.  The  timber  is  generally 
birch,  button  and  paccan.  The  wind  contiriuing  fair,  about 
ten  o’clock  we  passed  the  Vermillion  Eiver,  267  miles  from 
the  Mississippi.  It  is  30  yards  wide,  but  so  rocky  as  not  to 
be  navigable.  At  the  distance  of  a mile  further,  we  arrived 
at  the  little  rocks,  which  are  60  miles  from  the  forks,  and  270 
miles  from  the  Mississippi.  The  water  being  very  low,  we 
could  get  no  further  with  our  boat,  and,  therefore,  we  proceed- 
ed by  land  to  the  forks.  We  set  out  about  two  o’clock  on  the 
western  side  of  the  river;  but  the  grass  and  weeds  were  so 
high,  that  we  could  make  but  little  way. 

2946  ‘August  10.  We  crossed  the  high  land,  and  at  ten  o’clock 
we  came  to  the  Fox  Eiver  (or  a branch  of  it),  after  walking 
24  miles.  It  falls  into  the  Illinois  Eiver,  30  miles  beyond  the 
place  where  we  left  our  boat.  Tbe  Fox  Eiver  is  25  yards 
wide,  and  has  about  five  feet  water ; its  course  is  from  the  west- 
ward by  many  windings  through  large  meadows.  At  three 
miles  distance,  after  crossing  the  river,  we  fell  in  with  the 
Illinois  Eiver  again,  and  kept  along  its  bank;  here  we  found 
a path.  About  six  o’clock  we  arrived,  after  walking  about 
12  miles,  at  an  old  encampment,  15  miles  from  tbe  fork.  The 
land  is  stony,  and  the  meadow  not  so  good  as  some  which  we 
formerly  passed.  From  hence  we  went  to  an  island,  where 
several  French  traders  were  encamped;  but  we  could  get  no 
intelligence  from  them  about  the  copper  mine  which  we  had 


941 


set  out  in  search  of.  At  this  island  we  hired  one  of  the 
French  hunters  to  conduct  is  in  a canoe  to  our  boat. 

‘August  11.  We  set  off  about  three  o’clock,  and  at  night 
got  within  nine  miles  of  our  boat.  We  computed  it  to  be 
45  miles  from  the  island  we  last  departed  from,  to  the  place 
where  we  left  our  boat. 

‘August  12.  We  embarked  early,  and  proceeded  three  miles 
down  the  Illinois  Eiver.  On  the  northwestern  side  of  this 
river  is  a coal  mine,  that  extends  for  half  a mile  along  the 
middle  of  the  bank  of  the  river,  which  is  high.  On  the  eastern 
side,  about  half  a mile  from  it,  and  about  the  same  distance 
below  the  coal  mine  are  two  salt  ponds,  100  yards  in  circum- 
ference, and  several  feet  in  depth;  the  water  is  stagnant,  and 

2947  of  a yellowish  color;  but  the  French  and  natives  make  good 
salt  from  it.  We  tasted  the  water,  and  thought  it  salter  than 
that  which  the  French  make  salt  from,  at  the  Saline  near  St. 
Genevieve.  At  nine  o’clock  we  arrived  at  our  boat.  From 
the  island  where  we  found  the  French  traders,  and  from 
whence  we  embarked  in  a canoe  to  go  to  our  boat,  there  is  a 
considerable  descent  and  rapid  all  the  way.  Here  it  is  that 
the  French  settlers  cut  their  mill  stones.  The  land  along  the 
banks  of  the  river  is  much  better  than  what  we  met  with,  when 
we  crossed  the  country  on  the  10th  of  this  month.  On  the  high- 
lands, and  particularly  those  on  the  southeastern  side,  there  is 
abundance  of  red  and  white  cedar,  pine  trees,  &c.  We  em- 
barked about  two  o’clock,  and  ])roceeded  till  nine  at  night. 

‘August  13.  We  lay  by  half  this  day,  on  account  of  wet 
weather. 

‘August  14.  Embarked  early,  and  after  crossing  the  Illb 
nois  Lake  arrived  late  in  the  evening  at  the  Peoria  fort. 

‘August  15.  Eowed  very  constantly  all  day,  and  arrived 
at  the  Mine  Eiver  in  the  evening.  Here  I met  with  Mr.  Jan- 
iste,  a French  gentleman,  and  prevailed  on  him  to  accompany 
me,  in  an  attempt  up  this  river  to  discover  the  copper  mine.’ 

2948  ‘August  16.  Embarked  early,  and  ascended  the  Mine  Eiver 
in  a small  canoe,  about  six  miles,  but  could  get  no  further 
as  the  river  was  quite  dry  a little  higher  up.  It  runs  the 
above  distance  through  very  high  grounds,  is  rocky  and  very 
crooked;  the  banks  of  the  river  are  much  broken,  and  the 
passage  choked  with  timber;  Mr.  Janiste  says,  that  the  cur- 
rent is  so  strong  in  floods,  nothing  can  resist  it.  The  bottom 
is  sand,  green  in  some  places,  and  red  in  others;  it  is  said 
that  there  is  an  alum  hill  on  this  river.  As  I thought  that  it 
was  impossible  to  get  to  the  mine  by  land  at  this  season  of 
the  year,  on  account  of  the  rocky  mountains,  weeds,  briars, 
&c.  I determined  to  return  to  Kaskaskias,  and  accordingly 
we  went  back  to  our  boat,  embarked  about  one  o’clock,  and 
continued  rowing  day  and  night  until  12  o’clock  the  18th, 


942 


when  we  entered  the  river  Mississippi  on  our  way  to  Kaskas- 
kias  Village.’  ” 

2949  Counsel  for  complainant  also  read  in  evidence  passage 
from  Volume  9 of  “Early  Western  Travels  by  Thwaites,”  as 
follows : 

“At  a period  not  far  distant,  a communication  between 
Lake  Erie  and  Illinois  Eiver  may  be  opened  through  the 
River  Pleiu,  which  empties  itself  into  the  lake.  Craft  are 
said  to  have  already  passed  out  of  the  one  river  into  the 
other. 

2950  Flint  was  particularly  interested  in  the  Middle  West. 
Therefore,  after  a brief  sojourn  in  New  York  and  Philadel- 
phia, where  he  commented  judiciously  on  all  that  made  for 
the  higher  life  of  these  two  young  cities,  he  followed  the 
great  Western  thoroughfare  which  crossed  Pennsylvania  to 
Pittsburg,  then  the  gateway  of  trans- Allegheny  America. 
Here  he  purchased  a skitf  and  floated  down  the  Ohio,  occa- 
sionally landing  to  make  visits  and  observations;  from  Ports- 
mouth he  proceeded  on  a circuit  through  Ohio  and  Kentucky, 
settling  at  length  at  the  fall  of  Ohio,  in  the  Indiana  town  of 
Jeffersonville. 

A resident  of  this  place  for  several  months,  his  investiga- 
tion of  Western  conditions  assumed  a new  phase.  No  longer 
the  passing  traveler,  noting  the  novelties  and  peculiarities  of 
the  people,  Flint  began  a systematic  observation  of  American 
institutions  in  general,  and  particularly  the  political,  social 
and  economic  life  of  the  Middle  West. 

Looming  large  on  the  horizon,  Flint  discerned  the  second 
factor  which  was  to  rend  American  life.  The  discussion  of 
the  Missouri  compromise  had  scarce  begun,  but  already  he 
saw  that  the  nation  could  not  always  exist  half-slave  and  half- 
free. 

2951  In  addition  to  his  comments  on  this  great  social  question, 
Flint  throws  much  light  on  general  conditions  in  the  young 
West.  Throughout  the  West  he  finds  the  saving  remnant — 
people  of  culture  and  refinement,  who  welcome  strangers  with 
hospitality,  and  are  laboring  to  erect  a worthy  civilization 
in  this  newest  community. 

But  in  all  these  features  of  Flint’s  work  are  secondajy 
to  his  economic  study.  Not  only  did  he  prove  himself  a wise 
and  trained  observer,  but  he  was  a scientific  economist,  and 
had  come  to  the  United  States  for  research  material.  At  each 
stage  of  his  travels  he  sets  forth  the  ratio  between  prices  and 
wages,  explains  the  industrial  aspects,  and  the  prospects  for 
emigrants.  Already,  he  tells  us,  nearly  all  the  best  land  of 
Kentucky  and  Ohio  is  taken  up.  Settlement  is  flooding  In- 
diana, Illinois  and  Missouri,  where  cheap  lands  are  yet  avail- 
able. He  shows  the  sanitary  disadvantages  of  this  newer. 


943 


more  reeking  soil,  as  against  the  possibilities  it  offers  to  the 
emigrant  to  secure  the  profits  of  his  own  industry. 

In  the  present  reprint,  the  original  edition,  published  in 
Edinburgh,  in  1822,  has  been  followed;  save  that  the  Adden- 
da given  in  the  latter  (pp.  303-330),  have  been  omitted,  as  be- 
ing composed  of  material  of  small  present  importance : 

1.  Two  letters  from  a Jeffersonville  (Indiana)  lawyer 
dated  December  20,  1820,  and  August  1,  1821,  commenting 
satirically  upon  the  wildcat  currency  of  that  day. 

Three  other  letters,  by  various  persons,  giving  an  account 
of  material  progress  in  Indiana. 

2952  3.  ‘The  American  Tariff,  with  alterations  and  addi- 
tions.^ 

A large  portion  of  Illinois,  lying  between  Illinois  River 
and  the  Mississippi,  is  a military  grant  given  to  the  troops 
wdio  fought  in  the  late  war,  and  divided  amongst  them  at  the 
rate  of  160  acres  to  each  man. 

2953  The  Illinois  Military  grant  was  the  peninsula  between  the 
Mississippi  and  Illinois  Rivers  as  far  north  as  a line  drawn 
west  from  the  confluence  of  the  Illinois  and  Vermillion  Riv- 
ers. The  value  of  the  land  began  to  appreciate  soon  after 
Flint’s  journey  and  ten  counties  w^ere  erected  within  it  in 
1824-25. 

The  western  part  has  two  great  navigable  streams,  the 
Wabash  and  the  Illinois.  The  Wabash  is  navigable  for  boats 
drawing  three  feet  of  water,  to  the  distance  of  about  four  hun- 
dred miles  from  its  mouth,  and  in  floods  about  200  miles 
farther.  Its  largest  tributary  is  White  River  which  is  nav- 
igable to  a great  distance  upward.  It  waters  a fertile  and  de- 
lightful country  and  joins  the  Wabash  below  all  its  rapids  ex- 
cept one  runs  which  forms  no  great  obstruction  to  the  navi- 
gation. The  new  seat  of  government  is  to  be  erected  on  the 
bank  of  one  of  the  streams  of  White  River.  The  Illinois  is 
esteemed  one  of  the  best  navigations  in  Western  America. 

So  early  as  1773,  a Mr.  Kennedy  sailed  upward  to  the  dis- 
tance of  268  miles  from  its  confluence  with  the  Mississippi. 

With  a footnote:  Patrick  Kennedy  was  a trader  at  Kas- 
kaskia  in  the  Illinois  Country  during  British  ascendency.  The 
expedition  referred  to  was  undertaken  in  search  of  copper 
mines  and  extended  as  far  as  the  mouth  of  Kankakee  River. 
His  journal  of  this  tour  is  published  in  Hutchins,  A Topo- 
graphical Description  of  Virginia.  (London,  1778.) 

The  best  account  I can  find  of  the  Illinois  is  in  the  journal 
of  a Mr.  Patrick  Kennedy  who  undertook  an  expedition  up 
this  river  wdth  several  coureurs  de  bois  in  the  year  1773  from 
Kaskaskia  Village  in  search  of  a copper  mine.  What  follows 
is  principally  taken  from  his  journals  during  the  voyage 
which  terminates  without  the  discovery  of  their  object. 

2955  Prom  the  Forks,  the  Kickapoo  River,  the  princij)al  head 


944 


branch  of  the  Illinois  winds  to  the  northwestward,  and  in 
about  80  or  90  miles,  taking  its  courses,  and  passes  within 
four  miles  of  a navigable  branch  of  the  Chicago  Eiver,  which 
enters  at  the  west  side  of  the  head  of  Lake  Michigan  close 
up  by  the  U.  States,  Fort  Chicago.  Between  these  two 
branches  is  a portage  of  four  miles  making  a water  com- 
munication with  this  trifling  exception  from  the  Mississippi 
to  Michigan.  Thence  down  the  lake,  then  by  ten  miles  land 
carriage  around  Niagara  to  the  mouth  of  the  St.  Lawrence. 

2956  Fifteen  miles  farther  up  is  the  Bivier  de  Lise  Depluye,  or 
Eainy  Island  Eiver,  on  the  southeast  side.  It  is  navigable 
nine  miles  to  the  rocks,  fifteen  yards  wide,  and  255  miles  from 
the  Mississippi.  Grass  fine,  thick  and  tall.  Timber:  birch, 
button  and  pecan.  Eiver : shallow  and  difficult  of  ascent. 

2957  Eiver:  shallow  and  difficult  of  ascent.  Vermillion  Eiver 
is  12  miles  farther  up.  It  is  30  yards  wide,  rocky  and  not 
navigable.  A mile  above  the  Vermillion  are  the  little  rocks. 
Here  the  party  took  land,  and  ascended  to  the  Forks,  61 
miles  above  the  Vermillion  Eiver,  and  328  miles  from  the 
Mississippi.’^ 

Counsel  for  complainant  read  in  evidence  the  following  letter 
of  Father  Dublin: 

2960  (Quebec,  August  1,  1674.) 

We  cannot  this  year  give  all  the  information  that  might 
be  expected  regarding  so  important  a discovery,  since  sieur 
Jolliet  who  was  bringing  to  us  the  account  of  it,  with  a very 
exact  chart  of  these  new  countries,  lost  his  papers  in  the  wreck 
which  befel  him.  This  occurred  below  the  sault  Saint  Louis, 
near  Montreal,  after  he  had  safely  passed  more  than  forty 
rapids;  he  could  hardly  save  his  own  life,  for  which  he  strug- 
gled in  the  waters  during  four  hours. 

However,  you  will  find  herein  what  we  have  been  able  to  put 
together  after  hearing  him  converse,  while  waiting  for  the  rela- 
tion, of  which  father  Marquette  is  keeping  a copy.  Two  years 
ago.  Monsieur,  the  count  de  Frontenac,  our  governor,  and 
Monsieur  Talon,  then  our  intendant,  decided  it  was  important 
to  undertake  the  discovery  of  the  Southern  Sea,  after  having 
accomplished  that  of  the  Northern;  and,  above  all,  to  ascer- 
tain in  what  sea  falls  the  great  river,  about  which  the  Sav- 
ages relate  so  much,  and  which  is  500  leagues  from  them,  be- 
yond the  Outaouacs. 

For  this  purpose,  they  could  not  have  selected  a person 
endowed  with  better  qualities  than  is  sieur  Jolliet,  who  has 
travelled  much  in  that  region,  and  has  acquitted  himself  in 
this  task  with  all  the  ability  that  could  be  desired. 

On  arriving  in  the  Outaouac  country,  he  joined  father  !Mar- 
quette,  who  awaited  him  for  that  voyage,  and  who  had  long 
premeditated  that  undertaking  for  they  had  frequently  agreed 
upon  it  together.  They  set  out,  accordingly,  with  five  other 


945 


Frenchmen,  about  the  beginning  of  June,  1673,  to  enter  coun- 
tries wherein  no  European  had  ever  set  foot. 

Their  journal  stated  that — leaving  the  Bay  des  Puans,  at 
the  latitude  of  43  degrees  and  40  minutes — at  first  they  voy- 
aged for  nearly  60  leagues  upon  a small  river,  very  smooth 
and  very  pleasant,  running  in  a west  southwesterly  direction. 
They  found  a portage  which  would  enable  them,  by  going  half 
a league,  to  pass  from  that  river  to  another,  which  flowed 
from  the  Northwest.  Upon  that  stream  they  embarked,  and 
after  going  40  leagues  to  the  southwest,  they  found  them- 
selves, on  the  15th  of  June,  at  42  and  one-half  degrees  of  lati- 
tude, and  successfully  entered  that  famous  river  called  by 
the  Savages  Mississippi, — as  one  might  say,  ^4he  Great  Riv- 
er,’’ because  it  is  in  fact  the  most  important  of  all  the  rivers 
in  this  country.  It  comes  from  a great  distance  northward,  ac- 
cording to  the  savages.  It  is  a noble  stream  and  is  usually 
a quarter  of  a league  wide.  Its  width  is  still  greater  at  the 
places  where  it  is  interrupted  by  islands — which,  however,  are 
very  few.  Its  depth  is  as  much  as  ten  brasses  of  water ; and  it 
flows  very  gently,  until  it  receives  the  discharge  of  another 
great  river,  which  comes  from  the  west  and  northwest  of  about 
the  38th  degree  of  latitude.  Then,  swollen  with  that  volume 
of  water  it  becomes  very  rapid;  and  its  current  has  so  much 
force  that,  in  ascending  it,  only  four  or  five  leagues,  a day  can 
be  accomplished,  by  paddling  from  morning  to  night. 

2961  There  are  forests  on  both  sides  as  far  as  the  sea.  The 
most  vigorous  trees  that  one  sees  there  are  a species  of  cot- 
ton trees,  of  extraordinary  girth  and  height.  The  savages, 
therefore,  use  these  trees  for  making  canoes, — all  of  one  piece, 
fifty  feet  in  length  and  three  in  width,  in  which  thirty  men  with 
all  their  baggage  can  embark.  They  make  them  of  much  more 
graceful  shape  than  we  do  ours.  They  have  so  great  a num- 
ber of  them  that  in  a single  village  one  sees  as  many  as  280 
together. 

The  nations  are  located  near  the  Great  River  or  farther 
inland.  Our  travelers  counted  more  than  40  villages,  most  of 
which  consisted  of  60  to  80  cabins.  Some  villages  even  con- 
tained 300  cabins,  such  as  that  of  the  Illinois,  which  contained 
over  8,000  souls.  All  of  the  savages  who  compose  it  seem 
to  have  a gentle  nature;  they  are  affable  and  obliging.  Our 
Frenchmen  experienced  the  effects  of  this  civility  at  the  first 
village  that  they  entered,  for  there  a present  was  made  them 
— a pipe  stem  for  smoking,  about  three  feet  long,  adorned  with 
feathers  of  various  kinds.  This  gift  has  almost  a religio\[s 
meaning  among  these  peoples;  because  the  calumet  is,  as  it 
were,  a pasport  and  safeguard  to  enable  one  to  go  in  safety 
everywhere,  no  one  daring  to  injure  in  any  manner  those  who 
bear  this  caduceus.  It  has  only  to  be  displayed  and  life  is  se- 
cure, even  in  the  thickest  of  the  fight.  As  there  is  a peace-pipe. 


946 


Extract, — Father  Dublin. —Continued. 


so  also  is  there  a war-pipe ; these  differ  however,  solely  in  the 
color  of  the  feathers  that  cover  them, — red  being  the  token 
of  war,  while  the  other  colors  are  signs  of  peace.  Many 
things  might  indeed  be  said  abont  this  pipe-stem  as  well  as  of 
the  manners  and  customs  of  these  peoples.  Until  such  time 
as  we  receive  the  relation  thereof,  we  shall  merely  say  that  the 
women  are  very  modest;  also,  that  when  they  do  wrong,  they 
cut  their  noses  off.  It  is  they  who,  with  the  old  men  have  the 
care  of  tilling  the  soil;  and,  when  the  seed  is  sown,  all  go  to- 
gether to  hunt  the  wild  cattle  which  supply  them  with  food. 
From  the  hides  of  these,  they  make  their  garments,  dressing 
the  skin  with  a cetrain  kind  of  earth,  which  also  serves  them 
as  a dye. 

The  soil  is  so  fertile  that  it  yields  corn  three  times  a year. 
It  produces,  naturally,  fruits,  which  are  unknown  to  us  and  are 
excellent.  Grapes,  plums,  apples,  mulberries,  chestnuts,  pome- 
granates, and  many  others  are  gathered  everywhere,  and  al- 
most at  all  times,  for  winter  is  only  known  there  by  the  rains. 

The  country  is  equally  divided  into  prairies  and  forests  and 
provides  tine  pastures  for  great  numbers  of  wild  animals  with 
which  it  abounds.  The  wild  cattle  never  flee.  The  Father 
counted  as  many  as  400  of  them  in  a single  herd.  Stags,  does 
and  deer  are  almost  everywhere.  Turkeys  strut  about,  on  all 
sides ; Parroquets  fly  in  flocks  of  10  to  12 ; and  quail  rise  on  the 
prairies  at  every  moment. 

Through  the  midst  of  this  fine  country  our  travellers  passed 
advancing  upon  the  Great  River  to  the  33d  degree  of  latitude, 
2962  and  going  almost  always  toward  the  south.  From  time  to 
time  they  met  Savages,  by  whom  they  were  very  well  received, 
through  favor  of  their  caduceus  or  calumet  stem.  Toward  the 
end,  they  learned  from  the  Savages  that  they  were  approach- 
ing European  settlements ; that  they  were  only  three  days  and 
finally  only  two  days  distant  from  these;  that  the  Europeans 
were  on  the  left  hand ; and  that  they  had  to  proceed  but  fifty 
leagues  farther  to  reach  the  sea.  Then  the  Father  and  sieur 
Jolliet  deliberated  as  to  what  they  should  do, — that  is,  if  it 
were  advisable  to  go  on.  They  felt  certain  that  if  thev  ad- 
vanced farth,  they  would  fling  themselves  into  the  hands  of 
the  Spaniards  of  Florida  and  would  expose  the  French  who 
had  accompanied  them  to  manifest  danger  of  losing  their 
lives.  Moreover  they  would  lose  the  results  of  their  voyage, 
and  could  not  give  any  information  regarding  it,  if  they  were 
detained  as  prisoners — as  they  probably  would  be,  if  they  fell 
into  the  hands  of  the  Europeans. 

These  reasons  made  them  resolve  to  retrace  their  steps  after 
having  obtained  full  information  about  everything  that  could 
be  desired  on  such  occasion.  They  did  not  return  by  exactly 
the  same  route;  at  the  end  of  November  they  reached  the  bay 


947 


des  Puans,  by  different  routes  from  the  former  one,  and  with’ 
no  other  guide  than  their  compasses. 

While  waiting  for  the  journal  of  that  voyage,  we  may  make 
the  following  remarks  regarding  the  utility  of  this  discovery. 

The  first  is,  that  it  opens  up  to  us  a great  field  for  the  preach- 
ing of  the  Faith,  and  gives  us  entrance  to  very  numerous  peo- 
ples, who  are  very  docile,  and  well  disposed  to  receive  it,  for 
they  manifested  a great  desire  to  obtain  the  Father  as  soon 
as  possible,  and  received  with  much  respect  the  first  words 
of  life  which  he  announced  to  them.  The  altogether  diverse 
languages  of  these  tribes  do  not  frighten  our  missionaries; 
some  of  them  already  know  and  make  themselves  under- 
stood in  that  of  the  Ilinois,  the  first  savages  who  are  encoun- 
tered (upon  the  river).  It  is  among  them  that  Father  Mar- 
quette will  begin  to  establish  the  kingdom  of  Jesus  Christ. 

The  second  remark  concerns  the  terminus  of  this  discovery. 
The  Father  and  sieur  Jolliet  have  no  doubt  that  it  is  toward 
the  gulf  of  Mexico — that  is,  Florida.  For  eastward  there  can 
only  be  Virginia,  the  sea  coast  of  which  is,  at  most,  at  34 
degrees  of  latitude;  while  they  went  as  low  as  33,  and  still 
had  not  come  within  fifty  leagues  of  the  sea,  to  the  west.  Like- 
wise it  cannot  be  the  Vermillion  sea;  because  their  route  which 
was  nearly  always  toward  the  south,  took  them  away  from  that 
sea.  There  remains  therefore  only  Florida,  which  is  midway 
between  them  both;  and  it  is  certainly  most  probable  that  the 
river,  which  geographers  trace,  and  call  Saint  Esprit,  is  the 
Mississippi,  on  which  our  friends  navigated. 

The  third  remark  is  that,  as  it  would  have  been  highly  de- 
sirable that  the  terminus  of  that  discovery  should  prove  to  be 
the  Vermillion  Sea, — which  would  have  given  at  the  same  time 
access  to  the  sea  of  Japan  and  of  China, — so,  also,  we  must  not 
despair  of  succeeding  in  that  other  discovery  of  the  western 
sea,  by  means  of  the  Mississippi.  For,  ascending  to  the  north- 
west by  the  river  which  empties  into  it  at  the  38th  degree, 
as  we  have  said,  perhaps  one  would  reach  some  lake,  which 
will  discharge  its  waters  towards  the  west.  It  is  this  that  we 
seek,  and  it  all  the  more  to  be  desired,  because  all  these  coun- 
tries abound  in  lakes  and  are  intersected  by  rivers,  which  offer 
wonderful  communications  between  these  countries,  as  the 
reader  may  judge. 

2963  The  fourth  remark  concerns  a very  great  and  important 
advantage  which  perhaps  will  hardly  be  believed.  It  is  that 
we  could  go  with  facilitv  to  Florida  in  a bark,  and  by  very 
easy  navigation.  It  would  only  be  necessary  to  make  a canal, 
by  cutting  through  but  half  a league  of  prairie,  to  pass  from 
tile  foot  of  the  lake  of  the  Illinois  to  the  river  Saint  Louis. 
Here  is  the  route  that  would  be  followed:  the  bark  would  be 
built  on  Lake  Erie,  which  is  near  Lake  Ontario;  it  would 
easily  pass  from  Lake  Erie  to  Lake  Huron,  whence  it  would 


948 


Extract, — Father  Dublin. — Continued. 


enter  Lake  Illinois.  At  tlie  end  of  that  lake  the  canal  or  ex- 
cavation of  which  I have  spoken  would  be  made,  to  gain  a 
passage  into  the  river  Saint  Louis,  which  falls  into  the  Mis- 
sissippi. The  bark,  when  there,  would  easily  sail  to  the  gulf  of 
Mexico.  Fort  Catarokouy,  which  Monsieur  de  Frontenac  has 
had  built  on  Lake  Ontario  would  greatly  promote  that  under- 
taking; for  it  would  facilitate  communication  between  Quebec 
and  Lake  Erie  from  which  that  fort  is  not  very  far  distant. 
And  even,  were  it  not  for  a waterfall  separating  lake  Erie 
from  lake  Ontario,  a bark  built  at  Catarokouy  could  go  to 
Florida  by  the  routes  that  I have  just  mentioned. 

The  fifth  remark  refers  to  the  great  advantages  that  would 
accrue  from  the  etsablishment  of  new  colonies  in  countries  so 
beautiful  and  upon  lands  so  fertile.  Let  us  see  what  the  sieur 
Jolliet  says  of  them,  for  this  is  his  project: 

L\t  first,  when  we  were  told  of  these  treeless  lands  I imag- 
ined that  it  was  a country  ravaged  by  fire,  where  the  soil  was 
so  poor  that  it  could  produce  nothing.  But  we  have  certainly 
observed  the  contrary;  and  no  better  soil  can  be  found  either 
for  corn,  for  vines  or  for  any  other  fruit  whatever. 

‘The  river  which  we  named  for  Saint  Louis,  which  rises 
near  the  lower  end  of  the  lake  of  the  Illinois  seemed  to  me 
to  be  the  most  beautiful  and  most  suitable  for  settlement. 
The  place  at  which  we  entered  the  lake  is  a harbor,  very  con- 
venient for  receiving  vessels  and  sheltering  them  from  the 
wind.  The  river  is  wide  and  deep,  abounding  in  catfish  and 
sturgeon.  Game  is  abundant  there;  oxen,  cows,  stags,  does, 
and  Turkeys  are  found  there  in  greater  numbers  than  else- 
where. For  a distance  of  eighty  leagues,  I did  not  pass  a 
quarter  of  an  hour  without  seeing  some. 

‘There  are  prairies,  three,  six,  ten  and  twenty  leagues  in 
length,  and  three  in  width,  surrounded  by  forests  of  the  same 
extent;  beyond  these,  the  prairies  begin  again  so  that  there 
is  as  much  of  one  sort  of  land  as  of  the  other.  Sometimes 
we  saw  the  grass  very  short,  and  at  other  times,  five  or  six 
six  feet  high;  hemp,  which  grows  naturally  there,  reaches  a 
height  of  eight  feet. 

‘A  settler  would  not  there  spend  ten  years  in  cutting  down 
and  burning  the  trees;  on  the  very  day  of  his  arrival  he 
would  put  his  plow  into  the  ground.  And,  if  he  had  no  oxen 
from  France,  he  could  use  those  of  this  country,  or  even  the 
animals  possessed  by  the  Western  Savages,  on  which  they  ride, 
as  we  do  on  horses. 

‘After  sowing  grain  of  all  kinds,  he  might  devote  himself 
especially  to  planting  the  vine,  and  grafting  fruit  trees;  to 
dressing  ox-hides  wherewith  to  make  shoes ; and  with  the  wool 
of  these  oxen  he  could  make  cloth,  much  finer  than  most  of  that 
which  we  bring  from  France.  Thus  he  would  easily  find  in  the 
country  his  food  and  clothing  and  nothing  would  be  wanting 


949 


except  salt;  but,  as  he  could  make  provision  for  it,  it  would 
not  be  very  difficult  to  remedy  that  inconvenience.’ 

The  above  is  a brief  abstract  of  matters  which  are  fully  re- 
lated in  the  journal  that  was  lost.  If  we  can  secure  the  copy 
of  it,  we  shall  observe  therein,  many  things  which  will  please 
the  curious,  and  satisfy  geographers  regarding  the  difficulties 
that  they  may  encounter  in  preparing  descriptions  of  that  part 
of  north  America.” 

Counsel  for  complainant  read  in  evidence  portions  of  House 
Document  No.  264,  as  follows: 

2980  ‘‘The  least  of  the  two  channels  estimated  for  from  Lake 
Michigan  to  La  Salle  is  eight  feet  in  depth  below  the  lowest 
recorded  stage  of  water  in  Lake  Michigan  and  the  same  depth 
below  the  crests  of  the  dams  at  extreme  low  water  in  the  Illi- 
nois and  Desplaines  Livers.  This  least  depth  of  eight  feet 
corresponds  to  a depth  of  nearly  ten  feet  (9  feet  10  inches) 
across  the  Chicago  Divide,  at  the  mean  level  of  Lake  Michigan 
and  eight  feet  below  the  crests  of  the  dams  in  the  river  por- 
tions of  the  route,  no  slope  being  allowed  for.  In  the  canals 
through  the  line  by  filling  the  levels,  a depth  of  nearly  ten 
feet  can  be  carried  whenever  that  depth  exists  in  the  rivers. 
These  canals,  by  simply  raising  the  embankment  and  lock 
walls,  can  be  increased  to  twelve  feet  depth  at  small  addi- 
tional expense. 

2981  In  the  Desplaines  and  Illinois  Eivers  the  practical  depths 
of  navigation  after  the  construction  of  this  channel  will 

vary  with  the  stage  of  the  rivers.  Beckoning  only  to  the  mid- 
stage, which  is  about  two  and  a half  feet  above  low  water 
from  Joliet  to  the  mouth  of  the  Kankakee  and  about  eight  feet 
above  low  water  thence  to  La  Salle  (except  at  Marseilles, 
where  it  is  four  feet  above  the  crest  of  the  dam),  there  will 
be  in  the  river  portions  of  the  route  from  Joliet  to  La  Salle 
a navigable  channel  varying  in  depth  from  eight  feet,  when 
the  discharge  of  the  river  is  a minimum,  to  from  ten  to  six- 
teen, feet  at  midstages.” 

Page  5: 

“A  complete  list  of  all  steamboats  of  more  than  fifty  tons 
register,  navigating  the  Mississippi  Eiver  and  its  tributaries, 
giving  the  dimensions  of  their  hulls,  names  and  tonnage,  is 
herewith.  This  list  is  intended  to  embrace  every  steam- 
boat, .so-called,  exceeding  fifty  tons  register,  that  is  contained 
in  the  last  published  (for  the  fiscal  year  ending  June  30, 
1888),  list  of  ‘Steam  merchant  vessels  of  the  United  States,’ 
issued  by  the  United  States  Government,  navigating  the 
Mississippi  system  of  rivers  from  the  Gulf  of  Mexico  to  their 
heads  of  navigation  and  includes  all  steamboats  that  at  that 
time  could  have  use  for  the  proposed  waterway.  In  this 


950 


Extract, — House  Doc.  264. — Continued. 


list  there  are  but  three  with  a greater  depth  of  hold  thail 
nine  feet.  All  of  these  have  since  been  lost  or  broken  up. 
Whether  they  have  been  replaced  by  smaller  boats  is  not 
known. 

2982  Page  7 : 

‘‘The  largest  Mississippi  River  steamboat  that  now  reaches* 
the  mouth  of  the  Illinois  River  in  length  and  draught,  is  the 
St.  Paul  packet,  ‘St.  Paul,’  which  is  300  feet  long  and  6 feet 
2 inches  depth  of  hold.  This  boat  is  70  feet  across  her  paddle- 
boxes  and  is  a fair  type  of  the  largest  Mississippi  steamboat 
that  will  seek  this  route  at  extreme  low  water  in  the  upper 
Illinois  and  Desplaines  Rivers.  Its  net  tonnage  exceeds  800 
tons,  but -larger  boats  exist  that  can  use  the  route  at  extreme 
low  water.” 

“A  lockage  at  La  Grange  Lock  is  made  one  in  eleven  min- 
utes. At  this  rate  four  lockages  may  possibly  be  made,  pass- 
ing as  many  boats,  each  way  per  hour. 

2983  “The  extreme  capacity  of  one  of  these  locks  which  gov- 
erns the  capacity  of  the  entire  route  as  a means  of  transpor- 
tation is,  then,  on  the  basis  of  boats  like  the  St.  Paul,  6,000  tons 
in  round  numbers,  per  hour,  or  29,000,000  tons  in  round  num- 
bers, in  200  days,  the  shortest  probable  period  of  navigation, 
or  one-half  that  amount  if  boats  be  moving  in  one  direction 
only. 

“The  possible  capacity  of  extreme  low  water  of  the  chan- 
nel 8 feet  deep  is  thus  more  than  sufficient  for  all  probable 
demands  upon  it  for  many  years  to  come.  At  higher  stages, 
boats  of  twice  the  tonnage  of  the  St.  Paul  could  use  the  route.” 

“The  route  will  be  navigable  at  all  stages  below  a stage 
corresponding  to  a discharge  of  from  about  30,000  to  35,000 
cubic  feet  per  second,  or  under  all  ordinary  conditions  of  the 
river,  the  extreme  floods,  occurring  at  rare  intervals,  and 
then  ebbing  of  short  duration.” 

2984  “A  route  navigable  at  all  times  and  in  all  conditions 
of  the  river  can  be  obtained  in  four  days  via  the  valley  of 

the  Illinois  River: 

“(1)  By  canaling  past  the  22  miles  indicated,  practically 
in  the  bed  of  the  river,  with  embankment  above  high  water 
mark. 

“(2)  By  raising  the  dams,  or  by  shortening  the  length  of 
spillways,  until  the  sectional  area  of  discharge  throughout 
the  pools  is  much  greater  than  the  area  of  discharge  over 
the  dams,  converting  the  pools  into  reservoirs. 

“(3)  By  excavating  and  enlarging  the  cross  sections  of 
the  pools  until  the  same  result  is  attained. 

“ (4)  By  constructing  a lateral  canal  throughout  the  line. 

2985  “Any  of  the  first  three  methods  vdll  involve  a greater 
expense*  than  would  the  4th,  or  continuous  canal  from  Joliet 


951 


to  LaSalle;  the  first  method,  because  of  the  increased  cost 
of  the  canal,  with  costly  guard  locks  in  connection  with  costly 
river  improvement  over  the  sections  where  slack  water  is  re- 
tained; the  second  method,  by  increasing  the  damages  by 
flowage  of  valuable  lands,  and  by  increasing  the  height  and 
cost  of  dams  and  lock  walls,  and  the  difficulty  of  securing  the 
abutment  and  connections  with  the  banks;  and  the  third,  by 
enormously  increasing  the  amount  and  cost  of  excavation.’’ 
‘‘For  the  section  of  the  river  under  consideration,  locks 
and  dams  are  necessarily  employed,  and  the  nearer  the  sys- 
tem approaches  slack  water,  the  nearer  it  approaches  the  best 
channel  for  navigation.  As  the  discharge  increases,  the 
velocities  of  the  current  increase,  and  finally  when  the  depth 
of  water  over  the  crests  of  the  dams  becomes,  as  the  river 
rises,  such  as  to  allow  a free  discharge,  the  currents  become 
difficult,  or  even  prohibitory,  to  upstream  navigation,  as 

2986  heretofore  stated.  The  bed  of  the  Illinois  Elver  above  La 
Salle  at  several  points  being  of  such  steep  slope,  and  its  dis- 
charge at  high  water  and  the  variation  in  its  discharge  be- 
tween high  and  low  water  so  great,  70  to  1,  it  cannot  be  re- 
garded as  a very  favorable  stream  for  the  application  of  locks 
and  dams.  The  system  fails  at  high  water.  Any  material 
increase  in  the  discharge  over  this  section  of  the  river,  ex- 
cept at  stages  near  the  low  water,  or  below  the  midstage, 
would  be,  then,  not  only  undesirable,  but  objectionable,  as  far 
as  the  interests  of  navigation  are  concerned.  At  all  times 
when  the  natural  discharge  of  the  Illinois  Elver  produces  a 
stage  obstructive  to  navigation  over  the  slack  watered  reaches, 
or  damaging  to  property  interests,  artificially  introduced 
waters  should  be  diminished  in  cpiantity  to  the  least  effective 
amount,  or  entirely  cut  off.” 

‘ ‘ Pkacttcability  of  the  Pkoposed  Channel,  Dischakge  of  the 
Illinois  Eivek,  and  Effect  of  Dams  in  the  Bed  of  the  Illi- 
nois. 

2987  “The  propased  channel  from  Lake  Michigan  to  Lake  Joliet 
is  nearly  entirely  artificial;  in  other  words,  a canal.  This 

canal,  for  short  distances,  enters  the  bed  of  the  Desplaines 
Eiver,  and  is  subject  to  its  floods  throughout  these  short 
stretches.  The  maximum  amount  of  this  flood  water  to  be 
provided  for  at  long  intervals,  will  probably  not  exceed  10,- 
000  cubic  feet  per  second  under  present  conditions.  The  aver- 
age -spring  freshets  do  not  probably  exceed  from  3,000  to 
5,000  cubic  feet  per  second.  The  canal  with  its  waste  gates 
and  weir  at  Lockport;  the  controllable  sluice-gate  on  the 
dam  at  Joliet;  the  additional  sluice-gates  in  the  canal  revet- 
ment below"  the  dam  and  above  the  guard-lock  at  Joliet  (not 
estimated  for),  taken  in  connection  with  the  high  retaining- 


952 


Extract, — House  Hoc.  264. — Continued. 


walls  and  the  allowable  depth  of  overflow  over  the  crest  of 
the  Joliet  Dam,  will  safely  pass  this  water. 

''This  part  of  the  route,  or  the  canal  section,  as  designed, 
is,  then,  considered  feasible  and  practicable,  with  the  under- 
standing that  possibly  a secure  levee  may  be  demanded  from 
the. dam  at  Joliet,  along  the  left  bank  of  the  Desplaines  as 
far  as  to  the  flats  below  the  Adams  Dam,  to  prevent  overflow 
when  the  sluices  at  Joliet  are  opened  to  their  full  extent. 

2988  ' ' The  discharge  over  the  dams  above  the  mouth  of  Kanka- 
» kee  is  not,  in  any  case,  likely  to  exceed  from  16,000  to  23,000 

cubic  feet  per  second.  Such  discharge  is  contemplated  in  the' 
constructions,  and  may  be  passed  over  the  dams. 

"There  is,  then,  no  engineering  difficulty,  or  any  appar- 
ent reason  why  the  constructions  proposed,  with  slight  modi- 
fications that  would  not  materially  increase  the  estimates, 
will  not  satisfactorily  subserve  the  purposes  of  a navigable 
channel  as  far  as  to  the  mouth  of  the  Kankakee. 

"Here,  however,  the  conditions  radically  change.  The 
low  water  discharge  of  the  Illinois  Kiver,  which  below  the 
mouth  of  the  Kankakee  and  over  the  Marseilles  Dam  does  not 
exceed  1,000  cubic  feet  per  second,  including  the  supply  by 
the  Illinois  and  Michigan  Canal,  increases  at  extreme  floods, 
until,  as  indicated  by  the  high-water  marks  above  the  crest 
of  the  Marseilles  Dam,  it  reaches  63,000  cubic  feet  per  second 
at  Marseilles.  This  result  is  given  by  "Francis”  formula. 
If  the  velocity  of  approach  due  a slope  of  2 feet  to  the  mile, 
as  shown  by  high  water  marks  for  5 miles  above  the  Marseilles 
Dam,  be  considered,  the  extreme  flood  discharge  over  the 
crest  of  the  dam  at  Marseilles  would  probably  be  estimated 
at  about  70,000  cubic  feet  per  second. 

"The  draining  of  the  Kankakee  marshes  by  a cut  through 
the  rock  barrier  at  Momence,  Ind.,  now  contemplated  will  cer- 
tainly not  lessen  the  ratio  of  70  to  1 between  flood  and  low 
water  stage,  nor  will  the  constant  discharge  into  the  Illinois 
Kiver  of  from  300,000  to  600,000  cubic  feet  per  minute,  con- 
templated by  the  City  of  Chicago  for  drainage  purposes,  les- 
sen the  flood  discharge,  which  determines  the  practicability  of 
the  route  for  all  stages. 

2989  "The  dams  on  that  portion  of  the  route  are  proposed  to 
be  built  as  high  as  the  topography  of  the  valley  will  warrant, 

without  extensive  permanent  overflow  of  lands  or  without 
materially  increasing  damage  by  floods,  and  the  depths  re- 
quired, wdiere  not  produced  l)y  these  dams  in  the  pools  above 
them,  secured  by  excavation. 

"These  dams  have  their  crests  from  10  to  18  feet  or  more 
below  the  high-water  plane,  and  at  the  extreme  flood  stage 
will  exercise  no  appreciable  influence  over  the  high-water 
levels,  slopes,  and  velocities.  If  the  river  be  not  navigable 
now  at  flood  stage  over  the  reaches  named  below,  it  will  not 


953 


be  navigable  at  flood  stage  after  the  construction  of  the  pro- 
posed works,  i.  e.,  from  Lover’s  Leap  to  foot  of  Marseilles 
Canal,  14  miles,  for  5 miles  above  Marseilles  Dam,  and  for 
3 miles  below  the  mouth  of  the  Kankakee,  where  the  high- 
water  slopes  are  excessive;  in  all,  22  miles  out  of  the  43 
miles  that  intervene  between  the  mouth  of  the  Kankakee  and 
the  last  dam  at  Utica. 

2990  “The  route  will  be  navigable  at  all  stages  below  a stage 
corresponding  to  a discharge  of  from  about  30,000  to  35,000 

cubic  feet  per  second,  or  under  all  ordinary  conditions  of  the 
river,  the  extreme  floods  occurring  at  rare  intervals,  and  then 
being  of  short  duration. 

2991  “It  must  be  understood,  therefore,  that  the  constructions 
proposed  herein  are  considered  to  be  adequate  to  create  a 

navigable  water-way  in  the  bed  of  the  Illinois  River,  below 
the  mouth  of  the  Kankakee,  at  all  ordinary  stages  of  the 
Illinois  River,  but  that  during  the  short  and  widely  separated 
floods  the  route  may  be  found  impracticable  to  use  over  the 
reaches  named  herein.  Attention  is  invited  in  this  connection 
to  the  report  of  Mr.  L.  L.  Wheeler,  which  contains  a short 
mathematical  discussion  of  this  subject. 

“The  Kankakee  River  brings  down  large  quantities  of 
heavy  sediment,  which  has  been  deposited  in  the  deeply  cut 
trough  above  the  rock  uplift  at  Marseilles,  until  that  trough 
of  unknown  depth  has  been  filled  with  gravel  and  sand  nearly 
to  the  crest  of  the  reef  at  Marseilles.  Under  the  14-foot 
project,  and  to  a less  extent  the  8 foot  project  also,  the  mate- 
rial must  be  excavated  to  get  the  proper  depth.  The  present 
condition  of  the  bottom  of  the  river  exhibits  doubtless,  the 
state  of  equilibrium  that  has  been  established  between  the 
scouring  action  of  floods  and  the  capacity  of  the  heavy  deposit 
to  maintain  its  position.  The  more  this  condition  is  dis- 
turbed, or  the  deeper  the  material  is  excavated  and  the  cur- 
rent of  the  river  reduced,  the  greater  will  be  the  deposit  of 
heavy  sediment  in  the  channel,  gradually  diminishing  until 
this  equilibrium  is  again  restored. 

2992  “The  Marseilles  Dam  will  be,  at  high  water,  in  practically 
the  same  condition  as  now,  as  it  is  proposed  to  get  the  two 

feet  increased  height  of  crest  by  a movable  crest,  which  will 
be  thrown  down  at  floods.  The  dam  below  the  mouth  of  the 
Kankakee  and  at  Sugar  Island  will  be  drowned  out,  and  prac- 
tically the  same  condition  will  exist  throughout  the  reach  at 
high  water  as  at  present  except  in  so  far  as  the  velocity  and 
slope  may  be  disturbed,  however  slightly,  by  this  channel  ex- 
cavation. We  may  expect,  therefore,  a constant  effort  of  the 
river  to  restore  at  least,  its  present  condition  by  filling  up  the 
excavated  channels. 

“In  the  8-foot  project  the  excavation  is  comparatively  light, 
but  in  the  14  foot  project  it  is  very  heavy  over  this  section. 


954 


Extract, — House  Doc.  264 — Continued. 


and  if  the  channel  is  not  annually  tilled  with  heavy  sedi- 
ment from  the  Kankakee  it  will,  at  least,  require  constant 
dredging  to  maintain  it. 

''The  same  remark  will  apply  to  other  points  where  there 
are  dee])  excavated  cuts  in  the  river-bed,  even  with  little  dimi- 
nution of  velocity  of  current  at  floods,  but  the  reach  below 
the  mouth  of  the  Kankakee,  extending  to  Marseilles,  only  will 
probably  present  much  difficulty;  other  points  to  a less  de- 
gree, as  most  of  the  heavier  material  is  brought  in  by  the 
Kankakee  Eiver,  and  will  lodge  in  the  pools  below  its  mouth 
and  above  Marseilles  Dam. 

"The  water  available  for  lockage  throughout  the  proposed 
line  being  in  excess  of  the  requirements  of  the  system,  no 
slope  is  given  to  the  summit  level,  or  provision  made  for  in- 
creasing the  present  discharge  of  the  Illinois  Eiver.” 

2994  "Chicago  Eiver  Eoijte. 

"The  route  proposed  follows  the  Chicago  Eiver  from  its 
mouth,  via  its  south  branch  to  near  Bridgeport,  thence  via 
the  West  Fork  of  the  South  Branch  of  the  Ogden  Ditch  to 
Summit,  thence  iiarallel  to  the  present  location  of  the  Illinois 
and  Michigan  Canal,  on  low^er  ground,  3 miles,  more  or  less, 
where  it  enters  the  bed  of  the  Desplaines  Eiver,  which  it 
practically  follows,  cutting  off  bends  to  Sag  Bridge  where  ii 
unites  wdth  the  second  or  Sag  route. 

2995  "The  route  is  preferred  to  the  present  location  of  the 
Illinois  and  Michigan  Canal,  or  one  adjacent  to  it. 

"(I)  Because  it  occupies  lower  ground,  and  the  probable 
amount  of  excavation  required  is  less,  since  the  earth  exca- 
vated from  the  old  canal  still  remains  as  spoil  banks  to  be 
removed. 

"(2)  Because  the  old  canal  is  paralleled  by  a railroad  on 
each  side,  and  there  is  not  sufficient  room  for  the  enlargement 
of  the  canal  without  condemning  the  railroad  right  of  way 
and  removing  one  or  both  of  the  tracks. 

"(3)  Because  the  present  canal  is  the  property  of  the 
State  of  Illinois  and  the  conditions  of  transfer  have  not 
been  accepted  by  the  United  States.  These  conditions  are 
such  that  their  acceptance  would  involve  greater  cost  than  a 
new  right  of  wmy. 

"(4)  The  Illinois  and  Michigan  Canal  is  the  main  sewer 
of  the  City  of  Chicago,  as  w^ell  as  a commercial  highway,  and 
cannot  w'ell  be  enlarged  without  either  interfering  seriously 
Avith  its  uses  or  at  increased  cost  of  work  from  delays  due 

2996  traffic  upon  the  canal. 

"(5)  As  a means  of  transportation  and  drainage  it  is  of 
advantage  in  the  prosecution  of  the  work  parallel  to  it  to 
maintain  it  in  a serviceable  condition  during  the  construction 
of  the  larger  canal. 


955 


‘‘(6)  For  several  miles  of  its  course  between  Willow 
Springs  and  Lemont  it  is  excavated  in  solid  rock  that  the 
new  route  avoids  so  that  the  old  canal  location  cold  not  be 
followed  in  any  event  with  advantage  further  than  through- 
out the  earth  section.’’ 

2996  ‘‘Sag  oe  Calumet  Koute. 

“The  proposed  route  is  via  Grand  Calumet  Eiver  to  108th 
street ; thence  via  a cut-off  through  Lake  Calumet,  to  its  south- 
western shore ; thence  by  another  cut-off,  to  the  Little  Calumet 
Eiver ; thence  to  Blue  Island,  thence  nearly  due  west  via,  prac- 
tically, the  line  of  the  old  Calumet  feeder,  north  of  Lane’s' 
Island,  to  the  junction  of  the  two  routes  at  Sag  Bridge.” 

2997  Thereupon  counsel  for  complainant  offered  in  evidence  two 
blue  prints  of  the  work  at  Dresden  Heights,  being  portions 

of  the  plans  produced  by  Mr.  Hey  worth.  Said  plans  are  marked 
“G  1527  and  G 1553”.  The  said  plans  were  thereupon  offered  as 
“Sheet  1 of  plan  of  dam,  May  20th,  1908,”  and  “Sheet  2 of  plan 
of  dam.  May  20th,  1908.  ’ ’ 

Said  blue  prints  were  received  in  evidence.  (Atlas,  pp.  3956 

2998  and  3957;  Trans.,  pp.  6582-4;  Abst.,  p.  1928.) 

Thereupon  counsel  for  complainant  offered  in  evidence 
“Gauge  readings  for  1907,  Sanitary  District,”  being  the  tabula- 
tion prepared  by  Mr.  Lyman  E.  Cooley.  (Atlas,  p.  3903;  Trans., 
p.  6028;  Abst.,  p.  1730.) 

Counsel  foe  Complainant.  That  completes  our  case,  with  this 
exception : Mr.  Cooley  was  asked  on  the  witness  stand  to  assemble 
the  other  documents  he  consulted  in  making  this  profile  that  was 
introduced,  and  he  said  he  would;  also  on  cross-examination,  Mr. 
Cooley  was  asked  to  furnish  such  reports  that  he  could  produce  as 
referred  to  the  Desplaines  Eiver  as  a navigable  river.  We  have 
now  asked  Mr.  Cooley  to  get  about  that  and  produce  them  at  the 
earliest  possible  moment.  We  are  reserving  the  right  to  introduce 
them  when  they  come.  We  rest. 

Thereupon  counsel  for  defendant  moved  to  strike  out  certain 
evidence. 

3004  Whereupon,  after  extended  argument  and  colloquy  between 
Court  and  counsel  the  Court  sustained  the  motion  of  the  de- 
fendant to  exclude  from  the  evidence  the  history  of  Will  County 
and  the  Directory  of  Joliet,  with  Woodruff’s  history,  overruled 


956 


the  motion  to  exclude  Dana’s  History  and  Drown ’s  Peoria,  and 
reserved  its  ruling  on  the  motion  to  exclude  Heward’s  Journal 
‘Illinois  in  1837,”  and  ‘‘-The  Navigator”  and  on  the  other  points 
of  the  motion. 

3005  Whereupon  there  was  read  by  the  defendant  the  deposh 
tions  to  which  such  motion  referred. 

The  CouKT.  You  will  present  the  depositions  to  me  and  mark 
the  places. 

Whereupon  counsel  for  defendant  called  attention  to  the  various 
matters  in  the  deposition  to  which  his  motion  referred,  as  follows : 

The  testimony  of  George  W.  Eeed  as  to  what  his  brother  told  him 
concerning  the  wetting  of  some  wheat  while  same  was  on  a boat 
in  the  Desplaines  River. 

The  testimony  of  Francis  V.  Belz  as  to  what  Mr.  Lattin  told 
him  concerning  unloading  of  boats  at  the  Jackson  Street  Dam  in 
Joliet  and  the  taking  of  the  boats  further  down  the  river  and 
loading  them  up  again. 

3006  The  testimony  of  Urias  Bowers  to  the  effect  that  the  re- 
port was  that  the  two  boats  which  he  saw  on  the  river  came 

from  Chicago  and  were  going  to  California. 

The  testimony  of  Eliza  P.  Jones  as  to  what  her  father  told  her 
in  reference  to  supplies  having  been  brought  up  the  river  to 
Joliet  to  Lockport,  and  with  reference  to  salt  having  been  brought 
down  the  river. 

The  testimony  of  Samuel  W.  Jones  as  to  what  Mr.  Paddock 
and  Mr.  Collins  told  him  with  reference  to  supplies  having  been 
brought  up  the  river,  and  salt  having  been  brought  down  the  river 
by  boat. 

The  testimony  of  Frank  Paddock,  as  to  what  his  father  told 
him  in  reference  to  getting.supplies  by  boat,  some  from  the  South 
and  some  from  Chicago. 

The  testimony  of  Williams  W.  Stevens  as  to  what  John  S.  and 
Edward  H.  Jessup  and  Henry  Fish  told  him  as  to  the  use  of  the 
river  by  certain  boats. 


957 


The  testimony  of  Harlow  H.  Spoor  as  to  the  report  that  a boat 
loaded  with  wheat  was  overturned  at  or  near  Treat’s  Island. 

The  testimony  of  Obadiah  Hicks  as  to  what  he  heard  from 
William  Found  (now  living),  and  also  as  to  what  other  people  told 
him  with  reference  to  the  early  use  of  the  river  by  trappers. 

To  testimony  of  George  S.  Wightman,  as  to  what  his 
mother  told  him  with  reference  to  a raft  of  logs  going  down  the 
river. 

3007  The  testimony  of  John  W.  Taylor  that  ^‘The  river  was 
generally  considered  by  old  inhabitants  as  being  a navigable 
stream.” 

The  testimony  of  Daniel  W.  King  that  old  settlers,  whose  names 
he  could  not  remember,  had  told  him  that  the  flatboats  he  saw 
in  Lake  Joliet  had  once  been  used  in  carrying  provisions. 

The  testimony  of  George  A.  Parent  that  a man  told  him  along 
in  1854  or  1855  that  stone  was  hauled  from  the  Davidson  Quarry  to 
Lake  Joliet  and  shipped  on  boats. 

The  testimony  of  Christian  T.  Heydecker,  as  to  what  Lemuel 
Short  and  Mrs.  J acob  Miller  told  him  about  coming  up  the  river  in 
boats. 

The  testimony  of  Edward  D.  Brockway,  as  to  what  his  father  told 
liim  about  taking  a flatboat  down  the  river  from  Joliet  to  Peoria. 

The  testimony  of  George  B.  Eaymond,  as  to  what  Shabbona,  an 
Indian  chief,  told  him  about  high  water  prior  to  1857,  and  about 
being  around  the  Seneca  in  a canoe  as  a boy,  and  about  white  men 
going  up  or  down  the  stream. 

Whereupon  the  defendant,  to  maintain  the  issues  upon  its  part, 
introduced  the  following  evidence : 

3009  Fkancis  W.  Shepardson, 

a witness  for  the  defendant,  testified  as  follows: 

My  name  is  Francis  W.  Shepardson.  I have  been  engaged 
as  a teacher  in  the  University  of  Chicago  for  fifteen  years  and 
hold  what  is  called  the  associate  professorship  of  history.  My 
particular  line  of  study  during  those  years  has  been  American  his- 
tory. I took  the  ordinary  college  course,  where  I was  more  or 


958  She  pa  rdson  ^ — D irect  Exa  })i . — C on  tinned. 

less  interested  in  history,  and  then  about  1885  I became  especially 
interested  in  American  history  through  the  organization  of 

3010  a local  society  at  home.  I went  to  Yale  and  took  a postgrad- 
uate course  in  American  history;  worked  from  there 

along  the  usual  lines  for  a little  over  two  years,  and  received 
a degree  of  Doctor  of  Philosophy  on  completion  of  studies  in 
American  history.  I then  came  to  the  University  of  Chicago  at 
the  time  of  its  organization  and  have  been  teaching  there  ever 
since.  My  studies  included  the  investigation  of  the  colonial  period, 
all  the  period  of  discovery  and  exploration,  and  all  the  early 
period  covering  the  westward  migrations  and  settlement  of  the 
Xorthwest  territory.  I have  spent  a good  deal  of  time  in  studying 
on  that. 

3011  I know  the  general  character  of  the  book  ‘^Drown’s 
Peoria,”  published  in  1850  and  have  examined  it  recently 

3012  and  to  what  class  of  material  it  belongs.  Books  regarded 
as  authorities  by  comparisons  are  classified  as  follows : The 

first  thing  is  what  we  would  call  original  material.  That  orig- 
inal matter  would  consist  of  such  things  as  treaties,  state  papers; 
the  letters  or  papers  known  to  have  been  written  by  persons  who 
were  contemporaneous  with  the  event  described.  There  would  be 
a class  of  authorities  called  secondary  which  would  have  a wide 
range.  Some  of  those  would  be  compilations  by  men  of  acknowl- 
edged repute  as  historians,  who  had  gathered  from  the  writings 
of  others  the  facts  and  had  presented  them  in  their  own  language. 
There  would  be  the  third  source  of  material,  which  would  be  used 
l)y  historians  for  suggestions,  for  hints,  but  which  we  would  not 
accept,  from  which  would  not  be  accepted  unsupported  statements, 
where  nothing  else  could  be  found  to  sustain  them.  I would 
3014  put  Brown’s  Peoria  in  the  last  class,  without  hesitation, 
because  in  the  preface  he  compares  his  book  to  the  gift  books 
that  were  common  in  the  period  between  1840  and  1860,  and  says 
he  cannot  print  a book  that  has  a nice  cover  on  it,  and  gilt 
top,  ])ut  he  does  hope  this  little  book,  in  a simpler  fashion  will 
amount  to  the  same  thing.  Then,  too,  there  is  advertising  mat- 
ter in  the  back  of  the  book,  which  no  historian  of  repute  would 
allow.  Those  two  things,  with  the  almanac  character,  would  lead 
me  to  make  that  subordinate  as  an  authority.  The  only  thing  I no- 


tice  ill  the  book  to  show  from  what  source  the  author  drew  his 
statements  is  from  what  he  says  himself.  He  says,  '‘There  will 
he  lots  of  mistakes  in  it  because — ” he  says  tliat  it  is  entirely 
free  from  errors  is  not  expected,  but  it  is  believed  to  be  as  cor- 
rect, as,  in  the  nature  of  things  it  is  possible  in  the  first  instance, 
and  he  italicizes  "unorganized  mass  of  material  collected  from 
every  quarter,  oral  and  written.” 

Counsel  for  Defendant  (Reading)  : 

3018  "Another  of  our  old  pioneers  and  citizens,  who  is  still 
with  us,  Mr.  John  Hamlin,  of  Mass.  He  came  here  in  the 
Spring  of  1821  from  Springfield,  in  company  with  Judge 
Lockwood,  Judge  Latham  (who  afterwmrds  became  a citizen 
and  proprietor  of  city  lots  and  died  here  in  1826,  and  whom 
I shall  have  ocasion  hereafter  to  notice).  Major  lies,  Gen. 
J.  Adams,  and  a Mr.  Winchester. 

"Major  Graham,  Indian  agent,  of  St.  Louis,  came  here 
about  that  time  with  a keel  boat  and  proceeded  up  to  La 
Salle  Prairie  (Rome)  where  he  paid  off  the  Indians  their 
annuity.  Some  of  them  returned  and  settled  here  subsequent- 
ly and  became  useful  citizens  in  building  up  our  eity.  In  1832 
an  Indian  agency  was  opened  and  established  here  by  the 
Government,  of  which  Judge  Latham  was  appointed  agent  in 
place  of  Major  Graham  of  St.  Louis,  where  it  had  hereto- 
fore been  kept. 

"John  Hamlin,  Esq.,  wms  a clerk  in  and  kept  a Dranch  of 
the  American  Eur  Company’s  store  in  this  place,  in  one  of  the 
buildings  in  the  center  view  between  Water  Street  and  the 
Lake — the  building  from  the  right,  just  below  the  Inn  sign- 
post. In  this  store  were  kept  Indian  commodities  chiefly.  A 
portion,  however,  was  adapted  to  the  wants  of  the  citizens, 
wdio,  at  this  time  were  very  few. 

"Mr.  Hamlin,  while  thus  engaged  in  this  store,  exported  the 
first  produce  to  Chicago  in  1825  in  keel  boats  as  far  as  the 
mouth  of  the  Kankakee  River  and  from  there  in  Durham 
boats  to  Chicago,  having  built  a storehouse  at  the  former 
place  to  store  in  from  the  keel  boats,  to  be  taken  by  the 
Durham  boats  up  to  Aux  Plain  River.  The  principal  ar- 
ticles exported  were  pork,  beans  and  other  provisions  for  the 
use  of  the  Fur  Company.  There  were  but  a very  few  families 
till  within  a few  years  of  this  time  within  the  present 
bounds  of  the  city,  till  about  1832.” 

I call  your  attention  particularly  to  the  statement  that  Mr. 
Hamlin  exported  produce  to  Chicago  by  way  of  boats  up  the  Illi- 
nois River  to  the  mouth  of  the  Kankakee  and  then  up  the  Des- 
plaines  in  Durham  boats;  and  I ask  you  whether  you,  as  a his- 


960 


Shepard  son, — Di  red  Exa  m.  — Continued. 


torian,  or  whether  a historian,  in  his  study  of  the  subject  would 
give  any  weight  to  that  statement  or  value  to  it  as  testimony. 
And  if  so,  how  much  weight — 

6020  A.  That  would  attract  my  attention  in  investigating,  and 
I should  consider  it  of  some  value  in  an  investigation,  but  if 
I found  nothing  to  substantiate  it  and  no  other  instances  like  it,  on 
account  of  the  character  of  the  book  in  which  it  was  found,  I should 
(luestion  and  should  not  regard  it  as  of  importance  in  my  inves- 
tigation. 

6023  I have  made  an  investigation  as  to  the  historical  docu- 
ments referring  to  the  early  use  of  the  Desplaines  River,  that 
is,  to  the  historical  material.  In  the  investigation  which  I made 
I examined  the  records  of  the  early  French  exploration,  as  de- 
scribed in  Windsor’s  narrative  and  critical  history  of  America,” 
with  such  examination  of  the  references  he  gives  in  his  bibliogra- 
phy, as  I was  able  to  make  with  the  material  available;  that  in- 
cluded the  work  of  Francis  Parkman,  an  examination  of  the  history 
of  Illinois,  Moses’  Illinois,  Brees’  Illinois;  one  or  two  similar 
books  of  that  character;  and  examination  of  the  text  of  letters 
written  by  La  Salle,  and  early  French  voyagers,  and  an  exam- 
ination of  those  appearing  in  Margry  of  some  collection  of  such 
letters.  Schoolcraft’s  account.  I found  nothing  in  my  examina- 
tion on  this  subject  as  to  the  use  of  the  Desplaines  River  for  the 
transportation  of  produce. 

3030  On  a motion  to  exclude  'Illinois  in  1837,”  after  argument, 
the  court  ruled  said  book  out. 

Counsel  fok  Complainant.  It  would  take  it  out  of  Heydecker’s 
deposition  as  well  as  Alvord’s. 

The  CouET.  Yes,  although  that  does  purport  to  be  a statement 
of  the  iDresent  conditions,  still  I don’t  think  I would  let  it  go  in. 

(Exception  by  complainant.) 

3035  Upon  motion  to  exclude  ‘‘Drake’s  Navigator”  the  court 
ruled  upon  argument,  that  it  might  be  in  for  what  it  was 
worth. 


961 


3036  Professor  Shepardson  Kesumed: 

I never  saw  or  knew  of  Brown’s  Peoria  being  cited  by  any  his- 
torian as  an  authority. 

I am  familiar  with  the  book  called  ‘‘The  Navigator”  and  have 
incidentally  examined  it  to  some  extent.  I know  how  the  book 
stands  among  historians  and  I am  certain  they  would  put  it  in  the 
third  class,  that  is,  general  miscellaneous  material.  The  title  of 
the  book,  “Directions  for  Navigating  the  Ohio  and  Mississippi 
Rivers,”  indicates  the  thing  for  which  the  book  is  ostensibly  wrib 
ten. 

If  the  author’s  statements  regarding  the  Desplaines  Elver 

3039  appeared  in  the  body  of  the  book,  then  I should  give  it  much 
weight.  If  it  appeared  in  a part  of  the  volume  which  was 

not  that  for  which  the  book  was  primarily  intended,  then  I should 
not  give  it  much  weight.  In  every  ephemeral  book  of  this  char- 
acter there  is  found  as  a rule,  besides  the  thing  for  which  the  book 
is  ostensibly  written,  other  matter  more  or  less  related.  I would 
accept  as  of  greater  weight  those  things  which  occur  in  the  part 
to  which  the  book  was  primarily  designed  than  for  those  that  were 
given  in  an  appendix  or  as  correlated  matter.  I,  as  a historian, 
would  not  give  much  weight  to  that  statement  from  this  book  that 
has  been  offered  in  evidence  from  that  portion  of  the  book. 

3040  I am  familiar  with  volume  entitled  “A  description  of  the 
bounty  lands  in  the  State  of  Illinois,”  published  in  1819  by 

E.  Dana  and  I classify  it  the  same  as  I would  “The  Navigator,” 
valuable  for  the  specific  thing  which  it  describes  here,  the  bounty 
lands.  I have  examined  the  last  part  of  the  book  which  gives  a de- 
scription of  waterway  routes,  and  classify  the  matter  as  matters 
suggestive  and  giving  a hint  to  investigators  to  follow  up,  but 
which  demand  verification.  In  the  description  (page  57)  of  Koute 
No.  2 by  water,  it  is  described  “Up  Chicago  Eiver,  Indiana,  ten  and 
one-fourth  over  the  portage  and  up  the  Plein  to  the  Junction  with 
Theakike,  the  main  head  branch  of  the  Illinois,”  and  opposite  the 
language  “Over  the  Portage,  up  the  Plein  to  the  junction  with 
the  Keakeekee”  are  the  figures  15f.  I,  as  a historian,  would  be 
struck — I would  look,  I think,  to  see  when  the  book  was  issued,  and 
if  I found  it  was  issued  after  Illinois  had  been  admitted  to  the 
Union  and  then  found  in  the  table  “Up  Chicago  Eiver,  Indiana,” 


962  Sliepardson, — Direct  Exam. — Continued. 

or  ‘‘Ind.”,  and  then  wondering  about  that  abbreviation,  found 
it  explained  over  here -as  ^‘Indiana’’  I should  have  ques- 
3046  tioned  the  value  of  the  reference;  that  is,  if  I discovered  an 
error  of  that  kind  in  the  table,  I should  examine  the  table 
with  more  care  and  if  then  I should  find  other  discrepancies  in 
the  table  I should  question  the  value  of  the  book  as  a refer- 
ence. 

3054  If  I was  examining  a book  and  found  one  statement  that 
was  manifest  to  me  as  an  error,  and  then  found  another  state- 
ment that  was  manifest  to  me  as  an  error,  and  then  in  a different 
part  of  the  book  in  connection  with  one  statement  found  another 
statement  that  I found  on  investigation  was  an  error,  I would  at 
once  have  my  suspicion  of  the  value  of  that  book  as  an  authority. 

Q.  What  weight  would  you,  as  a historian,  give  to  the  latter 
part  of  the  book  referring  to  the  route,  water  way  route  in  view 
of  the  preface  which  attempts  to  deal  with  the  description  of  the 
military  bounty  lands  of  the  State  of  Illinois.  What  would 
3057  historians  generally  think  of  that  statement  in  view  of  the 
book  itself  ! A.  My  opinion  is  that  they  would  accept  that 
as  an  expression  of  opinion  or  of  description  prefacing  the  real 
subject  matter  of  the  book;  but  while  they  would  go  to  that  for 
information  upon  the  bounty  lands,  they  would  not  go  primarily 
to  it  for  information  about  any  other  subject. 

3059  I have  no  way  of  knowing  whether  the  statements  in  re- 
gard to  the  Desplaines  Eiver  found  in  the  introductory  re- 
marks of  the  first  part  are  based  upon  the  author’s  personal 
knowledge  or  not. 

3963  Q.  Isn’t  it  a fact,  professor,  that  at  the  time  that  book  was 
published,  the  distances  between  that  portage  and  the  Kan- 
kakee river — and  from  Chicago  to  the  mouth  of  the  Desplaines 
Eiver,  were  well  known  and  had  been  frequently  stated  by  voy- 
ageurs,  and  in  other  historical  works  that  had  been  published  pre- 
viously to  that  time!  A.  Statements  had  been  made  long  be- 
fore that. 

3065  I am  familiar  with  the  works  of  John  Gilmary  Shea,  called 
the  Discovery  and  Exploration  of  the  Mississippi  Valley, 
published  in  1852.  It  has  a high  reputation. 

I am  familiar  with  the  work  of  Pierre  Margry  entitled  ‘^Let- 


963 


ters  of  the  Cavelier  de  La  Salle. That  is  a standard  collection 
of  La  Sallees  letters;  works  on  the  early  French  explorations. 
Margry  gathered  those  together,  I think,  in  six  volumes.  (Volume 
2 shown  to  witness.)  The  character  and  standing  of  that  work 
is  highly  regarded  among  historians.  I can  read  French  but 
cannot  speak  it.  I can  read  historical  French  so  that  I can  un- 
derstand the  drift  of  the  narration.  I feel  confident  I am  sufficient- 
ly familiar  with  it  to  be  able  to  translate  a passage  from  La 
Salle’s  letter  appearing  in  this  volume. 

Q.  I hand  you  a paper  and  ask  you  whether  that  is  a correct 
translation  of  a portion  of  LaSalle’s  letter  appearing  in  this  vol- 
ume of  Margry  on  page  81,  being  a portion  of  LaSalle’s  letter  dated 
the  29th  of  September,  1680!  A.  It  is  a letter  from  the  dis- 
coverer to  one  of  his  associates  covering  the  experiences  between 
those  dates.  (1679 — September  29,  1680.)  It  does  not  indicate 
the  exact  individual  to  whom  it  was  addressed. 

This  translation  is  a translation  of  the  part  beginning  there — 
on  page  81  ‘^and  it  is  necessary  for  another  one  at  the  foot  of 
the  lake  of  Illinois.” 

Q.  Did  you  make  this  translation!  A.  I did  not,  no,  sir. 
There  is  a little  left  out  in  this,  referring  to  the  eastern  part 
of  the  lake.  Lake  Frontenac  they  call  that.  It  is  not  in  there, 
but  it  is  indicated  by  asterisks,  showing  that  there  has  been  an 
omission;  but,  so  far  as  it  relates  to  this  particular  part  in 
3070  issue,  this  part  is  correct. 

The  English  translation,  ‘^The  route  by  the  lakes  has 
many  great  difficulties  which  Joliet  has  ignored  in  part  and  in  part 
.concealed. 

^Mt  is  necessary  to  have  several  more  establishments  or 
many  more  establishments.  It  is  necessary  to  have  one  at 
the  foot  of  the  opening  by  which  Lake  Erie  falls  into  Lake 
Ontario,  where  the  navigation  of  boat  is  interrupted  for  three 
leagues  and  another  where  it  begins  again.  At  the  foot  of 
Lake  Ontario  to  receive  that  which  comes  from  Fort  Fron- 
tenac. I should  say  carrying  on  where  one  makes  a carriage 
to  another  establishment  where  navigation  recommences  at 
the  entrance  of  Lake  Erie  for  there  to  reload  the  boat.  Still, 
there  is  another  very  great  difficulty,  that  is,  that  the  mouth  of 
the  lake.” 

Q.  Professor,  state  whether  or  not  the  letters  of  LaSalle  ap- 


964  Shepardson, — Direct  Exam. — Con  tin  ued. 

pearing  in  this  volume  by  Margry  are  considered  to  be,  among 
historians,  authentic  letters  written  by  LaSalle.  A.  They 
are. 

3073  I am  familiar  with  the  volume  entitled,  ^‘Travels  in  the 
Central  Portion  of  the  Mississippi  Valley,’’  by  Henry  School- 
craft. I think  it  is  counted  an  authority. 

I am  familiar  with  Thwaite’s  work.  I am  familiar  with  Volume 
2 of  a work  by  Thwaite  entitled,  ‘‘A  New  Discovery  of  vast 
country  in  America,”  purporting  to-  contain  the  letters  and  ac- 
counts written  by  Father  Louis  Hennepin;  that  is  one  of  a series 
of  three  reprints  under  Mr.  Thwaite’s  editorial  direction,  of  these 
journals  of  the  French.  He  published  several  sets  of  those 

3073  books.  The  journal  of  Duluth,  for  example,  in  two  volumes. 
Thwaite  was  simply  the  editor  of  Hennepin’s  well  known 

work  entitled,  ”The  New  Discovery.”  Thwaite’s  work  is  us- 
ually well  regarded  for  accuracy. 

3074  I am  familiar  with  the  work  called  ‘‘The  Magazine  of 
American  History.”  (Volume  2 shown  to  witness.)  This 

magazine  was  published  for  quite  a number  of  years  under  the 
editorial  direction  of  a woman  named  Martha  J.  Lamb,  and  it 
comprises  contributed  articles  and  then  in  almost  every  number 
there  is  also  a section  which  was  called  “original  documents,”  in 
which  sections  were  reproduced  from  time  to  time  these  old  pa- 
pers, either  out  of  print  or  inaccessible,  and  they  were  counted 
a valuable  edition  to  the  literature  of  the  history.  My  presump- 
tion would  be  that  with  that  appearing  under  those  auspices  the 
translation  would  be  accurate.  It  is  cited  constantly  by  his- 
torians. 

3079  I am  familiar  with  the  volume  entitled  “Memoir  of  Justin 
Butterfield,  published  by  John  M.  Wilson  in  1880.  I regard 
it  as  valuable.  I do'n’t  know  whether  it  has  any  reputation 
among  historians  at  all.  I never  saw  John  M.  Wilson.  I know 
who  he  was;  he  was  the  justice  of  the  Illinois  Supreme  Court. 
Justin  Butterfield  was  a very  prominent  early  citizen  of  Chicago. 
I have  been  informed  that  they  were  contemporaries.  The  char- 
acter of  the  book  itself  establishes  its  value.  It  was  a paper  read 
before  the  Chicago  Historical  Society,  about  a prominent  citizen 
of  Chicago  l)y  another  prominent  citizen  of  Chicago.  The  cir- 


965 


cumstances  under  which  the  memoir  is  j^resented,  and  the  personnel 
of  the  two  characters,  the  writer  and  the  one  about  which  it  was 
written,  bear  upon  themselves  the  stamp  of  authenticity  and  cred- 
ibility. I should  put  it  under  the  third  class  mentioned  this  morn- 
ing. (Miscellaneous  division.) 

8084  (^.  1 show  you  a volume  entitled  Early  Voyages  Up  and 

Down  the  Mississippi,”  de  Cavalier,  St.  Cosme,  LeSueur. 
Gravier,  and  Guiguas,  with  an  introduction,  notes  and  an  index 

3085  by  John  Gilmary  Shea,  and  ask  you  if  you  are  familiar  with  it? 

A.  Yes,  sir;  I know  those  letters.  Tt  is  a standard  work. 
This  is  what  is  known  as  the  Shea  All)any  Collection  of  Early 
French  Papers,  Early  AMyages,  and  is  considered  as  authority 
and  is  constantly  referred  to  by  historians. 

I am  familiar  with  AVindsor’s  work  ‘‘Narrative  and  Critical 
History  of  America.”  That  is  considered  I suppose  the  greatest 
book  of  historical  work  in  America.  I am  familiar  with  the 

3086  chapter  entitled  “Joliet  and  Marquette  and  LaSalle”  in 
Volume  4 of  that  work.  I would  include  that  in  1113’  general 

answer  that  anything  that  got  place  in  AVindsor,  it  is  counted  of 
high  authorit\x 

I know  of  Charlevoix’s  letters,  published  in  1763.  I have  ex- 
amined it  just  hastihx  It  has  an  excellent  standing  among  his- 
torians. It  has  been  published  several  times;  I couldn’t  sa\^  how 
many  times. 

3087  Q.  I show  you  a volume  entitled  “Illinois,  Historical  and 
Statistical,”  b\^  John  Moses,  Volume  1,  published  in  1889. 
Are  you  familiar  with  that  work?  A.  I am.  It  is  regarded 

3088  favorable  among  historians.  It  would  be  in  the  second  class 
of  the  three  classes  I mentioned.  I have  alwa^^s  considered 
it  trustwortlnx 

3091  I am  familiar  with  the  writings  of  Joliet  and  Marquette. 

They  were  early  French  explorers  of  this  country.  Mar- 
(piette  was  a priest;  Joliet  started  to  be  a priest,  but  preferred 
to  become  a wood  rover,  and  vo^mger,  rather  inclined  toward  trade 
and  drifted  away  from  the  priestly  occupation. 

I am  familiar  with  the  letters  of  LaSalle.  I gained  all  the 
information  I have  of  him  from  historical  accounts.  LaSalle  is 


966  Shepardson, — Direct  Exam, — Continued. 

what  we  would  call  today  a promoter.  He  was  desirous  of  gain- 
ing possession,  getting  hold  of  large  possessions  in  the  central 
part  of  what  is  now  the  United  States  for  the  sake  of  glory  of  the 
French  king,  and  he  used  for  his  appeal  to  the  French  king,  which 
appeal  brought  him  title  and  influence,  and  the  possibility  of  estab- 
lishing a water  connection  between  the  Lakes  and  Mexico.  He 
was  exploiting  the  central  west  primarily  for  the  glory  of  the 
king,  and,  incidentally,  for  his  own  glory.  His  accounts  state  he 
had  designs  for  laying  out  and  establishing  trading  posts.  He 
Jiad  concessions.  I am  not  absolutely  sure  about  the  fur  trading, 
but  the  general  concessions  he  obtained  from  the  King  of 
France, 

3091  Q.  How  do  historians  generally  regard  LaSalle’s  state- 
ments in  his  letters,  as  compared  with  those  made  by  Joliet 
and  Marquette?  A.  LaSalle’s  statements  are  more  highly  es- 
teemed in  my  own  mind,  because  they  have  been  taken  by  the 
writers  of  high  reputation  like  Parkman,  as  the  basis  for  narra- 
tives, which  historians  accept  as  the  best  account.  I would  say 
that  is  the  reason  generally  given  among  historians.  I do  not 
mean  to  imply  that  greater  weight  is  given  to  LaSalle.  When 
LaSalle’s  statements  are  compared  with  statements  made  by  others 
they  are  found  to  be  more  nearly  correct ; that  is  the  general 
3094  opinion  among  historians. 

The  CouKT.  Do  you  know  whether  historians  would  give 
greater  weight  to  one  or  the  other? 

A.  I can  state  a reason  why  I think  they  would.  On  a matter 
of  that  kind  and  specifically  the  Desplaines  Fiver  would  be  two 
different  things;  but  if  it  was  on  a matter  of  that  kind,  if  I were 
allowed  to  answer  that* I should  say  La  Salle.  I mean  by  that 
that  La  Salle  was  out  here  looking  for  the  best  means  of  communi- 
cation in  connection  with  his  general  plan ; and  if  he  said  a thing 
cannot  be  taken  that  way  and  somebody  else  says  it  could,  then 
as  against  the  statement  of  the  priest  who  has  one  thought  in 
mind,  and  of  the  commercial  man  who  had  a great  thing  to  ex- 
ploit, I should  say  historians  generally  would  take  the  man  whose 
interests  were  most  involved. 

3096  Q.  State  whether  or  not  there  were  evidences  in  La 
Salle’s  letters  and  accounts  that  he  was  more  careful  and 


967 


strict,  and  a more  strict  observ^er  of  physical  facts,  than  were 
either  Joliet  or  Marquette!  A.  My  answer  would  be  based  upon 
a different  thing.  Joliet’s  papers  were  lost,  so  that  everything 
written  by  Joliet  was  written  afterwards,  as  he  thought  over 
things,  without  the  help  of  his  notes,  which  he  himself  says  he 
lost  when  he  was  almost  back  to  the  headquarters;  therefore,  the 
notes  of  La  Salle,  carefully  preserved,  would  be  much  more  valu- 
able than  the  afterthought  of  a man  who  wrote  without  any 
memorandum  to  help  him. 

3098  Q.  Is  there  any  other  reason  why  the  narratives  of  La 
Salle  are  entitled  to  greater  weight  among  historians,  or  have 

greater  weight  than  those  of  Joliet  and  Marquette.  A.  There 
is.  My  answer  is  that  the  verification  of  the  facts  or  things  stated 
by  La  Salle  as  a result  of  later  investigation,  strengthens  the 

3099  value  of  La  Salle’s  own  narratives.  That  is  the  general  view 
among  historians,  and  I base  that  on  the  standard  histories 

which  take  La  Salle  as  a basis  rather  than  Joliet  or  Marquette. 

Q.  Is  it  true  that  subsequent  investigations  have  proved  the 
erroneous  character  of  the  statements  made  by  Joliet  and  Mar- 
quette in  their  accounts!  A.  As  to  Joliet,  I should  say  yes* 
As  to  Marquette  I do  not  know. 

Q.  What  weight  do  historians  generally  give  to  the  ac- 

3100  counts  written  by  Father  Louis  Hennepin!  A.  The  opin- 
ions vary.  First, ^Hennepin’s  early  writings  are  highly  es- 
teemed. They  have  been  established  through  the  searching 
analysis  of  Parkman  who  represents,  I should  say,  histories  and 
historians  generally  on  the  early  French  period.  The  later  writ- 
ings of  Hennepin  are  not  so  well  esteemed,  but  Parkman  himself, 

rejecting  the  later  writings,  accepts  the  early  writings  as 

3101  the  basis  for  his  own  statements.  The  early  writings  were 
accepted  and  the  later  writing  discredited  because  the  state- 
ment made  by  Hennepin  that  he  and  a companion  went  to  the 
mouth  of  the  Mississipi  Eiver  with  dates  so  close  together  as  to 
make  it  impossible  when  the  same  jorney  made  by  others  was  de- 
scribed, for  him  to  have  gone  to  the  mouth  of  the  Mississippi 
and  then  to  have  gone  back  to  the  point  to  where  he  was  captured 
within  that  given  time,  and  one  thing  else,  because  those  claims 
did  not  appear  until  several  years  after  he  had  written  an  ac- 


Sliepardson, — Direct  Exam. — Continued. 

count  of  the  trip  which  did  not  contain  that  account  of  the  voyage 
to  the  mouth  of  the  river. 

In  his  later  writings  he  claimed  to  be  the  discoverer  of  the 
Mississippi  Eiver  and  his  earlier  writings  contained  a narrative 
of  voyage  to  the  Illinois  territory. 

3103  Q.  I ask  you  whether  this  particular  letter,  or  account 
written  by  Father  Hennepin,  entitled  ''An  account  of  La 

Salle’s  Voyage  to  the  Eiver  Mississippi,”  directed  to  Count  From 
tenac.  Governor  General  of  New  France  and  appearing  on  pages 
625  to  635  of  volume  2,  of  a work,  entitled  "Hennepin’s  A New 
Discovery,”  is  to  be  classed,  or  is  classed  by  historians  generally 
among  the  earlier  writings  of  Hennepin,  which  are  entitled  to 
weight  and  value  as  historical  evidence!  A.  It  represents  ear- 
lier writings.  It  is  accounted  valuable  material. 

Q.  What  is  the  standing  and  character  of  Flennepin’s  accounts 
so  far  as  they  describe  physical  conditions  and  topographical 
conditions  encountered  by  him  on  his  journey!  A.  Park- 

3104  man  discusses  the  fact  particularly  in  his  La  Salle,  and 
the  discovery  of  the  great  west,  and  as  I said,  historians 

generally  in  this  country  take  Parkman  for  the  basis  of  their 
knowledge  about  these  facts. 

Q.  Then  as  I understand  you,  historians  generally  accept  the 
the  statements  of  Father  Hennepin  as  to  such  matters! 
3106  A.  Yes,  sir;  the  subject  is  discussed  in  the  index  under 
Hennepin,  and  refers  to  it  directly,  I could  not  cite  the  page. 
It  is  in  Parkman ’s  "La  Salle  and  the  Discovery  of  the  Great 
West.”  (Witness  handed  book.)  The  particular  passage  I re- 
fer to  is  on  pages  230  and  231,  under  the  heading  "Parts  of  his 
book  Trustworthy.” 

3109  Counsel  eok  Defendant.  I produce  volume  2 of  the 
Magazine  of  American  History  and  I offer  in  evidence  the 
letter  of  La  Salle,  appearins:  on  pages  552,  and  the  following- 
pages  of  that  volume,  or  rather,  I otfer  portions  of  the  letter  which 
I now  read  as  follows: 

(Heading) 

"A  little  before  Christmas,  and  I found  that  five  of  my 
people,  among  others,  the  interpreter,  had  run  away  and  hid- 
den themselves  in  the  river,  fearing  the  difficulties  which  my 


9G9 


enemies  has  depicted  to  them  in  this  voyage.  Others  were 
fifty  leagues  distant  on  a hunting  expedition  by  order  of 
Sieuer  de  Tonty,  who  remained  with  two  men  and  Father 
Zenobi.  I took  ten  with  me,  and  four  Savages  hired  for  the 
voyage,  but  finding  my  people  so  scattered,  and  fearing  that 
I should  not  be  able  to  regain  those  who  were  absent,  as  in- 
deed, I could  not  find  the  first  five,  I hired  fourteen  Savages 
who  belonged  to  New  England,  and  who  had  come  to  this 
quarter  on  a hunting  expedition  to  carry  to  their  country  the 
beaver  skins  of  these  people.  I promised  one  hundred  each, 
which  are  worth  here,  four  hundred  livres,  payable  partly  in 
advance.  Finding  that  I could  not  have  enough  Frenchmen 
to  be  able  to  separate  them,  leaving  a part  in  charge  of  the 
merchandise  and  other  goods  which  were  there,  and  taking 
off  the  rest,  I sent  M.  de  Tonty  in  advance  with  all  of  my 
people,  who,  after  marching  three  days  along  the  lake,  and 
reaching  the  division  line  called  ChicagV),  were  stopped  after 
a day’s  march  along  the  river  of  the  same  name,  which  falls 
into  the  Illinois,  by  the  ice  which  entirely  prevented  further 
navigation.  This  was  the  2nd  and  3rd  of  January,  1682.  I 
remained  behind  to  direct. the  making  of  some  caches  in  the 
earth,  of  the  things  I left  behind,  which  were  arranged  in  the 
following  manner.” 

At  this  point  I omit  a description  of  the  caches. 

^‘Having  finished  my  caches,  I left  the  28th  of  December 
and  went  on  foot  to  join  the  Sieuer  de  Tonty,  which  I did 
on  the  7th  of  January,  the  snows  having  detained  me  some 
days  at  the  portage  of  Chicago.  There  is  an  isthmus  of  land 
at  41  degrees,  50  minutes  north  latitude,  at  the  west  of  the 
Illinois  Lake  which  is  reached  by  a channel  formed  by  the 
junction  of  several  rivulets  or  meadow  ditches.  It  is  navi- 
gable for  about  two  leagues,  to  the  edge  of  the  prairie  a 
quarter  of  a league  westward.  There  is  a little  lake  divided 
by  a causeway  made  by  the  beavers,  about  a league  and  a 
half  long,  from  which  runs  a stream,  which  after  winding 
about  ahalf  a league  through  the  rushes  empties  into  the  river 
of  Chicago,  and  thence  into  that  of  the  Illinois.  This  lake  is 
filled  with  heavy  summer  rains,  or  spring  freshets,  and  dis- 
charges also  into  the  channel  which  leads  to  the  lake  of  the 
Illinois,  the  level  of  which  is  7 feet  lower  than  the  prairie  on 
which  the  lake  is. 

The  river  of  Chicago  does  the  same  thing  in  the  spring 
wdien  its  channel  is  full.  It  empties  a part  of  its  waters  by 
this  little  lake  into  those  of  the  Illinois,  and  at  this  season 
Joliet  says,  forms  in  the  summertime  a little  cbannel  for  a 
quarter  of  a league  from  this  lake,  to  the  basin  which  leads  to 
that  of  the  Illinois  bv  which  vessels  can  enter  the  Chicago 

. and  descend  to  the  sea. 


970 


Extract, — Magazine  A merican  Hist. — Continued. 


This  may  very  well  happen  in  the  spring,  but  not  in  the 
summer  because  there  is  no  water  at  all  in  the  river  as  far 
as  Ft.  St.  Louis,  where  the  IlBnois  begins  to  be  navigable  at 
this  season,  whence  it  continues  deep  to  the-  sea.  It  is  true 
that  there  is  another  difficulty  which  the  proposed  ditch  would 
not  remedy,  which  is,  that  the  lake  of  the  Illinois  always 
forms  a sand  bar  at  the  mouth  of  the  channel  which  leads 
to  it,  and  I greatly  doubt  notwithstanding  what  is  said,  that 
it  could  be  cleared  or  swept  away  by  the  force  of  the  cur- 
rent of  the  Chicago  since  much  greater  in  the  same  lake  has 
not  removed  it. 

Moreover  the  utility  of  it  would  be  inconsiderable,  because 
I doubt  even  if  it  should  be  a complete  success  whether  a 
vessel  could  resist  the  great  freshets  caused  by  the  currents 
in  Chicago  in  the  spring,  which  are  much  heavier  than  these 
of  the  Rhone.  Moreover  it  would  only  he  serviceable  for  a 
short  time,  at  most  for  fifteen  or  twenty  days  each  year,  after 
which  there  would  be  no  more  water.  What  confirms  me  in 
the  opinion  that  the  Chicago  could  not  clear  the  mouth  of 
the  channel  is  that  when  the  lake  is  full  of  ice,  the  most 
navigable  mouths  are  blocked  at  this  period  and  when  the 
ice  is  melted,  there  is  no  more  water  in  the  Chicago  to  pre- 
vent the  mouth  from  filling  up  with  sand.  Nor  should  I have 
made  any  mention  of  this  communication  if  Joliet  had  not 
proposed  it  without  regard  to  its  difficulties.’^ 

I then  omit  some  portions  of  the  letter  which  describes  condi- 
tions on  Lake  Erie,  and  Lake  Huron,  and  proceed: 

‘‘The  channel  between  Lake  Erie  and  Lake  Huron  pre- 
sents a great  difficulty  because  of  its  great  current  which 
cannot  be  surmounted  except  by  a strong,  stern  wind,  and 
because  there  are  places  between  where  there  is  only  a width 
of  four  feet  of  water  so  that  vessels  capable  of  supporting 
the  storms  of  the  lakes  could  scarcely  pass  that  water  be- 
cause of  the  height  of  their  situation  on  the  mountains  of 
iNiagara,  or  the  nearness  of  other  mountains  by  which  they 
are  almost  wholly  surrounded.  The  autumn  and  spring  storms 
are  so  furious,  so  sudden  and  so  long,  particularly  furious 
from  the  northwest  and  northeast,  and  from  the  southeast  in 
the  spring,  that  sometimes  for  three  or  four  days,  it  would  he 
impossible  to  carry  sail  or  keep  clear  of  land,  which  is  never 
more  than  15  or  16  leagues  distant,  the  lakes  being  no  more 
than  30  leagues  wide,  and  because  if  this  communication 
should  be  insisted  upon  by  means  of  harks,  the  lakes  could 
not  be  navigable  before  the  middle  of  April,  and  sometimes 
even  later  because  of  the  ice  and  winter  at  this  season,  nor 
for  the  rest  of  the  year  is  the  Chicago  navigable  even  for 
canoes  unless  after  a storm. 

The  waters  being  always  low  in  the  month  of  March,  it 


971 


would  be  easier  to  effect  the  transportation  from  Fort  St. 
Louis  to  the  lakes  by  land  by  making  use  of  horses,  which  it 
is  easy  to  have,  there  being  numbers  among  the  savages 
called  Pana,  Pancassa,  Manrhout,  Gaetea,  Panimatra,  Panne 
and  Pasos,  at  some  distance,  to  be  sure  to  the  westward,  but 
with  which  an  easy  communication  may  be  had  either  by  the 
river  of  the  Missiouri,  which  empties  into  the  river  Colbert, 
if  it  be  not  the  principal  branch  of  it,  and  is  always  navi- 
gable for  a distance  of  more  than  400  leagues  to  the  west, 
or  by  land.  So  bare  is  the  country  between  these  people  and 
the  river  Colbert  that  it  is  a wide  prairie  by  which  they  may 
be  easily  brought  overland.” 

I also  present  the  volume  entitled  Chevalier  de  LaSalle  by 
Margry,  Volume  2,  which  has  been  identified  by  Professor  Shep- 
ardson,  and  I quote  from  the  translation,  and  I offer  the  transla- 
tion of  a portion  of  a letter  of  LaSalle,  appearing  in  the  original 
on  pages  81  and  82  of  that  volume,  said  translation  being  as  fol- 
lows (reading) : 

3116  ‘‘The  route  by  the  lakes  presents  much  greater  difficulty, 
which  Joliet  apparently  ignored  and  partly  concealed.  Many 
more  establishments  (posts)  are  necessary.  One  is  needed 
at  the  foot  of  the  falls  where  Lake  Erie  discharges  into  Lake 
Ontario,  and  where  the . navigation  is  interrupted  for  13 
leagues.  ^ ’ 

I now  omit  a portion  of  the  letter  and  then  the  letter  proceeds 
as  follows: 

“And  another  one  is  needed  at  the  foot  of  the  lakes  of 
the  Illinois,  where  navigation  stops  at  a place  named  Chi- 
cago, in  order  to  repack  the  goods  brought  there  in  barks 
and  transport  them  to  canoes  about  2 leagues  away,  from 
there  canoes  only  can  navigate  to  the  village  of  the  Illinois, 
a distance  of  40  leagues,  notwithstanding  Joliet  says  that 
there  is  only  a quarter  of  a league  interruption  of  naviga- 
tion. Still  another  establishment  is  needed  on  the  Illinois 
where  barks  can  navigate.” 

I now  produce  Volume  2 of  Thwaites  work,  entitled,  “Henne- 
pin’s A New  Discovery”  which  Professor  Shepardson  has  testi- 
fied to  as  being  authentic  and  I read  from  a portion  of  an  ac- 
count written  by  Father  Louis  Hennepin,  appearing  on  page  625 
and  the  following  pages  of  that  volume.  The  account  is  entitled 
“An  account  of  M.  La  Salle’s  Voyage  to  the  river  Mississippi,” 
directed  to  Count  Frontenac,  Governor  of  New  France.  I omit 


972  Ext  ra  ct, — //  ennepin  .—C  ontinued . 

the  first  portion  of  the  letter  and  I offer  in  evidence  the  follow- 
ing portion: 

3118  ‘‘The  creek  through  which  we  went  from  the  Lake  of  the 
Illinois  into  the  Divine  Eiver” — obviously  the  Desplaines — 
“is  so  shallow  and  so  much  exposed  to  storms  no  ship  can 
venture  to  get  in  unless  it  be  in  a great  calm.  Neither  is  the 
country  between  the  said  creek  and  the  Divine  River  fit  for 
a canal;  for  the  meadows  between  them  are  drowned  after 
any  great  rain  and  so  a canal  will  be  immediately  filled  up 
with  sand  and  besides  it  is  impossible  to  dig  the  ground  be- 
cause of  the  water,  that  country  being  nothing  but  a morass, 
but  supposing  it  were  possibl-e  to  cut  the  canal  it  would  be 
however  useless  for  the  Divine  River  is  not  navigable  for 
forty  leagues  altogether;  that  is,  from  that  place  to  the  vil- 
lage of  the  Illinois  except  for  canoes  who  have  hardly  enough 
water  in  the  summer  time  besides  this  difficulty  there  is  a 
fall  near  the  villae'e.” 

3122  I now  produce  a volume  entitled  Charlevoix’s  letters  to  the 
Duchess  of  Las  Digneries,  published  in  1763,  printed  and 
sold  by  R.  Baldwin,  in  Pater  Noster  row,  London,  and  I offer  in 
evidence  a portion  of  a letter  written  by  Charlevoix  on  Septem- 
ber 17,  1721,  and  found  in  this  volume  on  page  272,  and  entitled 
“Letter  25.” 

“Madam:  I did  not  expect  to  take  up  my  pen  to  write 

you  so  soon,  but  my  conductors  have  just  now  broke  their 
canoe  here  and  I am  detained  a whole  day  in  a place  where 
I can  find  nothing  more  than  can  excite  the  curio sit}^  of  a 
traveller;  therefore  I can  do  nothing  better  than  employ  my 
time  in  entertaining  you.  I think  I informed  you  in  my  last 
that  I had  the  choice  of  two  ways  to  go  to  the  Illinois” — 
meaning  the  Illinois  River — “the  first  was  to  return  to  Lake 
Michigan,  coast  the  south  shore  and  to  enter  into  the  little 
river  of  Chicago.  After  going  up  it  five  or  six  leagues  they 
pass  into  that  of  the  Illinois  by  means  of  two  portages,  the 
longer  of  which  is  but  a league  and  a quarter”  meaning  there 
the  Desplaines  River,  he  spoke  of  the  Desplaines  River  as 
the  Illinois  River.  “But  as  this  river  is  but  a brook  in  this 
place  I was  informed  that  at  that  time  of  the  year  I should 
not  find  water  enough  for  my  canoe.  Therefore  I took  the 
other  route  which  has  also  its  inconveniences  and  is  not  near 
so  pleasant  but  it  is  the  surest.  I departed  yesterday  from 
the  forks  of  the  river  St.  Joseph  and  I went  up  that  river 
about  six  leagues.  I landed  on  the  right  and  I walked  a 
league  and  a quarter  at  first  up  the  bank  of  the  river,  then 
across  the  country  in  a vast  meadow  interspersed  all  over 
with  little  clusters  of  trees  that  form  a very  fine  effect.  They 


97-3 


call  it  the  meadow  de  la  tete  boeuf  (Buffalo’s  Head)  because 
they  found  here  a buffalo’s  head  of  a monstrous  size.  This 
morning  I walked  a league  further  in  the  meadow  having  al- 
most all  the  way  my  feet  in  water.  Then  I met  with  a little 
pool  which  communicates  with  several  others  of  different 
bigness,  the  largest  of  which  is  not  one  hundred  paces  in  com- 
pass. These  are  the  sources  of  a river  called  Theakiki  which 
our  Canadians  by  corruption  call  it  Kikiki.  Thea  signifies 
wolf,  I forget  in  what  language,  but  this  river  is  so  called 
because  the  Mahagans,  which  are  also  called  the  wolves, 
formerly  took  refuge  here.” 

3124  I now  produce  a volume  entitled  ‘‘Early  French  Voyages 
up  and  down  the  Mississippi,  by  Cavalier,  St.  Cosme,  La 

Seuer,  Gravier  and  Guignois,  an  account  hy  John  D.  Shea,”  and 
I refer  to  the  letter  of  St.  Coseme  appearing  in  that  volume  on 
page  45  and  following  pages,  which  annears  to  have  been  writ- 
ten in  1699  or  1700,  and  offer  in  evidence  a portion  of  that  letter 
beginning  on  page  59  of  this  volume,  as  follows: 

“From  Chicago  to  the  Fort  they  reckon  thirty  leagues. 
Here  navigation  begins,  which  continues  uninterrupted  to 
the  port  of  the  Permaveve  where  the  Indians  are  now.  We 
arrived  there  on  the  19th  of  November.” 

3125  I also  offer  in  evidence  from  the  same  volume  a ])ortion 
of  the  letter  of  Mr.  Thome  de  la  Seuer,  which  begins  on  page 

79  and  described  the  trip  down  from  Chicago  to  the  Mississippi 
and  back.  The  portion  I read  from  it  is  as  follows : 

“We  left  there  on  the  27th  to  return  to  Tonicas.  Mr.  de 
Montigny  and  la  Cosme  resolved  to  go  up  ahead  to  bring 
down  the  things  left  at  Chicago  where  Brother  Alexander 
had  remained  to  guard  them  because  there  was  no  water  in 
the  river  of  the  Illinois. 

We  brought  only  canoes  loaded  with  absolute  necessaries 
which  we  had  to  carry  for  a distance  of  fifteen  leagues.  We 
had  good  cheer  this  fall  returning  up  the  Mississippi.” 

Then  I omit  a portion,  and  I offer  the  following  portion  of  the 
same  letter,  showing  his  return  up  to  Chicago,  page  84: 

“We  arrived  on  Maundy  Thursday  at  Chicago  after  mak- 
ing thirty  leagues  by  land.  7t  rained  during  the  last  two 
days  of  our  march.  Mr.  de  Montigny  was  much  fatigued  and 
I was  no  less  so.” 

3130  Q.  Professor  Shepardson,  since  you  were  here  on  Fri- 
day last,  have  you  made  an  investigation  as  to  the  edition 
of  1763  of  the  letters  of  Charlevoix  which  I hold  in  my  hand  here 


974  Shepards  on, — Direct  Exam. — Continued. 

and  which  I now  present  to  you  (handing  witness  book)  ? Have 
you  made  inquiry  as  to  whether  that  is  an  accepted  edition  among 
historians'?  What  do  you  say  now  about  that  edition?  A.  I 
have.  Well,  as  I said  the  other  day  I did  not  know  that  edition 
and  so,  following  out  my  custom  when  I find  a thing  I do  not 
know  in  my  line  I made  some  investigations  Saturday,  and  I 
found  that  'in  Winsor’s  Narrative  and  Critical  History  of 
America,  Volume  5,  there  is  a bibliographical  note  on  Charle- 

3131  voix  and  Charlevoix’  writings,  in  which  it  states  that  two 
accepted  English  translations  are  made.  I can  get  the  ex- 
act reference,  5 Winsor’s  Narrative -"and  Critical  History  of 
America,  page  63,  and  footnote  are  tlie  references  to  this  book. 
This  is  one  of  the  accepted  editions. 

Counsel  for  Defendant.  I call  the  attention  of  the  court  that 
this  is  the  edition  from  which  I read  the  other  day  in  quoting 
extracts  from  Charlevoix’  letters. 

3132  Q.  Was  La  Salle  ever  in  Illinois,  Professor?  A.  He 
says  he  was.  He  gives  accounts  of  travels  that  apparently 

would  have  brought  him  to  Chicago.  That  account  is  accepted 
among  historians  as  an  accurate  acount  of  the  travels  made  by 
La  Salle.  There  is  no  question  among  historians  as  to  whether 
La  Salle  actually  made  the  trip  that  he  recounts  in  his  letters, 
the  trip  from  Illinois  River  to  Chicago.  La  Salle  established  his 
forts  on  the  mouth  of  the  St.  Joseph  River,  and  one  further  down, 
near  Starved  Rock,  on  the  Illinois.  I do  not  recall  that  he  built 
any  fort  at  Chicago  or  any  post. 

Cross-Examination. 

’3133  Q.  I call  vour  attention  to  the  statement  in  4 Winsor. 
177-8: 

^^Upon  the  advice  of  Intendant  Tealon  sent  and  dispatched 
Louis  Joliet  to  go  to  the  Grand  River  which  the  Indians  al- 
leged flowed  southward  to  the  sea.  Joliet — often  spelled 
Jolliet,  with  two  I’s — horn  in  Canada,  the  son  of  a wagon 
maker.  ’ ’ 

Would  you  accept  that  statement  as  correct?  A.  I should  take 
it  as  correct.  It  is  not  definitely  known  to  he  a fact  that  La  Salle 
started  to  be  a Jesuit. 


975 


3134  I know  there  is  a question  about  that  point,  that  he  had 
some  connection  with  the  Jesuits,  but  how  close  it  was  is 
not  understood  or  accepted  by  the  standard  historians.  He  had 
some  connection  with  them  and  may  have  had  some  leaning  that 
way,  but  that  he  did  positively  is  not  clearly  known. 

3136  Q.  If  you  find  the  statement  in  Parkman  that  his  con- 
nection with  the  Jesuits  had  deprived  him  under  the  French 

law  of  the  inheritance  of  his  father?  A.  I should  accept  what 
is  in  Parkman  as  generally  true. 

At  the  time  LaSalle  came  to  America  the  Jesuits  were  al- 
ready in  possession  of  several  large  missions  in  x\ew  France, 
and  under  their  concessions  they  had  the  control  of  the  trading 
with  the  Indians  at  their  missions  and  the  forts  in  which  they 

were  located.  That  possession  of  the  trade  with  the  Indians 

proved  a barrier  to  LaSalle’s  building  up  a trade  with  the  Indi- 
ans, as  it  afterwards  turned  out.  That  was  one  of  the  influences 
that  led  him  to  seek  his  own  grants  from  the  crown. 

Q.  If  you  should  find  a statement  in  an  authority,  reading 

like  this,  would  you  be  inclined  to  accept  it,  would  you  regard 

this  as  an  authority: 

3137  ‘‘And  thus  from  1675  a bitter  feeling  between  LaSalle  and 
the  Jesuits  threatened  to  endanger  the  success  of  his  enter- 
prise. Evidently  a man  of  settled  religious  belief  in  the 
Catholic  faith,  he  was  at  the  same  time  advanced  in  his  views 
of  what  tends  to  a people’s  development  and  of  the  con- 
trolling power  of  commerce.  He  saw  little  advantage  to 
France  or  the  Indians  in  missions  merely  to  induce  an  out- 
ward worship  of  the  cross  by  savages.  The  Jesuits  could 
retain  their  control  over  the  Indians  by  excluding  traders 
from  among  them.  They  were  therefore  enemies  of  any  trad- 
ing around  their  distant  missions  which  they  could  not  con- 
trol for  the  support  of  their  order.  The  profit  derived  from, 
the  fur  trade  under  their  direction  at  missions  was  an  im- 
portant part  of  their  revenue.  Thus  a monopoly  of  trade  as 

3138  well  as  religion  was  in  their  hands  and  divided  Canada  into 
two  parties.  The  ambitious  and  clear  headed  Frontenac  and 
LaSalle  with  the  powers  of  the  temporal  government  and  one 
branch  of  the  church  were  on  one  side.” 

What  was  that  branch  of  the  church  upon  that  side.  Professor? 
A.  I suppose  it  was  the  Society  of  Jesus. 

Q.  No,  this  is  Frontenac  and  LaSalle.  Was  not  that  the  Eecol- 


976 


Shepardson, — Direct  Exam. — Continued. 


lect  Friars!  A.  I could  not  say  without  verifying  my  memory 
on  that  point. 

Q.  (Reading)  : 

‘‘And  the  solid  Jesuit  power  was  on  the  other.  With  the 
latter,  the  Jesuit  power,  were  numerous  traders,  who  flour- 
ished by  their  favor  at  the  Mission.  LaSalle  was  considered 
the  head  of  the  opposite  party  and  no  means  were  spared  to 
break  his  influence  and  injure  his  good  name.  The  Jesuits 
procured  an  order  from  the  Supreme  Council  prohibiting 
traders  from  going  into  the  country  of  the  Indians  to  trade, 
thus  giving  their  Missions  the  monopoly.  LaSalle  circum- 
vented this  by  inducing*  a large  settlement  of  Iroquois  around 
his  fort  who  could  range  the  country  for  him  as  hunters  and 
trappers  without  being  considered  traders.” 

3139  Would  you  say  that  was  in  accord  with  the  general  body 
of  authority  on  that  subject!  I am  reading  from  Chambers^ 

Encyclopedia.  A.  My  answer  would  be  that  in  the  main  that  is 
a statement  that  would  be  accepted.  Such  a hostility  did  exist 
between  the  Jesuits  on  the  one  side  and  LaSalle  on  the  other. 

3140  I don’t  know  the  exact  details  of  the  origin  of  the  diffi- 
culty I know  there  was  a disagreement,  and  that  it  had  to 

do  with  his  political  plans  and  his  commercial  plans.  The  Jesuits 
were  rivals  of  his  in  the  business  field  in  which  he  was  embarking. 
LaSalle  came  up  the  stream  to  Chicago.  I could  not  say  the  exact 
year,  about  100  years  before  the  Revolutionary  AYar,  possibly 
1679,  1681  or  1682. 

3141  I think  I said  I considered  Winsor  the  best  piece  of  his- 
torical work  that  had  been  done  in  this  country.  He  may 

have  been  contemporaneous  in  part  with  Parkman  but  I should 
say  in  the  main  rather  after  Parkman  than  before,  and  contem- 
poraneous with  Shea.  Shea  participated  with  Winsor  in  the 
preparation  of  this  narrative  and  critical  history.  A great  many 
other  noted  historians  did  also.  Mr.  Shea  worked  with  him  a 
great  deal  in  full  co-operation.  M^insor  and  Shea  had  the  benefit 
of  Parkman ’s  researches  and  labors  before  them  at  the  time 

3142  that  they  wrote.  Mr.  Parkman,  you  know,  constantly  re- 
vised and  re-edited  his  books  so  that  his  last  edition  came 

out  al)out  contemporaneously  with  AVinsor’s  narrative  and  critical 
history.  1 would  say  they  worked  along  together  rather  than  one — 
each  took  advantage  of  the  critical  judgment  of  the  other.  The 


977 


first  edition  was  written  along  in  I should  say,  as  early  as  1857, 
somewhere  there,  hut  after  Margry’s  papers  were  brought  into  his 
possession  he  revised  the  whole  thing  and  republished  it,  in  the 
edition  used  here  the  other  day,  after  the  publication  of  the  first 
three  volumes  of  Margry’s  notes  and  when  he  saw  the  proofs 
of  the  other  volumes.  I cannot  say  exactly  when  Winsor’s  Nar- 
rative and  Critical  History  of  America  was  published.  It  came 
out  one  volume  at  a time  but  in  general  I should  say  twenty-five 
years  ago.  The  copyright  is  dated  1884.  Winsor  and  Shea 

3143  in  1884  had  the  benefit  of  Parkman’s  final  edition  of  1878  at 
the  time  they  were  working.  Their  work  is  entitled 

Narrative  and  Critical  History  of  America.”  If  you  will  examine 
it  you  will  see  that  under  each  subject  that  is  taken  up  there  is  a 
narrative  and  then  following  that  there  is  a critical  history  on  the 
same  thing.  That  term  is  used  because  of  that  combination  of 
the  narrative  and  critical  study.  Sometimes  the  whole  in- 

3144  troduced  in  most  cases  by  an  elaborate  editorial  introduction 
by  Winsor  himself. 

Q.  If  you  were  to  find  on  that  an  editorial  note  and  a critical 
essay  on  that  subject  apart  from  that  chapter  and  then  were  to 
find  a supplement  to  that  chapter  entitled  ‘‘Joliet,  Marquette  and 
LaSalle,  the  Editor”  occupying  pages  201  to  246,  who  would  you 
say  wrote  that  particular  portion  entitled  “Joliet,  Marquette  and’ 
LaSalle?”  I should  say  Mr.  Winsor. 

3145  Q.  If  you  found  in  Parkman  himself  the  statement  that 
LaSalle  did  a flagrant  injustice  to  Joliet,  you  would  not 

venture  to  dispute  that  position,  would  you?  A.  If  I found  that 
in  Parkman,  I should  give  it  much  weight  and  consider  that  as 
Parkman ’s  judgment  in  the  matter. 

Q.  I read  you  from  page  106  from  LaSalle  in  the  Great  West 
by  Parkman: 

“He  is  also  said  to  have  declared  that  Louis  Joliet  was 
an  imposter  and  a Donne  of  the  Jesuits,  that  is,  a man  who 
worked  for  them  without  pay.  This  agrees  with  expressions 
used  by  LaSalle  in  a Memoir  addressed  by  him  to  Prontenac 
in  November,  1680,  in  which  he  intimates  his  belief  that  Joliet 
went  but  little  below  the  mouth  of  Illinois,  thus  doing  a fla- 
grant injustice  to  that  brave  explorer.” 


978 


Shepardson, — Direct  Exam, — Continued. 


3146  I slionld  not  pass  judgment  on  a statement  like  that  of  a 
detached  sentence  out  of  a chapter  which  may  cover  a large 

number  of  things  without  first  an  examination,  but  if  after  exam- 
ining it,  I found  that  statement  there  clearly  by  Parkman  as  edi- 
torial comment,  I should  accept  it  as  probably  correct  and  has 
having  the  weight  of  his  authority  behind  it. 

I should  say  Joliet  was  a man  of  considerable  experience  prior 
to  the  time  when  he  made  his  descent  of  the  Mississippi  and  his 
ascent  of  the  Illinois  with  Marquette  and  gave  his  reports  to 
Prontenac  of  that  trip.  As  I recall,  he  had  been  sent  on  a mission 
up  to  the  northwest  country  as  an  explorer. 

Q.  I call  your  attention  to  this  statement  from  Mnnsor,  page 
178: 

3147  Three  years  before  his  appointment  to  explore  the  great 
river  beyond  the  lakes,  he  had  been  sent  with  Pere  to  search 
for  copper  mines  on  Lake  Superior  and  the  year  before  he  had 
stood  by  the  side  of  St.  Lusson  as  he  planted  the  arms  of 
France  at  Sault  Ste.  Marie.” 

AYould  yon  accept  that  statement  as  correct!  A.  Yes,  sir. 

Q.  Eeferring  to  this  account  of  his  trip  up  the  Desplaines,  I 
will  call  your  attention  to  this  statement  from  "\Yinsor  on  the  same 
page : 

‘‘Upon  the  west  bank  of  one  of  its  tributaries,  the  Desplaines 
Eiver,  there  stands  above  the  prairie  a remarkable  elevation 
of  clay,  sand  and  gravel,  a lasting  monument  which  has  with- 
stood the  erosion  of  a former  geological  age.” 

Yon  would  not  call  Justin  AYinsor  a geologist,  would  you!  A. 
I am  not  sure  but  what  he  would  be  entitled  to  that  rank.  He 
was  one  of  the  most  distinguished  geographers  we  had  in  this 
country.  The  relation  between  geography  and  geology  is 

3148  so  close  that  in  Winsor’s  case  I should  call  him  a geologist, 
though  not  a professional  geologist. 

(Eeading  from  page  178.) 

“It  was  a landmark  of  the  Indians  in  their  hunting  and 
the  French  voyageurs  on  their  trading  expeditions.  By  this 
Joliet  was  impressed,  and  he  gave  the  elevation  his  own  name. 
Mount  Joliet,  which  it  has  retained  while  all  the  others  he 
marked  on  his  map  have  been  forgotten.  It  was  not  until 
about  the  middle  of  August,  1674,  that  he  returned  to  Quebec, 


979 


and  Governor  Frontenae,  on  the  14tli  of  November  writes  to 
the  French  Government : 

‘Sieur  Joliet,  whom  Monsieur  Talon  advise  me,  on  my  ar- 
rival from  France,  to  despatch  for  the  discovery  of  the  South 
Sea,  returned  three  months  ago,  and  found  some  very  fine 
countries,  and  a navigation  so  easy  through  the  beautiful 
rivers,  that  a person  can  go  from  Lake  Ontario  and  Fort  Fron- 
tenac  in  a bark  to  the  Gulf  of  Mexico,  there  being  only  one 
carrying  place,  half  a league  in  length,  where  Lake  Ontario 
communicates  with  Lake  Erie.  A settlement  could  be  made 
8349  at  this  post,  and  another  bark  built  on  Lake  Erie.  He  has 
been  within  ten  days’  journey  of  the  Gulf  of  Mexico,  and  be- 
lieves that  water  communication  could  be  found  leading  to 
the  Vermillion  and  California  seas,  by  means  of  the  river 
that  flows  from  the  west,  with  the  Grand  River  that  he  dis- 
covered, which  rises  from  north  to  south,  and  is  as  large  as 
the  St.  Lawrence  opposite  Quebec. 

M send  you  by  my  secretary  the  map  he  has  made  of  it  and 
the  observations  he  has  been  able  to  recollect,  as  he  lost  all  of 
his  minutes  and  journals  in  a wreck  he  sutfered  within  sight 
of  Montreal,  where,  after  having  completed  a voyage  of  1200 
leagues  he  was  near  being  drowned  and  lost  all  of  his  papers' 
and  a little  Indian  whom  he  brought  from  those  countries.’  ” 

A.  That  loss  was  the  loss  I referred  to  in  my  direct  testi- 
mony. 

8150  Q.  In  the  matter  of  his  reporting  to  Frontenae  and  Fron- 
tenac  reporting  to  the  French  Government,  you  consider 
this  statement  by  Winsor  a correct  statement?  A.  Yes,  sir. 

8151  I simply  stated  that  Frontenae ’s  letters  said  so,  and  I 
accepted  it  because  it  was  in  Winsor. 

The  Court.  You  mean  that  you  accepted  the  version  given  by 
Frontenae  to  the  French  Government  as  a correct  narrative  of 
what  actually  happened  because  Winsor  has  reported  in  his  book 
That  Frontenae  did  make  this  statement  to  the  French  Govern- 
ment! 

8152  A.  No,  sir;  I did  not.  I understood  that  counsel  asked 
me  whether  the  report  of  Joliet  to  Frontenae  and  Frontenae ’s 

]-eport  to  the  French  Government  was  the  method  of  conveying 
that  as  indicated  by  Winsor,  but  I did  not  mean  to  state  that  Win- 
sor’s  reprinting  of  the  report  from  Frontenae  could  lead  me  to 
think  that  the  statements  in  that  report  were  absolutely  cor- 
rect. 


980 


Shepardson, — Direct  Exam. — Continued. 


3153  Counsel  for  Complainant.  I direct  your  attention  to  the 
statement  on  page  173  and  4 Winsor: 

“During  the  summer  of  1669,  the  active  and  intelligent 
Louis  Joliet,  with  an  outfit  of  400  livres  and  one  Pere,  perhaps 
the  same  person  who  gave  his  name  to  a river  leading  from 
Lake  Nepegon  to  Hudson  Bay,  with  an  outfit  of  1000  livres, 
went  to  search  for  a copper  mine  on  Lake  Superior  and  to 
discover  a more  direct  route  from  the  Upper  Lakes  to  Mon- 
treal. Joliet  went  as  far  as  Sault  ste  Marie  where  he  did 
not  long  remain,  hut  in  place  of  a mine  found  an  Iroquois 
prisoner  among  the  Ottawas  at  this  point  and  obtained  per- 
mission to  take  him  back  to  Canada.  In  connection  with  an- 
other Frenchman,  he  was  led  by  the  Iroquois  from  Lake  Erie 
to  the  valley  of  the  Grand  Elver  to  Lake  Ontario  and  on  the 
24th  of  September  at  the  Iroquois  village  between  this  river 
and  the  head  of  Burlington  Bay,  he  met  LaSalle  with  four 
canoes  and  fifteen  men,  and  the  Sulpitian  priest  Galline  and 
de  Corson,  who  on  the  6th  of  July  had  left  the  post  at  LaChine. 
LaSalle,  alleging  ill  health,  at  this  point  separated  from  the 
missionaries  and  Joliet,  before  proceeding  towards  Montreal 
drew  a chart  of  the  Upper  Lakes  for  the  guidance  of  the  Sul- 
pitians.” 

Having  your  attention  called  to  that  statement,  would  you  now 
accept  that  as  correct!  A.  It  would  depend  on  how  it  ap- 

3153  peared.  If  it  was  an  editorial  letter  of  Mr.  Winsor,  I would 
give  it  weight.  If  it  said,  “I  give  this  as  an  extract  from 

some  story  which  has  more  or  less  value,”  then  I should  be  guided 
by  Winsor  and  not  by  the  source  of  the  information.  I could  not 
tell  about  an  isolated  extract  like  that  without  knowing  who  wrote 
it  and  the  weight  which  Mr.  Winsor  gives  it,  because  he  often  quotes 
things  which  he  does  not  fully  sustain  in  order  to  give  the  different 
opinions  regarding  events. 

3154  Q.  What  I have  read  to  you,  the  description  in  Chapter  5 
of  Volume  4,  that  chapter  was  written  by  the  Eev.  Edward 

D.  Neill,  corresponding  member  of  the  Massachusetts  Historical 
Society  and  honorary  vice-president  of  the  New  England  Historic 
and  Geneological  Society.  Do  you  know  the  Eev.  Edward  D. 
Neill!  A.  No,  sir;  I never  heard  of  him.  I know  that  Winsor 
had  selected  him  to  write  this  chapter.  I consider  it  worthy  of 
credibility. 

3156  Q.  Do  you  know  when  it  was  with  reference  to  his  work 
that  he  received  concessions!  A.  Well,  of  course  it  was 


981 


before  1682.  Not  before  he  began  his  work  but  after  he  had  under- 
taken certain  things,  he  went  back  to  France  and  there  secured 
these  concessions  from  the  King.  He  asked  these  conces- 

3157  sions  as  a field  in  which  to  work  the  same  as  any  other  pro- 
moter of  the  day. 

I am  not  sure  that  Joliet  received  important  concessions. 

Q.  Well,  suppose  that  you  find  the  statement  in  the  authority 
like  this : 

‘‘Louis  Joliet,  1645-1700;  born  Quebec.  Educated  at  the 
Jesuit  college  for  the  priesthood,  but  abandoned  the  design, 
and  going  west,  engaged  in  the  fur  trade.  In  1672  he  was  ap- 
pointed by  the  French  Governor  of  Canada  to  explore  the  Mis- 
sissippi. He  and  Here  Marquette  started  from  Michilli  Mack- 
inas.  May  17,  1673,  proceeded  to  Green  Bay;  ascended  the  Fox 
Eiver;  obtained  Indian  guides  to  the  west;  entered  the  Mis- 
sissippi June  17,  1673,  and  passing  down  reached  Arkansas. 
Satisfied  that  the  river  flowed  into  the  Gulf  of  Mexico,  not 
into  the  Pacific  Ocean,  they  returned  to  Lake  Michigan  by  way 
of  the  Illinois  River,  Joliet  proceeding  alone  to  Quebec.  His 
canoe  upset  in  the  Lachine  rapids  and  he  lost  his  maps  and 
manuscript.  From  memory  he  prepared  a map  and  report  of 
the  expedition.  He  was  appointed  Royal  Hydrographer  at 
Quebec.  In  1680  he  received  the  grant  of  the  Siegneury  of  An- 
ti-Costi  Island  to  the  development  of  whose  fisheries  and  trade 
he  devoted  himself.  In  1693  he  obtained  the  Siegneury  of 
Joliet  which  still  belongs  to  his  family.^’ 

3158  I read  from  Chambers’  Encyclopedia — do  you  accept  that? 

A.  No,  not  exactly  as  it  is  written  because  it  covers  one 

great  point  of  dispute  as  to  where  Joliet  did  go  when  he  went  down 
below  the  junction  of  the  Ohio  and  the  Mississippi. 

3150  There  has  been  quite  a lot  of  uncertainty  as  to  where  Joliet 
went.  Personally  I have  never  followed  the  history  of  Joliet 
outside  of  his  relationship  with  the  Mississippi  Valley,  and  so 
what  grants  have  come  to  him  later  in  life  as  the  reward  for  his 
services,  I do  not  know.  I could  not  tell  from  my  own  knowledge 
why  any  grant  was  made  to  Joliet.  That  is  a part  of  this  historical 
field  that  I have  explored.  I know  that  the  corruption  in  the  old 
regime  in  Canada  was  such  that  nobody  could  ever  tell  why  a per- 
son got  rewards.  I could  not  say  for  example,  that  he  got  a reward 
for  distinguished  services  or  that  he  got  it  for  a political  pull. 

3161  Q.  Were  not  the  concessions  made  to  La  Salle  with  a 
view  to  the  promotion  of  the  things  conceded  while  the 


982 


Sliepardson, — Direct  Exam. — Continued. 


grants  made  to  La  Salle  were  made  after  the  services  had  been 
rendered!  A.  I should  say  the  dates  would  prove  that.  As  to 
La  Salle  the  statement  would  he  correct. 

Q.  I want  to  direct  your  attention  now  to  a statement  by  Mr. 
Winsor  himself,  referring  to  the  events  that  were  happening  during 
Frontenac’s  administration  in  Canada,  page  222: 

3162  ^^The  Governor,  Frontenac  was  needy  in  purse,  expedient 
in  devices  and  on  terms  of  confidence  with  a man  destined  to 
gain  a name  in  this  western  discovery.  This  was  La  Salle. 
Parkman  pictures  him  with  having  a certain  robust  ambi- 
tion to  conquer  the  great  valley  for  France  and  himself  and  to 
outdo  the  Jesuits.^’ 

Do  you  accept  that  as  a fair  summary  of  Parkman ’s  characteri- 
zation! A.  I think  so. 

Q.  ‘‘Shea  sees  in  him  little  of  the  hero  and  few  traces  of 

3163  a powerful  purpose.’’  Is  that  a fair  summary  of  Shea’s  opin 
ion  of  La  Salle!  A.  I think  so. 

Q.  Shea  in  his  LeClerq.  Volume  2,  page  199,  says:  “LaSalle 
has  been  exalted  into  a hero  on  the  very  slightest  foundation  of 
personal  quality  or  great  deeds  accomplished.”  Do  you  recognize 
that  as  a fair  statement  of  Shea’s  position!  A.  Such  a question 
as  that  ought  to  be  accompanied  by  a knowledge  of  Shea’s  point 
of  view.  I think  so. 

Q.  You  have  understood  that  there  has  been  a great  difference 
of  opinion  on  this  subject,  have  you  not,  or  did  you  know  that  until 
you  were  employed  to  look  this  subject  up  for  this  case!  A.  I 
know  there  is  a great  fundamental  ditference  in  all  histories  of 
France  and  America  based  on  a certain  thing  which  is  patent  and 
therefore  those  opinions  differ  widely  according  to  which  side  the 
writer  is  on. 

3165  Q.  You  spoke  of  La  Salle  as  having  done  some  other  work 
first.  La  Salle  first  got  a place  at  the  LaChine  Eapids,  did 
he  not!  A.  His  followers  named  it  that  and  joked  over  his  hopes. 
I could  not  say  whether  the  building  of  the  Griffin  was  the  next 
thing  he  did  or  not.  He  did  build  it.  Tonty,  I think,  carried  on 
the  work  at  the  direction  and  suggestion  of  La  Salle.  That  was 
just  above  Niagara. 


983 


3170  Q.  You  said,  Mr.  Shepardson,  that  you  would  attach 
greater  weight  to  statements  made  by  LaSalle  than  you  would 

to  statements  made  by  Joliet  because  Joliet  had  lost  his  papers. 
It  is  true  that  LaSalle’s  papers  were  lost,  is  it  not!  A.  Some 
of  them  may  have  been.  Margry  managed  to  find  a great  many 
of  them. 

3171  Q.  Is  it  not  true  that  a number  of  the  papers  that  are 
attributed  to  LaSalle  are  not  signed  by  anybody!  A.  Yes. 

Some  of  them  are  put  in  the  third  person.  It  would  depend  on 
the  habit  of  that  particular  writer  in  making  his  reports  whether 
papers  that  are  in  the  third  class  and  not  signed  should  be  called 
anon^mious. 

Membre,  I don’t  j^lace  him  exactly.  He  was  one  of  those  who 
figured  at  this  time  as  a voyageur  and  explorer.  Membre ’s  jour- 
nal is  highly  esteemed. 

LaSalle  himself  experienced  a great  many  losses  both  by 
wreck  and  desertion ; he  had  the  ordinary  experience  of 

3177  travelers  at  that  time.  My  opinion  of  LaSalle’s  writings 
was  made  by  general  observation  of  views  of  different  writ- 
ers upon  him,  taking  those  views  which  I thought  to  be  most 
worthy  of  acceptance  and  making  those  views  mine. 

Q.  Keferring  to  your  estimate  of  LaSalle,  I direct  your  at- 
tention to  the  statement  in  4 Winsor  on  page  234  and  235,  La- 
Salle’s distrust  and  vacillation  and  Beaujeau’s  jealousy  and  as- 
sumption boded  not  good,  and  a dozen  warm  quarrels  between 
them  were  patched  up  before  they  got  to  the  sea.  There  is  not  a 
little  in  all  this  to  point  to  a state  of  mental  unsoundness  in  La- 
Salle.” 

3178  Had  you  this  statement  of  Winsor  as  to  LaSalle’s  men- 
tal condition  in  mind  when  you  gave  your  judgment. 

A.  I had  not  at  that  particular  instant,  no,  sir.  I had  observed 
that  description,  it  had  not  escaped  my  mind.  My  judgment, 
as  I just  said,  was  made  on  my  general  observation  and  reading 
on  that  subject.  It  was  not  in  my  mind  the  moment  the  ques- 
tion was  asked  me. 

I should  think  LaSalle  was  of  an  imperious  disposition.  I 
would  say  he  had  his  quarrels  with  other  leaders,  but  that  he  was 


984  Shepard  son, — Direct  Exam.— Continued. 

embroiled  throughout  his  course,  I should  say  no.  The  scheme 
for  promotion  which  LaSalle  had  formed  and  in  pursuance  of 
which  he  made  the  great  journey  to  which  you  referred,  failed, 
so  far  as  LaSalle  was  concerned.  He  was  killed. 

3180  Q.  I direct  your  attention  to  the  passage  in  4 Winsor, 
page  236 : 

^^The  Jolly  next  disappeared  in  a fog  and  LaSalle  waited 
for  her  four  or  five  days,  but  in  vain,  so  he  sailed  on  further 
until  he  found  the  coast  trending  southerly,  when  he  turned 
and  shortly  after  met  the  Jolly.  Passages  of  crimination 
and  recrimination  between  the  leaders,  of  course,  followed. 
LaSalle  all  the  while  was  trying  to  make  out  that  the  numer- 
ous lagoons  along  the  coast  were  somehow  connected  with  the 
mouths  of  the  Mississippi,  while  Beaujeau,  vexed  at  the  con- 
fusion and  indecision  of  LaSalle’s  mind,  did  little  to  make 
matters  clear.  They  were  in  reality  at  Mata  Gorda  Bay.” 

I will  ask  you  whether  that  is  not  the  fact?  A.  I don’t  know 
whether  it  is  a fact  or  not.  I take  what  is  in  the  book,  written 
by  Winsor,  for  what  it  is  worth,  knowing  how  little  anybody 
knew  of  geography  at  that  time. 

I do  not  consider  this  statement  as  to  the  confusion  and  in- 
decision of  LaSalle’s  mind  in  the  judgment  expressed  as  to  the 
value  of  LaSalle’s  opinion. 

3181  Q.  Eeferring  to  the  opinion  which  you  expressed  con- 
cerning Charlevoix,  directing  your  attention  to.  the  state- 
ment in  the  critical  essay  on  the  sources  of  information  on  page 
358,  the  statement  concerning  Charlevoix,  ‘^Parkman,  whose 
studies  have  made  him  a close  observer  of  Charlevoix’  methods, 
speaks  of  his  usual  carelessness.”  Was  that  in  your  mind  at  the 
time  you  gave  your  opinion  on  Charlevoix?  A.  Yes,  I know 
the  passage  you  have  cited:  if  you  will  read  the  rest  of  it  you 
will  find  other  joeople  say  other  things.  I would  disagree  with' 
Parkman  in  that  particular.  There  I agree  with  Bancroft,  and  a 
majority  of  historians.  On  all  those  things  you  have  to  make  a 

consensus  of  judgment. 

3183  I do  not  know  that  Hennepin  made  the  statement  in  his 
earlier  book  of  1683  that  the  Niagara  Palls  were  five  hun- 
dred feet  high;  if  he  did  I would  examine  and  give  it  such  weight 
as  one  would  to  the  first  observation  of  a mighty  cataract.  I 


985 


think  he  belonged  to  the  Eecollet  Branch  of  Jesuits.  I think  lie 
was  one  of  the  Recollet  Friars  whom  Frontenac  had  attached  to 
himself  to  play  otf  against  the  Jesuits.  If  Hennepin  in  his  book 
of  1683  called  the  Falls  500  feet  high,  that  would  not  alone  af- 
fect my  judgment  as  to  the  value  of  Hennepin  ^s  statement  of 
facts.  The  statement  in  Winsor  that  ^‘Hennepin  in  his  1683  book 
called  them  500  feet  and  in  1697,  600  feet  high,  and  describes  a 
side  shoot  on  their  western  verge  which  does  not  now  exist” 
would  not  affect  me  materially  in  my  judgment.  I could  tell  you 
many  historical  papers  which  give  things  that  do  not  exist,  which 
have  been  accepted  for  3^ears. 

3184  Q.  If  you  also  found  the  following  statement  in  AVinsor, 
^^4ccording  to  Hennepin’s  own  story  some  time  after  his 
first  book  was  published  he  incurred  the  displeasure  of  the  Pro- 
vencal of  his  order  by  refusing  to  return  to  America  and  was  in 
more  ways  than  one  so  pursued  by  his  Superior  that  in  the  end 
he  threw  himself  upon  the  favor  of  AVilliam  Third  of  England, 
whom  he  had  met  at  the  Hague.  Hennepin  searched  Amsterdam 
for  a publisher  of  his  new  venture  but  had  to  take  it  to  Utrecht, 
where  it  came  out  in  1697  with  a fullsome  dedication  to  the 
English  King.”  AVould  that  statement  affect  your  judgment  of 
his  opinion  and  statement  of  facts!  iV.  One’s  opinion  of  such 
things  must  take  into  account  all  of  those  things.  Of  course  that 
is  a familiar  episode  in  Hennepin’s  life. 

3885  Q.  If  you  found  a statement  that  the  first  may  he  made 
of  his  explorations  did  not  trace  the  Mississippi  to  a con- 
nection with  the  Gulf  of  Mexico,  but  did  represent  a dotted  line  of 
connection,  while  his  second  map,  in  1697,  represented  the  river  as 
going  clear  to  the  Gulf  of  Mexico,  and  then  a statement  in  A¥in- 
sor:  ‘‘This  change  is  made  to  illustrate  an  interpolation  in  the  text 
borrowed  from  Father  Membre’s  Journal  of  LaSalle’s  descent  of 
the  river,”  if  you  had  that  before  you,  would  that  affect  your 
judgment  of  Hennepin!  A.  That  would  simply  bring  my  atten- 
tion to  another  well  known  fact.  Many  of  the  criticisms  on  Hen- 
nepin have  been  supposed  to  have  been  false  because  books  have 
been  published  called  Hennepin’s  which  he  did  not  himself  write. 
There  were  compilations  by  other  writers  with  his  name  attached. 


986 


Shepard  son, — Direct  Exam. — Continued. 


That  would  not  affect  my  judgment  of  the  value  of  his  New 
Discovery. 

3186  Q.  I direct  your  attention  to  the  passage  on  the  same 
page:  ''Mr.  J.  H.  Perkins  reviewing  Spark’s  Book  (of  the 

life  of  LaSalle)  makes  for  the  first  time,  as  he  thinks,  a thorough 
critical  statement  of  the  grounds  'for  thinking  the  Reverend 
Father  (meaning  Hennepin)  so  great  a liar.’  ” Would  that  ef- 
fect your  judgment!  A.  In  making  my  judgment  of  Hennepin 
I should  take  later  and  more  critical  studies  than  that  one  men- 
tioned there.  We  have  one  that  would  be  more  critical  than 
anything  else. 

Q.  Take  Winsor’s  next  statement  a little  further  down: 
"The  Membre  narrative  is  much  the  same  as — That  there  was 
a fraud  on  Hennepin’s  part  has  been  generally  held  ever  since 
Sparks  made  his  representations.  Bancroft  calls  Hennepin’s 
Journal  'a  lie.’  Broadhead  calls  it  an  audacious  falsehood.  Park- 
man  deems  it  a fabrication  and  has  critically  examined  Henne- 
pin’s inconsistencies.  Gravier  classes  his  narrative  with  Gulli- 
ver’s;” would  that  affect  your  judgment!  A.  No,  sir;  because 
it  is  not  a fair  statement.  Parkman  does  not  state  that  alone.  He 
states  that  in  some  parts  of  it  it  is  a mendacious  narrative  but 
in  other  parts,  particularly  certain  things  which  he  enumerates, 
Hennepin’s  Narrative  may  be  reliable.  Furthermore,  since  that 
book  has  been  printed,  many  of  Spark’s  conclusions  have  been 
thoroughly  discredited  and  therefore  that  quotation  would  not  af- 
fect me  any. 

3187  There  has  been  a vast  improvement  in  historical  investi- 
gations in  the  last  twenty-five  years. 

3188  Q.  I direct  your  attention  to  the  following  statement  in 
4 Winsor,  page  250: 

"The  publication  of  anonymous  account  of  LaSalle’s  whole 
expedition  in  Margry’s  Decouverts  et  Establissements  des 
Francais  has  enable  Dr.  Shea,  in  his  edition  of  Hennepin, 
to  contest  Margry’s  views  of  Hennepin’s  plagiarism  and  to 
compare  the  two  narratives  critically;  and  he  comes  to  the 
conclusion  that  probably  Henne])in  was  LaSalle’s  scribe  be- 
fore they  parted,  and  that  be  certainly  contributed,  directly 
or  indirectly,  to  LaSalle’s  dispatches  what  pertains  to  Hen- 
nepin’s subse(pient  ^independent  explorations,  thus  making 
the  l)orrowing  to  be  on  the  ])art  of  the  anonymous  writer, 


987 


who,  if  he  were  LaSalle,  did  certainly  no  more  than  was 
becoming  the  master  of  the  expedition  to  combine  the  narra- 
tives of  his  subordinates.” 

3189  With  that  before  you,  would  you  still  say  that  it  was 
wrong  to  describe  the  account  published  in  Margry  as  anon- 
ymous? A.  No,  sir;  I certainly  did  not  mean  to  give  any  such 
sweeping  characterization  to  Margry ’s  notes.  The  question  as  I 
remember  it  was,  was  some  of  LaSalle’s  writings  or  reputed 
writings  of  LaSalle  anonymous,  and  I said  yes,  but  I didn’t  char- 
acterize Margry ’s  whole  text. 

I should  say  now  as  to  the  account  published  in  Margry ’s  of  La- 
Salle’s journey  that  it  was  not  anonymous,  taken  as  a whole, 
making  reservation  as  I did  this  morning.  It  is  a matter  of 
dispute.  Whether  or  not  Hennepin  was  LaSalle’s  scribe  and 

3190  whether  or  not  the  account  as  credited  to  LaSalle  was  in 
LaSalle’s  hand,  or  whether  LaSalle  wrote  it.  LaSalle  was 

master  of  the  expedition  and  heard  of  it,  and  if  he  hired  some- 
body to  do  it  for  him,  that  would  be  called  LaSalle’s,  just  as  in 
modern  times,  if  a person  dictated  a thing  and  a man  wrote  it 
out  in  type,  he  would  not  be  given  credit  for  it.  To  take  the 
position  that  you  couldn’t  tell  what  LaSalle  wrote  and  what 

3191  Hennepin  wrote,  then  it  might  be  possible  to  weaken  all  of 
LaSalle’s  statements.  I can’t  tell  because  it  has  never  been 

decided  yet,  it  is  one  of  the  great  points  in  controversy. 

Q.  I continue  the  extract  from  Winsor: 

‘Ht  is  Shea’s  opinion,  however,  that  the  Margry  documents 
was  not  written  by  LaSalle  but  by  some  compiler  in  Paris, 
who  used  Hennepin’s  printed  book  rather  than  his  notes  or 
manuscript  reports.  Margry  claimed  that  this  Eelation  was 
compiled  by  Bernou  for  presentation  to  Colbert.  Parkman 
thinks,  as  opposed  to  Shea’s  view,  that  Hennepin  knew  of 
the  document  and  incorporated  many  passages  from  it  into 
his  book.” 

Now,  Professor,  do  you  still  say  that  account  was  not  an 
anonymous  account!  A.  Yes,  sir;  I take  the  position  that  the 
matter  is  still  in  controversy  and  unsettled. 

3192  By  anonymous  I mean  that  a document  would  be  anony- 
mous without  any  parent  at  all,  in  the  question  of  contro- 
versy; not  a known  parent.  The  question  in  controversy  is  is 


988  Shepardson, — Direct  Exam. — Continued. 

this  account  in  LaSalle’s  own  writing  or  is  it  perhaps  the  writing 
of  his  secretary.  The  controversy  extends  also  as  to  whose  con- 
ception of  language  it  was,  whose  words  they  actually  were, 
whether  LaSalle  wrote  it  himself  or  whether  Hennepin  wrote 

3193  it  out  himself  or  whether  the  secretary  did  it  for  him, 
The  controversy  is  which  of  these  two  wrote  it.  I say  it  is 

not  anonymous  because  one  of  the  two  is  the  author  of  it. 

Q.  What  do  you  say.  Professor,  as  to  the  statement  of  Margry 
himself  which  I have  just  read.  Margry  claims  that  this  of- 
ficial enterprise  of  LaSalle  1678-1681,  was  compiled  by  Bernou  for 
presentation  to  Colbert?  A.  Well,  that  may  be  another  position 
taken  by  Margry  in  regard  to  that. 

Margry  is  the  man  who  discovered  the  document.  Parkman 
had  access  to  the  original  documents  along  with  Margry. 

3194  Q.  (Beading)  ‘‘Parkman  thinks,  as  opposed  to  Shea’s 
views,  that  Henepin  knew  of  the  document  and  incorporated 

many  passages  from  it  into  his  book  (LaSalle,  pages  150-262). 
Dr.  Shea  started  with  the  defactors  of  Hennepin  in  his  earlier 
Discovery  of  the  Mississippi,  but  in  his  later  book  he  makes  fair 
amends  for  what  he  now  considers  his  hasty  conclusion  then.” 
Deferring  to  Spark’s  Life  of  LaSalle,  and  the  North  American 
Eeview,  1845.  ‘^‘ Parkman ’s  conclusion  is  that  this  early  book  of 
Hennepin  is  ‘comparatively  truthful.’  That  final  statement  is 
the  one  upon  which  you  stand.  A.  Yes,  sir.  My  opinion  in  regard 
to  that  was  based  upon  considering  three  texts,  I think  Winsor’s, 
Parkman ’s  and  Thwaites’,  as  to  the  value  of  Hennepin’s  writ- 
ing. 

3195  Q.  Deferring  to  the  loss  of  manuscript  which  you  said 
weakens  the  value  of  Joliet,  I direct  your  attention  to  the 

statement  of  Parkman,  on  page  21,  speaking  under  the  date  of 
1669-1670 : 

“We  return  now  to  LaSalle,  only  to  find  ourselves  in- 
volved in  mist  and  obscurity.  What  did  he  do  after  he  left 
the  two  priests?  Unfortunately,  a definite  answer  is  not  pos- 
sible, and  the  next  two  years  of  his  life  remain  in  some  mea- 
sure an  enigma.  That  he  was  busied  in  active  exploration, 
and  that  he  made  important  discoveries  is  certain;  but  the 
extent  and  character  of  these  discoveries  remain  wrapped  in 
doubt.  He  is  known  to  have  kept  journals  and  made  maps; 


989 


and  these  were  in  existence  and  in  possession  of  his  niece, 
Madeline  Cavelier,  then  in  advanced  age,  as  late  as  the  year 
1756;  beyond  which  time  the  most  diligent  inquiry  has  failed 
to  trace  them.’’ 

Kef  erring  now  to  LaSalle’s  exploration  of  the  Desplaines  and 
Illinois,  that  you  have  referred  to  as  having  been  made  in  1671, 
which  is  in  the  two  particular  years  which  Parkman  says  remain 
an  enigma  and  to  the  journal  and  map  which  he  kept  of  those 
years,  which  Parkman  says — ^‘beyond  which  time  (1756)  the 
most  diligent  inquiry  has  failed  to  trace  them” — I will  ask  you 
to  state  whether  or  not  we  have  with  reference  to  the  trip  of 
LaSalle  that*  authentic  and  immediate  data  and  journal  made  at 
the  time  the  trip  was  going,  which  you  said  were  lost  in  the  case 
of  LaSalle! 

3196  Omitting  then  the  statement  that  you  said  LaSalle  had 
explored  the  Illinois  in  1671,  what  do  you  say  as  to  the  ef- 
feet  upon  your  comparison  with  Joliet!  A.  Parkman  makes 

3197  no  reference  to  the  two  years  following,  1669-1670.  He  says 
expressedly,  it  is  1669-1670.  1671  he  is  back  again  in  his  reg- 
ular narrative. 

The  date  at  the  top  of  page  20  is  1670.  Describing  the  move- 
ments here  on  pgige  18,  occurs  the  statement: 

‘‘On  the  last  day  of  September,  the  priests  made  an  altar 
supported  by  the  paddles  of  the  canoes  laid  on  forked  sticks. 
Bollier  said  mass;  LaSalle  and  his  followers  received  the 
sacrament,  as  did  also  those  of  his  late  colleagues,  and  then 
they  parted,  the  Sulpitians  and  their  party  descending  the 
Grand  River  towards  Lake  Erie,  while  LaSalle,  as  they  sup- 
posed, began  his  return  to  Montreal.” 

On  page  19 : 

“This  is  the  first  recorded  passage  of  white  men  through 
the  Straits  of  Detroit;  though  Joliet,  had,  no  doubt,  marked 
this  way  on  his  return  from  the  Upper  Lakes.  The  two  mis- 
sionaries took  this  course,  with  the  intention  of  proceeding 
to  the  Sault  Ste  Marie,  and  there  joining  the  Ottawas,  and 
other  tribes  of  that  region,  in  their  yearly  descent  to  Mon- 
treal. (Omitting  a passage.)  They  passed  the  Manatoulins, 
and  ascending  the  strait  by  which  Lake  Superior  discharges 
its  waters,  arrived  on  the  25th  of  May  at  Ste.  Marie  du  Saut.” 

That  is  on  the  date,  the  25th  of  May,  1670.  That  is  the  last 
given  date  until  the  next  page*. 


990  Sliepcu'dson, — Direct  Exam. — Continued. 

>3198  ‘‘Ascending  French  Eiver  to  Lake  Nipissing,  they  crossed 
to  the  waters  of  the  Ottawa,  and  descended  to  Montreal, 
which  they  reached  on  the  18th  of  June.  They  had  made  no 
discoveries  and  no  converts ; hut  Galinee,  after  his  arrival, 
made  the  earliest  map  of  the  Upper  Lakes  known  to  exist. 
We  returned  now  to  LaSalle,  only  to  find  ourselves  involved 
in  mist  and  obscurity.  AYliat  did  he  do  after  he  left  the 
two  priests?  Unfortunately,  a definite  answer  is  not  possible, 
and  the  next  two  years  of  his  life  remain  in  some  measure 
an  enigma.” 

Eeferring  to  those  next  two  years  and  to  the  loss  of  his  jour- 
nals and  maps  reported  in  the  same  paragraph,  what  would  you 
say  of  the  effect  of  the  loss  of  those  journals  and  maps  on  La- 
Salle’s subsequent  account?  A.  There  is  no  evidence  where 
LaSalle  was  in  those  two  years.  Therefore  I can’t  see  how  the 
loss  of  papers  in  those  two  years  would  affect  his  account  of 
what  took  place  in  the  years  afterward. 

3201  Q.  Suppose  that  what  we  know  about  that  earlier 
joeriod  should  come  from  a document  which  was  written  in 
Paris,  by  a man  who  never  saw  America,  who  had  some  ten  or 
twelve  interviews  with  LaSalle  and  subsequent  to  those  inter- 
views to  have  recorded  them  in  the  form  of  a historical  narra- 
tive concerning  LaSalle’s  work  prior  to  1678;  would  you  say 
that  such  narrative  was  entitled  to  higher  credit  than  the  re- 
]iort  which  Prontenac  made  to  the  French  Government  as  to  the 
explorations  made  by  Joliet?  A.  Well,  my  own  view  is  that 
that  would  not  be  entitled  to  as  much  credence  as  an  official  pub- 
lication would  have. 

I should  think  Frontenac’s  report  of  Joliet’s  trip  would  be 
entitled  to  greater  weight  than  that  ^lemoir  of  that  gentleman 
of  France,  who  purported  to  tell  what  was  told  him. 

3205  Now  referring  to  LaSalle’s  judgment,  I direct  your  at- 
tention to  the  passage  in  Parkman,  on  pages  339-341,  dated 

1684: 

“Beaujeau  says  that  this  affair” — this  friction  over  the 
command  of  the  ship  ‘Jolly’ — “made  a great  noise  among  the 
officers  at  Eochefort,  and  adds:  ‘There  are  very  few  peo- 
ple who  do  not  think  his  brain  is  touched.  I have  spoken  to 
some  who  have  known  him  for  twenty  years.  They  all  sav 
that  he  was  always  rather  visionary.” 


991 


Would  tliat  modify  your  judgment  as  to  LaSalle?  A.  No,  sir, 
not  in  the  least.  My  opinion  on  LaSalle  is  formed  by  considering 
all  these  things. 

3208  It  would  not  affect  my  judgment  of  the  narrative  of  La- 
Salle, when  it  comes  in  comparison  with  Joliet  or  Marcjuette. 

Q.  Professor,  prior  to  your  coming  upon  the  stand,  with  what 
historians  have  you  talked  about  the  weight  and  standing  to  be 
attached  to  Hennepin’s  New  Discovery?  A.  Professor  Smith  of 
Yale,  Professor  Adams  of  Yale,  Professor  All)ert  Bushnell  Hart, 
and  others  in  a casual  way,  in  the  course  of  my  studies.  I 

3209  have  talked  with  my  professor.  We  worked  over  that  period 
together.  That  was  one  of  the  points  of  discussion.  But 

a man  would  not  found  his  judgment  of  that  thing  by  talking 
with  other  people.  He  would  do  it  by  looking  up  authorities. 

The  value  of  a book  is  not  alone  determined  by  its  inherent 
qualities,  it  is  in  part.  The  judgment  I have  given  to-day  is 
made  up  partly  in  regard  to  the  illustration  of  that  style  of 
book.  I didn’t  recognize  it  Friday.  I looked  it  up  and  found  the 
information  regarding  the  book,  found  it  bore  the  title 

3211  page  of  the  book.  Therefore  my  judgment  was  that  that 
was  the  book,  which  is  credibly  received  by  historians  as 

of  value.  The  character  of  the  book  itself  establishes  its  value. 

Q.  In  your  answers  to-day  you  have  spoken  of  agreeing  with 
certain  historians  on  some  points  and  disagreeing  with  them 
on  others.  That  is,  you  have  weighed  the  historical  evidences  on 
the  different  questions  presented  and  you  find  no  historians  to 
whom  you  would  adhere  on  all  those  points,  is  that  right? 

3212  A.  Yes,  sir.  I have  tried  to  make  my  independent  judg- 
ment by  weighing  all  the  authorities  as  far  as  they  have 

come  to  my  knowledge  and  been  the  subject  of  investigation.  I 
have  tried  to  give  my  particular  judgment  arrived  at  in  that  way 
in  each  instance. 

3213  Re-direct  Examincition. 

The  book  edited  by  Margry  covers  the  travels  made  by  La- 
Salle between  the  years  1679  and  1683.  I understand  there  is  no 
obscurity  as  to  the  results  of  the  movements  of  LaSalle 

3214  from  1679-82.  Keferring  to  the  volume  of  Parkman’s  works 
from  which  was  read  a quotation  relating  to  the  mental 


992  Shepardson,— Re-direct  Exam. — Continued. 

condition  of  LaSalle  at  a certain  period  of  his  life,  my  own  judg- 
ment is  that  it  referred  to  the  period  just  immediately  preced- 
ing the  altercation  referred  to.  Eeferring  to  LaSalle’s  mental 
condition  prior  to  that  journey  that  he  undertook  in  1684,  there 
were  such  statements  as  were  referred  to  this  morning,  about 
having  the  quarrels  now  and  then,  and  things  of  that  kind,  hut 
I remember  no  charge  in  that  earl}^  period  that  he  was  out  of 
his  head  or  anything  like  that,  as  charged  in  that  point  there. 

3215  The  authority  I mentioned  this  morning  to  the  effect  that 
Hennepin’s  narratives  were  reliable  is  pages  230  and  231 

of  Parkman’s  works,  entitled  ‘‘LaSalle  and  the  Discovery  of  the 
Great  West.” 

The  witness  then  read  the  following  passage: 

“Such  being  the  case,  what  faith  can  we  put  in  the  rest 
of  Hennepin’s  story!  Fortunately,  there  are  tests  by  which 
the  earlier  parts  of  his  book  can  be  tried;  and,  on  the  whole, 
they  square  exceedingly  well  with  contemporary  records  of 
undoubted  authenticity.  Barring  his  exaggerations  respect- 
ing the  Falls  of  Niagara,  his  local  descriptions,  and  even  his 
estimates  of  distance,  are  generally  accurate.  He  constantly, 
it  is  true,  magnifies  his  own  acts,  and  thrusts  himself  for- 
ward as  one  of  the  chiefs  of  an  enterprise,  to  the  costs  of 
which  he  had  contributed  nothing,  and  to  which  he  was  merely 
an  appendage ; and  yet,  till  he  reaches  the  Mississippi,  there 
can  be  no  doubt  that  in  the  main  he  tells  the  truth. 

3216  As  for  his  ascent  of  that  river  to  the  country  of  the  Sioux, 
the  general  statement  is  fully  confirmed  by  LaSalle,  Tonty, 
and  other  contemporary  writers.  For  the  details  of  the 
journey,  we  must  rest  on  Hennepin  alone,  whose  account  of 
the  country,  and  of  the  peculiar  traits  of  its  Indian  occupants, 
afford,  as  far  as  they  go,  good  evidence  of  truth.  Indeed, 
this  part  of  his  narrative  could  only  have  been  written  by 
one  well  versed  in  the  savage  life  of  this  northwestern  re- 
gion. Trusting,  then,  to  his  own  guidance  in  the  absence  of 
better,  let  us  follow  in  the  wake  of  his  adventurous  canoe.” 

Counsel  for  complainant  asks  that  the  footnote  of  that  passage 
also  go  in. 

The  Court.  All  right. 

Counsel  for  Defendant.  After  I get  through  you  can  read 
it. 


3218  Counsel  for  defendant  calls  attention  of  witness  to  chapter 
entitled  “Father  Louis  Hennepin,”  in  volume  4 of  Winsor’s 


993 


Narrative  and  Critical  History  of  America  in  which  it  was  said 
that  it  was  the  general  belief  that  Hennepin  had  committed  a fraud ; 
that  Bancroft  called  Hennepin’s  Journal  a lie;  that  Brodhead 
called  it  an  audacious  falsehood,  and  that  Parkman  deems  it  a 
fabrication,  and  has  critically  examined  Hennepin’s  inconsist- 
encies and  that  Gravier  classes  his  narrative  with  Gulliver’s. 
Counsel  asked  witness  to  look  at  that  portion  of  the  chapter 
and  state  whether  or  not  he  does  not  understand  that  to  refer 
entirely  to  Hennepin’s  work  of  1697. 

A.  The  text  shows  that  it  refers  to  the  Nouvelle  de  Couverte, 
published  in  1697,  everything  goes  along  under  that  heading,  bib- 
liographical reference. 

It  refers  to — that  is  the  same  book,  the  new  discovery  refers 
to  that  same  book  of  Thwaite’s  edition.  It  does  not  refer  to  the 
edition  of  1681  of  Hennepin’s  works;  it  says  plainly  here  1697, 
at  Utrecht. 

It  is  true  that  Mr.  Shea  re-examined  the  whoe  matter  of  Henne- 
pin’s truthfulness  after  these  gentlemen  had  passed  their  opin- 
ions upon  them  and  came  to  another  conclusion. 

3219  Counsel  for  Defendant.  I hand  you  a statement  you 
read  from  Shea.  Bead  it. 

The  Witness  : 

‘‘Dr.  Shea’s  later  views,  as  expressed  in  his  English  trans- 
lation of  the  Description  Louisiane  (1683)  is  that  Hennepin’s 
manuscript  or  revamped  copy  of  his  earlier  books  as  pre- 
pared for  the  printer  by  himself,  was  subjected  to  the  man- 
ipulations of  an  ignorant  and  treacherous  editor  who  made 
these  insertions  to  produce  a more  salable  book,  and  that 
Hennepin  was  not  responsible  for  it  in  the  form  in  which 
it  appeared.  Shea’s  arguments  to  prove  this  opposite  of 
the  generally  received  opinion,  are  based  on  inherent  evidence 
in  the  insertions  that  Hennepin  could  not  have  written  them, 
and  on  the  material  evidences  of  these  questionable  portions 
of  the  book  having  been  printed,  at  a later  time  than  the 
rest  of  it  and  in  different  type.  The  only  re  joiner  yet  made 
to  this  exculpation  is  by  E.  D.  Neill  in  a tract  on  the  writings 
of  Louis  Hennepin,  read  before  the  Minnesota  Historical 
Society,  in  November,  1880,  in  which  the  conclusion  is  reached 
that  nothing  has  been  discovered  to  change  the  verdict  of  two 
centuries,  that  Louis  Hennepin,  Eecollet  Franciscan,  was  de- 
ficient in  Christian  manhood.” 

The  passage  read  from  is  on  page  254. 


994 


I understand  that  Dr.  Shea’s  final  conclusions  of  1880  are  ac- 
cepted by  historians  at  the  present  time  so  far  as  Dr.  Shea  has 
rank  as  a prominent  historian,  and  in  that  line  he  is  considered 
very  high  authority.  I take  it  that  all  the  criticisms  that  have 
been  quoted  to  me  this  morning  referred  to  the  edition  of  1697. 

3222  Eobert  Moore, 

witness  called  by  defendant,  testifies: 

Am  approximately  70  years  old.  Eeside  at  St.  Louis.  Am 
civil  engineer.  I have  been  the  largest  part  of  my  professional 
career  employed  in  the  location  and  construction  of  railroads, — 
with  lines  that  have  been  merged  Into  larger  lines  or  systems. 
Witness  mentions  several  railroads  that  he  assisted  in  building 
and  says,  I have  also  constructed  a terminal  system  in  St.  Louis 
for  the  Merchants  Bridge  Terminal.  Have  had  much  to 

3223  do  with  the  construction  of  the  Southern  Illinois,  part  of 
the  Southern  Illinois  and  of  the  Southern  Missouri.  I have 

practiced  my  profession  about  45  years.  I have  served  as  con- 
sulting engineer  for  (witness  mentioned  several  railroads).  I 
am  now  consulting  engineer  for  Chicago,  Burlington  & 

3224  Quincy  Eailroad.  My  work  as  a civil  engineer  has  brought 
me  into  the  work  of  river  terminals,  their  location,  construc- 
tion and  protection;  protection  from  the  action  of  the  water, 
from  the  floods  and  the  erosion  by  the  currents.  This  includes 

protection  from  the  Mississippi  Kiver.  I have  built  river  ter- 

3225  minals  in  the  Mississippi  Kiver  at  St.  Louis  and  fifty  miles 
below,  at  St.  Genevieve,  two  in  each  place.  I was  sewer 

commissioner  for  four  years  and  as  such  w^as  a member  of  the 
Board  of  Public  Improvements.  I was  a member  of  the  Board  of 
Engineers  appointed  by  the  President  to  pass  upon  the  plans 
and  the  value  of  the  work  at  the  mouth  of  the  Brazos  Kiver, 
and  the  value  to  the  Government.  The  year  1897.  That  work 
consisted  of  jetties  built  out  into  the  river  to  deepen  the  chan- 
nel and  to  resist  the  action  of  the  waves.  It  is  on  the  Texas 
coast  about  forty  miles  west  of  Galveston.  Those  works  are 
very  extensive  and  1 am  not  sure  whether  they  are  in  exist- 

3226  ence  now  or  not.  In  1899  I served  as  a member  of  an  engi- 
neering board  whose  task  was  to  pre])are  a plan  and  an  esti- 


995 


mate  for  a deep  water  channel  in  the  southwest  pass  of  the 
Mississippi  River.  The  Eads  jetties  is  the  south  pass.  The 
southwest  pass  is  now  the  greater  channel.  The  plans  and 

3227  estimates  were  substantially  carried  out  with  some  changes.  I 
was  occupied  about  a year  in  that  work.  My  recollection  is 

that  our  estimate  was  about  six  million  of  dollars.  In  1896  I 
appeared  before  the  Southern  California  Harbor  Board,  to  pre- 
sent the  case  for  the  San  Pedro  harbor;  that  was  followed  by  a 
report  of  the  board  in  favor  of  San  Pedro,  which  was  ratified 
by  Congress.  I have  had  occasion  to  consult  flood  conditions  in 
locating  the  river  terminals  in  the  Mississippi  and  in ‘locating 
railroad  crossings;  at  every  river  you  must  consider  the  flood 
condition. 

3228  In  the  year  1904  or  1905  I was  appointed  on  behalf  of  the 
owners  of  bridges  over  the  Kaw  River  in  Kansas  City,  imme- 
diately after  the  flood  of  1904,  a body  consisting  of  some  seven  or 
eight  railroads,  and  the  Union  Stock  Company,  which  had  a bridge 
over  the  river,  to  report  upon  the  practicability  of  regulating  floods 
of  the  Kaw  River.  After  a very  exhaustive  study  of  the  subject,  1 
did -report  a plan  with  an  estimate.  I think  the  work  was  not  car- 
ried out  for  the  reason  that  a local  board  intervened  which  has 
tangled  it  up  so  that  I think  nothing  has  been  done.  It  included  all 
the  owners  of  bridges  over  the  Kaw  except  the  city  and  county. 
Beginning  with  the  year  1899,  I have,  every  year,  periodically  in- 
spected all  over  the  river  crossings  of  the  Burlington  system,  of 
the  Mississippi  and  Missouri  Rivers.  On  the  Missouri,  near  the 
mouth,  is  a crossing  known  as  the  Bellefontaine  crossing;  the  next 
one  is  the  Kansas  City  crossing,  above  that  is  the  Roulo  crossing; 

next  above  that  is  the  Nebraska  City  and  next  is  the  Platte 

3229  crossing  which  is  the  last  one  owned  by  the  Burlington.  I 
e have  also  less  critically  examined  the  Atchison  crossing  and 
the  Leavenworth  crossing  over  which  they  run  trains.  On  the 
Mississippi  River  crossings,  there  is  the  Quincy,  the  Burlington. 
Rock  Island,  and  Winona.  My  examination  of  these  bridges  was 
with  reference  particularly  to  the  maintenance  and  condition  of 
the  superstructure  and  the  substructure  of  the  bridge  itself,  but  the 
point  requiring  chief  attention  has  been  the  river  protection  work, 
work  designed  for  the  protection  of  the  bridge  and  the  railroad 


996 


Moore, — Direct  Exam— Continued. 


from  erosion  and  destruction  by  the  Missouri,  mainly  the  Mis- 

3230  souri,  because  that  is  an  especially  unruly  stream.  My  work 
has  informed  me  as  to  the  effect  of  rivers  and  the  wash  of 

rivers  upon  earth  and  banks  of  rivers.  AYhen  I spoke  of  river  ter- 
minals that  included  river  inclines,  that  is  at  St.  Louis  and  St. 
Genevieve.  I have  been  vice  president  of  our  local  engineers  club 
at  St.  Louis ; I have  been  president  of  the  American  Society 

3231  of  Civil  Engineers.  Am  a member  of  the  Institution  of  Civil 
Engineers  of  London.  I have  had  occasion  to  study  the  ef- 
fect of  rivers  or  pools  upon  earthen,  artificial  embankments.  My 
father  was  an  engineer  and  builder  of  canals  and  my  earliest  recol- 
lections are  hearing  his  discussions,  so  I was  brought  up  in  an 
atmosphere  of  canal  engineering.  My  father  had  to  do  with  the 

White  Water  Canal  in  Indiana,  built  in  the  early  40 ’s.  My 

3232  father’s  father  I knew  very  well.  In  his  early  life  he  was  an 
engineer  on  the  Erie  Canal  and  then  on  the  North  Branch  of 

the  Canal  of  the  Susquehanna,  canals  of  Western  Pennsylvania, 
particularly  the  canal  from  Beaver  to  Erie.  I think  he  located  and 
partly  built  the  West  Pennsylvania  Canal.  I visited  the  Des- 
plaines  Eiver  at  Dresden  Heights  at  the  proposed  dam  of  the 
Economy  Light  & Power  Company  yesterday.  I examined  the 
tow-path  bank  at  that  point — I mean  at  the'  point  indicated  on  the 
map  shown.  The  character  -of  the  material  is  granulated  clay 
or  clay  interspersed  with  gravel,  with  somewhat  large  stones.  I 
class  that  as  very  desirable  material  for  the  construction  of 

3234  a bank  of  that  character.  Assuming  that  the  dam  will  raise 
a pool  which  will  flow  on  the  tow-path  bank,  on  the  river 

side,  to  a point  seven  feet  below  the  original  level  of  the  tow-path, 
before  this  two  foot  addition  had  been  made,  in  my  judgment,  I 
should  not  expect  any  injurious  effects.  If  there  was  a very  large 
pool  unprotected  there  might  be  an  injurious  effect,  due  to  waves. 
It  could  be  avoided  by  covering  the  banks  with  riprap.  Biprap- 
ping  is  not  a very  expensive  operation.  The  necessary  protection 
there  could  be  accomplished  at  a moderate  expense.  I think  there 
is  no  engineering  difficulty  in  protecting  that  bank  against 

3235  any  such  wave  action.  Not  all  of  it  would  have  to  be  rip- 
rapped.  I went  up  to  Channahon.  Following  the  tow-path 

bank  at  a number  of  points,  the  bank  is  very  shallow  and  would 


997 


require  no  protection  at  all.  At  other  points  it  is  at  present  very 
well  protected  against  the  action  of  the  waves  by  dense  under- 
growth of  trees  and  brushes.  Eoughly  speaking,  I should  say  half 
of  it  is  protected  in  that  way.  I have  seen  the  plans  of  this 
proposed  work.  I do  not  know  what  the  estimated  cost 
3238  of  building  the  dam  is.  I would  not  undertake  to  estimate 
that.  I have  not  measured  the  height  or  length  so  I could 
only  give  the  unit  cost  approximately,  that  is  the  cost  per  foot, 
assuming  a certain  height  of  the  bank.  I estimate  the  cost  of  rip- 
rapping the  banks  12  feet  in  vertical  height,* it  would  be  meas- 
ured on  the  slope  27  feet,  $3  per  running  foot  of  the  embankment ; 
that  is  measuring  a foot  along  the  embankment,  which  for  a mile 
would  be  $15,840  per  mile.  I expect  that  that  cost  would  cover  a 
very  large  part  of  the  banks,  a good  deal  of  it  is  less  than  12  feet 
and  some  of  it  is  more  than  12  feet  high.  If  16  feet  in  height  it 
would  be  36  feet  on  the  slope,  that  would  be  $4  per  lineal  foot,  or 
$21,120  in  the  mile.  I should  say  that  the  latter  figure  was  an  out- 
side figure.  This  rip-rapping,  carefully  placed  twelve  inches  thick 
to  the  top  of  the  bank.  I feel  confident  that  would  be  sufficient  to 
protect  the  bank.  I think  there  would  not  be  danger  of  injury  to 
the  bank,  assuming  that  the  level  of  the  pool  is  about  seven  feet 
below  the  original  level,  from  saturation  of  the  bank.  I ex- 

3240  amined  the  tow-path  bank  in  this  sense.  I saw  soundings 
made  by  one  of  our  party  as  to  the  depth  of  the  water,  out 

toward  the  center  of  the  canal  and  at  another  point  I actually 
sounded  myself  from  a skiff,  and  I found  that  for  several  feet  out 
from  the  water’s  edge,  it  was  approximately  level  and  then  broke 
off  with  quite  a steep  slope.  First  of  all  the  earth  embankment 
on  the  canal  side  has  been  somewhat  wave  worn  and  it  is  very 
nearly  vertical  toward  the  water’s  edge.  Beneath  the  water  there 
was  a depth  yesterday  of  12  to  18  inches  for  three  or  four 

3241  feet  from  the  water’s  edge  toward  the  center  of  the  canal. 
At  that  point  it  breaks  oft  at  a very  much  steeper  slope,  I 

should  say  45  degrees.  There  is  a bench  there  three  or  four  feet 
in  width.  (Witness  shown  map  marked  for  identification  as 
Woermann  Ex.  I,  Atlas,  p.  3958;  Trans.,  6630;  Abst.,  p.  1934.) 
Near  the  location  of  the  power  house  some  new  stones 
have  been  piled  on  the  water  edge.  I cannot  state  from  personal 


998 


Moore, — Direct  Exam. — Continued. 


knowledge  whether  that  stone  goes  beyond  the  bench  into  the 
canal  or  not.  From  my  observation  there  I do  not  think  five  feet 
of  the  navigable  channel  of  the  canal  has  been  filled  up  by  that 
rock.  I donh  think  it  would  make  any  differnce  in  regard  to  dan- 
ger to  this  tow-path  bank  with  such  a pool  on  the  river  side  from 
vermin,  muskrats,  crawfish,  etc.,  than  there  would  be  without  the 
pool. 

3243  I observed  the  old  piers  standing  in  the  middle  of  the 
river  above  the  dam.  I went  out  to  the  water’s  edge  and  saw 

them.  They  were  said  to  be  piers  of  an  old  aqueduct  feeder.  I 
would  not  undertake  to  restore  the  aqueduct  box  On  top  of 

3244  those  piers  in  their  present  condition.  They  are  badly  dis- 
integrated. I do  not  think  I would  carry  the  water  by  an 

aqueduct  of  such  nature  as  used  to  be  carried  upon  those  piers. 
I should  think  it  would  be  better  to  carry  it  by  what  is  known 

3245  as  an  inverted  siphon  by  iron  or  concrete  pipes.  It  is  simply 

pipes  that  join  together  so  the  water  will  not  come  out  of 

them,  which  are  laid  on  or  below  the  bed  of  the  stream,  and  then 

brought  up  to  the  desired  level  on  each  side;  simply  a downward 
bend  in  a closed  iron  pipe.  The  existence  of  the  proposed  dam 
would  not  be  an  obstacle  to  carrying  the  water  by  such  an  in- 
verted siphon.  As  I understand  the  conditions  the  existence 

3246  of  the  pool  created  by  the  dam  would  present  no  obstacle 

to  boats  in  being  taken  into  the  Illinois  and  Michigan  Canal 

from  this  feeder.  You  could  provide  locks  which  would  let  you  in 
from  either  side. 

Q.  I show  you  a blue  print  or  a profile  of  the  Illinois  Eiver  and 
of  the  Illinois  and  Michigan  Canal,  marked  Woerman  Exhibit  2. 
State  whether  or  not  in  your  opinion  Desplaines  Eiver  as  shown 
by  that  profile,  was  a navigable  stream.  A.  I have  examined  the 
profile.  It  shows  at  one  point,  through  the  City  of  Joliet,  a water 
surface  which  is  approximately  from  six  inches  to  eighteen  inches 
above  the  bottom,  that  bottom  being  largely  rock,  as  I understand 
from  my  observation  yesterday.  I should  say  a condition  of  that 
kind  was  inconsistent  with  navigation  in  a commercial  sense.  At 
a point  further  down,  it  is  also  a much  steeper  slope,  which  at  one 
point,  wdiere  the  surface  of  the  water  almost  touches  the  bottom, 
certainly  less  than  a foot  deep,  on  which  I should  say  the  same 


999 


thing.  That  is  a very  steep  slope  and  a very  shallow  channel , 
somewhat  deeper  until  we  reach  a point  near  the  mouth  of  the 
Kankakee,  where  it  is  an  old  dam  where  the  depth  is  approximately 
zero — I suppose  on  the  dam — but  very  shallow,  even  without  the 
dam.  It  would  be  very  near  the  proposed  Economy  Dam.  I think 
it  is  a short  distance  above  it,  near  the  mouth  of  Desplaines 
8248  River.  I should  not  call  the  river  navigable  at  that  point. 
Yesterday  I went  from  Joliet  to  the  mouth  of  the  river.  Our 
route  was  rather  circuitous  and  not  along  .the  river.  I saw 

3249  it  in  Joliet  from  the  Rock  Island  bridge.  I should  say  that  on 
yesterday  I didn’t  conceive  of  any  commercial  navigation 

that  would  undertake  it. 

C ross-Examination . 

3250  I will  be  70  years  old  my  next  birthday.  Commenced  en- 
gineering when  about  25.  The  principal  work  was  in  railroad 

engineering.  Was  chief  engineer  for  Merchants  Bridge  Terminal 
Railway,  St.  Louis,  on  both  sides  of  river.  There  is  a steel  trestle 
for  cars.  The  work  was  substantially  laying  several  railroad 
tracks  that  center  at  the  end  of  the  bridge.  No  hydraulic  features 
were  there.  I was  consulting  engineer  for  two  terms  for  the  Ter- 
minal Railroad  Association  of  St.  Louis,  which  owns  the  Eads 
bridge.  The  work  there  was  similar  to  that  just  mentioned.  I was 
identified  with  the  Cleveland,  Loraine  k Wheeling  before  it  was 
merged  as  part  of  the  B.  & 0.  We  crossed  the  Tuscoras  River  in 
one  place,  put  a dam  across  it  and  diverted  it  into  a new  channel. 
I was  identified  with  a branch  of  the  B.  & 0.,  running  southeast  from 
Springfield.  Except  as  incident  to  the  crossing  of  streams,  there 
was  nothing  exceptional  there. 

3253  Was  identified  with  the  Illinois  Central  from  St.  Louis  to 
Springfield.  There  was  nothing  about  that  different  from  or- 
dinary railroad  engineering.  In  Southern  Missouri  we  had 

3254  direct  contact  with  the  Kaskaskia  and  Mississippi  Rivers. 
We  crossed  the  Kaskaskia  but  ferried  across  the  Mississippi. 

Locating  a ferry  at  right  angle  is  a matter  of  difficulty.  The  river 
terminals  mentioned  are  perhaps  called  car  ferries,  two  of  them 
were  for  the  crossing  of  the  Southern  Missouri  the  other  was  a 
terminal  built  for  the  Illinois  Central  and  one  which  had  failed  for 
the  Vandalia. 


1000 


M oore, — Cro  ss-Exam . — C o n timi  ed. 


8255  Q.  Let  me  summarize:  Was  there  anything  in  any  of  those 
matters  other  than  the  ordinary  railroad  building  and  the 
connecting  of  a railroad  track  with  a ferry!  A.  Well,  the  building 
of  an  incline,  which  shall  be  successful,  involves  a consideration  of 
the  regimen  of  the  river  and  your  ability  to  protect  it  after  you 
have  built  it.  The  one  which  I rebuilt  for  the  Yandalia,  had  failed 
because  of  the  faulty  location  and  had  been  considerable  source  of 
trouble  and  expense  for  many  years.  I was  consulted  in  the  mat- 
ter. I relocated  it,  and  rebuilt  it,  and  it  was  practically  success- 
ful. 

3256  A delicate  proposition  is  locating  and  building  it  prop- 
erly and  protecting  it  against  the  action  of  floods  and  ice. 

I was  sewer  commissioner  in  St.  Louis  four  years;  that  had  to 
do  simply  with  the  sewer  system,  to  get  rid  of  the  sewage  of  the 
city  but  there  were  some  serious  problems  in  connection  with  it. 
We  put  in  all  kinds  of  sewers,  one  very  large  brick  and  stone  one, 
20  feet  high.  I did  not  make  the  original  design.  The  con- 

3257  struction  had  begun  before  my  administration.  I extended 
it  and  I had  occasion  to  note  some  defects  in  its  original  de- 
sign. I suggested  changes  and  they  were  adopted,  although  at  my 
resignation.  That  sewer  was  constructed  more  than  30  years  ago. 
It  broke  out  in  high  floods  at  one  time ; I do  not  mean  to  say  it  went 
out  of  service.  There  were  two  breaks  in  it,  before  I took  charge 

of  it.  It  was  afterwards  repaired  and  is  in  use  to-day. 

3258  A private  syndicate  of  gentlemen  living  in  Chicago  at- 
tempted to  build  the  harbor  on  the  Brazos  River  in  Texas, 

40  miles  west  of  Galveston.  There  were  walls,  mattresses  and  stone 
called  jetties,  which  were  built  mainly  to  confine  the  waters  of  the 
Brazos  river,  so  that  it  would  scour  out  the  mud  and  maintain  a 
navigable  channel.  There  were  jetties  similar  to  those  built  by 
Eads  at  the  south  pass  of  the  Mississippi.  The  work  was  to  con- 
trol the  current  of  the  Brazos  River  so  that  it  would  scour  a deep 
channel,  to  secure  deep  water. 

Q.  Is  it  not  the  truth  that  the  sand  or  silt  coming  down  the  river, 
deposited  itself  just  outside  the  mouth  of  the  river  in  the  gulf 
and  formed  a bank  that  the  boats  couldn’t  get  over,  and  wasn’t 
the  problem  to  build  some  stone  walls  so  as  not  only  to  cause  the 


1001 


airrent  of  the  river  to  wash  hut  to  have  the  currents  of  the  ocean 
catch  all  sand  and  carry  it  away,  so  it  would  not  form  again.  A. 
After  the  material  had  been  carried  out  to  the  end  of  the  jetties, 
it  was  hoped  the  ocean  would  do  the  rest.  It  was  not  absolutely 
successful  but  relatively  unsuccessful.  They  didn’t  get  the  depth 
of  water  they  anticipated;  in  that  sense  it  was  unsuccessful. 
The  contemplafed  navigation  at  the  Brazos  Harbor  was  an 
d2b0  ocean  going  commerce.  In  1899  I served  as  a member  of 
engineering  board  made  up  of  two  army  and  two  civil  engin- 
eers, to  make  i)lans  for  the  outlet  of  the  Southwest  Pass  of  the 
Mississippi  Kiver.  I was  one  of  the  civil  engineers.  Pass  a Loutre 
is  a wider  pass  but  the  Southwest  Pass  is  deeper,  except  at  the 
mouth.  It  is  the  best  pass  from  the  point  of  navigation  from 

3261  all  of  them.  There  are  three  passes  at  the  mouth  of  the 
Mississippi  Kiver;  the  one  further  west  is  the  Southwest 

Pass  and  the  one  further  east  Pass  a Loutre  and  the  middle  one. 
South  Pass.  For  the  last  thirty  years  commerce  has  gone  out  of 
the  South  Pass. 

Q.  Isn’t  it  true  that  engineers  have  estimated  that  45  i)er  cent, 
of  the  water  of  the  river  goes  out  of  the  West  Pass,  about  the  same 
amount  out  of  Pass  a Loutre,  and  about  10  per  cent,  out  of  the 
South  Pass!  A.  I don’t  remember  the  figures,  but  I am  quite 
sure  that  is  not  true. 

3262  The  Southwest  Pass  is  deep  water.  The  depth  of  the 
Southwest  Pass,  through  the  greater  part  of  its  length,  is 

from  50  to  60,  sometimes  90  feet,  with  shallows  at  the  upper  end 
and  a bar  at  the  mouth.  That  was  its  normal  condition.  I think 
the  depth  over  the  bar  at  the  upper  part  was  18  feet,  perhaps  20. 

The  problem  we  had  to  do  was  to  find  means  of  deepening  the 
waters  at  these  shallow  places,  to  get  rid  of  the  sand  bank  and 
to  take  it  away.  The  Government  has  taken  that  sand  bank  away, 
cut  a channel  through  it,  and  the  material,  which  was  the  ob- 
struction, has  been  taken  away.  Part  of  it  was  done  by  building 
stone  walls  in  the  ocean  until  the  current  washed  it  out;  the  rest 
was  to  dredge  it.  We  expected  both  agencies  would  be  used,  the 
force  of  the  current,  aided  by  dredging,  and  in  all  probability,  a 
dredge  would  be  necessary  to  be  kept  at  hand,  to  keep  it  open 
hereafter. 


1002 


M 0 0 } 'c, — C rc ss-Exa  m . — C on  tin  u e d . 


Q.  Aren’t  you  mistaken  about  that,  and  isn’t  this  the  truth: 
That  the  object  you  gentlemen  were  called  upon  to  accomplish 
was  to  prevent  the  necessity  for  dredge  boats  and  to  make  a chan- 
nel that  would  wash  itself  and  carry  the  current  until  the  lateral 
current  of  the  Gulf  would  carry  it  away?  A.  That  was 

3264  a consummation  devoutly  to  be  wished,  but  we  didn’t  expect 
it. 

I know  Professor  Haupt  and  know  his  scheme  to  accomplish 
that  purpose,  consisting  of  one  pier  instead  of  two. 

Q.  Wasn’t  it  a problem  that  you  gentlemen  were  called  upon 
to  determine  whether  or  not  Professor  Haupt ’s  scheme  of  one 
wall,  one  jetty  would  till  the  bill,  or  whether  it  would  take  two.  A. 
The  problem  was  simply,  as  I say,  to  prepare  a plan  for  deepen- 
ing the  Southwest  Pass  of  the  Mississippi  Eiver.  Incidentally 
Professor  Haupt ’s  plan  was  considered,  but  it  was  not  considered 
feasible  and  it  was  not  the  plan  which  was  formulated. 

Q.  Your  problem  was  to  build  a stone  wall  into  the  Gulf  of 
Mexico,  out  onto  the  sand  bar,  and  by  the  aid  of  a dredge 

3265  and  the  current  afford  a deep  channel  into  the  ocean.  A. 
That  is  about  it. 

Q.  And  it  consisted  in  carrying  out  cargoes  of  immense  big 
stones,  dumping  them  over  and  forming  a wall  of  them?  A.  Well, 
not  very  large;  they  were  to  be  founded  on  mattresses  and  pro- 
tected by  piling.  Eeally,  I can’t  tell  you  because  I had  nothing 
to  do  with  the  execution  of  the  work,  but  only  on  top  would  they 
use  very  large  stones.  On  the  top  of  such  jetties  it  is  desirable 
to  use  such  stones  as  would  have  to  be  lifted  by  derricks.  It  was 
topped  off  with  stones  four  or  five  feet  square  or  more. 

The  part  we  had  to  do  was  to  help  plan  this  stone  wall.  As 
I understand,  it  is  nearly  finished.  I can’t  speak  advisedly,  but  I 
think  they  have  to  use  a dredge  in  connection  with  the  current. 

The  chairman  of  the  commission  was  Colonel  Eobert,  U.  S. 
Engineer  Corps,  the  other  members  were  Major  George  M.  Derby, 
Major  Starling  and  myself. 

I don’t  know  of  but  one  estimate  to  make  the  roadway  at  and 
deepen  the  Southwest  Pass.  There  was  one  made  a short  time 


1003 


before  the  appointment  of  our  commission,  but  I have  no 

3268  personal  knowledge  of  others.  I was  associated  with  the  es- 
tablishing of  the  harbor  at  San  Pedro.  The  truth  is,  there 

was  a conflict  of  interests,  between  San  Pedro  and  Santa  Monica, 
as  a harbor  for  Los  Angeles.  The  board  was  appointed  under  an 
Act  of  Congress  to  go  and  determine  which  of  the  two  places  would 
make  the  better  harbor.  Approximately,  the  board  consisted  of 
Admiral  Walker,  a member  of  the  coast  survey,  and  I think  three 
civil  engineers;  George  Morrison,  Prof.  Burr  and  Col.  Morgan. 
Los  Angeles  is  about  18  miles  from  the  coast.  These  two  points 
are  about  equal  distance  from  Los  Angeles.  The  Huntington  in- 
terests were  striving  to  establish  Santa  Monica  as  the  harbor, 
and  other  interests  were  trying  to  establish  San  Pedro  as 

3269  the  proper  place.  I represented  the  owners  of  the  Los  An- 
geles Terminal  Railway.  There  were  questions  of  harbor 

engineering  involved,  the  proper  location  of  the  breakwater,  the 
shelter  it  would  afford,  room  for  anchorage,  the  possibility  of  de- 
veloping the  inner  harbor,  which  was  present  at  San  Pedro  and 
not  at  Santa  Monica. 

3270  Q.  Was  not  the  inner  harbor  already  established  at  San 
Pedro  and  appropriations  made  and  work  done,  and  prac- 
tically finished!  A.  In  a small  way,  yes;  but  it  admitted  of  a 
very  large  development.  The  problem  was  the  establishment  of  a 
harbor  refuge,  and  of  commerce,  two  quite  different  things. 

Q.  Taking  the  coast  line  from  Santa  Monica  and  the  angle  inci- 
dent to  the  coast  line  and  comparing  that  with  the  angle  of  in- 
cidence to  the  coast  lines  at  San  Pedro,  wasn’t  that  the  problem 
that  this  board  had  to  decide  and  did  they  not  decide  it  on 

3271  that  proposition!  A.  I should  say  no,  they  decided  it  on 
a number  of  considerations,  the  considerations  being  the  pos- 
sibility of  obtaining  adequate  shelter  at  two  points  for  a harbor 
of  refuge  which  depended  upon  a lot  of  questions  of  topography, 
of  depth  of  water.  The  water  was  deeper  at  Santa  Monica  but 

there  was  no  shelter.  One  feature  was  that  the  San  Pedro 

3272  harbor  had  the  least  exposure.  I think  it  is  true  that  three 
several  boards  prior  to  this  one,  appointed  by  Congress, 

had  each  selected  San  Pedro.  One  feature  was  that  the  space  for 
railroad  tracks  to  get  to  Santa  Monica  was  confined  to  a space  on 


1004  Moore,— Cr'oss-  Exam . — C ontiniied. 

i ecount  of  the  mountains  and  that  the  Southern  Pacific  Eailroad 
controlled  that  and  other  interests  insisted  upon  going  to  San 
Pedro.  Several  hundred  thousand  dollars  had  been  appropriated 
and  expended  in  building  the  inner  harbor  at  San  Pedro  before 
this  commission  was  appointed. 

Q.  The  inner  harbor  at  San  Pedro  was  made  by  a strip  of 
land  at  some  little  distance  from  the  coast  line,  extending  parallel 
with  the  coast  line,  forming  a possibility  of  extending  it  five  or 
six  miles.  A.  It  was  the  coast  line,  that  is,  within  the  inland 
there  was  swampy,  marshy  territory  which  could  be  very  easily 
dredged  and  developed  into  a harbor  of  enormous  extent.  There 
was  a small  river  there  up  which  there  was  navigation.  I did  not 
know  the  depth  of  the  water.  I think  there  was  approximately 
five  feet,  but  it  had  already  been  deepened  to  14.  One  of  the 
important  features  was  to  consider  which  of  the  two  places 
8274  would  afford  the  best  shelter  in  case  of  storm.  To  consti- 
tute a harbor  of  refuge  at  Santa  Monica  it  was  very  difficult 
to  construct  a breakwater  which  would  afford  adequate  portection. 
At  the  time  I speak  of  there  was  one  pier  built  by  the  Southern 
Pacific,  extending  2,000  feet  at  the  end  of  which  they  got  deep 
water.  Near  the  shore  it  was  much  shallower.  It  was  a very 
expensive  pier  and  its  further  development  was  a very  ex- 
3275  pensive  operation.  The  prime  point  in  the  problem  was 
first  to  try  to  obtain  a harbor  that  should  give  adequate 
protection  against  the  wind  and  waves,  which  would  constitute  it 
a safe  harbor  in  rough  weather.  There  was  no  sea  wall  at  Santa 
Monica.  The  building  of  an  adequate  protection  against  the  wind 
and  waves  at  Santa  Monica  was  a ver}^  serious  matter.  That  was 
the  controlling  factor  as  far  as  a harbor  of  refuge  was  concerned. 
The  building  of  such  a breakwater  at  San  Pedro  was  simply  the 
extending  of  an  existing  point  to  make  it  adequate  to  the  future 
needs  of  commerce.  In  the  report  made,  Mr.  Morgan  dissented 
The  engineering  projects  consisted  of  building  suitable  works, 
breakwaters  and  dredging. 

8276  In  connection  with  the  Kaw  River  at  Kansas  City  the 
problem  was  to  provide  proper  protection  against  the  re- 
currence of  such  a flood  as  had  happened  on  the  river  in  1904. 

(J.  Then  your  prime  object  was  to  deepen  the  river  in  some 


1005 


way  so  that  the  flood  water  would  pass  off  rapidly!  A. 

3277  Of  course  the  bridges,  or  rather  the  piers  of  the  bridges  as 
a mere  obstruction  to  the  flow  of  water  were  considered. 

In  most  cases  the  piers  of  the  bridges  were  made  of  rock  or 
cement.  The  Kaw  Elver  runs  in  earth  embankments.  It  was  a 
silt  bank,  where  the  banks  formed  of  silt,  and  required  protec- 
tion, and  part'  of  the  project  was  a recommendation  for  the 

3278  protection  of  the  banks  by  a plan  of  extended  revetment. 
Eevetment  is  a word  meaning  to  clothe  the  banks,  protecting 

it  against  the  action  of  the  waves.  It  has  already  been  revetted 
and  protection  work  put  in,  but  of  a very  bad  sort,  most  of  which  I 
recommended  removed.  Eiprapping  is  one  method  of  revetment. 
There  was  an  artificial  embankment  made  by  dumping  the  refuse 
from  the  stock  yards.  It  was  an  embankment  which  did  not 

3279  need  protection,  the  others  did.  There  were  no  other  arti- 
ficial embankments,  nothing  except  the  natural  banks  of  the 

river.  I recommended  revetment.  _ There  had  been  a good  deal 
done  in  the  way  of  protection  work  including  some  spur  dikes. 
Spur  dikes  is  a kind  of  stone  built  out  from  the  banks  of  the  river 
projecting  into  the  river  at  right  angles,  usually  to  the  banks  of  the 
river.  I believe  in  the  upper  river  they  are  called  wing  dams. 

3280  The  point  where  they  are  used  for  the  purposes  of  naviga- 
tion is  to  contract  the  channel.  They  are  also  sometimes  used 

as  a means  of  bank  protection.  If  they  are  built  very  close  to- 
gether they  have  the  effect  of  creating  a new  bank,  but  in  the 
case  of  the  Kaw  Elver  it  was  clear  that  they  were  sources  of  ob- 
struction and  damage  and  of  no  value  whatever,  and  I recom- 
mended the  removal  of  all  of  them.  The  prime  object  was  to 
provide  a more  efficient  channel  for  the  carriage  of  flood  waters 
and  incidentally  to  close  the  banks  so  as  to  prevent  damage  to 
adjacent  industries. 

3281  Q.  If  you  build  a spur  dike  or  a wing  dam  from  the  shore 
into  the  river,  the  effect  of  that  is  to  immediately  narrow 

the  channel,  then  why  would  you  build  a spur  dam  to  cause  a big- 
ger and  better  channel!  A.  There  was  not  room  enough.  The 
spur  dike  occupied  the  space  needed  for  water.  My  recommenda- 
tion was  to  take  them  all  down. 

Q.  You  have  examined  railroad  bridges  that  cross  the  Missis- 


1006 


Moore, — Cross-Exam. — Continued. 


sippi  and  Missouri  Eivers!  A.  Yes,  sir.  With  a view  of  pro- 
tecting the  channel  in  part  so  that  it  shall  always  go  under  the 
bridges ; also  that  it  shall  not  flank  the  bridge  and  cut  the  railroad 
in  two. 

All  the  usual  devices  for  protecting  the  banks  of  the  river  are 
used. 

3283  Q.  If  your  work  in  the  examination  of  these  bridges  cross- 
ing these  two  rivers  was  not  to  protect  the  piers  next  to  the 

land  at  each  end  of  the  bridge  from  being  surrounded  by  water 
and  destroying  the  bridge?  A.  That  was  one  part  of  it.  The 
railroads  had  to  take  care  of  the  river  bank  for  long  distances  up 
the  river  in  order  to  protect  the  railroad,  sometimes  for  miles  or 
more  away  from  the  site  of  the  bridge.  One  instance  is  at 

3284  Rolo,  that  is  a crossing  of  the  Missouri  River,  thirty  or  forty 
miles  south  of  St.  Joe,  on  the  Burlington  Railroad.  There 

is  no  trestle  work  but  an  embankment.  It  has  been  filled  in  for 
years,  existing  as  a solid  bank.  In  that  case  it  has  been  neces- 
sary to  carry  the  revetment  back  three  miles  up  the  river. 

Another  point  is  Nebraska  City.  The  problem  is  somewhat  dif- 
ficult, but  the  general  feature  is  very  much  the  same.  There 
is  no  trestle  work  there  excepting  over  the  old  channel  some 
distance  east  of  the  present  river.  Mr.  George  S.  Morrison 

3285  built  the  bridges  at  the  points  mentioned  years  ago. 

Plattsmouth  is  another  instance  of  the  same  kind.  That 
is  the  crossing  of  the  Missouri  River  by  one  of  the  Burlington 
lines.  In  that  case  that  would  be  necessary  to  extend  the  revet- 
ment for  a long  distance  up  the  river.  Mr.  Morrison  designed 
that  bridge  work  originally  and  built  the  bridge,  but  the  work  of 
revetment  building  is  a continuous  work;  must  be  continually 
renewed  and  extended,  because  the  river  is  constantly  threatening 
to  get  in  behind  at  the  upper  end.  The  Government  has  done  in 
some  cases  a good  deal  of  it.  I donT  know  that  they  have 

3286  done  any  of  it  at  Plattsmouth.  I am  not  familiar  with  its 
past  history  throughout,  but  as  I understand  it,  all  the  ex- 
isting revetment  at  Plattsmouth  has  been  built  by  the  Burlington 
Road. 

Q.  There  are  none  of  these  matters  that  you  have  mentioned, 
either  that  I have  asked  you  about,  or  that  I have  not  asked  you 


1007 


about  that  you  participated  in  had  a river  on  one  side  of  the 
bank  and  a canal  on  the  other,  with  a bank  relatively  a few  feet 
between  them,  did  they!  A.  No,  sir;  exactly  that  situation  was 
not  presented. 

‘‘Woerman  Exhibit  3’’  presented  and  marked  for  identification. 

R e - di  re  ct  Ex  a m in  at  ion. 

Q.  Have  you  made  an  examination  of  the  map  (Woer- 
3288  man  Exhibit  3)  since  you  were  on  the  stand  last  night!  A. 

Yes,  sir.  That  is  what  is  known  as  a contour  map  of  a part 
of  the  canal  and  Hesplaines  Eiver  extending  from  the  mouth  of 
the  Kankakee  River,  several  miles  up  stream. 

All  the  lines  showing  elevations  are  drawn  out  showing  dif- 
ferences of  level  of  one  foot.  They  show  the  level  of  the  tow- 
path  bank,  the  level  of  the  base,  and  the  level  of  the  intervening 
space.  I have  examined  the  plat  with  reference  to  ascertaining 
the  elevation  of  the  tow-path  bank  for  the  portion  of  the  canal 
shown  upon  the  map,  and  from  that  examination  figured  out  the 
cost  of  riprapping  that  bank  in  such  a manner  as  to  protect  the 
bank  when  the  pool  shall  have  been  raised.  I got  the  elevation 
of  the  base  of  the  embankment  at  intervals  of  500  feet  along  the 
line  of  the  canal  from  the  mouth  of  the  river  to  the  road  extend- 
ing at  Channahon,  a distance  of  20,000  feet.  The  base  of  the 
embankment,  of  course,  the  top  level  of  the  canal  is  an  estimate 
as  an  elevation  of  86  on  the  datum  plane  used  upon  this  map. 
3290  The  top  of  the  bank  I estimate  as  86  level,  of  course,  at  it 
goes,  it  is  a level  work.  Then,  the  difference  between  the 
elevation  of  86,  and  the  series  of  elevations  of  the  toe  of  the 
embankment,  give  the  ditference,  and  that  is  the  slope  of  the  bank 
to  be  protected.  From  those  data  I made  an  estimate  on  two 
suppositions,  the  first  of  which,  that  certain  parts  of  the  bank 
which  are  rather,  their  insufficiency  is  greatest,  and  where  there  is 
no  protection  from  the  vegetation,  the  trees,  the  underbrush,  only 
should  be  protected  a stretch  of  2,000  feet  from  the  mouth  of 
the  river,  and  another  stretch  of  3,500  feet  at  the  point  6,000  feet 
above,  and  extending  3,500  feet.  The  cost  of  riprapping  that 
figured  out  $22,400.  That  is  the  part  which  I should  say,  prac- 
tically the  only  part  now,  where  revetment  was  essential;  but  I 


1008  Moore, — Re-direct  Exam. — (Jontimied. 

also  made  another  estimate  upon  the  supposition  that  the  whole 
embankment  was  revetted  for  the  entire  20,000,  which  figured 
$50,000  in  round  numbers;  that  is,  20,000  feet  or  3 8/10  miles. 
The  revetment  extends  to  the  top  of  the  bank.  The  top  of  the 
bank  would  vary  at  various  places  in  this  20,000  feet;  it  varies 
from  nothing  to  20  feet  vertical. 

Re-cross  Examination. 

3293  Q.  If  a dam  is  constructed  at  the  proposed  site  it  will 
flood  the  tow-path  bank  on  the  river  side,  will  it  not?  A.  It 

will  flow  along  the  base  of  the  bank  and  cover  the  base  of  the  bank 
for  a considerable  part  of  the  way,  and  for  another  considerable 
part  of  the  way  it  won’t  flow  against  the  base  of  the  bank. 

3294  The  base  of  the  bank  is  where  it  joins  with  the  natural  sur- 
face of  the  ground.  I do  not  recall  how  high  up  along  this 

tow-path  bank  it  will  be  flooded. 

I understand  that  the  ordinary  level  of  the  pool  of  the  dam 
will  be  seven  feet  below  the  present  elevation  of  the  top  of  the 
tow-path.  The  top  of  the  tow-path  is  now  supposed  to  be  in  its 
present  condition,  84  as  I understand  it. 

Q.  I want  to  know  how  much  it  is  up  and  down  in  feet,  how 
high  will  that  bank  be  flowed  up  and  down  from  the  top 

3295  where  the  water  would  be  alongside  of  that  bank?  A.  Thai 
depends  upon  where  it  is.  That  elevation  of  the  water  is 

7 from  84,  is  77,  as  the  normal  stage  of  the  water  in  the  pool  of 
the  dam.  Now,  the  base  of  the  embankment,  or  the  base  of  the 
natural  surface  of  the  ground,  rather,  at  the  base  of  the  bank 
varies  from  66 — that  is  the  least  I find,  66,  70,  74,  up  to  84 — in 
other  words,  the  height  of  the  bank  varies  from  zero  to  15  or 
20  feet.  It  is  zero  where  the  surface  of  the  ground  is  86. 

3296  In  estimating  these  costs  I took  into  account  simply  the 
cost  of  riprapping.  The  cost  of  widening  this  tow-path 

l)ank  nor  for  raising  it  is  not  taken  into  account,  just  riprapping 
on  the  outside.  I did  not  get  any  information  as  to  where  this 
stone  was  to  come  from  except  that  it  comes  by  boat.  I was 
told  by  the  contractors  what  the  cost  of  getting  it  was  and  based 
my  figuring  on  that.  The  thickness  of  the  riprapping  was  12 

3297  inches.  Riprapping  is  not  solid  masonry;  water  will  soak 
tlirougli  it.  I do  not  understand  that  an  embankment  of 


1009 


day  is  saturated  with  water.  The  understanding  is  tliat  it  is  im- 
permeable. 

Q.  If  you  dig  a trench  three  feet  wide  and  six  or  eight  feet 
deep  in  blue  clay  and  build  a cement  wall  a foot  thick  on  that,  and 
a superstructure  above  it  and  leave  the  sides  of  your  wall  so  that 
the  water  gets  in  there  by  the  side  of  your  cement  wall,  will  it 
not  saturate  through  the  blue  clay,  go  underneath  your  wall  and 
be  very  liable  to  cause  your  wall  to  slip  and  fall  I A.  I 

3298  should  say  no.  I would  say  this : A very  usual  method  of  pro- 
tecting a reservoir  embankment  against  the  action  of  water 

permeating  the  embankment  and  destroying  it  is  to  build  what 
is  known  as  a puddle  wall  or  core,  in  the  center  of  it.  The  puddle 
wall  is  built  of  clay  for  the  purpose  of  arresting  the  flow  of  the 
water  through  the  embankment.  What  they  put  in  on  the  out- 
side of  the  puddle  wall  depends  on  what  material  is  at  hand.  If 
that  is  clay  it  may  need  no  puddle  wall;  if  it  is  sand  or  other 
material  that  is  easily  permeable  with  water,  that  water  would  be 
arrested  by  the  puddle  wall.  The  puddle  wall  is  not  protected 
with  cement  or  anything  of  that  character.  It  needs  no 

3299  protection.  I found  a bench  or  wave  berm,  as  stated  yes- 
terday, on  the  canal  side  of  this  tow-path  bank  between  three 

and  four  feet  wide.  I did  not  go  much  into  the  history  of  it, 
whether  it  was  a matter  of  original  construction  or  whether  it 
is  the  rsult  of  the  action  of  the  waves  and  the  use  of  the  canal, 
I should  think  very  likely  it  was  the  action  of  the  waves.  If  it 
was  full  up  as  it  originally  was,  I should  think  it  would  be  more 
stable  than  it  was  before.  It  was  a gradual  washing  of  the  dirt 
from  behind  the  wall  which  may  have  let  it  down.  By  behind  the 
wall,  I mean  on  the  canal  side.  There  is  a very  considerable 
wave  motion  due  to  the  motion  of  the  boats.  On  the  other 

3301  side  where  this  pool  will  be  formed  and  where  the  width 
would  be  anywhere  from  600  to  800  feet,  and  where  there 
is  a considerable  current  likewise  coming  down,  the  banks 

3302  will  need  protection.  If  there  was  a navigation  such  as 
could  be  had  on  14  foot  depth  of  water  by  boats  of  that  mag- 
nitude, it  would  emphasize  the  need  of  protection.  The  effect  on 
the  river  side  if  made  up  would  be  to  saturate  the  outside  of  it 
a short  distance  in,  perhaps  a few  inches.  If  it  is  wet  in  3 inches 


1010 


M 0 0 re, — B e-cross  Excidl — Continued. 


I should  say  that  the  stone  will  not  be  liable  to  slip  down  and  fall. 
The  slope  given  was  two  feet  horizontal  to  one  vertical.  I 

3303  did  not  examine  the  specifications  as  to  what  the  slope  would 
be — I saw  none  with  reference  to  the  protection  of  this  bank. 

I saw  a cross  section  showing  the  revetment.  I think  it  was 
Woerman  Exhibit  1.  That  is  the  only  thing  I have  seen,  either 
of  plans  or  specifications  indicating  the  manner  of  protecting  part 
of  this  work.  In  raising  this  tow-path  bank  I understand  it  is 
left  the  same  width  as  before,  simply  raised  up  a little 

3304  higher.  There  was  a wall  of  stone  built  in  the  canal  rest- 
• ing  upon  this  berm  or  bench  I mentioned ; that  would  narrow 

the  water  in  the  canal  probably  two  or  three  feet,  that  was  in  a 
very  shallow  water,  not  navigable  water.  From  my  observation 
it  was  about  18  inches  to  two  feet  above  the  level  of  the 

3305  water.  I saw  it  sounded  where  it  was  about  18  inches; 
that  was  on  the  edge  of  the  canal.  This  stone  embankment  * 

is  on  the  edge,  presumably  on  that  bench.  I did  not  sound  it 
right  at  the  end  of  this  stone  bank.  I don’t  know  how  far  down 
into  the  prism  of  the  canal  this  embankment  went.  - 

I do  not  know  the  price  of  labor  employed  down  around  the 
site  of  this  place.  I do  not  know  what  it  would  cost  in  labor  to 
do  this  riprapping,  because  I have  had  no  occasion  to  work 

3306  in  that  particular  locality.  The  stone  might  be  brought 
from  anywhere  on  the  canal.  I don’t  know  where.  The 

3307  prices  of  riprapping  do  not  vary  very  greatly.  It  is  all 
about  the  same  thing.  You  can  get  stone  all  the  way  from 

fifty  cents  to  one  dollar  a yard,  almost  any  place  in  the  United 
States,  fifty  cents  is  the  minimum.  I used  a higher  price  in  my 
estimate.  I used  three  dollars  a yard  in  places.  By  fifty  cents,  I 
mean  raw  material.  The  difference  between  one  dollar  and  three 
dollars  would  be  for  the  work  and  for  the  transportation. 

3308  Fifty  cents  would  be  a very  low  price  and  a dollar  would  be 
a medium  price.  I put  the  cost  of  riprapping  at  one  dollar 

a square  yard.  That  is  equal  to  three  dollars  a cubic  yard,  which 
I think  is  more  than  it  will  probably  cost.  In  this  estimate  I 
lumped  the  raw  material  and  labor  together;  that  was  predicated 
upon  my  own  experience  as  to  the  probability  and  the  reason- 


1011 


ableness  of  that  price.  I mixed  those  two.  I used  virtually  mv 
own  judgment  of  what  it  ought  to  cost. 

Q.  You  say  you  have  had  some  experience  in  trying  to  hold 
the  Missouri  River  bank?  A.  Yes,  sir. 

The  standard  estimate  for  complete  revetment  of  the 

3309  Missouri  River  bank  which  includes  a mattress  going  out  un- 
derneath the  water  and  the  riprapping  and  the  incidental 

work  of  placing,  is  about  ten  dollars  per  running  foot.  That,  how- 
ever, is  a very  mmcli  more  serious  thing  than  mere  riprapping,  and 
I would  say  that  that  is  a full  and  high  estimate.  My  figures  were 
only  for  riprapping  one  side  of  the  bank  and  I allowed  nothing  for 
any  other  cost  or  expenditure,  save  and  alone  the  riprapping.  I 
would  say  that  the  feeder  wdiere  the  old  piers  were  standing  was 
from  18  to  20  feet  wide  and  probably  4 or  5 feet  deep.  The 
water  can  be  siphoned  from  the  river  up  into  the  canal.  I have 
not  figured  out  the  size  of  the  siphon  it  would  take  to  run  .the 
water  that  would  be  carried  in  the  feeder,  but  it  would  be  entirely 
practicable  to  do.^  The  usual  method  is  laying  cast  iron 

3310  pipes,  which  may  be  probably  48-inch  pipes.  The  pressure 
of  the  water  behind  it  makes  it  go  uphill.  It  is  a very  com- 
mon process.  Water  flows  through  bends  in  the  pipes.  It  is 
simply  governed  by  the  head  of  the  water  at  the  upper  end.  The 
full  term  is  an  inverted  siphon.  The  velocity  through  the  pipe 
would  be  very  much  greater  than  it  was  through  the  feeder.  You 

would  not  need  the  same  cross  section  in  the  pipe  as  in  the 

3312  feeder.  The  velocity  of  the  current  through  the  siphon 
would  depend  upon  the  elevation  of  the  water  above  the 

siphon,  between  the  upper  end  and  the  lower  end.  The  difference 
in  levels  between  the  place  where  it  goes  in  and  where  it  comes 
out. 

3313  Q.  You  said  that  the  velocity  of  water  in  the  siphon  would 
be  very  much  greater  than  it  was  in  the  feeder.  Therefore, 

you  would  not  require  so  big  a pipe  as  there  was  area  in  the 
feeder,  and  I am  asking  you  if  that  is  not  dependent  entirely  upon 
the  elevation  of  the  water  behind  the  siphon?  A.  The  force 
which  produces  motion  through  the  siphon  is  the  difference  of 
level  between  the  water  at  the  entering  end  and  the  end  at  which 
it  goes  out.  In  the  flow  of  water  in  the  channel  that  difference 


1012  Moore, — Re-cross  Exam. — Continued. 

would  be  very  small,  but  by  making  the  difference  of  level  greater 
you  can  produce  any  velocity  you  desire. 

3314  The  Witness.  The  whole  point  is  this,  that  in  a stream  in 
motion,  with  no  water  entering  it  or  leaving  it,  the  amount 

of  water  passing  at  any  cross  section  is  the  same.  If  you  have 
a small  cross  section,  as  you  may,  the  velocity  necessary  to  pass 
that  amount  of  water  is  greater.  In  a broad  cross  section  it 
spreads  out  and  has  a very  slow  velocity,  but  passing  always 
the  same  volume  of  water  per  second.  Now,  in  the  canal,  or 
feeder,  being  a much  wider  canal,  the  velocity  necessary  to  pass 
a given  amount  of  water  would  be  very  much  less  than  it  is  in 
the  narrow  reaches  of  the  same  canal,  or  the  same  feeder,  but 
with  pipes  there  would  be  no  difficulty  in  getting  into  the  feeder 
the  required  amount  of  water.  The  head  necessary  to  produce 
that  is  something  that  is  very  easily  ascertained. 

3315  Q.  There  is  no  data  present  in  your  mind  or  in  fact  that 
enables  you  to  know  that  the  velocity  of  water  in  this  feeder, ^ 
when  it  was  in  operation,  was  the  same  as  the  velocity  of 

3316  water  in  the  canal?  A.  Well,  1 haven’t  any  idea  about 
it.  The  velocity  in  the  feeder  would  never  be  very  much 

more  than  the  canal. 

I should  say  that  as  a rule  the  difference  was  very  small,  and 
that  in  either  case  the  velocity  is  very  low. 

Q.  How  big  a pipe  would  it  take  for  a siphon  to  put  this 

water  across  there,  in  your  judgment?  A.  I can’t  tell  you  with- 

out figuring.  I don’t  think  it  would  be  very  expensive. 

3317  Q.  You  spoke  of  vegetation  along  the  lines  of  this  tow- 

path,  or  between  that  and  the  river,  and  I think  ypu  esti- 

mated roughly  that  half  of  the  distance  was  in  a sense  protected 
by  vegetation  in  one  form  or  another,  is  that  right?  A.  Yes,  sir. 

There  is  some  quite  large  trees,  up  to  12  inches  in  diameter. 

3318  Really  I cannot  give  you  the  estimate  in  figures.  I saw 
quite  a number  of  them.  From  Channahon  down  to  this 

site  of  this  dam,  I went  down  on  the  tow-path  bank.  There  are 
trees  on  the  slope  of  the  bank  itself,  in  some  cases  a foot  through. 
I saw  one  stump  on  the  edge  of  the  bank  that  was  pointed  out 


1013 


to  me  and  it  measured  three  feet  through;  it  was  cut  down 

3319  and  had  rotted.  That  was  at  the  top  of  the  bank.  It  looked 
as  though  it  had  grown  there  after  the  bank  was  built.  I 

think  the  bank  has  been  there  approximately  sixty  or  seventy 
years.  From  the  situation  of  the  tree,  it  looked  as  if  it  had  grown 
there  since  that  time.  At  some  points  the  undergrowth  of  smaller 
trees  are  quite  thick.  At  others  they  are  sparse.  It  is  brush 
up  to  saplings  two  inches  in  diameter  up  to  large  trees.  If 

3320  it  is  flooded  with  water  and  below  the  level  of  constant  water, 
it  will  disappear ; where  it  is  only  occasionally  flooded,  it  will 

not.  Where  it  is  below  the  level  of  constant  flooding,  the  trees 
will  die. 


Re-re-direct  Examination. 

3321  Protection  is  needed  below  the  level  of  constant  flooding 
only  as  a basis  of  security  for  the  support  of  that  which  is 

above. 

The  Southwest  Pass  of  the  Mississippi  has  not  yet  been  opened. 
The  width  of  the  Southwest  Pass  is  six  hundred  feet.  The  pro- 
jected width  of  the  Southwest  Pass  is  a thousand  feet.  The  depth 
in  the  South  Pass  is  a maximum  of  26  feet;  the  depth  to  be  ob- 
tained in  the  South  Pass,  in  the  Southwest  Pass  is  a minimum  of 
35  feet.  In  other  words,  the  new  channel  will  be  35  feet  deep  and 
nowhere  less  than  1,000  feet  wide. 

3322  The  breaks  in  the  Mill  Creek  sewers  at  St.  Louis  did  not 
occur  in  any  work  designed  by  me.  A part  of  the  sewer 

which  was  existing  when  I was  in  office,  and  which  was  in  years 
before,  gave  way,  and  I designed  plans  for  its  renewal,  which 
plans  were  carried  out  successfully.  It  has  not  broken  down  since. 
Mill  Creek  was  a natural  stream.  The  whole  of  it  was  taken  into 
a sewer  and  all  the  tributary  drainage. 

3323  In  connection  with  some  railroad  building,  we  diverted 
the  Tuscarora  Eiver  in  Ohio,  by  building  a dam  across  it 

and  diverting  it  into  a new  channel.  At  times  it  was  a consider- 
able stream.  Its  normal  flow  was*  about  100  to  225  feet  wide. 

The  revetment  of  the  Mississippi  River  is  very  different  from 
the  revetment  of  the  Missouri  River.  The  banks  of  the  Missis- 
sippi are  relatively  stal)le.  They  are  rocky,  gravel  banks  which 


1014  Moore, — Re-re-direct  Exam. — Continued. 

require  very  little  protection.  The  cost  of  protecting  and  con- 
tinuing the  protection  of  the  Mississippi  Elver  is  very  much  less 
than  of  the  Missouri  Eiver. 

3224  I have  had  occasion  to  study  the  durability  and  resist- 
ance of  ditferent  kinds  of  material  for  artificial  river  banks. 
I have  in  mind  a long  revetment  or  protection  of  the  west  bank  of 
the  Mississippi  Eiver  at  Quincy,  which  is  exceedingly  perma- 
nent. I think  it  is  of  very  simple  riprapping.  There  is  no  es- 
pecial care,  no  mattress  work.  The  material  of  that  bank  is  of  a 
gravelly  nature.  I think  there  would  be  no  difficulty  upon  the 
hypothesis  that  the  pool  should  be  raised  and  that  there  should 
be  14  feet  of  navigation  in  that  pool,  in  protecting  this  bank. 
3325  The  wash  of  the  waves  is  greater  in  a narrow  channel,  due 
to  the  motion  of  the  boat-s.  It  is  a proper  interpretation  of 
my  answer  to  say  that  the  wave  wash  would  be  less  effective  on 
the  outside  of  this  bank  if  the  pool  were  placed  there,  than  the 
wash  from  the  boats  in  the  canal.  In  my  opinion  the  manner  of 
protection  indicated  on  M^oerman  Exhibit  1 is  adequate. 

Eegarding  the  filling  in  on  the  inside  of  the  canal,  all  that  I 
saw  and  all  that  I learned  indicated  that  the  slope  of  the  part 
added  was  substantially  a continuation  of  the  slope  below.  By 
a conference  with  the  contractor,  I ascertained  what  the  prices 
were  for  doing  this  work  of  protection.  The  cheapest  labor  does 
this  kind  of  work  generally. 

Re-re-cross  Examination. 

3327  When  I said  that  the  wash  on  the  outside  of  this  bank 
would  be  less  than  the  wash  in  the  inside,  I meant  that  with 

the  same  navigation,  a given  boat  on  the  inside,  with  its  narrow 
width  of  canal,  would  wash  more  than  the  same  boat  on  the 
outside  in  a greater  width.  The  width  of  the  channel  is  really 
the  greatest  factor  in  the  production  of  waves. 

3328  Q.  Suppose  you  have  a pool  of  water  from  600  to  800 
feet  wide  on  the  river  side  of  this  canal,  of  a depth  suf- 
ficient for  steamboats  to  ply  up  and  down,  drawing  10  or  12  feet 
of  water,  and  carrying  1,500  or  more  tons  of  freight,  and  that  they 
go  at  from  6 to  12  njiiles  an  hour.  On  the  other  a canal  60  feet 
wide  of  water  with  canal  boats,  drawn  by  mules  on  the  tow-path 


1015 


and  traveling  at  the  rate  of  from  two  to  two  and  a half  miles  per 
hour;  which  would  get  the  bigger  wash?  A.  I should  think  there 
should  not  be  very  much  difference  under  those  conditions. 

3329  Elmore  W.  Bewley, 
called  on  behalf  of  the  defendants,  testified: 

Direct  Examination. 

My  name  is  Elmore  W.  Bewley.  I am  a captain,  58  years  old. 
I reside  at  Bowling  Green,  Kentucky.  I have  been  steamboating 
40  years,  began  when  18  years  old.  I have  steamboated  on  the 
Ohio,  Barren,  Bough,  Nolin  and  Cumberland  Eivers.  I have  a 
master’s  and  pilot’s  certificate.  Have  been  a licensed  pilot  for 
about  thirty  years.  Have  navigated  sternwheel  boats  principally. 
Navigated  on  the  Ohio  and  Green  Eivers  about  eight  years, 

3330  Ohio  alone  four  years.  Green  Eiver  all  told  about  36 
years.  Trip  about  200  miles  long.  The  Barren  Eiver  we 

navigated  between  Evansville  and  Bowling  Green.  I steam- 
boated  up  the  Eougli  Eiver  about  8 months  (30  miles).  Was 
on  the  Nolin  Eiver  about  six  months;  14  miles  navigable.  On 
the  Cumberland  Eiver,  six  months.  Up  to  Nashville,  200  miles 
from  the  mouth.  I have  owned  or  had  interest  in  the  following 
steamboats : The  Gayosa,  Evansville,  Bowling  Green,  City  of 
Clarsville,  Sun  and  Eescue.  My  constant  occupation  has  been 
that  of  a steamboat  man.  I am  still  engaged  in  that  business. 
Am  running  up  the  Kentucky  Eiver  next  Thursday  on  a stern- 
wheel  boat.  I saw  the  Desplaines  Eiver  on  the  28th  of 

3332  April,  1908.  Went  from  Joliet  down  to  the  mouth.  The  Des- 
plaines Eiver,  according  to  my  judgment,  as  I saw  it,  is  not 

a navigable  stream  for  useful  purposes  of  commerce,  on  account 
of  the  swift  current  and  the  rocky  shoals.  I saw  it  at  several  dif 
ferent  places,  I would  not  say  just  how  many.  AVe  went  down  the 
river  from  Joliet  to  the  mouth.  We  crossed  the  river  six 

3333  or  seven  times  on  the  different  bridges  and  down  the  banks ; 
where  we  could  see  the  river  most  of  the  way  down. 

The  Ohio  Eiver  has  a navigable  stage  in  extremely  low  water, 
we  navigated  there  on  as  little  as  24  inches.  Not  without  a great 
deal  of  trouble,  however.  It  has  not  occurred  in  the  last  four  years. 


1016 


Beivley, — Direct  Exam. — Continued. 


Up  to  four  years  ago,  it  was  most  every  year,  in  the  fall  of  the  year 
in  extreme  low  water.  It  would  continue  from  two  to  three 
months.  We  would  find  that  depth  at  different  sandbars,  not  the 
same  depth  at  all  the  bars.  Only  at  sandbars  would  we  find  the 
shoal  water. 

?>334:  The  Desplaines  Eiver  has  a rocky  bed  in  some  places.  Most 

of  the  bed  of  the  Ohio  River  is  mud  and  sand.  There  is  a 
difference  in  the  navigability  of  a river  with  a mud  or  sand  bed  at 
a low  stage  of  water,  and  the  navigability  of  a stream  with  a rocky 
bed  at  a similar  stage  of  water.  It  is  more  difficult  to  navigate  a 
river  with  a rocky  bed,  from  the  fact  that  you  must  have  more 
water  on  the  rocks  than  the  steamboat  draws ; in  the  Ohio 
River  where  you  have  sand  you  can  run  up  on  the  sand  and  spar 
the  boat  over  after  several  hours’  work.  You  cannot  do  this  on  a 
rocky  bedded  river  because  you  cannot  move  the  rocks  and  the 
sand  you  can  move  by  spars.  There  would  he  a difference  in  the 
hazard  to  the  boat  in  attempting  to  spar  over  a rocky  shallow  and 
a sandy  shallow.  You  are  liable  in  sparring  over  rocky  shoals  to 
injure  the  steamboat. 

3335  I have  done  hut  very  little  cordelling.  I observed  the  ve- 
locity of  the  Desplaines  River  and  its  slopes,  and  the  curves 
and  bends  of  the  hanks.  Those  matters  enter  into  my  opinion  as 
to  its  not  being  a navigable  stream.  It  is  more  difficult  to  navigate 
a crooked  stream  in  a swift  current  than  it  is  a straight. 

Q.  Assuming  that  a river  began  at  a point  of  the  river  20  miles 
from  its  mouth,  assuming  that  there  is  a fall  of  38  feet  in  the  first 
4-1/2  miles  or  8-1/2  feet  per  mile ; that  in  the  next  stretch  there  is 
a fall  of  21  feet  in  3-1/2  miles,  with  maximum  slopes  of  more  than 
ten  feet  per  mile,  containing  islands  and  boulders,  some  visible  and 
some  submerged,  with  rocky  bottom ; then  next  following  in  the  de- 
scent of  the  river  there  is  a pool  5 miles  long  with  no  fall,  and  next 
following  that  9-1/4  feet  fall  in  one  mile,  9.4  fall  in  one  mile,  with 
maximum  slopes  of  more  than  15  feet  per  mile;  as  narrow  as  100 
feet,  and  having  abrupt  turns  and  boulders  in  the  channel;  and 
next  following  that  descending  stream  a pool  one  mile  long  with 
practically  no  fall,  and  next  following  that  a fall  of  2.7  feet  in  one 
mile,  with  maximum  slope  of  about  4 feet  per  mile,  with  a rock 
bottom  and  boulders;  and  next  following  that  a fall  of  2 feet  in 


1017 


3-1/2  miles,  and  a rapids  at  the  mouth,  a fall  of  3 feet  in  a half 
a mile,  with  a rocky  bottom, — would  you  say  that  a riVer  of  that 
description  could  he  navigated  by  a boat  for  useful  purposes  of 
commerce? 

A.  Those  being  the  conditions,  I do  not  think  it  could  be  navi- 
gated. 

I would  say  a river  which  in  15-1/2  miles  had  a fall  of  38  feet, 
all  of  which  occurred  in  stretches  aggregating  6-1/2  miles  could 
not  be  navigated. 


Cro  ss-Exami  nci  tion. 

3337  Most  of  my  steamboating  has  been  on  the  Green  and  Bar- 
ren Eivers.  The  Green  Eiver  is  in  Kentucky.  The  portion 

navigated  was  230  miles.  Green  Eiver  proper.  Eunning  from  a 
point  9 miles  above  Evansville,  Indiana,  to  the  Mammoth  Cave, 
that  would  be  the  Green  Eiver  proper.  Barren  Eiver  is  200  miles 
from  Evansville.  Our  regular  trade  is  between  Evansville,  Indi- 
ana and  Bowling  Green,  Kentucky.  We  navigated  the  Ohio  Eiver 
in  that  trade  nine  miles,  the  Green  Eiver  170,  Barren  Eiver  30, 
making  a 209  mile  trip  from  Evansville  to  Bowling  Green. 

3338  Mammoth  Cave  is  the  head  of  navigation  on  the  Green  Eiver. 
At  the  head  of  navigation  it  is  about  120  feet  wide.  In  low 

water  there  is  about  four  feet  of  water.  Green  Eiver  is  locked 
and  dammed.  After  building  Lock  No.  6,  the  first  lock  below 
Mammoth  Cave  gives  them  four  feet  of  water  on  the  bar  at 

3339  Mammoth  Cave.  It  is  122  miles  on  the  Green  Eiver  from 
where  you  enter  it  just  at  its  mouth,  up  to  Mammoth  Cave 

landing.  In  that  district  there  are  six  locks  and  dams;  they  are 
not  regular.  The  first  pool  is  60  miles,  the  next  two,  45,  the  next 
is  about  20,  the  next  is  13,  the  next  is  about  17  or  18  miles.  That 
is  the  head  of  navigation.  The  height  of  lock  to  hold  the  first 
pool  of  60  miles  is  14  feet;  for  the  second  pool,  45  miles, 

3340  about  the  same;  the  next  one,  I think,  is  17  feet  approxi- 
mately; the  fourth  one,  14  feet;  the  fifth  one  is  13  feet,  and 
the  sixth  one,  11  feet.  These  locks  bank  up  the  water  about 

3342  221  miles.  I never  navigated  the  river  before  these  locks 
and  dams  were  put  in.  The  water  from  each  of  these  dams 
back  water  clear  up  to  the  dam  above  it.  I don’t  know  how  much 


1018 


B eidey, — Cross-Exam . — Con  t inued. 


water  is  added  by  each  one  of  these  dams  at  the  point  in  the  river 
just  below  the  other  dam.  The  river  has  a mud  bottom,  the  prin- 
eipal  part  of  it.  In  some  places  it  has  a rocky  bottom.  There  is 
plenty  of  water  over  all  the  rock  shoals.  There  is  no  navigation 
in  Green  River  above  Mammoth  Cave  at  any  time.  x\fter  you  get 
above  Mammoth  Cave  landing,  you  have  a deep  pool  again.  Slack 
Avater  does  not  extend  some  distance  up  the  river  from  there.  I 
do  not  know  how  deep  the  water  is  in  shoal  places  above  there.  I 
do  not  know  how  deep  the  water  would  be  in  Green  River,  if  it 
AA-ere  not  for  the  dams.  The  current  is  greatly  reduced  in  this 
river  by  Aurtue  of  the  dam.  In  times  of  high  Avater  it  would  be 
])retty  rapid  if  it  were  not  for  the  dams.  x\s  I understand  it,  the 
object  of  the  dam  is  to  give  depth  of  water. 

3344  The  navigable  length  of  the  Barren  River  is  30  miles. 
There  is  one  lock  and  dam  on  that  river  fifteen  miles  from 

the  mouth.  I do  not  know  how  deep  the  river  is  above  slack  water. 
I suppose  the  average  width  would  be  about  100  feet.  Where  it 
is  navigable  it  is  from  100  to  250  feet.  In  some  places  in  the  slack 
Avater  aboA^e  the  dam,  we  have  shoal  places  that  in  low  water 

3345  season  is  about  five  feet,  four  and  a half  to  five  feet.  I think 
the  dam  is  about  15  feet  deep.  The  river  is  about  the  same 

depth  below  the  dam.  M^e  liaA^e  what  we  call  there  in  low  water 
season  four  and  a half  feet.  The  bottom  of  the  river  is  graA^el 
mostly.  The  boat  we  navigated  was  120  feet  long,  25  to  30  feet 
across,  AAuth  a carrying  capacity  of  200  tons.  The  same  size  boat 
Avas  used  on  the  Green  RiA^er  on  account  of  the  locks.  200  tons  of 
freight  can  be  carried  up  as  far  as  Mammoth  CaA^e  on  the 
oMdO  Green  RiA^er.  AVe  had  four  feet  in  the  shallowest  place,  at 
^Mammoth  CaA^e  landing  in  the  Green  RiA^er. 

I navigated  the  Cumberland  Rh^er.  The  Nowlin  RiA^er  is  about 
15  miles  below  the  Alammoth  Chwe,  it  is  a branch  of  the  Green 
RiA^er.  It  is  naAugable  14  miles  up,  to  Dismal  Rock.  The  Avater 
from  the  dam  in  Green  River  below  the  mouth  of  this  river  holds 
the  water  up  in  this  river.  It  aauis  not  navigable  Avithout  that. 

I sii])])ose  that  riA^er  runs  from  75  to  90  feet  in  width.  It  bolds 
3347  its  depth  ])retty  well  all  the  Avay  up.  I sui)pose  there  is  at 
least  six  feet  of  water  all  the  way  u])  at  the  shoal  places. 
Some  ])laces  it  is  A^ery  deep.  In  the  locks  there  is  four  and  a half 
feet  of  Avater  in  the  miter-sill. 


1019 


S848  Rough  River  is  a tributary  of  the  Green  River  and  is  navi- 
gable thirty  miles.  It  is  about  90  feet  in  width.  We  have 
four  feet  depth  of  water  in  Rough  River  on  the  miter-sill.  They 
have  one  lock  on  that  river,  eight  miles  above  its  mouth.  It  was 
not  navigable  before  the  locks  were  put  into  the  Green  River  and 
Rough  River  except  in  high  stage  of  water.  Green  River  was 
,3349  not  navigable  before  this  improvement.  I suppose  it  would 
be,  taking  it  all  together,  two  to  three  months  in  the  year. 
Before  these  locks  were  put  in,  boats  sometimes  w^ent  up  there 
in  very  high  water.  I can’t  say  for  how  long  a period  it  was  navi- 
gable yearly.  Nolin  River  was  not  navigable.  It  was  not  safe 
to  navigate  that  in  high  water.  As  to  the  Barren  River,  I am  not 
sure  as  to  that.  In  case  of  very  high  water  you  could  possi- 

3350  bly  go  up  there,  but  you  could  not  call  it  safe  navigation 
from  the  fact  that  the  river  was  narrow  and  the  overhanging 

timber — 

I never  cordelled  a boat  anywhere  myself.  By  sparring  is  meant : 
We  have  on  a steamboat  what  you  call  a steam  capstan  out  on  the 
head  of  the  boat,  and  we  run  our  boat  down  on  the  sandbar,  and 
then  we  have  big  spars,  great  long  timbers  and  we  set  the  spar 
over  on  the  side  of  the  boat  and  put  our  line  on  the  capstan,  and 
we  have  a pair  of  blocks,  and  the  spars  canter  this  way  (indi- 
cating) and  go  forward  or  around.  You  can  get  your  spar  to 
shove  the  boat  forward  or  set  your  spar  to  shove  the  boat  around 
as  you  may  want.  This  process  is  used  when  you  get  into 

3351  shoal  places,  get  stuck  on  the  bar.  The  process  consists  of 
making  a fixed  point  with  the  spar,  attaching  that  to  the 

capstan  and  then  by  means  of  steam  on  the  boat,  turn  the  capstan 
and  push  the  boat  on  up  by  its  own  power. 

3352  I navigated  the  Cumberland  River  from  its  mouth  to  Nash- 
ville, 200  miles.  The  boat  used  was  about  160  feet  long  and 

about  30  to  32  feet  beam,  tonnage  350  tons.  When  I was  running 
on  the  Cumberland,  that  was  before  the  improvement  was  made 
on  the  harbor  shoals  and  the  water  got  down  to  24  inches  there  at 
one  time.  We  made  only  one  trip  on  that  water  and  she  was 

3353  not  carrying  that  much  load.  The  name  of  the  boat  was  J.  B. 
Richardson.  The  year,  I think,  was  1904.  The  Government 

was  at  work  on  the  river  at  that  time.  This  boat  does  not  go  above 


1020 


Beivle^, — 'Cross-Exam. — Continued. 


Nashville.  At  Nashville  we  met  boats  that  navigated  above  there. 
They  were  about  the  same  size  and  some  of  them  carried  about  the 
same  tonnage.  I don’t  know  how  far  they  went  up  the  river.  I 
never  navigated  above  Nashville.  I don’t  know  the  depth  of  the 
water.  I don’t  think  it  is  as  deep  there  as  where  I navigated. 
Where  we  navigated  on  the  24  inches  of  water  we  did  not  have  a 
pound  of  freight.  We  were  going  down  stream.  We  did  not  bring 
out  anything  over  the  shoals.  We  had  lighters  and  used  lighters 
over  the  shoals.  What  we  call  lighters  are  barges  that  we  have 
in  tow,  and  when  we  get  to  the  shoal  place  where  there  is  not 
enough  water  for  the  boat  to  go  over  with  the  freight  she  has  got, 
we  move  it  from  the  steam  boat  on  to  the  barge,  all  of  it,  or 

3355  as  much  as  is  necessary  to  let  the  boat  over,  take  the  freight 
over  on  the  barges,  and  the  steamboat  over  light.  We  have 

not  done  this  frequently  because  it  has  been  very  seldom  necessary. 
My  principal  work  was  done  on  the  Green  Eiver  in  slack  water 
navigation.  I have  navigated  the  Ohio  Eiver  between  Evansville 
and  Cairo  and  Paducah,  at  times.  I navigated  that  river  down 
to  about  two  feet  of  water;  that  was  about  four  years  ago.  That 
has  not  occurred  during  the  last  four  years,  but  prior  to 

3356  that  it  occurred  nearly  every  year.  From  Cairo,  Illinois,  to 
Evansville,  Illinois,  is  about  200  miles.  I have  been  up  as 

far  as  Louisville,  Kentucky.  Have  not  found  the  water  lower 
than  two  feet.  Small  boats  from  60  to  175  feet  long  were  used  on 
that  minimum  depth,  about  30  feet  beam.  Over  two  feet  of 

3357  water  you  could  not  carry  over  75  tons  on  a steamboat.  Some 
boats,  if  you  built  them  in  proper  shape,  would  probably 

carry  a little  more;  it  depends  on  the  depth  and  breadth  and  the 
machinery  that  you  have.  I know  some  boats  that  navigate  on 
that  part  of  the  Ohio  Eiver — I know  nothing  much  about  the  upper 
branches  of  the  upper  part  of  the  river.  From  my  standpoint 
about  2 feet  is  the  minimum  depth.  The  boats  I have  in  mind 
carry  from  150  to  300  tons  when  loaded.  The  Government  has 
been  doing  considerable  work  on  the  Ohio  Eiver.  There  has  been 
no  dredging  done  where  I have  navigated.  I know  there  is  work 
being  done  on  the  river  by  the  Government.  I know  there  is 
3350  such  a thing  as  the  Ohio  Eiver  Improvement  Association  and 
their  business  is  to  solicit  the  general  government  to  improve 


1021 


the  Ohio  Eiver  in  various  forms.  I think  they  are  succeeding  in 
getting  some  work  done. 

I went  down  the  Desplaines  Kiver  on  April  28,  1908.  Went  down 
in  an  automobile  and  crossed  the  river  six  or  seven  times  on 
bridges.  I think  we  must  have  found  six  bridges.  Mr.  J.  W. 

3361  Woerman  was  with  me  and  Captain  McBride  of  Louisville. 
We  went  down  to  the  mouth  of  the  river,  a place  where  they 
had  a coffer-dam.  We  did  not  go  down  the  towpath  bank  a 

3362  part  of  the  way,  nor  through  the  Village  of  Channahon.  AVe 
were  on  the  left  bank  when  we  reached  the  site  of  the  dam, 

did  not  cross  the  river  at  that  point.  Was  not  over  where  the  work 
has  been  done  by  the  defendant  company.  Was  not  on  the  river  at 
any  time  in  a boat  during  that  trip.  We  got  out  of  the  automobile 
opposite  the  dam  and  walked  down  through  the  fields,  I suppose 
a mile  to  a mile  and  a half  I suppose  that  was  about  a quarter 

3363  of  a mile  from  the  river.  We  looked  at  it  the  best  we  could, 
could  see  the  river  plainly  there. 

Q.  Your  highway  that  you  travelled,  came  down  half  a mile 
or  more  away  from  the  river  and  you  got  out  opposite  to  the 
point  of  the  river  that  you  went  to  where  the  dam  is,  and  you 
walked  across  from  the  river  to  the  highway,  is  that  it?  A. 
Walked  down  through  the  field,  yes,  sir.  Stayed  on  the  bank 

3364  opposite  I suppose  thirty  minutes.  Left  Joliet  at  one  o’clock 
and  got  back  there  about  half  past  six.  Traveled  15  tol8  miles. 

That  is  the  examination  I made  of  it.  At  some  places  the  road 
was  half  a mile  away  from  the  river,  at  other  places  not  so  far. 
I suppose  about  half  the  distance  is  within  a half  mile  from  where 
we  were  going  along  the  road. 

3365  Re-direct  Examination. 

I think  the  locks  in  Green  Eiver  were  completed  in  1835.  The 
improvement  was  made  at  the  same  time  on  the  Barren  Eiver. 
We  could  see  the  cofferdam  on  the  Desplaines  Eiver  from  the  point 
where  we  were  on  the  left  bank.  We  were  at  the  aqueduct.  We 
were  right  down  the  river  bank  at  the  aqueduct.  I cannot  recall 
all  the  bridges  we  crossed,  elackson  street  was  one,  I think,  Cass 
street,  Eock  Island  bridge.  I think  there  is  a bridge  at  the  place 
they  call  it  Brandon’s  Eoad;  that  we  crossed.  At  Treat’s  Island 


1022 


we  crossed  over  on  a bridge  and  came  back  to  the  right  bank  again 
and  there  is  a bridge  below  that,  Smith’s  bridge,  and  the  Mc- 
Donough, that  makes  seven. 

3367  Q.  All  of  them  in  Joliet,  aren’t  they?  A.  It  is  right  hard 
to  remember  all  of  them. 

3368  AVe  stopped  the  automobile  on  these  bridges  and  viewed 
the  river  from  these  bridges.  I don’t  think  we  got  out.  The 

Jackson  street  bridge  we  did  not  cross  in  the  automobile;  we 
walked  across  that  bridge,  and  then  returned  back  to  the  left  bank 
and  walked  down  to  the  next  bridge  and  got  into  the  automobile 
down  at  the  next  bridge. 

Counsel  foe  Defendant.  Q.  Did  you  ever  know  of  steam- 
boats navigating  on  such  slopes  and  declivities  as  the  maximum 
slope  and  declivity  that  I stated  in  my  question  this  morning.  A. 
Xot  to  my  knowledge. 


Re-cross  Examination. 

Q.  You  don’t  know  whether  some  of  the  boats  that  you  have 
known  have  undertaken  slopes  of  that  depth  or  not?  A.  I could 
not  say  what  steamboats  have  done  in  some  other  parts  of  the 
country,  no  steamboats  that  I have  known  of  or  heard  of. 

My  navigation  has  been  mostly  on  slack  water.  That  is  easy 
navigation. 


Nathan  P.  Peyor, 

called  on  behalf  of  defendant,  testified: 

Direct  Examination. 

3369  My  name  is  Nathan  P.  Pryor.  I am  forty-two  years  old 
and  live  at  Carrollton,  Kentucky.  My  occupation  is  that  of 
steamboat  pilot  and  master.  Have  been  engaged  in  the  steamboat 
business  about  28  years.  Have  held  a commission  as  pilot  13 
years,  as  master  11  years.  Have  navigated  steamboats  as  master 
or  pilot  on  the  Kentucky  and  Ohio  Rivers  between  Cincinnati, 
Ohio,  and  Evansville,  Indiana,  on  the  Ohio  River,  and  the  mouth 
of  the  Kentucky  River  to  Irvine,  Kentucky,  a distance  of  271 
miles.  Have  navigated  all  kinds  of  boats,  propellors  and  stern 


1023 


wheel  boats,  and  side  wheel  boats  and  gasoline  boats  from  30 
feet  to  300.  Have  had  about  a year’s  experience  with  gasoline 
boats.  They  were  small  flat-bottomed  scow-bowed  stern  wheel 
boats,  about  70  feet  long  by  18;  were  freight  carriers.  Have 
3371  navigated  boats  of  this  description  between  Madison,  In- 
diana, and  Monteray,  Kentucky,  that  is  12  miles  on  the  Ohio 
and  40  on  the  Kentucky  Eiver,  in  the  past  year. 

Saw  Desplaines  River  on  the  17th  of  this  month,  between  Joliet 
and  the  mouth. 

Q.  In  your  judgment,  and  based  upon  your  observation  that 
day,  state  whether  in  your  opinion  the  Desplaines  River  between 
the  points  where  you  saw  it  is  a navigable  stream?  A.  I saw 
a very  rapid  stream  obstructed  a great  deal  by  bridge  piers,  is- 
lands, and  timber,  and  some  rocky  shores,  and  there  were  rapids 
in  the  river  and  it  wmuld  appear  to  me  from  my  river  experience 
that  tjiere  were  obstructions  there.  At  the  time  that  I saw  it 
it  was  a high  stage  of  water,  and  I could  not  tell  what  these  ob- 
structions were,  but  there  was  obstructions  of  some  kind  in  the 
river  at  all  these  rapid  places,  that  from  the  indications  of  the 
rocks  and  shores,  I would  judge  there  was  rock  in  the  middle  of 
the  river. 

I saw  it  at  its  mouth  where  a dam  was  being  built,  at  Treat’s 
Island  and  at  Brandon’s  Road.  We  could  not  get  to  Smith’s 
bridge  on  account  of  the  water. 

3373  Q.  From  your  examination  of  the  river,  state  whether 
or  not  in  your  opinion  it  is  a navigable  stream!  A.  I 

3374  don’t  think  it  is.  It  was  too  swift  to  navigate  a boat  of 
any  kind  on  from  the  fact  that  if  you  were  going  down  stream 

and  had  a stop  to  make  anywhere,  I am  sure  it  would  be  impos- 
sible to  land  your  boat  anywhere.  Coming  up  stream  there  is 
no  boat  within  my  experience  that  would  stem  it.  The  kind  of 
gasoline  boats  that  I have  had  any  experience  with  would  not 
start  in  it.  The  current  is  so  swift  they  could  not  get  in  the 
mouth  of  it.  A gasoline  boat  is  not  adapted  to  the  navigation  of 
a rapid  stream.  You  cannot  put  the  power  on.  You  put  power 
enough  on  it  to  navigate  a rapid  stream,  why  then  you  get 

3375  too  heavy  a draft  boat,  and  they  do  not  develop  the  power 
that  steam  does;  they  are  liable  to  break  down  at  any  time. 


1024 


Pryor, — Direct  Exam. — Continued. 


In  case  of  a break  down  with  a gasoline  boat  in  a current  of  that 
kind,  you  are  at  the  mercy  of  the  current ; you  have  got  no  control 
of  your  boat  in  such  a current  as  that  and  if  you  meet  any  ob- 
struction of  any  kind,  you  would  knock  a hole  in  the  boat.  Gaso- 
line is  not  a reliable  power  in  the  operation  of  boats,  not  by  any 
means. 

Q.  Assume  a stream  of  the  following  description:  begin  at  a 
point  twenty  miles  from  its  mouth,  we  find  a fall  of  38  feet  in  four 
and  a half  miles,  considerably  more  than  eight  feet  per  mile;  the 
next  stretch  of  three  and  a half  miles,  with  a fall  of  21  feet,  with 
a maximum  slope  of  more  than  ten  feet  per  mile;* then  next  fol- 
lowing a pool  five  miles  long  with  no  fall;  then  next  following 
that  pool  a stretch  one  mile  in  length  with  a fall  of  9.4  feet  and 
maximum  slopes  of  more  than  15  feet  per  mile;  then  next  follow- 
ing a pool  one  mile  long  with  practically  no  fall;  and  next  follow- 
ing that  pool  a stretch  of  one  mile  with  a fall  of  2.7  feet  with  a 
maximum  slope  of  about  four  feet  per  mile;  then  next  following 
a fall  of  two  feet  in  three  and  a half  miles,  and  then  a fall  of  three 
feet  in  a half  a mile  at  the  mouth,  the  bed  of  the  stream  being 
rock;  what  would  you  say  as  to  whether  or  not  a stream  of  that 
description  is  navigable.  A.  I would  not  consider  it  a 
3376  navigable  stream. 

At  various  places  in  that  stretch  of  the  river  I should  say 
it  was  impossible  to  navigate  on  account  of  boulders,  rocks  and 
islands. 

Q.  Could  you  navigate  a stream  which  has  a fall  of  38  feet  in 
fifteen  and  a half  miles,  which  fall  is  comprised  in  a stretch  ag- 
gregating approximately  six  and  one-half  to  seven  miles  of  the 
whole  fifteen  and  a half  miles.  A.  I don’t  think  you  could 

3378  navigate  it  with  any  kind  of  a boat.  I observed  the 
curves  and  bends  in  the  river.  In  a crooked  river  you  of 

course  have  to  make  very  abrupt  turns  to  get  around  these  bends, 
and  your  boat  naturally  takes  what  we  term  a flank;  you  have  to 
hold  close  up  to  the  points,  and  in  doing  so  that  current  is  so 
strong  that  the  stern  of  your  boat  will  overtake  the  head,  and 
turn  around,  and  the  first  thing  you  know  you  are  turned  around 
going  up  stream  instead  of  down. 

3379  I would  not  consider  it  safe  at  all  to  navigate  where  there 
are  abrupt  curves  coupled  with  a narrow  channel,  100  feet 


1025 


in  width  and  a swift  water  and  rock  bottom,  the  fall  at  such  point 
being  9.4  feet  in  one  mile  and  a slope  of  more  than  fifteen  feet 
per  mile.  Have  never  known  of  anyone  navigating  a slope  of  15 
feet  per  mile.  I have  warped  boats.  Don^t  believe  I could  take 
a boat  up  the  river  at  Treat  ^s  Island  by  warping. 

3379  Cross-Examination. 

I began  the  steamboat  business  when  a boy  fourteen  years  old. 
Since  I have  been  a pilot  I have  been  on  Kentucky  and  Ohio 
Eivers,  before  that  I was  on  the  Mississippi  Eiver  some.  The 
Kentucky  Eiver  has  been  improved'  by  the  Government.  I 

3381  navigated  210  miles  instead  of  271  miles.  That  takes  it  from 
its  mouth  to  the  bead  of  slack  water  navigation  at  Irvine, 

Kentucky.  There  are  eleven  locks  and  dams  up  there  in  210  miles. 
The  two  that  are  farthest  apart  are  26  miles.  The  two  closes^ 
together,  twelve  miles.  The  water  is  backed  up  from  one  dam 
clear  up  to  the  other.  It  was  navigable  in  a way  before  this  im- 
provement. As  far  back  as  I can  remember  when  I first  started 
at  the  age  of  about  14  years,  the  locks  and  dams  were  broken 
out.  They  were  originally  built  by  the  State,  and  the  Govern- 
ment took  charge  of  the  river  in  1880,  repaired  these  old  dams, 
and  built  some  new  locks  and  dams,  and  when  I first  started,  we 
went  through  the  breaks  in  these  dams,  and  in  the  summer  when 
the  river  would  get  low,  the  boats  would  have  to  lay  up  and  quit. 
Whether  it  was  navigable  before  the  State  put  these  dams  in  or 
not,  I could  not  say.  Prior  to  the  time  the  general  govern- 

3382  ment  fixed  it  and  after  the  breaks  occurred  in  the  original 
dams,  they  were  navigable  with  a small  boat  towing  a barge 

perhaps  six  months  in  the  year.  It  got  down  to  a stage  where 
there  was  not  over  18  inches  of  water  on  the  shoal  places.  The 
boat  quit  on  about  two  feet.  Had  one  barge  to  carry  freight  on, 
the  boat  itself  was  too  heavy.  She  was  about  75  feet  long  and 
18  feet  wide.  She  would  not  carry  over  30  or  40  tons.  Her 

3383  only  means  of  carrying  freight  was  by  a tow  on  a barge. 
Tobacco  was  the  principal  freight.  The  barge  would  carry 

40  or  50  tons  outside  of  the  cask,  which  would  be  some  five  to 
six  tons  more.  Have  navigated  the  Ohio  from  Cincinnati  to 
Evansville,  about  350  miles.  All  classes  of  boats  from  a small 


1026 


Pryor, — Cross-Exam. — Continued. 


boat  to  a long  boat  of  300  feet.  The  300-foot  boat  would  cany 
1,200  tons.  From  that  they  have  them  down  to  pleasure  boats, 
which  do  not  register  any  tonnage.  The  smallest  boat  that  I have 
ever  seen  navigated  there  would  possibly  carry  60  or  70  tons. 
They  are  about  110  feet  long,  20  feet  wide.  When  fully  loaded 
they  draw  about  three  and  a half  feet,  with  about  sixty  or  seventy 
tons.  When  half  loaded  they  could  not  go  in  less  than  two  feet. 
They  donT  operate  those  boats  at  times  over  shoals  to  that  extent 
with  less  than  two  feet  of  water.  I never  saw  a boat  operated 
on  16  or  18  inches  of  water,  loaded  or  unloaded.  I never  heard 
of  it.  You  cannot  operate  a boat  110  to  120  feet  long,  loaded, 
on  18  inches  of  water.  I never  saw  it  done.  Don’t  think  it  can 
be.  They  would  draw  light  18  inches  or  more.  Loaded 
3384  with  60  or  70  tons,  about  three  or  three  and  a half  feet.  Half 

3387  loaded,  something  over  two  feet.  About  thirty  inches,  per- 
haps not  quite  so  much.  The  Kentucky  River  has  no  navi- 
gable branches.  The  Kentucky  River  is  the  only  side  stream  of 
the  Ohio  that  I have  ever  navigated.  There  are  times  of  the 
year  when  it  is  much  beyond  a slack  water  navigation.  One  dam 
backs  water  to  the  other  one,  that  is  what  is  meant  by  slack 
water  navigation.  That  is  true  all  the  way  up  the  Kentucky 

only  at  certain  seasons.  Wlien  the  water  is  not  very  low- 

3388  it  will  give  you  a current  from  the  mouth.  There  are  times 
of  the  year  when  there  is  no  slack  water  in  the  Kentucky 

River  at  all,  a good  portion  of  the  year.  I mean  that  the  dams 
are  entirely  covered  and  we  very  often  run  right  over  the  top  of 
them.  The  dams  are  from  twelve  to  twenty  feet  high,  the  lowest 
twelve,  the  highest  twent}^.  The  water  would  be  practically  level 
on  top  of  the  dam.  There  is  often  water  enough  on  top  of  the 
dam  that  a boat  goes  over  it,  but  it  is  too  swift,  you  could  not 
push  her.  You  go  through  the  lock  on  those  conditions.  We  oc- 
casionally run  over  the  top  of  the  dam.  If  we  find  for  in- 

3389  stance,  a boat  drawing  four  feet  of  water  and  there  is  five 
feet  on  top  of  the  dam  and  it  is  practically  level,  we  go 

over  it.  We  come  down  stream  over  those  dams  very  often  when 
we  cannot  go  uii  stream  because  the  current  is  too  swift.  Some- 
times there  is  a fall  at  the  dam,  sometimes  not.  For  instance,  we 
take  Number  One  Dam,  which  is  four  miles  above  the  mouth  of 
the  river,  and  it  is  very  often  there  isn’t  but  six  inches  of  water 


1027 


on  top  of  that  dam  and  it  is  hacked  up  from  the  Ohio.  Of 

3390  course,  that  is  slack  water  and  they  can  go  over  without  any 
trouble.  If  we  had  water  enough  to  furnish  a full  level,  we 

would  go,  but  sometimes  the  river  rises  or  falls,  and  there  are 
greater  falls  at  one  time  than  there  is  at  another.  For  instance, 
the  water  falls  two  feet  below  the  dam,  while  it  falls  one  foot 
above  it,  and  it  raises  the  same  way. 

When  the  water  is  very  high  in  the  Kentucky  River  and  you 
start  your  boat  up  at  the  upper  end  of  navigation  and  go  right 
down  over  the  dam,  there  would  be  enough  water  so  that 

3391  there  is  no  fall.  The  number  of  feet  is  uncertain.  One  can 
easily  go  over  a dam  when  he  has  a foot  fall.  You  might 

have  four  or  five  feet  on  top  of  the  dam.  It  is  not  any  risk  to  go 
over  a drop  of  a foot,  and  it  is  not  an  abrupt  fall  of  one  foot.  It 
is  a fall  of  a foot  perhaps  in  100  to  400  feet.  I have  gone  down 
when  it  was  a considerable  fall  down  stream  but  not  up  stream. 
I absolutely  never  put  my  boat  over  a dam  when  the  fall  was 
anywhere  from  one  to  three  feet  in  the  length  of  the  boat.  I can- 
not say  whether  I have  gone  over  where  the  fall  was  two  feet 
in  four  hundred  feet.  We  don’t  take  any  gauge  of  the  boat  at 
all,  only  that  we  know  there  is  water  enough  on  top  of  the  dam 
to  float  the  boat.  I won’t  deny  that  I have  gone  down  there  when 
the  fall  was  two  feet  in  four  hundred. 

3393  I was  down  to  see  the  Desplaines  River  on  the  17th  of 
this  month,  at  the  instance  of  the  defendant,  for  the  ex- 
press purpose  of  examining  it  and  being  a witness.  My 

3394  home  is  at  Carrollton,  Kentucky.  I went  by  rail  to  Joliet 
and  from  there  by  automobile.  J.  W.  Woerman  was  with 

me  and  the  man  who  operated  the  machine.  We  went  down  the 
right  hand  side  of  the  river  all  the  way  down.  We  crossed  a 
number  of  bridges,  but  came  back.  I don’t  remember  being  at 
Channahon.  We  were  at  the  site  of  the  proposed  dam.  AYe 

3395  were  on  the  side  of  the  river  next  to  the  canal,  the  right 
hand  shore.  We  went  from  a point  near  the  mouth  up  to 

Mr.  AYoerman’s  office.  Never  went  as  far  as  a mile  on  the  tow-- 
path. YYe  walked  about  a mile  from  where  we  left  our  machine 
to  get  down  there.  We  were  not  along  the  bank  at  that  time. 
AYe  crossed  about  eight  different  bridges.  In  Joliet,  there  w-as 


1028  Pryor, — Cross-Exam.— Continued. 

Jackson  street,  Cass  street,  Jefferson  street  and  I believe  there 
was  the  Burlington  Eailroad.  I would  not  remember  whether 
Brandon’s  road  is  on  a bridge  or  not.  Then  we  went  to  the 
bridge  below  Treat’s  Island.  Then  we  started  to  see  Smith’s 
3396  bridge  but  did  not  get  to  it  on  account  of  the  water.  I 
saw  enough  of  the  river  to  have  an  intelligent  understand- 
ing of  it.  The  depth  of  the  river  I know  from  what  they  told 
me  and  my  own  judgment.  I had  never  seen  it.  Of  course,  I 
had  to  take  the  other  man’s  word  for  it.  I cannot  say  positively 
how  rapid  the  currents  are.  I was  told  the  fall  per  mile  but 
not  the  current.  I don’t  know  that  I could  in  a scientific  way 
compute  the  current  or  the  rate  of  current  from  the  fall  of  the 
river.  I don’t  know  how  often  I have  heard  the  names  of 
3399  the  streets  I mentioned  in  Joliet.  I talked  pretty  freely 
with  Mr.  Woerman  all  the  way  down  and  back.  I was  pres- 
ent in  the  room  when  the  last  witness.  Captain  Bewley,  was  being 
examined.  The  gasoline  boats  I mentioned  ran  from  Madison, 
Indiana,  to  Monterey,  Kentucky,  12  miles  on  the  Ohio  and  40 
miles  on  the  Kentucky.  They  carried  about  15  to  20  tons.  One 
of  them  is  65  feet  long,  16  feet  wide,  44  feet  deep;  the  other  70 
feet  long,  18  feet  wide  and  34  feet  deep.  That  is  the  depth  of 
the  hold  of  the  boat.  A boat  70  feet  long,  by  18  feet  wide,  pos- 
sibly could  navigate  on  about  two  feet  of  water.  The  other  boat 
would  draw  more  water.  They  would  carry  about  the  same  ton- 
nage. I operated  these  boats  at  ditferent  times  about  a year. 
They  ran  both  in  the  winter  and  summer,  as  regular  freight  car- 
riers. They  carried  tobacco,  poultry  and  eggs  and  wheat  and 
passengers,  miscellaneous  freight. 

I understand  what  is  meant  by  corded ing.  I never  did  any 
cordelling.  The  other  name  you  apply  to  a boat  when  you  push 
it  over  is  warping,  that  is,  sparring.  I have  used  that  method. 
That  is  where  you  ground  in  shallow  water.  Sometimes  you  lift 
the  boat  up  and  sometimes  you  push  it  over.  If  you  want  to  lift, 
you  ought  to  have  two  spars,  one  on  either  side,  and  set  those 
spars  straight  in  the  water,  resting  on  the  bottom  of  the 
3402  river  on  each  side  of  the  boat,  and  have  a block  and  tackle 
from  the  top  of  the  spar  that  runs  down  through  a block 
on  the  deck  of  your  boat,  and  take  this  line  around  the  cap- 


1029 


stan,  and  you  lift  tlie  head  of  your  boat  up  off  the  bottom,  and 
then  to  move  it  they  will  take  a yawl  or  lifeboat  and  run  ashore 
and  make  a line  fast  and  take  .it  around  the  capstan  and  trip 
those  spars.  That  makes  the  boat  jump  ahead.  All  large  boats 
that  operate  on  the  Kentucky  and  Ohio  Kivers  carry  spars  ready 
for  this  kind  of  emergency.  The  gasoline  boats  do  not,  1 never 
knew  one  to  need  them.  The  gasoline  boats  are  stei'nwheel.  I 
understand  what  is  meant  by  warping  a boat.  I have  had  to  do 
that  in  my  work.  I never  warped  a steamboat  or  gasoline 

3403  boat.  I have  warped  a barge.  To  warj)  a barge,  you  ])ut  a 
line  out  to  the  shore,  to  a tree  or  anything  that  will  hold, 

and  then  you  bring  your  line  back  to  your  boat  and  run  it  through 
a block  or  pulley  of  some  kind,  and  on  to  a line  that  runs  fore 
and  aft  on  your  boat  from  a given  point,  a ])oint  ahead  of  the 
boat  to  the  point  forward  of  the  stern.  Attach  a line  to  that 
and  take  it  to  a windlass  and  pull  up  by  it.  Sometimes  they  do 
away  with  the  sideline  and  ])ush  over  with  poles.  Whenever  we 
have  a steamboat  and  a barge  togetlier  we  never  warp.  It  is 
only  when  we  have  a barge  alone.  There  is  no  power.  Warp- 
ing is  nothing  but  an  ordinary  line  that  you  carry  all  the  time, 
and  you  can  rig  up  a windlass  by  hand.  The  towboats  never 
have  to  warp.  When  the  river  gets  down  to  that  stage,  all 

3404  the  towboats  quit.  It  is  very  seldom  that  towboats  quit  oir 
the  Kentucky  Eiver  and  on  the  Ohio  it  is  irregular.  They 

have  been  running  pretty  steadily  for  the  past  four  years.  They 
have  simply  had  more  water.  Up  to  four  years  ago,  the  tow- 
boats and  their  fleets  would  have  to  lie  up  and  wait  for  weeks 
at  a time  before  they  could  take  them  down  the  river.  They 
generally  waited  about  Pittsburgh  or  at  points  below  there.  They 
arranged  their  work  so  that  they  can  get  their  boats  all  back 
to  that  point  before  the  low  water  comes.  Sometimes  it  is  months. 
They  use  a few  gasoline  boats  around  Madison,  Indiana,  for 
towing  light  barges.  They  do  not  push  much.  On  those  light 
barges  they  carry  wheat  and  posts. 

3405  Re-direct  Examination. 

When  I say  I do  not  know  the  current  of  the  Desplaines  Kiver, 
I mean  that  I do  not  know  the  velocity  of  it,  how  many  miles  it 
runs.  I observed  the  current  of  the  river  from  quite  a distance 


1030 


along  the  road.  On  a rock  bottom  stream,  they  never  sparred 
boats  as  I mentioned.  They  sometimes  push  them  over  one  way 
or  other,  where  they  know  the  bottom  is  level.  I have  not  seen 
gasoline  boats  used  for  commercial  purposes  smaller  than  those 
mentioned. 

3406  Thomas  Aijstih  Mills, 

called  as  a witness  for  defendant,  testified: 

My  name  is  Thomas  Austin  Mills.  I live  in  Will  County,  Illi- 
nois, have  lived  there  57  years.  Born  there  in  1850.  Have  lived 
those  years  in  Township  of  Channahon,  right  east  of  Treat’s 
Island,  about  20  rods  from  the  Desplaines  River.  I think  my 
father  came  there  in  1848  or  1849.  He  owned  and  cultivated 
some  farm  land  there.  Treat’s  Island  was  a part  of  the  prop- 
erty that  my  father  owned  at  the  time  I was  horn.  I think  my 
father  died  June,  1853.  My  uncle  operated  the  farm  after  that. 

I am  a farmer.  I farmed  the  same  land  my  father  did  at  Treat’s 

Island.  A few  weeks  ago  I sold  the  island.  I owned  it  ever 
since  my  father  died  and  it  has  been  cultivated  all  that  time. 
Raised  wheat  and  corn.  There  is  about  74  acres  in  the  island, 
65  of  it  belonged  to  me  and  it  is  about  a mile  long.  I remember 
at  one  time  of  there  being  a dam  and  a mill  on  Treat’s  Island. 
The  mill  was  running  quite  a number  of  years,  when  I was  a 
boy.  It  was  just  below  where  the  road  is  now;  it  was  on  the 
island.  On  the  east  channel  of  the  river.  The  dam  was  near  the 
upper  end  of  the  island.  On  the  west  channel  the  dam  was 
3409  a little  further  down.  The  dam  was  about  80  rods  above 
the  mill  on  the  east  channel.  (Witness  indicates  on  map 
(Zarley  Exhibit  1)  the  location  of  dam  at  the  head  of  island.) 
The  left  hand  channel  going  down  stream  is  the  east  channel. 
The  dam  across  the  west  channel  was  from  Treat’s  Island,  about 
where  the  mill  race  crosses  Treat’s  Island.  I am  living 
3411  there  still.  I am  cultivating  the  farm  not  on  the  east  side 
of  the  river  but  back  from  the  river.  The  mill  was  right 
at  the  point  where  the  mill  race  empties  into  the  east  channel 
and  the  dam  was  about  80  rods  above  that.  I recall  the  dams 
and  the  mill  ever  since  I can  remember  anything.  It  was  a saw 


1031 


mill  and  it  was  in  operation  when  I was  a boy.  The  dam 
3412  across  the  east  channel  did  not  effectively  block  the  stream 
at  that  point.  I think  the  mill  was  operated  np  to  just 
before  the  war,  about  ’58  or  ’59.  The  dams  remained  there  for 
quite  a long  while  thereafter,  probably  three  or  four  years.  The 
mill  ceased  because  there  was  not  any  more  timber  for  sawing. 
They  got  timber  from  the  country  round  about  there.  In  1871 
when  the  Deep  Cut  was  made  connecting  the  river  with  Lake 
Michigan,  the  water  was  low  most  of  the  time  in  the  spring  of 
the  year.  We  most  always  had  a freshet.  We  had  high  water 
in  the  spring  and  very  low  water  all  winter.  The  freshets  would 
not  last  a month  or  so.  After  them  the  river  kept  going 

3414  down  gradually.  If  it  was  a dry  summer  there  would  not 
be  much  water  in  it  the  latter  part  of  the  summer.  There 

were  places  where  there  would  not  be  over  three  or  four  inches 
of  water.  On  either  side  of  the  channel,  I have  walked  across 
there  many  a time  without  getting  my  feet  wet,  stepping  from 
one  stone  to  another.  We  never  had  any  freshets  to  interfere 
with  putting  in  the  crop,  and  we  generally  had  our  corn  planted 
in  May.  TEe  high  water  season  was  here  then.  From  that  time 
there  was  very  little  water  in  the  river.  Sometimes  there  would 
be  a heavy  rain  in  the  summer  that  would  raise  it  and  it 

3415  would  go  down  again  in  a few  days.  With  the  exception  of 
these  occasional  freshets  lasting  for  a few  days,  the  gen- 
eral condition  of  the  water  during  the  entire  summer  season 
was  that  there  was  about  five  or  six  inches  of  water.  The  river 
had  a fence  across  it,  just  above  the  mill  race,  on  the  east  chan- 
nel, as  long  as  I can  remember,  up  until  about  1871  and  we  got 
high  water  there  and  they  did  not  build  the  fence  any  more.  It 
was  usually  a post  and  rail  fence.  I maintained  it  prior  to  1871. 
The  fence  would  remain  there  from  spring  until  spring,  unless 
we  had  high  water.  Generally  when  the  ice  went  out  in  the 
spring  it  would  take  the  fence  with  it,  and  then  we  would  build 
it  up  again  after  the  water  went  down.  It  had  to  be  renewed 
every  spring  after  high  water  and  it  would  remain  until  the 

next  spring,  unless  we  had  high  water.  I have  built  it  a 
3417  good  many  times.  The  bed  of  the  stream  is  rocky.  There 
are  boulders  in  it,  granite  boulders,  four  or  five  feet  across. 
Quite  a number  not  as  large*  as  that  but  there  are  very  numerous 


1032  Mills, — Direct  Exam. — Continued. 

smaller  ones.  There  were  boulders  all  the  way  up  from  the 
upper  end  of  the  island  down  to  the  lower  end  of  the  island.  They 
were  here  and  there,  scattered  along  all  through  the  channel,  on 
both  sides  of  the  island.  They  would  be  exposed  six  or  eight 
months  in  the  year.  There  were  not  so  very  many  large  ones, 
but  the  ordinary  size  boulder  as  large  as  a foot  or  two  in  diam- 
eter. There  were  plenty  of  those.  I have  walked  across  the 
stream  a good  many  times  and  stepped  from  one  boulder  to 

3419  another  and  did  not  get  my  feet  wet.  I could  do  that'  in 
the  winter  time  and  in  the  summer  time. 

The  cattle  did  not  cross  over  the  island,  we  had  a fence  around 
the  island.  They  could  get  across  anywhere.  I think  the  first 
bridge  was  built  over  to  the  island  in  1894.  Before  that,  we  had 
to  ford  it.  We  drove  right  across  with  teams  and  farm  imple- 
ments. Sometimes  the  water  would  be  a foot  or  two  deep  and 
sometimes  not  so  deep  as  that.  I have  seen  the  water  on  the 
riffles  in  a place  there  where  it  was  not  over  four  or  five 

3420  inches  in  depth.  The  riffles  are  where  it  is  scooping  out, 
and  then  it  would  be  high  and  the  water  runs  over  there 

and  below  that  there  would  be  a big  pool.  There  were  pools 
and  riffles  all  the  way  down  the  length  of  the  island.  I do  not 
believe  there  was  a month  of  the  year  that  some  of  the  boulders 
would  not  be  exposed. 

A good  deal  of  the  time  you  could  get  up  and  over  the  riffles  on 
Treat’s  Island  with  a skiff  but  you  would  have  to  get  out  and 
pull  the  boat  over  the  riffles.  What  I call  the  riffles  are  little 
places  where  the  stones  are  washed  up  and  the  water  is  shallow 
and  below  that  there  would  be  a little  deeper  water,  but  you 
would  have  to  pull  your  boat  up  there  for  a long  ways.  I have 
had  to  pull  boats  up  there  where  I had  to  pull, — about  ten  or 
twelve  rods  at  a time.  Then  there  would  be  a pool  60  or  100  rods 
long,  in  the  east  channel.  Below  that  there  was  another  stretch 
or  riffles;  I don’t  know  how  long,  about  20  or  30  rods. 
3422  I used  to  get  out  and  wade  and  pull  the  boat  over.  The 
west  channel  is  about  the  same,  only  there  are  not  as  many 
of  these  riffles  as  in  the  east  channel.  The  riffles  extended  just 
a little  way  below  the  island.  When  the  Avater  was  deep  you 


loa:] 


could  take  a skiff  up  there;  that  would  be  in  the  spring  of 

3423  the  year.  Sometimes  in  the  summer  after  we  happened 
to  have  a heavy  rain  in  the  spring,  you  could  float  a boat 

without  dragging  it,  for  about  a month  or  so.  It  would  begin 
generally  in  March  and  April.  That  would  he  the  only  time  in 
the  year  unless  it  rained.  AVlien  we  had  summer  freshets, 

3424  it  would  last  a week  or  so.  I have  used  the  river  with  a 
rowboat,  since  1871.  I have  not  been  up  or  down  over  the 

riffles  on  Treat’s  Island  since  1871.  The  current  is  too  rapid  there 
now.  It  has  been  so  rapid  that  you  could  not  navigate  a row- 
boat since  1900.  The  current  has  been  swifter  because  the  Sani- 
tary District  has  turned  more  water  in  there.  A rowboat  has 
been  taken  up  through  either  of  these  channels,  but  I never  did 
it.  I don’t  want  to  try  it.  Comparing  the  condition  of  the 
stream  with  the  condition  before  1871,  we  would  consider  it  a 
flood  right  now.  We  very  seldom  got  headwater  as  high  as  it  is 
now.  We  called  it  high  water.  The  banks  were  not  flooded. 

3425  If  the  water  was  as  high  now  as  it  used  to  be,  we  consid- 
ered it  high  water.  Of  course,  once  in  a while  it  would  get 

up  on  the  land  on  the  island.  I never  saw  the  island  covered 
with  water  but  once  and  that  was  prior  to  1871;  it  was  in  1865. 

The  effect  of  opening  of  the  Deep  Cut  in  1871  was  that  there 
was  very  much  more  water  coming  through  and  it  had  the  effect 
of  covering  the  lower  land  and  washing  out  the  channel.  The 
channel  was  considerably  wuder  than  it  was.  The  current  was 
more  rapid.  After  1871  up  to  1900  the  current  was  not  as  rapid 
in  the  summer  time.  In  the  spring  of  the  year  it  would  be,  but 
in  the  summer  time  there  was  grass  that  grew  up  in  the  bed  of 
the  river  and  sort  of  dammed  the  water  back,  and  it  did  not  flow 
as  rapidly,  but  when  the  channel  was  cleared  it  was  pretty 
rapid. 

3426  My  house  was  about  20  rods  from  the  river.  I could  see 
the  river  every  time  I was  outside  the  house.  I crossed  it 

almost  every  day,  two  or  three  times.  We  had  our  crops  over 
there.  We  had  to  farm  them  and  get  them  out  in  the  fall.  Going 
to  school  for  three  years  I crossed  there  during  the  summer  time, 
from  March  until  it  got  cold  weather  in  October.  The  school 
was  at  Channahon  about  three  and  a half  miles  on  the  other  side 


1034 


M ills, — Direct  Exam. — Continued. 


of  the  river.  We  got  our  family  supplies  at  Channahon 

3427  sometimes  from  Joliet  and  Wilmington.  I had  occasion  to 
go  to  Channahon  for  supplies  when  a hoy.  I forded  the 

river,  drove  across  with  the  team.  I have  walked  across.  I never 
knew  of  any  navigation  on  Desplaines  Eiver;  never  knew  of  any 
boat  having  been  taken  up  or  down  stream  or  carried  down 
stream,  carrying  on  any  kind  of  commerce.  I know  there  could 
not  any  boat  of  any  size  be  taken  up  that  river  at  any  time  dur- 
ing my  lifetime,  and  not  now  either. 

3428  1 am  familiar  with  the  river  below  Treat’s  Island.  I 
have  crossed  the  river  at  Brandon’s  bridge.  Have  seen  it 

nearly  every  week.  I have  seen  the  river  near  Brandon’s  bridge 
before  1871,  perhaps  once  a month.  I saw  the  river  below  Treat’s 
Island  before  1871.  There  were  some  boulders  below  Treat’s 
Island.  I crossed  at  just  about  where  the  Smith  bridge  is  now, 
perhaps  20  rods  above  it.  There  was  a stretch  of  riffles  there, 
and  quite  a good  many  boulders.  The  boulders  are  not 
3430  exposed  now,  they  were  at  that  time.  They  were  exposed 
in  the  summer  season.  That  was  at  Smith’s  bridge.  There 
were  a good  many  boulders  all  the  way  between  there  and  Joliet. 
At  Brandon’s  road  I think  there  was  a drop  there  of  a quarter 
of  a mile.  I have  been  down  the  river  as  far  as  the  mouth  a few 
times.  The  boulders  in  the  stretch  I have  described  were  scat- 
tered, some  of  them  were  out  in  the  middle  and  some  near  the 
sides.  I have  had  to  get  out  and  shove  over  the  boulders  lots  of 
times. 

3432  The  place  where  my  house  is  is  called  Millsdale.  There 
is  a bridge  crossing  the  Desplaines  Eiver  there.  There  used 
to  be  a ford  right  opposite  the  house,  just  above  one  of  those 

3433  riffles,  we  called  them  riffles.  The  riffles  were  pretty  rapid; 
there  were  several  large  boulders  in  there  so  we  used  to  go 

above  those  boulders  and  when  the  river  was  high,  we  generally 
had  a mark,  we  could  tell  when  a certain  boulder  was  cov- 
3433  ered  with  water  it  was  not  safe  to  cross.  This  ford  was 
about  80  to  100  rods  down  the  river  below  the  head  of 
Treat’s  Island,  and  there  was  riffles  all  the  way  up;  there  would 
be  a riffle,  and  then  there  would  be  a little  place  where  the  water 
would  be  deep.  The  water  in  this  ford  during  the  summer  sea- 


1035 


son  was  about  a foot  or  so  deep.  It  would  be  deeper  in  the  ford 
than  it  would  be  on  the  riffles.  It  was  not  deep  enough  to  do 
any  harm;  you  could  drive  clear  through  there  because  it  was 
smoother.  Some  of  these  boulders  along  Treat  ^s  Island  would 
weigh  about  a ton  or  more,  two  or  three  feet  high.  There 

3435  was  a boulder  above  that  ford  that  is  five  or  six  feet  across 
the  top  and  I presume  it  was  three  or  four  feet  high;  it 

was  near  the  center  of  the  channel.  On  the  east  channel  there 
is  two  different  places  that  I have  crossed  by  stepping  from 
boulder  to  boulder,  one  just  below  this  ford,  and  the  other  one 
at  about  probably  50  rods  up  the  river.  I never  did  cross  below 
the  rapids  that  way.  Have  seen  the  Desplaines  Eiver  near  its 
mouth  many  times.  Since  the  Santa  Fe  railroad  was  built  in 
1884  or  1885,  I have  been  up  over  that  road  25  or  thirty  times 
a year.  I have  seen  the  river  when  there  was  not  any 

3436  water  in  it  scarcely  at  all.  In  front  of  the  depot  at  Lemont 
is  a solid  rock  bottom,  and  I have  seen  it  there  when  the 

water  did  not  scarcely  run.  I donT  suppose  there  was  two  to 
three  inches  of  water  there.  I have  seen  it  in  that  condi- 

3437  tion  a good  many  times,  generally  in  the  summer.  When 
we  have  a freshet,  it  would  take  some  litle  time  for  it  to 

run  down.  There  at  my  place  you  could  ford  the  river  in  two 
or  three  days  after  a freshet.  Prior  to  1900  I have  never  known 
of  a week  that  I could  not  ford  the  river. 

Cross-Examination. 

I lived  on  the  place  all  my  life.  Was  in  Chicago  two  or  three 
years  but  was  back  and  forth  all  the  time.  Channahon  is  a little 
river  town  on  DuPage  Eiver.  I don’t  think  there  is  over  100 
people  there.  The  school  I attended  was  a high  school;  went 
there  about  three  years,  commencing  in  the  fall  of  ’68. 
3439  I remember  Grant  running  for  the  presidency  in  1868;  re- 
member when  Grant  took  Eichmond.  I distinctly  remember 
when  my  father  died.  I was  about  three'  or  four  years  old.  I 
remember  the  old  saw  mill  and  I remember  riding  on  the  car- 
riage that  carried  the  logs.  The  logs  were  on  the  bank  and  they 
rolled  them  in  and  were  put  on  what  I called  a carriage,  it  was 
an  up  and  down  saw  and  carried  the  logs  against  the  saw.  I 


1036 


Mills, — Cross-Exam. — Continued. 


don’t  remember  how  long  the  mill  was,  it  was  a wooden  one 
stoiy  affair.  There  was  a slope  so  they  could  roll  the  logs  down 
onto  the  carriage.  The  dam  was  built  of  logs,  a log  j)laced  here 
and  there  and  then  slabs  put  back  and  stones  piled  up  on  the 
bottom  of  those  slabs.  I don’t  imagine  the  dam  was  over 
3442  three  or  four  feet  high.  They  used  some  of  those  boulders. 

I have  seen  the  water  pour  over  the  top  of  the  dam;  it  is 
quite  common  in  the  spring  time.  The  water  would  not  stand 
in  a pool  behind  the  dam;  there  was  too  much  fall.  Above  the 
dam  was  Lake  Joliet.  The  water  behind  the  dam  would  be  held- 
back  four  feet  deep.  That  dam  was  across  the  east  channel,  and 
there  was  another  one  across  the  west  channel  and  a little  far- 
ther down.  One  of  those  dams  between  the  main  island  and  the 
little  island,  a small  part  of  it,  was  built  in  that  same  way, 
3444  and  the  balance  of  it  was  just  boulders  in  there.  The  dam 
between  the  small  island  and  the  large  island,  started  at 
just  about  where  this  millrace  starts  in.  It  must  be  four  or  five 
rods  below  the  end  of  the  island.  The  center  of  the  dam  was 
a little  further  down  stream  than  the  two  ends.  (Witness 

3446  indicates  on  map  the  location  of  dam.)  There  is  a strip  of 
land  between  this  millrace  and  the  river,  I should  judge 

about  three  or  four  yards  wide,  and  the  river  is  so  much  wider 
now  because  there  is  a good  deal  of  it  washed  away.  I can  show 
you  where  the  old  millrace  was  if  I should  go  down  there. 

3447  There  was  a dam  right  here  near  where  they  run  that  grist 
mill.  I don’t  know  whether  they  had  any  dam  on  the  other 

side  or  not,  I should  judge  perhaps  they  did  not.  (Witness  indi- 
cates on  map  location  of  grist  mill  and  dam.)  The  grist  mill 
was  a much  older  mill  than  the  saw  mill.  I don’t  remember  any- 
thing about  the  grist  mill  only  the  ruins  and  the  mill  stone  I 
have  seen.  If  I saw  a statement  in  Woodruff’s  History  of  Will 
County  that  in  1837  there  was  a grist  mill  on  the  east  side  of 
Treat’s  Island,  I would  take  it  to  refer  to  this  mill.  I don’t 
think  it  was  washed  out.  I think  it  went  into  disuse  and  tumbled 
down  and  perhaps  it  was  carried  away;  I don’t  know.  It 
3449  was  all  gone  before  I came  upon  the  scene.  The  dam  was 
not  entirely  obliterated;  there  was  a part  of  it  left  there. 
There  were  some  boulders  all  along  there. 


1037 


Q.  You  spoke  of  this  first  dam  being  in  three  sections,  one 
across  the  east,  and  then  one  across  the  middle,  and  then  across 
the  west  channel.  A.  Yes,  sir.  But  I didn’t  speak  about  this 
little  millrace  that  ran  down  to  the  grist  mill.  Of  course,  they 
liad  the  dam  there  too. 

The  dams  across  the  east  and  across  the  west  channel  were 
made  by  laying  some  logs  crosswise  of  the  stream  and  putting 
slabs  heind  these,  then  piling  the  boulders  on  the  slabs.  In  the 
middle  it  was  made  by  simply  gathering  the  boulders  together,  a 
portion  of  them.  The  water  would  work  its  way  through  the  mid- 
dle channel  some.  The  millrace  was  artificially  made  by  digging 
out  the  ground,  probably  twenty  or  thirty  feet  wide.  I saw 
3451  the  water  run  in  there  bank  full  and  run  over  on  each  side. 

When  the  water  run  over  the  top  of  the  dam,  if  the  dam  was 
four  feet  high,  of  course  it  would  be  four  feet  behind.  There  was  a 
good  deal  of  the  time  when  it  didn’t  run  over  it,  only  in  high- 
water.  And  then  there  would  be  considerable  time  when  it  would 
stand  about  level  with  the  top  of  the  dam;  it  would  run  over  the 
top  of  the  dam  only  for  a short  time.  When  it  ceased  to  run 
3453  over  the  top  of  the  dam,  the  water  would  not  stand  full  to 
• the  top  of  the  dam.  There  was  a great  deal  of  the  water 
seeped  through ; the  dam  was  not  very  tight.  It  was  not  well  built 
as  they  build  dams  now.  What  you  call  a mill  pond  is  Lake  Joliet  : 
some  places  in  Lake  Joliet  there  was  twenty  feet  of  water.  The 
object  of  the  dam  was  to  raise  the  water  enough  so  they  could 
run  water  through  this  mill  race  to  run  the  mill. 

The  bridge  marked  on  the  map  near  my  house  is  an  iron  bridge 
with  a stone  abutment  at  each  end.  It  was  put  in,  I think,  in 
1895.  My  house  is  30  or  40  rods  from  the  Millville  Station.  I 
never  carried  on  the  mill.  I don’t  think  they  run  that  mill 

3455  later  than  1859  or  1860.  I don’t  remember  that  the  dam  was 
washed  out  and  that  they  replaced  it  more  than  once  before 

they  stopped  running  the  mill.  It  was  not  washed  out  at  once; 
I think  it  was  washed  out  gradually.  I didn’t  see  them  building 
any  dam.  I presume  it  was  by  gathering  boulders  together. 

3456  My  business  has  been  stock  raising,  farming,  and  I was 
in  the  tile  business  a few  years,  manufacturing  tile  at  Mills- 

ville.  I employed  about  eight  or  ten  men  making  drain  tile,  com- 


1038 


Mills, — Cross-Exam. — Continued. 


menced  about  1883,  stopped  somewhere  about  1885.  My  maiu 
business  was  farming. 

3458  I made  a contract  to  sell  the  island  to  Mr.  Charles  E. 

Munroe,  March  5,  1904.  Upon  his  paying  the  purchase  price 
within  four  years  he  was  to  have  the  property;  he  did  that  and  I 
transferred  the  property  to  him  a few  weeks  ago,  or  to  the  Econ- 
omy Light  & Power  Company,  the  defendants.  I came  up  to 
testify  at  their  request.  Don’t  think  I ever  talked  about  the  dams 
until  just  the  last  day  or  two.  Don’t  think  I have  any  talk  with 
Mr.  Munroe  about  the  river,  even  until  just  recentlv.  I don’t 
know  the  horse  power  of  the  sawmill.  I don’t  know  what  kind  of  a 
mill  it  was.  It  must  have  been  a sort  of  a turbine  wheel.  The 
wdieel  was  down  in  under  the  mill,  and  I think  a vertical 

3460  shaft  went  down  from  the  mill  into  the  wheel  pit.  I think 
the  mill  was  there  before  my  father  was  interested  in  tha 

place.  There  was  a good  portion  of  the  year  when  there  was  not 
water  enough  to  run  it;  in  the  winter  time  and  only  a little  while 
in  the  spring,  I guess,  they  could  run  it. 

To  build  the  fences  described,  we  took  rails  and  flattened  off 
the  ends  and  drove  the  posts  down  in  the  bed  of  the  river  and 
spiked  those  rails  on  to  those  posts,  the  same  as  you  would  a 

3461  board  fence,  only  using  the  rails  instead  of  boards.  The 
ice  would  carry  the  fences  out  and  they  would  put  in  new 

ones. 

In  the  west  channel  I have  crossed  by  stepping  on  boulders  at  a 
point  just  a few  feet  below  the  bridge.  (Witness  indicates  point 
on  map.)  I have  also  crossed  it  just  above  the  bridge.  There 

3462  was  a ford  right  here  where  the  road  comes  down  to  the 
river,  but  it  went  out  on  the  other  side  below  the  bridge. 

The  ford  was  smoother  than  on  either  side  where  the  boulders 
were.  There  were  small  boulders  all  the  way  up  the  stream  to  the 
upper  end  of  the  little  island;  above  that,  it  begins  to  get  deep, 
and  I have  waded  up  there,  20  or  30  rods,  and  there  was  not  more 
than  a foot  or  18  inches  of  water,  sometimes  in  the  summer.  I 
never  went  in  up  at  the  upper  end  of  Treat’s  Island,  it  was  too 
deep.  I never  learned  to  swim.  Up  above  Treat’s  Island 
3464  there  was  about  22  inches  of  water.  There  were  boulders 
all  along  the  channel  of  that  river,  as  far  as  T have  ever  been. 


1039 


and  I have  been  wading  up  and  down  that  river  from  the  upper 
end  of  the  island  to  the  lower  end.  On  both  channels,  it  is  just 
the  same. 

3466  I do  not  know  personally  that  there  were  boulders  in  the 
west  channel  above  the  upper  end  of  the  little  island  because 
the  water  was  too  deep.  I didn’t  hunt  for  them.  (Witness  marked 
on  map  location  of  boulders  ‘O^-prime.”)  There  were  bould- 
3469  ers  down  12  or  15  rods  below  the  end  of  the  island,  below  the 
rapids,  until  you  came  to  deep  water.  Then  there  is  a 
stretch  of  deep  water  there  for  a mile  or  more  with  boulders  all 
the  way  down  to  that  deep  water,  and  I presume  there  are  boulders 
in  there.  I refer  to  the  same  thing  by  the  words,  rapids,  ripples 
and  riffles.  I would  call  it  a riffle  or  a rapid  where  the  water  drops 
and  goes  down  pretty  rapid,  and  then  it  will  come  to  a little  place 
where  there  will  be  a little  pool,  the  water  will  be  deeper,  maybe 
three  or  four  feet  of  water  there,  for  just  a little  ways;  then  you 
will  find  another  raise  in  the  ground  and  the  water  runs  over  that* 
rapids,  runs  down  still  a little  lower.  There  is  a fall,  as  I under- 
stand it,  of  about  eight  feet  between  the  upper  end  of  this  island 
and  the  lower  end,  so  that  it  is  not  all  in  one  place.  It  gradually 
drops,  and  near  the  upper  end  is  more  of  a drop  than  there  is 
over  this  point  here  from  below,  where  the  old  mill  was,  to  almost 
the  lower  end  of  the  island.  There  is  not  very  much  of  a drop 
there. 

3472  A little  ways  below  the  saw  mill  it  did  not  run  there.  There 
was  a gradual  flow  and  there  were  no  riffles  there.  Then 

when  you  get  down  almost  to  the  lower  end  of  the  island,  20  or 
25  rods  above  the  point  of  the  island,  it  begins  to  drop  again  and 
the  water  runs  very  rapid  there  till  you  get  about  that  distance 
below  the  island. 

3473  At  the  upper  end  of  the  island,  from  where  the  old  dam 
was  there  is  quite  an  incline  to  down  about  just  below  the 

grist  mill.  I didn’t  say  I crossed  those  old  boulders  at  the  old 
dam,  I crossed  it  right  in  here  somewhere  (indicating).  About 
that  point  I have  crossed  there  dry  shod,  stepping  from  one  stone 
to  another.  There  were  not  great  big  boulders.  If  there  were 
2:>laces  between  it  that  I could  not  step;  I would  stoop  down  and 
pick  up  a stone  and  throw  it  down  there  and  make  a step.  You 


1040 


M ills, — 'C ross-Exam. — Con  tin  ned. 


could  move  the  stones  into  stepping  stones.  I have  crossed  there 
perhaps  50  times  in  my  lifetime.  When  there  was  not  a stone 
near  enough,  I would  roll  one  up  from  the  channel  into  the  place, 
so  as  to  make  a passage,  and  when  I crossed  again  if  there  was  a 
gap,  I would  roll  another.  I presume  other  people  did  the  same. 
In  the  ripples  at  the  other  end  of  the  island,  the  drop  begins  near 
the  upper  end,  since  the  dam  is  out  it  is  rapid  all  the  way  down. 
After  you  get  to  a point  where  the  old  dam  was,  it  begins  to  be 
more  rapid,  more  of  a fall,  and  the  water  comes  down  there  faster 
than  you  can  walk,  all  the  way  down.  (Witness  indicates  on  map 
where  riffles  in  east  channel  begin.)  You  might  call  it  a 

3477  riffle  all  the  way  down.  The  water  will  go  down  there  and 
then  there  will  be  a little  quiet  spot  and  then  it  will  go  again. 

When  you  get  to  this  ripple,  twenty  rods  above  the  bridge,  that 
continues  just  below  the  bridge.  There  is  where  the  little  pool  is, 
from  about  a point  say  twenty  rods  above  the  bridge,  down  to 
just  a little  below  it,  the  water  would  not  run  as  rapid,  and  from 
that  point  on  down  below  the  ford,  twenty  or  thirty  rods  more 
there  is  another  rapid  place,  quite  a drop  there.  Then  from  that 
point  on  down  to  near  the  lower  end  there  is  not  very  much 
fall. 

3478  The  ripples  on  the  west  channel  commence  at  the  upper  end 
of  the  little  island  and  it  is  all  the  way  down  to  the  bridge, 

below  the  bridge,  about  fifteen  or  twenty  rods.  It  is  not  so  rapid 
tiien  until  you  get  down  to  near  the  lower  end  of  the  island,  then 
there  is  a drop.  The  ripple  on  the  west  channel  as  it  passes  the 
extreme  tip  of  the  lower  end  of  the  island  merges  in  with  the  ripple 
from  the  east  side,  and  they  both  run  out  together,  about 

3479  fifteen  rods  below  the  point  of  the  island;  then  there  is  quiet 
water  from  there  on  down.  The  water  overflowed  the  whole 

of  Treat’s  Island  in  1865.  I do  not  remember  how  it  was  in  1867. 
AVhen  the  deep  cut  came  down  there  used  to  be  boulders  exposed 
in  the  winter  time.  Since  the  0))ening  of  the  Sanitary  District  in 
1900  there  is  one  boulder  that  is  exposed  every  once  in  a while, 
that  is  about  where  the  old  mill  race  was.  I think  I have  seen 
that  boulder  exposed  since  they  shut  off  the  water.  When  the 
water  goes  down  to  its  normal  condition,  the  same  as  it  is  flowing 


1041 


every  day,  sometimes  there  is  more  water  one  day  than  there  is 
another,  then  I can  see  the  bonlder. 

3481  Millsville  is  a station  on  my  farm  on  the  Santa  Fe.  I see 
the  river  at  Lemont  from  where  the  railroad  crosses.  I never 
made  any  further  examination. 

Re-direct  Examination. 

3483  I closed  the  sale  of  Treat’s  Island  to  the  Economy  Light  & 
Power  Company  in  March,  1908.  I don’t  rememer  when  I 
first  talked  to  anybody  with  a view  of  testifying  in  this  case.  Mr. 
Kercheval  came  down  to  my  place  just  a few  weeks  ago  and  asked 
me  to  come  up  here.  I think  it  was  after  I had  closed  the  sale. 
It  was  about  the  time  this  trial  commenced.  Nothing  was  said 
before  the  sale  was  closed  about  my  being  a witness.  I could  get 
a good  view  of  Desplaines  River  from  the  car  window  at  Lemont. 
The  river  is  right  up  to  the  embankment.  The  railroad  runs 
right  alongside  of  the  river.  Before  the  Sanitary  District  diverted 
the  course  of  the  river  it  came  right  up  by  the  depot.  I should  judge 
the  railroad  run  alongside  of  the  river  nearly  half  a mile.  In  look- 
ing out  of  the  car  window  I was  not  able  to  see  much  of  the  water ; 
it  wasn’t  there.  I^could  see  the  whole  width  of  the  river  for  about* 
half  a mile,  perhaps  not  so  far;  I couldn’t  see  any  water  except 
just  in  little  places.  I didn’t  see  any  running  water. 

James  Cornelius, 

a witness  called  on  behalf  of  defendant,  testified: 

3485  My  name  is  James  Cornelius,  live  in  Village  of  Wilmington 
at  present,  on  the  Alton  road.  Have  lived  there  since  two 
years  last  January.  Lived  on  a farm  in  the  town  of  Channahon  in 
the  southwest  corner  all  my  life  before  that.  Came  there  when 
I was  3 years  old.  I am  63  now.  That  farm  is  right  on  the  south 
bank  of  the  Desplaines  River,  I should  say  about  a mile  and  a half 
or  two  miles  above  the  mouth.  Two  and  a half  or  three  miles 
northeast  from  the  township  line. 

I knew  of  a dam  across  the  river  near  its  mouth  at  the  place 
called  Dresden  Heights.  I should  judge  it  was  about  twenty  rods 
below  the  county  line,  in  the  Desplaines  River.  About  a quarter 


1042  Cornelius, — Direct  Exam, — Continued. 

of  a mile  above  the  mouth  of  Desplaines  Eiver.  I saw  it  first 
when  I was  a small  boy,  eight  or  ten  years  old.  There  used  to  be  a 
saw  mill  there  at  that  dam.  There  is  some  of  it  there  yet;  it  has 
been  washed  out  by  degrees.  I think  there  was  a saw  mill  there 
when  I first  saw  it.  If  I recall  right,  it  was  sawing  lumber  when 
I first  saw  it.  I suppose  it  was  a wooden  dam.  It  stretched  clear 
across  the  river,  probably  two  and  a half  or  three  feet  high.  It 
remained  there  about  fifteen  years  after  I first  saw  it.  I 
o488  have  had  occasion  to  observe  the  condition  of  the  river  all 
along  time  and  time  again,  from  the  mouth  up,  ever  since  I 
moved  there.  I am  speaking  of  the  river  near  its  mouth.  We 
used  to  cross  it  below  this  dam,  used  to  ford  it  prior  to  1871.  There 
were  boulders  all  through  it  at  what  we  call  the  bend.  Dead  Man’s 
Hole,  below  the  dam.  The  boulders  extended  probably  twenty 
rods  along  the  drift,  what  they  call  the  rapids,  from  the  dam  down. 
There  was  deep  water  there  above  the  dam.  There  were  no  bould- 
ers exposed  above  the  dam.  If  I recollect  right,  the  boulders 
were  scattered  all  the  way  down  below  the  dam,  about  twenty  or 
thirty  rods.  They  ran,  I guess,  from  6 inches  to  2 feet,  some 
of  them,  in  diameter,  through.  Some  of  them  maybe  more.  There 
were  quite  a few.  They  were  scattered  through  the  channel. 
3491  You  would  have  to  dodge  around  those  boulders  with  a skiff. 

You  could  see  the  river  from  our  house.  Never  saw  boats, 
except  rowboats,  going  up  and  down.  Never  heard  of  any  boats 
carrying  any  kind  of  commerce  or  produce  going  up  and  down. 
Nothing  but  some  trapper,  setting  traps,  or  something  like  that. 
That  would  be  a common  rowboat.  It  would  be  going  up  and  down, 
both. 

Cross-Examination. 

3495  I have  been  living  at  Channahon  and  farming  from  1848 
to  1906.  The  dam  was  about  two  miles  from  where  I lived. 
1 never  got  out  and  climbed  on  what  was  left  of  the  old  dam. 
There  was  a ruin  of  an  old  mill  on  the  other  side  of  the  river.  I 
never  saw  it  in  operation.  I was  in  the  room  when  Mr.  Mills 
described  the  construction  of  the  dam  at  Treat’s  Island  and  heard 
him  describe  it.  I think  this  dam  was  put  in  in  the  same  way 
as  the  other,  with  slal)s  put  on  it,  and  scraped  up  underneath,  ancl 


I 


1043 

put  on  top.  The  water  used  to  i)our  over  the  remnant  of  the  dam 
most  of  the  time ; in  low  water  it  used  to  go  down  in  what  we  call 
the  tail  race.  The  dam  was  gradually  washed  away  until  just 
the  riffles  were  left.  The  washing  away  began  as  far  back  as  I 
can  remember.  It  was  substantially  all  out  fifteen  years  after  I 
first  saw  it.  This  Dead  Man’s  Hole  was  kind  of  a whirl  hole,  I 
never  was  in  it.  They  used  to  swim  in  the  aqueduct.  There  used 
to  be  an  aqueduct  in  the  feeder.  The  water  there  was  44  to  5 
feet  deep.  I never  knew  them  to  go  swimming  in  the  river,  the 
ciqueduct  was  too  handy.  I learned  from  my  father  that  the 
boards  in  the  floor  of  the  house  were  made  at  the  old  mill.  I 
recall  helping  him  to  draw  lumber  from  there  when  I was  a boy. 
I think  the  house  was  built  the  same  spring  w^e  moved,  when  I was 
tliree  years  old.  Afterwards  we  hauled  lumber  for  the  fence:  that 
was  when  I rode  with  him,  maybe  five  or  six  years  after. 

Re-direct  Exa  min  at  ion. 

3499  I do  not  recall  the  boys  swimming  in  the  river  below  the 
old  dam.  I don’t  think  there  was  water  enough  to  cover  them 
part  of  the  time, , without  they  would  go  in  these  holes,  like  Dead 
Man’s  Hole.  I have  forded  the  rapids  above  there  when  it  was 
just  sifting  through  the  boulders  down  around  the  rapids. 
Scarcely  any  water  at  all,  and  then  I forded  it  when  it  was  deep 
in  case  of  rain.  After  the  spring  freshets  the  usual  condition  of 
the  river  was  kind  of  riffly*  In  some  places  it  would  run  through 
a little  crevice,  just  sifting  down;  that  would  be,  I should  judge, 
say  twenty  rods  above  the  dam. 

3)502  Counsel  for  Defendant.  I will  read  something  from 
Parkman,  which  I wish  to  introduce.  I read  from  pages  406 
to  408  from  Parkman ’s  LaSalle  and  the  Discovery  of  the  Great 
West,  being  the  summary  of  Parkman  as  to  the  c’ aracter  of  La- 
Salle : 

‘‘Thus  in  the  vigor  of  his  manhood  at  the  age  of  forty-three, 
died  Eobert  Cavalier  de  la  Salle,  without  question  one  of  the 
most  remarkable  explorers  whose  names  live  in  history.  His 
faithful  officer  Joutel  thus  sketches  his  portrait:  ‘His  firm- 

ness, his  courage.  Ills  great  knowledge  of  the  arts  and  sciences, 
which  made  him  equal  to  every  undertaking,  and  his  untiring 
energy,  which  enabled  him  to  surmount  every  obstacle,  would 


1044  Extract, — Parkman's  LaSalle. — Continued. 

have  won  at  last  a glorious  success  for  this  grand  enterprise, 
had  not  all  his  fine  qualities  been  counterbalanced  by  a hauti- 
ness  of  manner  which  often  made  him  insupportable,  and  by  a 
harshness  toward  those  under  his  command  which  drew  upon 
him  an  implacable  hatred,  and  was  at  last  the  cause  of  his 
death.’  ” 

This  is  the  end  of  the  quotation  from  Joutel. 

J1503  ^‘The  enthusiasm  of  the  disinterested  and  chivalrous  Chain- 
plain  wasmot  the  enthusiasm  of  LaSalle;  nor  had  he  any  pan 
in  the  self-devoted  zeal  of  the  early  Jesuit  explorers.  He  be- 
longed not  to  the  age  of  the  knight-errant  and  the  saint,  but  to 
the  modern  world  of  practical  study  and  practical  action.  He 
was  the  hero  not  of  a principle  nor  of  a faith,  but  simply  of  a 
fixed  idea  and  a determined  purpose.  As  often  happens  with 
concentrated  and  energetic  natures,  his  purpose  was  to  him  a 
passion  and  an  inspiration;  and  he  clung  to  it  with  a certain 
fanaticism  of  devotion.  It  was  the  offspring  of  an  ambition 
vast  and  comprehensive,  yet  acting  in  the  interest  both  of 
France  and  of  civilization. 

Serious  in  all  things,  incapable  of  the  lighter  pleasures, 
incapable  of  repose,  finding  no  joy  but  in  the  pursuit  of  great 
designs,  too  shy  for  society  and  too  reserved  for  popularity, 
often  unsympathetic  and  always  seeming  so,  smothering  emo- 
tions which  he  could  not  utter,  schooled  to  universal  distrust, 
stern  to  his  followers  and  pitiless  to  himself,  bearing  the  brunt 
of  every  hardship  and  every  danger,  demanding  of  others 
an  equal  constancy  jointed  to  an  implicit  deference,  heeding 
no  counsel  but  his  own,  attempting  the  impossible  and  grasp- 
ing at  what  was  too  vast  to  hold, — he  contained  in  his  own 
complex  and  plainful  nature  the  chief  springs  of  his  triumphs, 
his  failures  and  his  death. 

3504  It  is  easy  to  reckon  up  his  defects,  but  it  is  not  easy  to 
hide  from  sight  the  Koman  virtues  that  redeemed  them.  Be- 
set b^^  a throng  of  enemies,  he  stands,  like  the  King  of  Israel, 
head  and  shoulders  above  them  all.  He  was  a tower  of  ada- 
mant, against  whose  impregnable  front  hardship  and  danger, 
the  rage  of  man  and  of  the  elements,  the  southern  sun,  the 
northern  blast,  fatigue,  famine,  disease,  delay,  disappoint- 
ment and  deferred  hope  empty  their  quivers  in  vain.  That 
very  pride  which,  Coriolanus-like,  declared  itself  most  sternly 
in  the  thickest  press  of  foes,  has  in  it  something  to  challenge 
admiration.  Never,  under  the  impenetrable  mail  of  paladin 
or  crusader,  beat  a heart  of  more  intrepid  mettle  than  within 
the  stoic  panoply  that  armed  the  breast  of  LaSalle.  To  esti- 
mate aright  the  marvels  of  his  patient  fortitude,  one  must  fol- 
low on  his  track  through  the  vast  scene  of  his  interminable 
journeyings, — those  thousands  of  weary  miles  of  forest,  marsh 


1045 


and  river,  where,  again  and  again,  in  the  bitterness  of  bajBfled 
striving,  the  untiring  pilgrim  pushed  onward  towards  the  goal 
which  he  was  never  to  attain.  America  owes  him  an  enduring 
memory ; for  in  this  masculine  figure  she  sees  the  pioneer  who 
guided  her  to  the  possession  of  her  richest  heritage.” 

I also  introduce  page  276: 

3505  ^‘Chapter  XX,  1681-1682.  Success  of  LaSalle.  His  follow- 
ers— The  Chicago  Portage — Descent  of  the  Mississippi — The 
Lost  Hunter — The  Arkansas — The  Taensas — The  Natchez — 
Hostility — The  Mouth  of  the  Mississippi — Louis  XIV.  Pro- 
claimed Sovereign  of  the  Great  West.” 

That  is  the  chapter  head  on  page  275.  I begin  reading  at  the 
bottom  of  page  276,  the  page  heading  being  1682: 

‘^On  the  21st  of  December,  Tonty  and  Membre  set  out  from 
Fort  Miami  with  some  of  the  j^arty  in  six  canoes,  and  crossed 
to  the  little  river  Chicago.  LaSalle,  with  the  rest  of  the  men, 
joined  them  a few  days  later.  It  was  the  dead  of  wdnter,  and 
the  streams  were  frozen.  They  made  sledges,  placed  on  them 
the  canoes,  the  baggage,  and  a disabled  Frenchman;  crossed 
from  the  Chicago  to  the  northern  branch  of  the  Illinois,  and 
filed  in  a long  procession  down  its  frozen  course.  They 
reached  the  site  of  the  great  Illinois  village,  found  it  tenant- 
less, and  continued  their  journey,  still  dragging  the  canoes 
till  at  length  they  reached  open  water  below  Lake  Peoria.” 

3506  Again,  in  Chapter  21,  beginning  on  page  289,  the  chap- 
ter heading  being  ^Whapter  21,  1682-1683.  St.  Louis  of 

the  Illinois.  Heading  from  page  299,  the  heading  at  the  top  of 
the  page  being  ‘M683”: 

‘‘Again,  on  the  fourth  of  June  following,  he  writes  to  La 
Barre,  from  the  Chicago  portage,  complaining  that  some  of 
his  colonists,  going  to  Montreal  for  necessary  supplies,  have 
been  detained  by  his  enemies,  and  begging  that  they  may 
be  allowed  to  return,  that  his  enterprise  may  not  be  ruined.” 

Also,  on  page  21,  as  follows: 

3508  “After  leaving  the  priests,  LaSalle  went  to  Onondaga, 
where  we  are  left  to  infer  that  he  succeeded  better  in  get- 
ting a guide  than  he  had  before  done  among  the  Senecas. 
Thence  he  made  his  way  to  a point  six  or  seven  leagues  dis- 
tant from  Lake  Erie,  where  he  reached  a branch  of  the  Ohio, 
and,  descending  it,  followed  the  river  as  far  as  the  rapids 
at  Louisville, — or,  as  has  been  maintained,  beyond  its  con- 
fluence with  the  Mississippi.  His  men  now  refused  to  go 
farther,  and  abandoned  him,  escaping  to  the  English  and  the 
Dutch;  whereupon  he  retraced  his  steps  alone.  This  must 


1046  Extract, — Parkman’s  LaSalle.— Continued. 

have  been  in  the  winter  of  1669-1670,  or  in  the  following 
spring;  unless  there  is  an  error  of  date  in  the  statement 
of  Nicolas  Perrot,  the  famous  voyageur,  who  says  that  he 
met  him  in  the  summer  of  1670,  hunting  on  the  Ottawa  with 
a party  of  Iroquois. 

3509  But  how  was  LaSalle  employed  in  the  following  year!  The 
same  memoir  has  its  solution  to  the  problem.  By  this  it 
appears  that  the  indefatigable  explorer  embarked  on  Lake 
Erie,  ascended  the  Detroit  to  Lake  Huron,  coasted  the  un- 
known shores  of  Michigan,  passed  the  Straits  of  Michili- 
mackinac,  and,  leaving  Green  Bay  behind  him,  entered  what 
is  described  as  an  incomparably  larger  bay,  but  which  was 
evidently  the  southern  portion  of  Lake  Michigan.  Thence 
he  crossed  to  a river  flowing  westward, — evidently  the  Illi- 
nois,— and  followed  it  until  it  was  joined  by  another  river 
flowing  from  the  northwest  to  the  southeast.  By  this,  the 
Mississippi  only  can  be  meant;  and  he  is  reported  to  have 
said  that  he  descended  it  to  the  thirty-sixth  degree  of  lati- 
tude ; where  he  stopped,  assured  that  it  discharged  itself  not 
into  the  Gulf  of  California,  but  into  the  Gulf  of  Mexico,  and 
resolved  to  follow  it  thither  at  a future  day,  when  better 
provided  with  men  and  supplies. 

3510  The  first  of  these  statements, — that  relating  to  the  Ohio, — • 
confused,  vague,  and  in  great  part  incorrect,  as  it  certainly 
is,  is  nevertheless  well  sustained  as  regards  one  essential 
point.  LaSalle  himself,  in  a memorial  addressed  to  Count 
Frontenac  in  1677,  affirms  that  he  discovered  the  Ohio,  and 
descended  it  as  far  as  to  a fall  which  obstructed  it. 

Again,  his  rival,  Louis  Joliet,  whose  testimony  on  this 
point  cannot  be  suspected,  made  two  maps  of  the  region  of 
the  Mississippi  and  the  Great  Lakes.  The  Ohio  is  laid  down 
on  both  of  them,  with  an  inscription  to  the  effect  that  it  has 
been  explored  by  LaSalle.  That  he  discovered  the  Ohio  may 
then  be  regarded  as  established.  That  he  descended  it  to 
the  Mississippi,  he  himself  does  not  pretend;  nor  is  there 
reason  to  believe  that  he  did  so. 

3511  With  regard  to  his  alleged  voyage  down  the  Illinois,  the 
case  is  different.  Here,  he  is  reported  to  have  made  a state- 
ment which  admits  but  one  interpretation, — that  of  the  dis- 
covery by  him  of  the  Mississippi  prior  to  its  discovery  by 
Joliet  and  Marquette.  The  statement  is  attributed  to  a man 
not  prone  to  vaunt  his  own  exploits,  who  never  proclaimed 
them  in  print,  and  whose  testimony,  even  in  his  own  case, 
must  therefore  have  weight.  But  it  comes  to  us  through 
the  medium  of  a person  strongly  biased  in  favor  of  LaSalle, 
and  against  Marquette  and  the  Jesuits. 

Seven  years  had  passed  since  the  alleged  discovery,  and 
LaSalle  had  not  before  laid  claim  to  it;  although  it  was  a 
matter  of  notoriety  that  during  five  years  it  had  been  claimed 


1047 


by  Joliet,  and- that  his  claim  was  generally  admitted.  The 
correspondence  of  the  governor  and  the  intendant  is  silent 
as  to  LaSalle ^s  having  penetrated  to  the  Mississippi,  though 
the  attempt  was  made  under  the  auspices  of  the  latter,  and 
his  own  letters  declare;  while  both  had  the  discovery  of  the 
great  river  earnestly  at  heart.  J^he  governor,  Frontenac, 
LaSalle’s  ardent  supporter  and  ally,  believed  in  1672,  as  his 
letters  show,  that  the  Mississippi  flowed  into  the  Gulf  of 
California ; and,  two  years  later,  he  announces  to  the  minister 
Colbert  its  discovery  by  Joliet.  After  LaSalle’s  death,  his 
brother,  his  nephew,  and  his  niece  addressed  a memorial  to 
the  king,  petitioning  for  certain  grants  in  consideration  of 
the  discoveries  of  their  relative,  which  they  specify  at  some 
length;  but  they  do  not  pretend  that  he  reached  the  Missis- 
sippi before  his  expeditions  of  1679  and  1682.  This  silence 
is  the  more  significant,  as  it  is  this  very  niece  who  had  pos- 
session of  the  papers  in  which  LaSalle  recounts  the  journeys 
of  which  the  issues  are  in  question.  Had  they  led  him  to  the 
Mississippi,  it  is  reasonably  certain  that  she  would  have  made 
it  known  in  her  memorial.  LaSalle  discovered  the  Ohio,  and 
in  all  probability  the  Illinois  also ; but  that  he  discovered  the 
Mississippi  has  not  been  proved,  nor,  in  the  light  of  the  evi- 
dence we  haye,  is  it  likely.” 

On  page  24  there  is  a footnote  1,  being  the  footnote  follow- 
ing the  paragraph  which  I read,  which  sets  out  the  journey  in 
1669  or  1670,  in  which  he  states  that  he  came  to  the  southern  por- 
tion of  Lake  Michigan  and  crossed  to  a river  flowing  westward^ 
evidently  the  Illinois. 

3512  ‘‘Fig.  1.  Seymour. — After  stating  as  above  that  he  en- 
tered Lake  Huron,  doubled  the  Peninsula  of  Michigan,  and 
passed  La  Baye  des  Puante  (Green  Bay)  says:  II  reconnut 
une  baye  incomparablement  plus  large;  au  fond  de  laquelle 
vers  I’ouest  il  trouva  un  tres  beau  havre  et  au  fond  de  ce 
havre  in  et  louve  qui  ca  de  o’est  a I’ouest.  II  sar  suivet 
ce  fleuve  et  estant  parvenu  jusqua-environ  le  280me  degre  de 
longitude,  et  le  39me  latitude  il  trouva  un  autre  fleuve  qui 
secjoignaut  au  premier  coulait  du  nordouest  au  sudest  er  il 
suivet  ce  fleu  ve  jusqu-au  36me  degre  de  latitude.” 

“Tres-beau  havre”  may  have  been  the  entrance  of  the  Eiver 
Chicago,  whence  by  an  easy  portage  he  might  have  reached  the 
Hesplaines  branch  of  the  Illinois.  We  shall  see  that  he  took  this 
course  in  his  famous  exploration  of  1682. 

“The  intendant  Palon  announces  in  his  dispatches  of  that 
year  that  he  had  sent  La  Salle  southward  and  westward  to 
explore.  ’ ’ 


1048  Extract y — Parkman’s  LaSalle. — Continued. 

3517  Counsel  for  Defendant  (Reading):  ‘lAgain,  his  rival. 
Louis  Joliet,  whose  testimony  on  this  point  cannot  be  sus- 
pected, made  two  maps  of  the  region  of  the  Mississippi  and 
the  Great  Lakes.  The  Ohio  is  on  both  of  them  with  the  in- 
scription to  the  effect  that  it  has  been  explored  by  LaSalle. 

One  of  these  maps  entitled,  ‘Carte  de  la  decouverte  du 
Sieur  Joliet,  1674.^  Over  the  lines  representing  the  Ohio 
are  the  words  ‘Route  do  Sieur  De  La  Salle  pour  alJer  dous 
le  Mexique.’  The  other  map  of  Joliet’s  bears  also  written 
over  the  Ohio  the  words,  ‘Riviere  par  ou  descendit  Le  Sieur 
de  La  Salle,  au  sautir  du  lac  Erie  pour  aller  daus  le  Mex- 
ique.’ I have  also  another  manuscript  map  made  before  the 
voyage  of  Joliet  and  Marquette  apparently  in  the  year  1673 
on  which  the  Ohio  is  represented  as  far  as  to  a point  a little 
below  Louisville,  and  over  it  is  written,  ‘Riviere  Ohio  Auisy 
appellee  par  les  Iroquois  a cause  de  sa  beaute  par  ou  le 
sieur  de  La  Salle  ests  descend!.’  The  Mississippi  is  not 
represented  on  this  map,  but — and  this  is  very  significant 
as  indicating  the  extent  of  LaSalle’s  exploration  of  the  fol- 
lowing year  and  summer  of  a part  of  the  upper  Illinois  as 
laid  down.” 

There  was  also  read  from  Schoolcraft’s  Travels  Up  and  Do^s-n 
the  Mississippi,  published  in  1825,  describing  a journey  during 
1821.  Chapter  15,  beginning  on  page  313,  the  author  is  at  Peoria 
Lake.  From  page  316: 

3521  “AYe  pursued  our  voyage  without  iiiteiaiiption  from  the 
Rapids  and  without  detention  from  settlements.  There  were 
no  white  habitations  between  Fort  Clark  and  Chicago,  nor 
would  a traveller  be  led  to  presume  from  the  present  appear- 
ances that  the  French  had  built  forts  and  erected  chappels 
in  this  region  of  the  country  more  than  one  hundred  years 
ago.  It  is  not  certain  where  Fort  Creve-cauer  stood  though 
it  appears  probable  it  was  near  the  lower  part  of  Peoria 
Lake.  But  the  knowledge  that  we  are  passing  through  scenes 
which  were  first  made  known  by  the  enterprise  of  Joliet  and 
LaSalle,  and  which  long  continued  to  be  the  theater  where 
zealous  disciples  of  Loyola  exerted  their  efforts  to  christian- 
ize the  native  tribes,  sacrificing  their  lives  in  the  pious  at- 
tempt, is  a circumstance  calculated  to  excite  our  regret  for 
the  intrepidity  which  brought  no  lasting  good  for  mission- 
ary labors  and  of  which  no  trace  remains. 

The  evening  was  fast  approaching  when  we  came  to  a 
Pottowattomie  village  on  the  west  shore.  As  is  usual  on 
these  occasions  we  displayed  our  ensign,  considerable  con- 
fusion was  manifested  in  their  cam]^ — men,  women  and  chil- 
dren running  to  and  fro  in  confusion  and  long  before  we 
reached  the  shore  the  collected  population  of  the  village  was 
at  the  water’s  side  to  greet  us  on  landing. 


1049 


A few  words  gave  them  to  understand  that  we  were  on 
our  way  to  attend  the  treaty  at  C’iiieago  and  they  informed 
us  that  they  were  on  the  point  of  starting  for  the  same  place. 
After  the  customary  ceremonies  and  presents  we  visited  sev- 
eral of  their  lodges,  and  found  none  of  them  destitute  of 
some  articles  of  American  or  European  manufacture  as  ket- 
tles, knives,  axes,  &c.” 

Also  from  page  318: 

‘‘At  two  o’clock  we  reached  the  mouth  of  the  Vermillion, 
a fine,  clear  stream  entering  on  the  left  bank.  This  point  is 
estimated  to  be  equi-distant  between  Chicago  and  Fort  Clark, 
it  being  ninety  miles  either  way.  The  rapids  commenced 
half  a mile  above  which  connects  it  with  the  Illinois,  and 
is  greatly  diminished  in  size  above  the  junction  with  the 
Vermillion.  The  water  at  once  becomes  shallow  and  the  rock, 
which  is  sandstone,  presents  itself  first  in  broken  masses 
and  soon  after  flooring  the  bed  of  the  river.  VTien  our 
canoes  would  no  longer  float  without  rubbing  against  the 
rocks  we  got  out  and  made  a short  ])ortage.  The  empty 
canoes  being  still  guided  along  by  men  walking  in  the  stream 
on  each  side.  . When  we  again  embarked  we  could,  however, 
go  but  a very  short  distance.  Another  portage  was  neces- 
sary. In  short  we  could  no  longer  proceed  in  our  water 
craft.  Nothing  but  a series  of  rapids  appeared  above  as  far 
as  we  could  explore.  The  water  was  scarcely  eight  or  ten 
inches  deep  in  any  place  and  often  less  than  four.  With  great 
exertions  we  had  proceeded  two  or  three  miles  above  the 
Vermillion  and  about  four  o’clock  we  encamped  near  a re- 
markable isolated  hill  called  by  French  voyagers  Le  Rocker 
and  Rock  Fort.” 

Also,  on  page  321,  as  follows : 

3523  “Finding  navigation  so  difficult  we  determined  to  relin- 
quish the  design  of  proceeding  any  farther  by  water  but  to 
await  the  arrival  of  horses  from  Chicago  which  had  been 
ordered  to  meet  us  near  this  place  on  the  10th.  A man  was 
sent  by  land  to  Reddick’s  deposit.  He  returned  at  a sea- 
sonable hour  on  the  following  day  having  found  horses  in 
waiting.  Having  made  the  necessary  arrangements  for  con- 
tinuing our  voyage  by  land,  we  left  our  canoe  men  in  charge 
and  we  mounted  our  horses  at  ten  o’clock  in  the  morning 
and  resumed  the  journey  in  renovated  spirits.  It  was  our 
good  fortune  to  be  guided  by  a Chief  of  the  Pottowattomies 
of  the  plains,  perfectly  acquainted  with  the  route,  who  had 
passed  it  times  innumerable,  and  who  knew  every  choice 
spot  for  encamping,  and  to  whom  we  could  safely  confide  our 
arrangements. 

In  passing  through  this  once  populous  country,  Pieris,  our 


1050 


Extract, — Schoolcraft Travels. — Continued. 


trusty  guide,  pointed  out  to  us  the  ancient  sites  of  several 
Indian  villages,  one  of  which  was  situated  on  the  top  of  a 
romantic  tabular  elevation  called  Buffalo  Bock.  Another  lo- 
cated on  the  plain  had  been  completely  encompassed  by  a 
ditch  and  wall,  the  remains  of  which  are  still  conspicuous, 
the  whole  extent  of  the  lines  is  easily  traced.’^ 

3524  Also,  on  page  325,  as  follows : 

‘‘At  nine  o’clock  in  the  mornir.g  we  came  to  a part  of  the 
country  which  is  contiguous  to  the  lies  Plaines  ai\d  to  the 
Kankakee,  two  considerable  streams,  which  by  their  junction 
form  the  Illinois.  Here  our  party  halted  to  allow  an  oppor- 
tunity of  examining  an  object  that  had  been  described  to  us 
being  one  which  was  calculated  to  excite  our  curiosity.  Few 
persons  of  observation  have  probably  passed  through  the 
river  Des  Plaines  without  devoting  some  attention  to  this 
petrified  tree.” 

Also,  from  2^^ge  332,  as  follows: 

“About  ten  o’clock  in  the  morning  we  reached  the  ford  of 
the  Desplaines.  We  found  the  river  about  thirty  yards  wide 
and  the  depth  of  water  two  feet.  Between  this  place  and 
the  Vermillion,  where  we  left  the  Illinois,  we  have  seen  the 
river  but  seldom,  although  our  route  has  been  for  the  greater 
part  upon  its  banks.  We  have,  however,  seen  its  channel  at 
a sufficient  number  of  places  to  determine  that  it  has  several 
long  and  formidable  rapids  which  completely  intercept  navi- 
gation at  this  sultry  season. 

A remark  that  has  been  confirmed  by  meeting  several 
traders  on  the  plains  who  had  transported  their  goods  and 
boats  in  carts  from  Chicago  Creek,  and  who  informed  us 
they  thousfht  it  practicable  to  enter  the  Illinois  at  Mount 
Joliet.  This  would  lengthen  the  portage  to  about  thirty  miles, 
but  is  has  been  perceived  that  we  experienced  difficulties  far 
below  this  last  mentioned  point.  This  fact  is  sufficient  to 
show  the  error  of  those  who  have  supposed  that  a canal  of 
only  eight  or  ten  miles  would  be  necessary  to  provide  navi- 
gation between  Lake  Michigan  and  the  Illinois.  A canal  of 
this  length  would,  indeed,  provide  communication  which  al- 
ready exists  at  certain  seasons  between  Chicago  Creek  and 
the  Desplaines,  but  must  fall  far  short  of  the  grand  pur- 
pose.” 

Also,  from  page  333,  as  follows: 

3526  “We  are  indebted  to  a gentleman  of  correct  observation 
who  has  explored  the  route  with  particular  reference  to  the 
subject  of  a canal  for  the  following  information  respecting 
those  ])arts  of  the  bed  of  the  Illinois  and  Desplaines^  which 
we  have  not  personally  examined.  The  computed  distance 


1051 


from  the  ford  of  the  Desplaines  to  its  connection  with  the 
Kankakee  is  about  45  miles.  Fifteen  miles  of  this  distance 
consists  of  Lake  Joliet,  and  the  remainder  is  almost  equally 
divided  between  ripples  and  still  waters. 

The  next  obstruction  occurs  at  the  Kickapoo  Rapids  which 
have  a fall  of  perhaps  six  feet  in  a distance  of  a mile  and  a 
quarter.  But  this  yields  in  importance  to  the  Rock  Fort 
Rapids  which  are  commonly  computed  to  be  24  miles  long. 
The  total  fall  of  the  river  in  this  distance  cannot  be  less  than 
35  or  40  feet.  The  Illinois  in  passing  these  rapids  spreads 
over  a wide  surface  and  was  reduced  to  a depth  of  a few 
inches,  hence  it  has  been  said  by  cutting  a channel  in  the  rock 
so  as  to  concentrate  the  volume  a good  and  sufficient  naviga- 
tion would  be  afforded  for  boats  of  eight  or  ten  tons  bur- 
den. By  a similar  labor  the  whole  series  of  rapids  could  be 
improved  and  at  perhaps  comparatively  small  expense.  But 
it  may  be  a question  whether  this  species  of  succedaneous 
canalling  as  calculated  would  answer  any  available  purpose. 
We  believe  experience  has  proved  it  cheaper  in  the  end  to 
open  an  entirely  new  channel  than  to  improve  the  natural 
bed  of  a shallow  or  rapid  stream,  of  one  that  is  subject  to 
sudden  fluctuations  from  vernal  or  autumnal  freshets.  This 
appears  to  be  the  proper  construction  and  applicable  to  the 
noble  idea  of  the  celebrated  Brindley  ‘That  streams  were  only 
made  to  feed  canals, — the  principal  of  which,  so  far  as  we  are 
capable  of  judging,  appears  to  be  adopted  by  modern  engi- 
neers, and  has  been  particularly  rigidly  applied  in  the  exist- 
ence of  the  Erie  canal. 


Jeeemiah  Collins, 

a witness  for  the  defendant,  testified  as  follows : 

3529  My  name  is  Jeremiah  Collins.  I live  in  Grundy  County, 
— will  soon  be  88  years  old.  I came  from  Albany  County, 

Kew  York,  in  1834,  to  Grundy  County,  came  by  water  to  Chicago, 
and  by  wagon  from  there.  There  was  no  other  method  of  getting 
down  there  that  I knew  of.  WY  crossed  the  Desplaines  in 

3530  coining.  There  were  no  boats  running  down  the  river  at  that 
time  that  I heard  of.  I have  lived  on  a farm  ever  since  I 

came  to  Grundy  County.  We  used  to  go  up  to  Chicago  by  ox 
team,  and  with  horses,  before  the  canal  was  opened.  I live  in 
Town  34,  Range  7 of  Section  13.  I am  about  five  miles  from  the 
Illinois  River,  and  over  six  to  the  Desplaines.  If  my  memory 
serves  me  right,  there  was  some  of  our  neighbors  went  up  to  the 


. 1052  Collins, — Direct  Exam. — Continued. 

mouth  of  the  Desplaines  Eiver  when  we  first  settled  in 

3532  Grundy  County;  what  makes  me  recollect  it  is  the  big  weeds 
that  hung  over  this  way  (indicating)  and  we  drove  right 

under. 

There  were  no  buildings  near  the  mouth  of  the  Desplaines  when 
we  first  came  there,  nor  any  settlements  between  there  and  Chi- 
cago. I have  never  seen  any  warehouse  situated  near  the  moutli 
of  the  Desplaines,  nor  never  heard  of  any.  We  used  to  go  up 
there  with  our  cattle  and  feed  them  in  the  fall  of  the  year  on  blue 
grass,  I never  noticed  the  mouth  of  the  river  particularly. 

3533  I could  ride  across  the  mouth  of  the  river  there  most  any 
place.  I never  knew  or  heard  of  the  river  being  navigated. 

Mr.  Treat  had  a mill  at  Treat’s  Island,  there  was  water  power 
there.  That  is  the  only  thing  I know  the  river  was  used  for. 

3534  I knew  Johnny  Beard.  He  built  a dam  and  saw  mill  about 
1836  or  1837.  I do  not  know  whether  the  dam  was  there 

after  they  built  the  aqueduct  or  not.  That  was  built  in  1848. 
3536  I knew  Henry  Fish, — he  had  a store  where  they  built  the 
locks  at  the  Aux  Sable.  I do  not  know  any  way  that  he 
could  have  got  his  supplies  except  by  team.  I never  heard  of  his 
getting  supplies  by  boat  down  the  Desplaines  before  the  canal 
was  built.  I never  heard  of  anything  of  that  kind.  I never 
heard  of  there  being  a corner  on  salt.  We  got  our  salt  from 

3536  Chicago,  by  team.  I never  heard  of  any  salt  being  brought 
down  the  Desplaines  on  boats.  The  farmers  who  settled 

the  country  below  me  on  the  Illinois  Eiver  went  to  Chicago  with 
their  produce  in  teams.  I never  heard  of  any  farmer  taking  his 
produce  up  the  river  in  boats. 

3537  I never  heard  of  a man  named  John  Hamlin  having  a 
warehouse  at  the  mouth  of  the  Desplaines  for  storing  goods 

to  be  shipped  up  the  river  by  boats.  I don’t  believe  it  would  have 
been  possible  for  a warehouse  to  have  been  there  since  1834,  or  I 
would  have  seen  it.  I remember  when  the  Jessups  built  a house 
on  the  DuPage  Eiver.  I do  not  know  where  they  got  the 

3538  lumber  to  build  their  house,  unless  they  got  it  from  the 
saw  mill  on  the  DuPage.  That  mill  was  right  south  of  where 

the  bridge  crosses  the  DuPage  now.  A man  named  Will  Camp- 


1053 


bell,  I believe,  from  Ottawa,  built  the  mill,  and  Treat  built  the 
dam.  It  was  probably  a mile  from  where  they  built  the  house. 

3539  I have  never  seen  any  navigation  on  the  Illinois  Eiver 
along  where  my  farm  was,  nor  heard  of  any  above  Ottawa. 

I donT  think  there  could  have  been  any  without  my  knowing  it. 

Cross-Examination. 

3540  I have  not  sold  any  land  to  the  Economy  Light  & Power 
Company,  I donT  live  within  five  miles  of  them. 

There  was  then  read,  at  the  request  of  the  complainant,  from 
the  volume  of  Schoolcraft,  the  title  page,  as  follows: 

3541  ‘‘Travels  in  the  Central  Portion  of  the  Mississippi  Val- 
ley, comprising  observations  on  its  minerals,  geography,  in- 
ternal resources  and  aboriginal  population.  (Performed 
under  the  sanction  of  the  Grovernment  in  the  year  1821.)  By 
Henry  E.  Schoolcraft,  U.  S.  I.  A.,  Honorable  Member  of  the 
American  Geological  Society,  Member  of  American  Antiqua- 
rian Society,  honorable  member  of  New  York  Historical  So- 
ciety, correspondent  member  of  New  York  Lyceum  of  Na- 
tural History,  correspondent  of  the  Academy  of  Natural 
Sciences  at  Philadelphia,  etc.  New  York.  Published  by  Col- 
lins & Hannay,  230  Pearl  street.  J.  & J.  Harper,  Printers, 
1825.’^ 

Also,  on  pages  8 and  9,  from  the  introduction  of  said  book : 

3542  “The  Government  now  proposed  to  extinguish  the  In- 
dian title  to  that  portion  of  the  country  included  between 

the  northern  boundary  line  of  the  State  of  Indiana  and  Grand 
Eiver,  Michigan,  embracing  in  longitude  all  that  part  of  the 
peninsula  within  these  boundaries,  which  still  remained  un- 
purchased. To  effect  this  object,  his  Excellency,  Governor 
Cass  and  Solomon  Sibley,  Esq.,  were  commissioned  by  the 
President  to  meet  the  Indians  in  council  at  Chicago  in  the 
summer  of  1821;  the  results  of  whose  efforts  is  hereafter  to 
be  detailed.  Having  been  appointed  to  fill  the  office  of  sec- 
retary for  this  commission,  I deem  it  sufficient  here  to  re- 
mark that  the  following  sketches  have  been  made  under  rather 
favorable  circumstances  during  the  preliminary  tour,  which 
it  became  necessary  to  perform  in  order  to  meet  the  place 
of  treaty;  and  while  the  large  concourse  of  Indians  who  were 
drawn  together  on  this  occasion  remained  encamped  in  that 
vicinity. 

3543  The  usual  route  in  proceeding  to  Chicago  is  either  to  fol- 
low an  Indian  trail  which  leads  out  from  the  source  of  the 

Eiver  Eaisin  and  is  computed  to  be  a little  short  of  three 


1054  Ex  t rac  t, — Sch  o ole  raft 's  Trav  els . — C o 1 1 tk  i uM. 

Imndred  miles,  or  by  taking  ship  and  performing  the  voyage 
through  the  lakes  by  the  way  of  Mackinac,  which  somewhat 
• more  than  doubles  the  distance.  But  as  Government  busi- 
ness required  the  presence  of  one  of  the  commissioners  on 
the  Wabash,  it  was  proposed  to  reach  that  place  by  means 
of  the  water  communication  connecting  that  river  with  the 
Maumee,  and  afterwards  to  extend  the  route  into  the  Ohio 
and  the  Mississippi,  and  reach  Chicago  by  following  up  the 
Illinois  to  its  source. 

Also,  on  pages  12  and  13,  from  the  introduction  of  said  book: 

‘‘Having  now  briefly  noticed  the  motive  of  the  journey,  the 
objects  proposed  to  be  accomplished  and  the  route  to  be  pur- 
sued, we  shall  conclude  these  preliminary  remarks  with  a 
short  account  of  our  mode  of  traveling ; or  rather,  as  a slight 
consideration  of  the  nature  of  our  route,  will  lead  the  reader 
to  anticipate  of  our  traveling  canoe.  In  its  dimensions  a 
choice  was  made  between  the  long  and  pointed  Northwest 
canoe  employed  in  the  fur  trade,  and  the  light  ovate  canoe 
of  the  lakes;  combining  in  a good  degree  the  strength,  the 
bouyancy  and  the  velocity  which  are  the  peculiar  characteris- 
tice  of  each.  And  our  bark  afforded  perhaps  an  equitable 
standard  of  comparison  of  the  safety  and  convenience  of  this 
expeditious,  and  as  we  think,  pretty  mode  of  voyaging.  It 
3544  was  furnished  with  a small  mast,  and  square  sail,  and  an 
awning  of  painted  cloth,  with  side  curtains  to  intercept  the 
rain  and  mitigate  the  heat,  and  contained  seats  for  six  men 
to  paddle,  and  another  for  a servant  and  cook  in  addition  to 
the  space  for  the  steersman,  who  performs  his  duties  stand- 
ing. Our  own  seats  were  made  by  opening  a traveling  bed 
upon  the  light  portable  floor  placed  between  the  center  thwarts 
of  the  canoe,  and  so  arranged  as  to  serve  the  double  purpose 
of  sitting  and  reclining; — or  father  so  as  frequently  to  keep 
the  body  in  a state  of  involuntary  accubation.  Our  whole 
amount  of  personal  baggage,  beside  a camp  bed  and  a case 
of  books  and  magazines,  might  have  been  compressed  within 
the  compass  of  a moderately  capacious  traveling  trunk;  and 
our  outfit  of  provisions  and  the  luggage  of  the  canoemen  were 
ordered  with  the  same  economic  view  to  the  capacity  of  our 
barge  and  the  acceleration  of  its  movements.  A linen  marque, 
a few  instruments  necessary  for  making  observations  upon 
such  branches  of  science  as  we  purposed  noticing,  the  tools 
and  utensils  necessary  for  cooking  and  encampment,  and  the 
requisite  gum  and  wattap  for  repairs  to  the  canoe,  com- 
pleted the  outfit.  An  oilcloth  which  could  be  spread  in  a few 
moments  over  all,  secured  the  packages  against  sudden  show- 
ers or  the  etfects  of  waves  breaking  in.  A small  ensign  was 
affixed  to  the  stern,  giving  a national  character  to  the  equip- 
ment; which  it  can  scarcely  be  deemed  improper  to  add  was 


1055 


liberal  without  being  cumbersome  and  united  the  advantages 
of  speed  and  economy  without  wholly  sacrificing  comfort.  ‘Let 
schooltaught  pride  dissemble  all  it  can.  These  little  things 
are  great  to  little  man.’  ” 

3546  The  map  important  in  showing  the  point  at  which  they 
parted  from  the  river  was  received  in  evidence  (xVtlas,  page 

3961;  Trans.,  ]).  6592;  Ahst.,  p.  1929). 

Also,  I read  from  page  319  (Starved  Rock) : 

3547  “This  is  an  elevated  cliff  on  the  left  bank  of  the  Illinois, 
consisting  of  parallel  layers  of  white  sandstone.  It  is  not 

less  than  250  feet  high,  perpendicular  on  three  sides  and 
washed  at  its  base  by  the  river.  On  the  fourth  side  it  is  con- 
nected with  the  adjacent  range  of  hills  by  a narrow  peninsular 
ledge,  which  can  only  be  ascended  by  a precipitous,  winding 
path.  The  summit  of  this  rock  is  level,  and  contains  about 
three-fourths  of  an  acre.  It  is  covered  with  a soil  of  several 
feet  in  depth,  bearing  a growth  of  young  trees.  Strong  and 
almost  inaccessible  by  nature,  this  natural  battlement  has  been 
still  further  fortified  by  the  Indians,  and  many  years  ago 
was  the  scene  of  a desperate  conflict  between  the  Pottowat- 
tomies.  The  latter  fled  to  this  place  for  refuge  from  the  fury 
of  their  enemies.  The  post  could  not  be  carried  by  assault, 
and  tradition  says  that  the  besiegers  finally  succeeded,  after 
many  repulses,  by  cutting  off  the  supply  of  water.  To  pro- 
cure this  article  the  besieged  let  down  vessels  attached  to 
ropes  of  bark,  from  a part  of  the  precipice  which  overhangs 
the  river,  but  the  enemy  succeeded  in  cutting  off  those  ropes 
as  often  as  they  were  let  down.  The  consequence  was  a sur- 
render, which  was  followed  by  the  total  extirpation  of  the 
band.” 

Also,  I read  from  page  328,  referring  to  the  petrified  tree : 

3548  “An  opinion  upon  the  species  of  this  gigantic  vessel  may 
be  dubious,  but  it  appeared  to  us  to  coincide  in  its  characters 
with  the  Guglans  Nigra  of  our  forests.  The  part  which  is  ex- 
posed, according  to  our  measurement,  is  51  feet  and  a few 
inches,  and  its  diameter  at  the  largest  end,  three  feet.  But 
there  is  apparently,  a considerable  portion  of  its  original 
length,  concealed  in  the  rock.  We  broke  up  from  the  bed  of 
the  river,  a number  of  large  pieces.  We  were  careful  to 
choose  them  from  a part  where  the  rocks  still  rest  upon 
them,  and  consequently  no  abrasion  of  the  outer  part  of  the 
mass  had  taken  place.  This  rock  is  a species  of  recent  sand- 
stone, not  essentially  different  from  that  which  pervades  a 
considerable  area  near  the  source  of  the  Illinois.  The  depth 
of  water  on  the  rock,  was  commonly  little  more  than  12 
inches.  ” 


1056  Extract, — Schoolcraft’s  Travels. — Continued. 

There  is  a foot  note  there  which  reads  as  follows: 

3549  Thomas  Tousey,  Esq.,  of  Virginia,  who  visited  this  lo- 
cality in  the  autumn  of  1822,  found  nearly  the  same  depth  of 

water  in  the  Desplaines.  He  writes:  ‘With  your  memoir 

in  my  hand,  we  rode  up  and  down  the  river,  till  the  pursuit 
was  abandoned  by  the  others ; while  my  own  anxiety  and  zeal 
did  not  yield  until  it  was  discovered.  The  detached  pieces  we 
found  covered  with  12  to  about  20  inches  of  water,  and  each 
of  us  broke  from  them  as  much  as  we  could  well  bring 
away.’  ” 

There  was  then  read  the  intervening  paragraph  between  pages 

332  and  333 : 

“But  although  our  journey  has  produced  a conviction,  that 
the  difficulty  and  expense  which  will  attend  this  work  are 
greatly  underrated,  it  has  also  impressed  us  with  a more 
exalted  view  of  this  projected  communication,  and  the  abil- 
ity of  the  country  through  which  it  must  pass,  eventually  to 
complete  and  maintain  it.  If  the  present  scanty  population 
and  feeble  minds  of  this  part  of  Illinois,  has  convinced  us  that 
the  commencement  and  completion  of  this  important  work,  are 
more  remote  than  we  before  supposed,  its  final  completion  is 
not  the  less  certain,  and  we  regard  the  plan  as  one  entitled 
to  every  rational  and  proper  aid.  There  are  few  portions  of 
the  western  country  where  the  progress  of  settlement  is 
more  certain,  or  which  will  admit  of  a more  dense  population  t 
and  the  first  efforts  of  such  a community,  if  enlightened  and 
enterprising,  will  be  to  place  themselves  on  an  equality  with 
other  states,  by  opening  the  way  to  a northern  market.” 

From  page  334,  I read: 

3550  “There  is  another  point  of  inquiry  connected  with  this 
canal,  which  appears  to  have  been  too  generally  overlooked, 

but  which  may  perhaps  oppose  serious  difficulties  to  the  work. 
We  allude  to  the  formation  of  a harbor  on  Lake  Michigan 
where  vessels  may  lie  in  safety  while  they  are  discharging  the 
commodities  destined  for  the  Illinois,  or  encountering  the  de- 
lays which  commerce  frequently  imposes.  It  is  well  known, 
that  after  passing  the  Manitou  Islands,  there  is  no  harbor 
or  shelter  for  vessels  in  the  southern  part  of  Lake  Michi- 
gan; and  that  every  vessel  which  passes  into  that  lake  after 
the  month  of  September,  runs  an  imminent  hazard  of  ship- 
wreck. The  vessels  bound  to  Chicago  come  to  anchor  upon  a 
gravelly  bottom  in  the  lake,  and  discharging  with  all  pos- 

3551  sible  speed,  hasten  on  their  return.  The  sand  which  is  driven 
up  into  the  mouth  of  Chicago  Creek  will  admit  boats  only 

to  pass  over  the  bar,  though  the  water  is  deep  enough  to  al- 
low vessels  to  lie  above.  Among  the  expedients  which  have 


1057 


been  proposed  for  keeping  the  mouth  of  this  creek  clear  of 
sand,  one  of  the  most  ingenuous,  and  perhaps  practicable,  is 
that  of  turning  the  Konomic,  by  a canal  of  16  miles,  into  the 
Chicago,  above  the  fort,  and  by  the  increased  body  and  pres- 
sure of  the  water  to  drive  out  the  accumulated  sands.  It  is 
somewhat  problematical  whether  a safe  and  permanent  har- 
bor can  be  constructed  by  any  effort  of  human  ingenuity, 
upon  the  bleak  and  naked  shores  of  these  lakes,  exposed  as 
they  are  to  the  most  furious  tempests.  And  we  are  inclined 
to  think  it  would  be  feasible  to  construct  an  artificial  island 
off  the  mouth  of  Chicago  Creek  which  might  be  connected  by 
a bridge  with  the  mainland,  with  more  permanent  benefit  to 
the  country  at  large,  if  not  with  less  expense,  than  to  keep 
the  Chicago  clear  of  sand.  Stone  for  such  a work  is  abund- 
and  near  the  entrance,  in  the  Green  Bay,  and  if  built  on  a 
scale  sufficiently  liberal,  it  would  afford  convenient  sites  for 
all  the  storehouses  required. 

3552  But  we  must  return  to  the  narration  of  our  journey,  which 
here  draws  to  a close.  On  crossing  the  Desplaines,  we 

found  the  opposite  shores  thronged  with  Indians,  whose  loud 
and  obtrusive  salutations  caused  us  to  make  a few  minute’s 
halt.  From  this  point,  we  were  scarcely  ever  out  of  sight  of 
straggling  parties,  all  proceeding  to  the  same  place. 

After  crossing  the  south  fork  of  the  Chicago,  and  emerg- 
ing from  the  forest  that  skirts  it,  nearly  the  whole  number  of 
those  who  had  preceded  us  appeared  on  the  extensive  and 
level  plain  that  stretches  along  the  shore  of  the  lake,  while 
refreshing  and  noble  spectacle  of  the  lake  itself,  ^with  vast 
and  sullen  swell,’  appeared  beyond.” 

3553  Counsel  foe  Defendant.  I now  produce  a book  entitled 
” Illinois,  Historical  and  Statistical”,  by  John  Moses,  pub- 
lished in  1889,  and  I offer  in  evidence  a portion  of  that  volume, 
commencing  on  the  bottom  of  page  76,  and  running  over  on  a part 
of  page  77 : 

‘^The  question  of  routes  followed  by  early  explorers  be- 
tween Canada  and  the  country  of  the  Illinois  is  as  interesting 
as  it  has  been  provocative  of  discussion  among  the  specula- 
tive antiquarians.  But  as  the  investigation  is  not  now  of 
much  practical  value  to  the  ordinary  reader,  but  little  space 
will  be  given  to  it  in  these  pages. 

Perhaps  the  most  prolific  source  of  doubt  and  difficulty 
in  the  individual  to  positively  trace  and  identify  any  par- 
ticular route,  arises  from  the  confounding  of  newly  discov- 
ered streams  with  those  first  discovered,  the  same  name  be- 
ing required  to  do  duty  for  rivers  as  distinct  as  the  individ- 
uality of  the  explorers  who  first  sailed  or  paddled  a canoe 
upon  them.  Thus  the  name  of  the  Chicago,  in  its  various  or- 


1058 


thographies,  was  applied  more  or  less  indefinitely  to  the  St. 
Joseph,  the  Calumet,  the  Desplaines,  and  the  Illinois  Rivers. 
Both  of  the  latter  were  also  called  ‘the  Divine’.  It  was 
also  applied  to  the  country  adjacent  to  the  southern  portion 
of  Lake  Michigan.  Such  confusion  of  nomenclature  renders 
it  extremely  difficult,  if  not  impossible,  to  determine  precisely 
what  stream  or  locality  was  meant  when  either  of  these  names 
is  used  by  early  writers.  It  must  be  remembered  that  the 
fountainhead  of  information  for  early  explorers  was  the  In- 
dians. To  them  even  the  primitive  mode  of  transportation 
by  horses  or  mules  was  unknown.  They  Imew  of  but  one  way 
to  abridge  or  vary  the  tedious  marches  through  forests  or 
glades : That  single  avenue  of  escape  was  found  in  the  water- 
ways, and  the  shortest  practicable  portage  connecting  these 
was  welcomed  as  the  easiest  way  to  avoid  the  physical  labor 
which  they  considered  as  degrading  as  it  was  irksome.” 


3555  Hexky  Druckee, 

witness  for  defendant,  testified  as  follows: 

Direct  Examination. 

My  name  is  Henry  Drucker.  I am  famiilar  with  the  French 
language.  I have  been  familiar  with  the  French  language  since 
I was  a child.  (Witness  handed  book,  “Cavelier  De  La  Salle, 
Margry,  Volume  2.”) 

3564  Counsel  foe  Complainant.  Then  we  first  will  introduce 
the  passage  from  “Moses,  Illinois,  Historical  and  Statisti- 
cal,” Volume  1,  on  page  77: 

“There  were  four  possible  routes  which  could  be  used  in 
going  to  the  Illinois  from  eastern  Canada,  the  choice  of  which 
depended  upon  the  stage  of  water  and  season  of  the  year, 
and  the  starting  and  the  objective  points. 

1.  One  of  these  was  from  Lake  Michigan  by  the  Calumet 
Rivers,  which  connect  with  Stony  Brook,  from  which  by  a 
short  portage,  the  Desplaines  was  easily  reached.  Beck,  in 
his  Gazateer  of  1823,  says,  in  speaking  of  this  route:  ‘The 

distance  is  eighteen  miles,  and  it  is  nearly  on  a level  with 
the  lake.  It  is  said  boats  have  frecpiently  passed  through 
this  channel  to  .the  Desplaines,  and  when  such  is  the  case  it 
is  impossible  in  many  ])laces%to  say  whether  the  current  sets 
to  the  lake,  or  to  the  Desplaines.  About  half  way  between 
the  lake  and  the  Desplaines,  a feather  will  sometimes  float 
one  way,  and  sometimes  the  other.’ 

3565  2.  By  the  Grand  Calumet  this  stream,  rising  a few  miles 


1059 


southeast  of  Lake  Michigan,  near  what  is  now  La  porte, 
Indiana,  ran  to  a point  at  present  called  Blue  Island,  in  Cook 
County,  and  thence  turning  flowed  back  about  three  miles 
north  of  its  outward  course,  and  emptied  into  Lake  Michi- 
gan at  a point  formely  called  Indiana  City.  This  route  con- 
nected with  the  Desplaines,  the  same  as  route  1. 

3.  By  the  St.  Joseph  River.  Ascending  this  stream  about 
thirty-five  miles,  the  head  waters  of  the  Kankakee  River  were 
reached  by  a portage  of  about  four  miles.  The  distance  to 
the  Illinois  River  by  the  Kankakee  was  180  miles,  but  only 
80  across  the  country. 

4.  By  the  Chicago  River:  the  distance  by  this  route  from 
the  lake  to  Desplaines  by  the  South  Branch,  including  a port- 
age of  four  miles,  was  twelve  miles.  The  north  branch  was 
also  doubtless  sometimes  used,  although  not  so  direct.  Now, 
if  a wa^Tarer  was  on  the  Illinois  River,  and  desired  to  reach 

, mission  of  St.  Francis  Xavier,  at  Green  Bay,  as  did  Joliet 
in  1673,  the  most  direct  and  feasible  of  the  above  discovered 
routes,  would  be  either  the  1st  or  4th.  And  whichever  way 
was  taken  by  Joliet  and  Marciuette,  in  September,  1673,  on 
their  return  trip,  was  adopted  by  Marquette  on  the  second 
trip  in  1675,  for  he  observes  in  his  journal  of  the  latter: 
Alarch  31st:  Here  we  began  our  portage  more  than  eigh- 
teen months  ago.’ 

3566  To  the  mariner  desiring  to  reach  Illinois  from  Mackinac, 
it  would  be  nearer  to  proceed  down  the  east  side  of  Lake 
Michigan  to  the  Grand  Calumet,  and  up  that  stream  con- 
nected with  Route  1.  But  in  1679,  LaSalle,  being  at  Green 
Bay,  appointed  the  mouth  of  the  St.  Joseph  as  a place  of 
rendezvous  for  his  exhibition  in  route  for  Illinois,  and  or- 
dered Tonty  to  proceed  thither  on  the  east  side  of  the  lake, 
while  he  coasted  along  its  western  and  southern  -sides.  He 
may  have  known  of  the  St.  Joseph  route,  which  he  then  pur- 
sued, and  not  of  the  other ; or,  it  being  a winter,  it  may  have  * 
been  more  a question  of  good  ways  for  sleighs  than  of  water 
navigation.  At  all  events,  on  this  occasion,  he  took  the  Kan- 
kakee route,  and  he  doubtless  went  over  the  same  course  on 
his  second  trip  in  searching  for  Tonty.  On  his  third  trip 
to  the  Illinois,  which  was  also  in  the  winter,  1681,  2,  he  men- 
tions the  Chicago  River;  and  as  the  Grand  Calumet  is  plainly 
marked  with  this  name  on  his  map,  recently  discovered  in 
Paris,  and  published  by  Margry,  and  as  that  would  be  a 
nearer  and  better  route  in  the  winter  than  the  Kankakee, 
or  that  by  the  Chicago  River  as  now  known,  it  is  fair  to  pre- 
sume that  when  he  alluded  to  the  ‘Chicago  Route,’  he  re- 
ferred to  the  passage  of  the  Grand  Calumet. 

3567  As  early  as  1698  a mission  had  been  established  among  the 
Miamis,  called  Chicago.  It  is  evident  that  tins  mission  was 
on  the  route  usually  followed  by  travelers,  wherever  that 


1060 


was,  along  the  southwestern  shore  of  Lake  Michigan.  St. 
Kosme  and  party  undoubtedly  followed  this  route  in  1699, 
as  did  Father  Grevier  the  year  following.  Prior  to  1684,  the 
Chicago  River,  as  now  known  does  not  appear  upon  any 
map  then  extant.  At  least,  it  is  not  on  those  of  Marquette 
and  Hennepin;  and  while  there  is  something  resembling  it 
on  those  of  Joliet  and  LaSalle,  the  name  of  Chekagoua  is 
plainly  given,  by  the  latter  to  the  Calumet,  as  stated  above. 

Heney  Deucker, 

resumed. 

Q.  Calling  your  attention,  Mr.  Drucker,  to  volume  Cavelier 
de  LaSalle,  Margry  Volume  2,  have  you  translated  a portion  of 
the  text  appearing  on  pages  81  and  82  of  that  volume?  A.  I 
have;  yes,  sir.  I didn’t  notice  the  date  of  the  letter.  This  is 
the  letter. 

It  begins  on  page  32.  The  heading  as  translated  is: 

‘‘The  letter  of  the  discoverer  to  one  of  his  associates,” 

3568  and  this  memorandum  below,  “the  commencement  is  miss- 
ing, but  in  order  to  complete  it  you  can  refer  to  the  official 
relation  of  1679  to  1671,  of  which  the  editor  must  have  in- 
spired himself  in  this  letter,  and  the  following  one,  because 
he  copied  them  very  often,  and  having  always  good  care  to 
leave  out  from  his  relation  the  difficult  passages,  where  La- 
Salle speaks  of  the  trees,  and  names  those  of  whom  he  com- 
plains.” 

The  letter  extends  to  page  93  and  is  signed  by  LaSalle. 

I also  translate  the  letter  beginning  on  page  206  of  that  volume 
and  extending  to  the  bottom  of  the  page,  to  the  word  “Missis- 
sippi.” It  is  a letter  of  the  Father  Zenobie  Membre  dated 

3569  The  River  of  the  Mississippi,  3 June,  1682: 

“The  prompt  departure  of  M.  de  Tonty  having  prevented 
my  writing  to  you  further  all  that  has  happened  to  me  since 
my  departure  from  Fort  Frontenac  last  year,  I see  myself 
obliged,  after  imploring  your  blessing,  to  go  back  in  order 
to  tell  you  the  main  happenings.”  (I  have  translated  it  very 
literally.)  “Your  Reverence  has  known  the  reasons  which 
made  me  return  to  the  Miamis  in  order  to  accompany  from 
there  i\f.  de  LaSalle,  and  on  his  discovery  of  the  sea,  which 
[ have  done  u])  to  the  present  time.  Since  his  arrival  at  the 
])lace  mentioned  we  left  from  .there  with  M.  de  Tonte  some 
days  before  ]\r.  de  LaSalle,  who  joined  us  on  Chicago,  where 
another  lot  of  his  men  joined  us  also,  so  that  all  were  as- 
sembled at  the  beginning  of  January,  1682,  at  the  place  where 


1061 


Chicago  enters  into  the  river  of  the  Illinois,  and  as  it  was 
frozen  like  the  one  we  came  from,  we  continued  our  route 
on  the  ice,  pulling  our  canoes  and  belongings  not  only  to 
the  village  of  the  Illinois,  where  we  met  nobody,  all  winter- 
ing somewhere  else,  but  thirty  leagues  further  down  to  the 
end  of  Lake  Pimedy,  where,  finding  navigation  open,  we  de- 
scended in  canoes  said  river  to  the  Mississippi.” 

3570  Counsel  for  Defendant.  In  that  same  volume,  the  re- 
print appearing  on  ])age  552  of  the  magazine  of  American 
History,  Volume  two,  being  entitled  in  this  volume:  “The  ar- 

rival of  LaSalle  at  the  Illinois.”  “ Descri])tion  of  the  country 
as  far  as  the  junction  of  the  Missouri  with  this  river,  which  the 
discoverer  named  Colbert  River,”  from  some  detached  leaves 
of  a letter  of  LaSalle,  the  remainder  of  which  are  missing.  We 
have  this  again  in  this  volume,  the  Magazine  of  American  History. 
If  I can  find  that  letter  there,  I want  him  simply  to  testify  as  to 
wliether  he  has  compared  this  translation  with  the  original. 
3572  Counsel  for  Defendant.  Q.  I will  direct  your  atten- 
tion to  the  Magazine  of  American  History,  Volume  2,  at 
page  552,  letter,  the  heading  of  which  as  it  appears  on  that  book 
on  that  page  is  as  I have  given  you.  Have  you  examined  the  let- 
ter appearing  upon  page  164  of  the  Chevalier  de  LaSalle,  Margry, 
Volume  two,  the  same  volume  from  which  your  first  two  letters 
were  translated?  A.  I did.  I remember  it,  because  it  begins  to 
speak  of  Christmas. 

I have  compared  the  translation  appearing  in  this  magazine 
of  American  History  with  the  original  text  as  shown  in  the  vol- 
ume of  Margry.  It  is  substantially  perfectly  correct.  They  had 
a date  there  the  7th  of  January  in  one  passage,  and  I think  it 
was  the  6th  of  January  in  the  original. 

There  was  offered  in  evidence  on  behalf  of  the  defendant  the 
report  of  Jacob  A.  Harman,  Sanitary  Engineer,  employed  by  the 
Illinois  State  Board  of  Health  to  that  Board,  and  found  in  the 
report  of  said  Board  of  Health  for  the  year  1901,  as  follows : 

3578  “Desplaines  River — The  Desplaines  is  a stream  with 
moderate  descent  from  its  source  to  a point  near  the  line 
of  Cook  and  Will  Counties,  a few  miles  southwest  of  Chi- 
cago, where  it  begins  a rapid  descent.  It  makes  a fall  of 
about  70  feet  in  eight  miles,  when  just  below  Joliet  it  reaches 
a pool  known  as  Joliet  Lake,  which  continues  nearly  to  its 
mouth.  ” 


1062  Report  of  Harman  to  State  Board  of  Health. — Continued, 

Also,  a portion  of  said  report  found  on  page  134: 

‘‘Stream  Gaugings.  Gaugings  of  the  principal  tributaries 
and  of  the  Illinois  Eiver  at  Peoria  were  made  during  the  low 
water  stage  in  October,  1899,  and  represent  approximately 
the  average  conditions  of  these  streams  during  the  late  sum- 
mer and  early  fall  months.  These  gaugings  were  taken  with 
a Price’s  current  meter  which  had  been  previously  rated  by 
the  United  States  Geological  Survey.  The  beds  of  the  streams 
were  accurately  cross  sectioned  and  readings  taken  at  the 
following  stations : 

Desplaines  Eiver — At  wagon  bridge  about  one  mile  below 
C.  B.  & Q.  E.  E.  bridge  near  Eiverside.  Cross  section  was 
also  taken  at  C.  B.  & Q.  E.  E.  bridge  for  gaugings  at  higher 
stages  of  the  river. 

Flow  13.21  cubic  feet  per  second.  Turbidity  .04.” 

Also  a portion  of  said  report  appearing  on  page  159,  being  a 
table  entitled  “Eesume  of  Precipitation  on  Illinois  Eiver  Ba- 
sin. ’ ’ 


‘ ‘ Sub-Basins. 

1890 

1891 

1892 

1893 

.1894  1895 

Desplaines 

35.82 

29.03 

35.98 

29.03 

27.80  30.48 

DuPage 

31.32 

27.15  29.94 

Kankakee 

36.74 

27.46 

36.71 

26.06 

27.15  29.33 

Fox 

33.63 

32.94 

44.41 

30.37 

30.51  28.19 

Vermillion 

32.02 

34.18 

41.00 

27.09 

28.85  30.95 

Mackinaw 

26.33 

41.70 

40.84 

33.52 

27.80  33.26 

Spoon 

37.16 

29.70 

25.32  33.20 

Sangamon 

32.35 

36.39 

42.37 

31.99 

27.46  33.61 

Crooked  Creek 

29.13 

33.49 

40.48 

31.14 

27.84  36.43 

Macoupin  Creek 
McKee’s  Creek 

28.47 

28.69 

44.24 

35.43 

28.74  32.65 

29.13 

33.49 

42.03 

36.08 

28.52  36.82 

Illinois  Eiver  direct 

28.19 

33.92 

40.93 

30.61 

26.65  32.72 

Annual  Averages 

31.18 

33.13 

40.56 

31.03 

27.82  32.29 

Total 

Sub-Basins 

1896 

1897 

1898 

1899 

Averages. 

Desplaines 

33.74 

30.55 

37.74 

28.03 

31.82 

DuPage 

37.95 

34.28 

45.32 

29.82 

33.68 

Kankakee 

35.05 

31.48 

42.11 

28.18 

32.03 

Fox 

37.14 

32.50 

42.25 

28.14 

34.01 

Vermillion 

36.21 

32.96 

42.34 

28.60 

33.52 

Mackinaw 

35.37 

29.43 

42.96 

29.62 

34.08 

Spoon 

35.52 

29.70 

47.34 

31.94 

33.74 

Sangamon 

35.01 

34.86 

48.31 

33.22 

35.56 

Crooked  Creek 

41.43 

37.08 

51.07 

37.39 

36.55 

Macoupin  Creek 
McKee’s  Creek 

36.97 

37.17 

49.46 

37.20 

35.90 

39.91 

37.95 

52.15 

37.61 

37.37 

Illinois  Eiver  direct 

35.05 

33.12 

46.77 

33.05 

34.01 

Annual  Averages 

36.61 

33.42 

45.73 

31.90 

34.36” 

1063 


Also  a portion  of  said  report  found  on  page  183,  as  follows : 

3582  ‘‘The  flow  of  the  Illinois  Eiver  at  Peoria  is  made  up  of  the 
combined  flow  of  the  tributaries  above,  including  the  sewer- 
age from  Chicago  which  reaches  the  DesPlaines  Eiver  at 
Joliet  by  way  of  the  Illinois  Eiver  and  Michigan  Canal.  The 
Desplaines  Eiver  at  Eiverside,  a few  miles  above  Joliet,  goes 
entirely  dry  at  that  point  nearly  every  fall  and  for  days  and 
weeks  at  a time  there  is  no  appreciable  flow.  On  the  DuPage 
Eiver,  which  enters  the  Desplaines  a few  miles  above  the 
Junction  of  the  Desplaines  and  the  Kankakee,  no  data  as  to 
the  low  water  flow  is  at  hand,  except  the  discharge  measure' 
ment  taken  under  my  direction  in  October,  1899,  which  shows 
32.77  cubic  feet  per  second.  This  flow  is  greater  than  that 
found  in  the  Desplaines  river  on  the  previous  day.  The  flow 
in  the  Desplaines  at  Eiverside  was  13.21  cubic  feet  per  second. 
The  water  of  the  DuPage  are  added  to  the  Desplaines  before 
they  reach  the  Illinois  so  that  the  natural  flow  in  the  Des- 
plaines, where  it  joins  the  Kankakee  to  form  the  Illinois,  at 
the  time  of  the  gaugings  referred  to  were  taken  would  have 
been  approximately  50  cubic  feet  per  second,  while  the  amount 
of  sewage  flowing  through  the  Illinois  and  Michigan  Canal 
was  600  cubic  feet  per  second.  Practically  all  of  the  flow  of 
the  Desplaines  Eiver  as  it  reaches  the  Illinois,  is  therefore, 
during  dry  weather,  Chicago  sewage. 

Detailed  observations  of  the  flow  of  the  Desplaines  Eiver 
at  Eiverside  have  been  taken  more  or  less  continuously  since 
1877.  The  area  of  the  drainage  basin  above  this  point  is 
630  square  miles.” 

Also  from  page  187  of  said  report : 

3583  “The  Desplaines  and  Kankakee  which  are  the  principal 
head  water  tributaries  of  the  Illinois,  constitute  about  one- 
half  of  the  drainage  area  above  Peoria,  the  only  other  tribu- 
taries of  considerable  importance  being  the  Fox  Eiver  from 
the  north  and  the  Vermillion  Eiver  from  the  south.  The  total 
drainage  area  of  the  Desplaines  Eiver  is  1322  square  miles 
and  the  Kankakee  5146  square  miles.  The  Fox  Eiver  2700 
square  miles  and  the  Vermillion  Elver  1317  square  miles.  The 
total  area  of  the  Illinois  Drainage  basin  to  Peoria  is  13,479 
square  miles.  ’ ’ 

Also  a portion  of  said  report  on  page  188,  as  follows: 

“From  the  foregoing  data  it  is  quite  evident  that  the  con- 
tributions to  the  flow  of  the  Illinois  Eiver  during  the  dry 
periods  come  principally  from  the  Kankakee  Eiver  and^  the 
Fox  Eiver,  the  Desplaines  and  the  Vermillion  being  prac- 
tically dry  at  these  periods.  The  sewage  from  the  City  of 
Chicago,  as  we  have  found,  being  equal  to  or  greater  than  the 
flow  of  all  the  tributary  streams,  some  allowance,  of  course 


1064 


to  be  made  for  losses  by  evaporation  l)etween  the  headwaters 
of  the  Illinois  and  Peoria.” 

Motion  by  complainants  to  strike  out  all  passages  read  from  . 
said  last  report,  as  being  direct  quotations  or  readings  of  which 
the  primary  record  has  already  been  proven;  also  because  done 
loosely  and  broadly  for  general  health  purposes,  and  not  having 
in  view  the  present  inquiry. 

3585  The  Court.  They  may  go  in  for  what  they  are  worth. 

Counsel  for  Defendant.  We  propose  to  put  in  certain  re- 
})orts  of  various  engineers  who,  in  early  days  were  employed  to  ex- 
amine and  report  the  best  route  for  the  proposed  canal,  and  in  or- 
der that  your  Honor  may  understand  how  this  report  came  about,  I 
am  going  to  refer  to  certain  statutes,  I am  not  going  to  offer  them 
in  evidence  because  I understand  the  court  takes  judicial  notice  of 
them,  but  simply  to  have  them  in  the  mind  of  the  court.  I will  call 
attention  to  them  as  we  go  along. 

The  Act  of  March  30,  1822,  Congress  authorized  the  State  of 
Illinois : 

“To  survey  and  mark  through  the  public  lands  of  the  United 
States,  the  route  of  the  canal  connecting  the  Illinois  Eiver 
with  the  southern  bend  of  Lake  Michigan.” 

Act  of  Illinois  Legislature  approved  February  14th,  1823  (laws 
1823,  page  151,  statutes  of  1856,  page  419)  Commissioners  were 
appointed : 

“ To  consider,  devise,  and  adopt  such  measures  as  shall  or 
may  be  requisite  to  effect  the  communication,  by  canal  and 
locks,  between  the  navigable  waters  of  the  Illinois  Eiver  and 
Imke  Michigan.” 

Act  of  Illinois  approved  January  22,  1829,  statutes  of  1856, 
page  41,  directing  the  Governor,  with  the  consent  of  the  Senate, 
to  appoint  three  commissioners,  biennially. 

3587  “Whose  duty  it  shall  be  to  consider,  devise  and  adopt  such 
measures  as  may  be  required  to  facilitate  and  effect  the  com- 
munication, by  means  of  a canal  and  locks,  between  the  navi- 
gable waters  of  the  Illinois  Eiver  and  Lake  Michigan.” 

Section  5 of  said  Act  providing  that  the  commissioners  should 
have  the  territory  of  the  State  contiguous  to  the  probable  course 
of  the  canal,  explored  and  examined  for  the  purpose  of  fixing  the 
most  proi)er  route,  etc.  Also  providing  that  the  canal  should  be 


10()5 


at  least  four  feet  deep,  and  to  be  furnished  with  adequate  locks, 
etc.,  to  furnish  navigation  for  boats  of  at  least  75  feet  in  lengtli, 
131  feet  wide,  and  drawing  3 feet  of  water. 

Also  Section  7 of  Act  February  15,  1831  (Laws  1831,  page  39, 
lievised  Statutes  1856,  page  426),  authorizing  the  Canal  Commis- 
sioners to  employ  an  engineer,  who  shall  examine  the  Illinois 
Kiver,  and  if  that  river  can  be  made  navigable  by  dams  from  the 
mouth  of  the  Fox  to  the  head  of  steamboat  navigation,  then  the 
commissioners  shall  have  ])ower  to  terminate  the  canal  at  the 
Fox  River. 

Section  13  of  the  same  Act  providing  that  the  commissioners 
shall  ascertain  whether  the  Calamic  River  will  be  a sufficient  feeder 
between  the  Chicago  and  Desplaines  River  “or  whether  the  con- 
struction of  a railroad  is  not  preferable,  or  will  be  of  more  public 
utility  than  a canal.”  That  if  the  commissioners  are  satisfied 
with  the  sufficiency  of  the  river,  they  are  to  commence  excavation 
without  delay. 

There  was  also  read  in  evidence  from  Senate  Journal  (Illinois), 
1835,  page  17,  from  the  message  of  William  Lee  D.  Ewing,  acting 
Governor,  dated  December  2,  1834,  addressed  to  the  Senate  and 
House,  as  follows : 

3594  “I  need  not  refer  more  particularly  to  the  contemplated 
connection  of  Lake  Michigan  and  the  navigable  waters  of  the 
Illinois  River.  A bill  to  incorporate  a company  for  this  pur- 
pose passed  the  House  of  Representatives  at  the  last  session 
of  the  General  Assembly,  and  was  barely  lost  in  the  Senate. 
Since  that  time  the  subject  has  been  extensively  agitated  by 
the  community,  and  the  opinion  of  our  constituents  in  favor 
of  that  measure  comes  to  us  with  unbroken  unanimity,  and 
deep  will  be  their  disappointment  and  abiding  their  denun- 
ciation, should  the  action  of  the  Legislature  fail  of  being  re- 
sponsive to  their  wishes  and  their  interests.” 

(Objected  to  as  immaterial;  overruled.) 

There  was  also  read  in  evidence  from  the  message  of  Josei)h 
Duncan,  Governor  of  the  State  of  Illinois,  to  the  Legislature,  dated 
December  3rd,  1834,  and  found  upon  pages  21  to  29  of  the  same 
volume  last  referred  to,  as  follows : 

3595  “The  construction  of  a canal  from  Chicago,  on  Lake  Michi- 
gan, to  the  Illinois  River,  has  long  occupied  the  public  atten- 
tion; and  the  time  has  arrived,  in  my  opinion,  when  a proper 


1066  Message  of  Gov.  Duncan,  1834. — Continued. 

respect  for  the  interests  of  this,  and  all  the  State,  requires 
that  the  work  be  commenced  and  completed  without  further 
delay. 

It  is  now  more  than  seven  years  since  Congress  made  a 
grant  of  land  which  was  then  supposed  to  be  sufficient  for 
the  construction  of  this  canal;  which  canal  was  then,  and  is 
now  general!}^  considered  a work  of  greater  national  import- 
ance than  any  work  of  the  kind  that  has  yet  been  proposed 
to  be  made  in  our  country.  Such  is  the  universal  estimate  of 
its  importance  by  all  men  of  intelligence,  that  I have  no  hesi- 
tation in  believing  that  ample  funds  can  he  procured  on  the 
most  favorable  terms,  for  its  speedy  accomplishment.  * * * 

In  my  judgment  experience  has  shown  canals  to  he  much 
more  useful,  and  generally  cheaper  of  construction  than  rail- 
roads. When  well  made  they  require  less  expensive  repairs, 
and  are  continually  improving,  and  will  last  forever;  while 
railroads  are  kept  in  repair  at  a very  heavy  expense,  and  will 
last  about  fifteen  years.  In  the  present  case  especially  a canal 
should  be  preferred,  because  it  connects  by  a short  and  direct 
route,  two  great  naffigable  waters,  that  wash  the  shores  of 
most  of  the  states  and  territories  of  the  United  States,  and 
British  provinces  of  Xorth  America;  and  thus  opening  a com- 
merce between  the  remotest  parts  of  the  continent.  By  using 
the  lake  as  a feeder  to  this  canal  a large  body  of  water  will 
be  turned  into  the  Illinois  Biver,  which  will  improve  its  navi- 
gation, and  by  increasing  the  current  will,  probably,  render 
its  shores  more  healthy.” 

Also  from  the  message  of  Governor  Joseph  Duncan,  dated  De- 
. cember  4,  1838,  addressed  to  the  Senate  and  House  of  the  11th 
General  Assembly; — found  in  the  Journal  of  1838-9,  page  12,  as  fol- 
lows : 

3597  “The  rapidly  increasing  commerce  on  those  rivers  requires 
an  immediate  improvement  of  their  channels,  and  as  the  United 
States  are  bound  to  keep  them  open,  by  an  agreement  with 
Virginia,  in  the  articles  of  cession,  and  with  the  governments 
of  Ohio,'  Indiana  and  Illinois,  in  the  following  article  of  the 
ordinance  of  1787,  which  was  required  to  be  made  a part  of 
the  constitution  of  those  states ; to-wit : ^ . 

‘Article  IV.  The  navigation  of  the  waters  leading  into 
the  Mississippi  and  St.  Lawrence,  and  the  carrying  places 
between  the  same,  shall  be  common  highways,  and  forever 
free,  as  well  to  the  inhabitants  of  said  territory  as  to  the  citi- 
zens of  the  United  States  and  those  of  any  other  State  that 
may  be  admitted  into  the  confederacy,  without  any  tax,  im- 
post or  duties  therefor;’ 

and  as  to  those  two  rivers,  the  AVabash  and  Illinois,  are  recog- 
nized to  be  the  waters  alluded  to  and  the  United  States  have 


1067 


provided  for  improving  the  carrying  places  between  them  and 
the  lakes,  there  can  be  no  doubt,  when  properly  informed  of 
the  importance  and  necessity  of  such  good  faith  and  imme- 
diately cause  every  obstruction  to  be  removed  from  their  chan- 
nels. I would  therefore  recommend  that  the  subject  be  laid 
before  Congress  at  its  present  session.’^ 

There  was  also  read  in  evidence  from 

'‘Keport  of  Canal  Commissioners  of  the  State  of  Illinois, 
made  to  the  General  Assembly,  on  the  3rd  of  January,  1825, 
accompanied  by  a map  of  the  proposed  canal,  together  with 
the  law  incorporating  a company  to  open  a canal  to  connect 
'the  waters  of  Lake  Michigan  with  those  of  the  Illinois  River 
1825.” 

(Objection;  overruled.) 

Said  report  is  as  follows: 

^‘Report,  Etc. 

Vandalia,  3d  January,  1825. 
To  the  Speaker  of  the  House  of  Representatives : 

3600  Sir: — The  Canal  Commissions  have  the  honor  to  en- 
close the  report  required  by  ‘An  Act  to  provide  for  the  im- 
provement of  the  internal  navigation  of  this  state’  approved 
February  14th,  1823,  accompanied  by  the  report  of  the  engi- 
neers to  them,  with  the  maps,  plans  and  documents  relating 
thereto. 

They  are,  very  respectfully,  your  Ob’t  Serv’ts, 

(Signed)  Thos.  Sloo,  Jr.  President, 
Theop  W.  Smith, 

Emahuel  J.  West, 

Erastus  Brown. 

The  Commissioners  appointed  by  an  Act  of  the  General  As- 
sembly of  the  State  of  Illinois,  entitled  ‘An  Act  to  provide 
for  the  improvement  of  the  interval  navigation  of  this  State,’ 
approved  February  14th,  1823,  most  respectfully  present  the 
following  report  to  the  General  Asembly,  being  a jDlain  and 
comprehensive  report  of  their  proceedings,’  as  by  the  said 
Act  is  required. 

The  duties  enjoined  by  said  Act  on  the  Commissioners  are 
first,  to  consider,  devise  and  adopt,  such  measures  as  shall, 

3601  or  may  be  requisite  to  effect  the  communication,  by  canal  and 
locks,  between  the  navigable  waters  of  the  Illinois  River  and 
Lake  Michigan: 

Secondly,  to  cause  that  part  of  the  territory  of  this  State, 
which  may  lie  upon  or  be  contiguous  to,  the  probable  courses 
and  ranges  of  said  canal,  to  be  explored  and  examined,  for 
determining  the  most  eligible  route  for  the  same;  to  cause 
surveys  and  levels  to  be  taken,  and  accurate  maps,  field  books. 


1068  Report, — Canal  Com.  1825. — Continued. 

and  draughts  thereof  to  be  made;  to  adopt  and  recommend 
proper  plans  for  the  construction  and  formation  of  a canal, 
and  of  the  locks,  dams  and  embankments,  tunnels,  culverts 
and  aqueducts;  and,  to  cause  such  plans,  draughts  and  models 
to  be  executed: 

Thirdly,  to  make  calculations  and  estimates  of  the  expenses 
of  the  foregoing  operations : 

Fourthly,  to  invite  the  attention  of  the  Governors  of  the 
States  of  Ohio  and  Indiana,  and  through  them  to  the  Legis- 
latures of  those  states,  to  the  importance  of  a canal  communi- 
cation between  the  Wabash  and  Maumee  Kivers. 

The  Commissioners  met  in  Vandalia  shortly  after  the  pas- 
sage of  the  Act  referred  to,  and,  after  organizing  the  board, 
from  various  considerations,  were  of  the  opinion  that  they 
would  best  effect  the  intentions  of  the  General  Assembly  by 
securing  the  services  of  one  of  the  principal  engineers  em- 
ployed in  the  construction  of  the  New  York  Canal;  and  for 
3602  the  accomplishment  of  that  object  addressed  letters  to  Messrs. 
Benjamin  Y/right,  and  James  Geddes  who  had  been  thus  em- 
ployed. Both  these  gentlemen  having  declined  as  will  be  seen 
by  their  answers  herewith  communicated,  they  employed  a 
gentleman  about  to  visit  New  York,  to  complete  an  arrange- 
ment with  some  competent  person  in  that  state,  under  the 
advice  of  the  President  of  the  New  York  Board  of  Canal  Com- 
missioners. 

This  gentleman’s  interviews  resulting  in  no  positive  en- 
gagement, and  considerable  time  having  elapsed,  they  felt' 
themselves  compelled  to  seek  for  some  competent  person,  to 
execute  the  duties  of  engineer,  within  the  immediate  vicinity 
of  this  section  of  the  western  country;  and  they  feel  no  small 
gratification  in  being  enabled  to  say  with  confidence,  that  in 
their  opinion,  the  duties  which  have  been  entrusted  to  and 
imposed  upon  the  gentleman  whom  they  have  selected,  have 
been  executed  with  a skill  and  ability  not  surpassed  by  any 
one  engaged  in  similar  services. 

As  the  country  situated  between  the  navigable  waters  of 
the  Illinois  River  and  Lake  Michigan,  is  remote  from  the  in- 
habited parts  of  this  State,  and  the  topography  was  imper- 
fectly known,  the  Commissioners  conceived  it  essentially  neces- 
sary* to  a correct  execution  of  the  duties  with  which  they  were 
entrusted,  to  explore  the  country  previously  to  the  taking  of 
the  levels,  and  causing  the  surveys  to  be  made;  as  without 
this  examination,- it  was  impossible  to  determine,  with  any 
accuracy,  where  the  leveling  and  surveying  ought  to  be  com- 
menced,*^ the  probable  course  to  be  run,  or  the  point  of  ter- 
mination; and,  as  affording  the  additional  advantage  of  a 
correct  data,  for  the  ultimate  execution  of  their  duties,  at 
the  least  possible  expense. 


1069 


A ijortion  of  tlie  Commissioners,  therefore,  in  the  fall  of 
1823,  accompanied  by  Col.  Justus  Post,  whom  they  had  en- 
gaged as  their  engineer,  explored  and  examined  the  country 
from  the  rapids  of  the  Illinois  Piver,  with  the  streams  empty- 
ing into  the  same,  to  Lake  Michigan ; and  the  country  border- 
ing on  the  Chicago  River  and  Calamic,  which  streams  also 
empty  into  Lake  Michigan.  The  Commissioners  returned  by 
water  in  canoes,  examining  the  bed  of  the  rivers,  particularly 
the  depth  of  the  water,  and  the  height  of  the  river  bank. 
They  also  ascended  the  Chicago  River,  or  Arm  of  Lake  Mich- 
igan, having  its  confluence  with  that  lake  on  the  west  side,  about 
35  miles  below  the  head  of  it,  to  the  head  of  the  river,  5 miles. 
From  this  point  there  is  a portage  of  seven  miles  to  the  River 
Desplaines.  They  then  descended  the  Desplaines  50  or  60 
miles,  to  its  mouth;  where  the  uniting  with  the  Kan-Ka-Kee, 
a considerable  river  from  the  southeast,  its  source  being  in  the 
360-1  country  with  those  of  the  Wabash  and  Saint  Joseph,  the 
River  Illinois  is  formed;  thence  dowm  this  river  to  its  con- 
fluence with  the  Mississippi,  350  miles;  thence  down  the  latter 
18  miles  to  Alton,  the  place  from  whence  they  had  departed. 

It  is  a source  of  much  satisfaction  for  the  Commissioners 
to  be  enabled  to  state,  that  the  result  of  this  examination 
eventuated  in  the  conviction,  that,  from  the  mouth  of  the  Illi- 
nois River,  to  the  Little  Vermillion,  a handsome  stream  12  or 
15  feet  wide,  discharging  its  wmters  into  the  Illinois  River 
on  the  west  side,  and  about  4 miles  below  the  rapids  of  the 
Illinois,  there  is  not  the  least  obstruction  to  the  navigation, 
excepting  in  two  or  three  places  below  Spoon  River,  in  ex- 
tremely low  stages  of  water,  where  small  sandbars  show  them- 
selves, but  which,  however,  can  be  easily  removed. 

Perhaps  no  river  on  the  continent  surpasses  the  Illinois  in 
the  facility  and  safety  of  its  navigation,  the  current  very  gen- 
tle, and  there  being  but  few  islands  in  the  river. 

From  the  mouth  of  the  Little  Vermillion,  above  referred  to, 
neither  the  Illinois  nor  the  Desplaines  is  navigable  in  low 
stages  of  water,  as  they  are  frequently  interrupted  by  rapids; 
but  no  serious  obstacles  present  themselves,  in  effecting  a 
canal  navigation  from  the  head  of  the  navigable  waters  of  the 
Illinois  River,  to  Lake  Michigan;  the  valley  of  the  Illinois  and 
Desplaines,  being  an  inclined  plane,  and  the  country  between 
the  Desplaines  and  the  Chicago  River  smooth,  flat  prairie, 
with  gentle  inclinations  to  the  lake. 

The  country  being,  as  already  remarked,  uninhabited,  the 
spring  seasons  extremely  wet,  and  in  summer  the  grass  ex- 
tremely high,  the  Commissioners,  (thought)  the  proper  time 
to  make  the  requisite  surveys,  and  levels,  would  be  in  the  fall 
of  the  year,  as  the  work  could  then  be  performed  more  ac- 
curately and  expeditiously  and  with  much  less  expense  than 


1070  Report, — Canal  Com.  lS2b.— Continued. 

at  any  other  time.  Under  these  considerations  preparations 
were  made  to  begin  the  leveling  and  surveying  as  early  in  the 
autumn  of  1824  as  the  grass  and  vegetation  could  be  destroyed 
by  fire ; this  being  an  inseparable  and  preparatory  act  for  the 
commencement  of  the  work.  To  wait  for  this  period,  neces- 
sarily involved  a further  consideration,  that  there  would  not 
be  time  sufficient  for  one  engineer  to  perform  the  work  in 
season,  to  enable  the  Commissioners  to  make  a report  of  their 
proceedings  to  the  General  Assembly  at  its  present  session; 
it,  therefore,  became  necessary  to  employ  another  engineer, 
to  assist  in  executing  the  levels,  surveys,  draughts  and  plans, 
and,  accordingly  Col.  Eene  Paul,  of  Missouri,  was  selected 

3606  by  the  Commissioners  for  this  purpose. 

The  engineers,  with  one  of  the  Commissioners,  proceeded, 
accordingly,  with  two  companies,  several  of  the  members  of 
which  were  occasionally  left  behind  by  reason  of  sickness. 
One  of  the  companies  to  Chicago,  on  the  shore  of  Lake  Michi- 
gan and  the  other  to  the  rapids  of  the  Eiver  Illinois,  with  a 
mutual  understanding  to  confine  their  operations  of  leveling 
to  the  north  side  of  the  Illinois  and  Desplaines,  and  the  valleys 
of  those  rivers.  The  party  at  Chicago,  after  sounding  and 
examining  the  dejDth  of  water  on  the  lake  shore,  near  the  Chi- 
cago Eiver,  and  soimding  and  meandering  that  river  to  its 
head,  (the  waters  of  which  were  found  stagnant  and  on  a 
level  with  the  waters  of  Lake  Michigan)  proceeded  leveling  in 
a direction  to  the  ford  of  the  Desplaines,  where  it  approaches, 
in  its  nearest  i3oint,  to  the  Chicago  Eiver;  then  crossed  that 
stream,  and  descended  on  the  north  side,  until  the  company, 
which  had  commenced  leveling  and  surveying  at  the  foot  of 
the  rapids,  intercepted  them. 

The  object  of  the  surveying  and  leveling,  being  to  ascer- 
tain the  summit  level  and  inequalities  of  the  surface  of  the 
country,  between  the  Illinois  Eiver,  at  the  foot  of  the  rapids, 
and  the  lake,  and  to  ascertain  the  inclination  from  the  summit 
level  to  both  the  lake  and  the  river,  as  well  as  the  courses  and 

3607  distances,  to  enable  the  Commissioners  to  consider  the  prac- 
ticability and  probable  expense  of  constructing  a canal,  con- 
necting those  points,  immediate  reference  was  not  had  to  the 
actual  location  of  the  canal  line,  but  throughout  the  entire 
route,  great  caution  was  observed  in  keeping  on  ground  not 
sensibly  affected  by  the  inundation  of  river  banks. 

The  Commissioners  are  fully  satisfied  of  the  practicability 
of  the  proposed  communication,  and  of  the  facilities  which 
the  country;;,  and  the  character  of  its  resources,  in  general, 
afford  for  the  completion  of  so  great  and  desirable  an  object; 
and  as  the  accompanying  report  and  plans  of  the  engineers, 
afford  a more  detailed,  scientific  and  accurate  exposition  than 
they  could  possibly  offer  themselves,  they  refer  thereto,  for 


1071 


more  minute  and  particular  information  than  is  contained 
herein;  contenting  themselves  with  stating  the  general  re- 
sults, which  their  own  observations,  and  the  examination  of 
the  various  reasons  connected  with  the  information  afforded 
by  the  report  of  the  engineers,  have  enabled  them  to  arrive  at. 

From  the  ascertained  levels,  as  described  in  the  report  of 
the  engineers,  it  seems  certain  that  the  surface  water  level  of 
Lake  Michigan  is  157  feet  11  inches  and  7-lOths  above  the 

3608  surface  water  level  of  the  point  at  the  mouth  of  the  Little 
Vermillion  Elver,  as  designated  on  the  profile  of  the  route  by 
the  engineers,  where  it  is  contemplated  to  connect  the  canal 
with  the  Eiver  Illinois. 

Five  routes  are  proposed,  as  will  be  seen  by  reference  to 
the  report  of  the  engineers,  but  it  will  be  understood  that  these 
five  routes  are  not  different  ones  altogether,  but  only  vari- 
ations of  a portion  of  the  upper  part  of  the  general  route, 
lying  between  the  head  of  the  Chicago  Eiver,  and  a point  on 
the  Eiver  Desplaines,  near  the  head  of  Isle  a la  Cache;  and 
that  from  this  point,  to  the  mouth  of  the  Little  Vermillion, 
all  the  routes  are  the  same,  excepting  in  that  designated  in 
the  report  of  the  engineers,  from  A to  H,  with  the  intention 
to  use  the  waters  of  Lake  Michigan  for  a feeder;  and  after 
passing  the  Eiver  Desplaines,  by  an  aqueduct,  at  the  point  H, 
to  connect  the  canal  with  the  principal  line  at  K,  and  thence 
to  the  mouth  of  the  Little  Vermillion. 

As  these  routes  are  all  accurately  and  minutely  described 
in  the  report  of  the  engineers,  the  Commissioners  deem  it 
unnecessary  to  present  in  their  report  a recapitulation  of 
them,  and  therefore,  refer  thereto,  for  the  distance  of  each, 
the  necessary  excavations,  with  the  number  of  dams,  locks, 
aqueducts,  culverts  and  embankments,  and  the  probable  ex- 
pense of  each. 

3609  From  an  examination  of  the  data  assumed  by  the  engi- 
neers, in  their  calculations  of  the  probable  expense  of  these 
different  routes,  the  Commissioners  are  induced  to  believe 
that  those  calculations  will  not  vary  materially  from  the 
actual  expense,  and  they  are  rather  inclined  to  the  opinion 
that  the  cost  will  not  exceed,  in  any  case,  the  amount  of  the 


estimate. 

First  route  is  estimated  at $716,110.71 

Second  route 639,542.78 

Third  route  668,289.68 

Fourth  route  682,610.20 

Fifth  route • • • • 689,746.96 


These  estimates,  it  is  true,  exceed  considerably  the  general 
expectation,  and  the  Commissioners  are  too  well  aware  of  the 
embarrassments  in  the  financial  situation  of  the  State,  at 
present,  to  indulge  a well  founded  hope  that  immediate  mens- 


1072 


Report, — Canal  Com.  1825. — Continued. 


ures  can  be  adopted,  for  executing  a work  of  so  mucli  im- 
portance. 

The  distance,  as  well  as  the  general  character  of  the 
streams,  between  the  points  designated  in  the  surveys,  and 
through  which  the  communication  is  supposed  to  be  effected, 
has  been  greatly  misunderstood,  and  hence  the  amount  of 
the  expense,  has  been  in  public  estimation,  greatly  under- 
8610  rated;  but  still,  when  a survey  is  taken  of  the  great  and 
various  objects,  and  the  peculiar  beneficial  results  which 
would  inevitably  accompany  the  completion  of  this  work, 
whether  of  a commercial  or  political  nature,  the  mind  ardently 
grasps  at  the  projects,  and  hope  leads  it  to  the  conclusion 
that  the  day  is  not  far  distant,  when,  either  by  a great  and 
persevering  effort  of  the  State,  or  by  the  magnanimous  exer- 
tions of  individual  enterprise,  this  desirable  and  noble  object 
shall  be  attained. 

To  this  point,  the  attention  of  every  enlightened  mind  with- 
in our  State  ought  to  be  directed.  It  is  one  connected  with 
the  general  interests  of  several  of  the  States,  and  so  intimate- 
ly with  our  own,  that  in  it  is  greatly  involved  the  dearest  and 
best  hopes  of  our  future  wealth  and  importance.  Every  con- 
sideration, therefore,  of  interest,  or  of  pride,  ought  to  induce 
us  to  seek  for  the  early  adoption  of  measures,  commensurate 
with  its  accomplishment.  It  is  supposed  that  its  execution 
might  be  effectuated  by  a liberal  grant  to  individuals  of  the 
right  to  construct  the  same,  with  certain  benefits  accruing 
to  them  therefrom ; but  whether  a monopoly  of  the  kind  would 
be  an  act  of  sound  policy  on  the  part  of  the  State  under 
existing  circumstances,  is  a subject  of  serious  consideration 
for  the  Legislature,  it  is  not,  however,  to  be  denied  in  the 
3611  present  deranged  state  of  our  currency,  that  the  State  at  this 
time,  nor  indeed  for  many  years  to  come,  can,  in  all  human 
probability,  even  attempt  the  execution  of  the  work.  Under 
these  considerations,  it  might  be  advantageous  to  the  great 
interests  of  the  State,  to  encourage  individual  enterprise, 
as  it  is  probable  that  by  such  enterprise  alone  this  important 
work  can  be  commenced  and  consummated  within  any  reason- 
able period.  What  will,  all  circumstances  considered,  be  the 
soundest  policy  to  be  pursued,  is  a subject  for  the  considera- 
tion of  those,  to  whom  the  general  and  permanent  interests 
of  the  State  are,  or  shall  hereafter  be  confided. 

The  Commissioners  forebear  to  add  any  further  remarks 
on  the  im])ortance  of  a sul)ject,  to  which  the  attention  of  many 
of  the  most  enlightened  statesmen  in  the  United  States,  has 
been  a long  time  drawn,  and  which,  in  this  enlightened  age, 
is  becoming  one  of  the  cardinal  ])olicies  in  all  the  States. 

The  accom})anying  correspondence  marked  ‘A^  will  show 
what  progress  has  been  made  in  the  execution  of  the  duties 


1073 


imposed  on  the  Commissioners,  under  the  fourth  head,  as 
stated  in  this  report.  It  is  proper  to  remark,  while  on  this 
subject,  that  no  answer  has  been  received  from  the  Governor 
of  the  State  of  Ohio,  to  communication  addressed  to  him  by 
the  President  of  the  Board. 

The  Commissioners,  in  concluding  their  report,  will  re- 
mark, that  in  presenting  the  account  of  their  expenditure  to 
the  Auditor  of  Public  Accounts,  they  are  aware  that  the 
actual  expense  will  have  exceeded  the  appropriation  made  by 
the  last  General  Assembly,  yet,  when  the  currency  in  which 
that  appropriation  was  made,  the  great  depreciation  which  it 
suffered  between  the  time  of  its  appropriation  and  its  receipt 
and  payment,  with  the  deduction  for  interest  on  the  bank 
notes,  when  drawn  at  the  bank,  and  the  nature  and  extent 
of  the  work  performed,  are  considered,  it  will  be  satisfac- 
torily perceived,  that  no  work  of  equal  magnitude,  of  the 
kind,  has  ever  been  performed  at  so  cheap  a rate. 

Thos  Sloo,  Jk.,  President. 
Eeastus  Browx, 

Emanuel  J.  West, 

Theop  W.  Smith. 

Vandalia,  3d  January,  1825.” 


‘‘To  the  Canal  Commissioners  of  the  State  of  Illinois: 

The  undersigned,  to  whom  was  referred  the  leveling  of  the 
route  and  estimating  the  expense  of  constructing  the  contem- 
plated canal  for  connecting  the  waters  of  Lake  Michigan, 
with  those  of  the  Illinois  Eiver,  in  presenting  their  field  notes 
and  plans  of  the  route  and  levels  taken,  have  the  honor  to 
report : 

3614  That  pursuant  to  instructions  from  the  Commissioners, 
they  proceeded  with  two  companies,  one  to  Chicago,  on  the 
shore  of  Lake  Michigan,  and  the  other  to  the  rapids  of  the 
Illinois  Eiver,  with  a mutual  understanding  resulting  from 
a cursory  examination  of  the  topography  of  the  country  made 
in  the  autumn  of  1823,  to  confine  the  operations  of  leveling  to 
the  north  side  of  the  Eiver  Illinois  and  Aux  Plaines,  and  in 
the  valleys  of  those  rivers.  In  consequence  of  which  the 
party  at  Chicago,  after  sounding  the  lake  near  the  shore, 
and  sounding  and  meandering  the  Chicago  Eiver  to  its  head 
(the  waters  of  which  were  found  stagnant  and  on  a level  with 
the  water  in  Lake  Michigan),  proceeded  leveling  in  the  direc- 
tion of  the  ford  of  Desplaines,  where  they  crossed  that  stream 
and  descended  on  the  north  side,  in  its  valley,  till  the  two 
companies  intercepted  each  other  in  the  front  of  Mount  Joli- 
ette. 

The  object  of  this  tour  being  to  ascertain  the  inclination  of 
an  imaginary  plane  drawn  from  the  surface  of  the  water  in 
Lake  Michigan  to  the  surface  of  the  water,  at  some  conveni- 


1074 


Post  and  Paul  Report. — Continued. 


eiit  point  on  the  Illinois  Eiver,  below  the  rapids,  and  to  con- 
sider the  practicability  and  probable  expense  of  constructing 
a canal  connecting  those  points,  the  undersigned  have  con- 
fined themselves  no  further  to  locations  than  merely  to  desig- 
nate the  two  extreme  points,  the  head  of  the  Chicago  Eiver 
being  one,  and  the  confluence  of  the  Little  Vermillion  and 
the  Illinois  being  the  other.  The  depth  of  the  water  between 
this  point  and  the  rapids  being  insufficient  for  the  purposes 
of  navigation,  and  the  nature  of  the  adjoining  shores  of  the 
rivers  being  unfavorable  for  the  object  required,  it  was 
deemed  advisable  to  descend  to  this  point  (a  few  miles  below 
the  foot  of  the  rapids),  where  a convenient  and  safe  location 
of  the  junction  of  the  canal  with  the  river  may  be  had ; it  be- 
ing near  the  bluff,  and  having,  in  its  immediate  vicinity,  but 
a small  strip  of  ground,  at  any  time,  subject  to  inundations. 

Between  the  two  extreme  points  above  designated,  the 
country,  particularly  the  vallies  of  the  river,  being  generally 
an  open  prairie,  the  undersigned  have,  in  the  courses  run, 
consulted  expedition,  but  when  practicable,  have  avoided  cross- 
ing ground  sensibly  atfected  by  high  water. 

From  this  general  view  of  the  plans  of  their  operation,  the 
undersigned  draw  their  attention  to  a more  detailed  consid- 
eration of  the  various  subjects  connected  with  the  object  in 
view,  and  beg  leave  further  to  report: 

1st.  On  the  inclination  of  the  planes  connecting  designated 
points  on  the  route,  and  the  inclination  of  the  plane  connect- 
ing the  extreme  points. 

2d.  On  the  rivers  crossed  in  the  route,  their  general  char- 
acter and  the  quantities  of  water  furnished  by  each. 

3616  3d.  The  description  and  nature  of  the  earth  and  rocks  on 

the  route  followed. 

4th.  On  the  probable  quantity  of  excavations,  embank- 
ments and  grubbing. 

5th.  On  the  number  and  description  of  aqueducts,  dams 
and  culverts  that  will  probably  be  required  on  the  different 
routes. 

6th.  On  the  probable  number  and  description  of  locks  and 
moles. 

7th.  On  the  probable  expense  of  construction,  including  the 
different  routes  designated  on  the  plat. 

8th.  On  the  practicability  of  construction. 

9th.  Observations  and  remarks. 

1st.  The  inclination  of  the  planes  connecting  the  different 
points  on  the  route,  and  the  inclination  of  the  plane  connect- 
ing the  extreme  points. 

In  taking  the  observation  to  ascertain  the  difference  of 
level  between  the  points  hereafter  designated,  the  imder- 
signed  have  operated  with  all  practicable  care;  and  in  all 
cases  where  the  distances  between  the  level  station  and  the 


1075 


sight  poles  were  not  exactly  or  nearly  equal;  the  necessary 
corrections  for  curvature  and  refraction,  have  been  made, 
from  which  it  is  presumable  that  the  results  herein  shown 
may  be  considered  very  nearly  approximating  the  truth. 

3617  The  object  the  undersigned  had  in  view  in  ascertaining  the 
respective  levels  of  the  points  B.  P.  S.  I.  and  L.,  noted  on  the 
plat,  was  to  enable  themselves  to  more  satisfactorily  investi- 
gate the  various  routes  that  may  be  formed  by  connecting 
those  points,  in  the  vicinity,  and  on  either  side  of  the  Des- 
plaines;  then  from  the  knowledge  they  possess  of  the  inter- 
mediate country,  to  judge  of  their  respective  practicabilities, 
and  probable  expense  of  construction. 

From  the  mouth  of  the  Little  Vermillion,  the  point  of  be- 
ginning, to  L,  a distance  of  33  miles,  16  chains,  08  links,  and 
9 ms.  64  chs.  03  below  the  point  where  the  route  traced  on  the 
plat  crossed  the  Biver  Aux  Sable,  there  is  an  ascent  of  86 
feet,  11  inches,  2-10.  Here  the  main  bluff  of  the  Illinois  dis- 
appears, having  gradually  settled  down  to  the  level  of  an  ex- 
tensive valley  spreading  out  to  the  north  and  east  (in  which 
the  river  Aux  Sables  and  Nettle  Creeks  have  their  courses) 
which  is  supposed  to  unite  with  a similar  valley,  putting  out 
in  a south westwardly  direction,  from  the  valley  of  Aux  Planes, 
near  Cache  Island. 

From  the  point  L to  the  point  I,  near  Cache  Island,  is  a 
distance  of  37  ms.  47  chs.  02,  and  has  an  ascent  of  67  ft.  3 in 
8,  consequently  the  practicability  of  an  interior  route,  con- 
necting those  points  is  visibly  manifest ; but  the  quantity  and 
nature  of  the  cutting  required  to  connect  them  can  be  ascer- 
tained only  by  careful  examination  and  survey. 

From  the  point  I at  Cache  Island  to  the  point  B at  the  ford 
of  the  Desplaines,  a distance  of  18  ms.  56  chs.  60,  there  is  an 
ascent  of  15  ft.  0 in.  4,  and  the  canal  on  the  northern  side  of 
the  river  may  be  so  located  as  to  avoid,  in.  some  degree,  the 
deep  cuttings  between  these  points.  From  the  point  B at  the 
ford  of  the  Desplaines,  to  the  point  C,  the  summit  level  of  the 
country  between  the  Desplaines  and  the  Chicago  Eiver,  or 
Lake  Michigan,  a distance  of  12  chs.  28,  there  is  an  ascent 
of  5 ft.  8 in.  lines.  The  point  C we  have  denominated  the 
summit  level  of  the  route  between  the  ford  of  the  Desplaines 
and  Lake  Michigan,  but  it  is  evident  that  by  the  ultimate  loca- 
tion that  must  necessarily  be  given  to  the  canal,  the  point  C 
will  also  be  the  summit  level  of  the  route  connecting  the  two 
extreme  points.  Then  from  C to  A,  at  the  head  of  the  Chi- 
cago Eiver,  a distance  of  7ms.  40  chs.  64,  there  is  a descent 
of  17  ft.  0 in.  6. 

From  this  concise  detail  of  results,  it  readily  follows  that 
the  point  L is  86  ft.  11  in.  2 above  the  water  level  at  V,  the 
point  of  beginning;  that  the  point  I at  Cache  Island,  is  154 
ft.  3 in.  above  the  same  point;  that  the  point  B at  the  ford, 


1076 


Post  and  Paul  Report. — Continued. 


is  169  ft.  3 in.  4,  above  the  same  point ; and  11  ft.  3 in.  7 above 
the  point  A at  the  head  of  the  Chicago ; that  the  summit  level 
C is  5 ft.  8 in.  9,  above  the  point  B,  and  17  ft.  0 in.  6 above 
the  point  A,  or  the  surface  of  the  water  level  of  Lake  Michi- 
gan; that  the  point  A,  or  surface  water  level  of  Lake  Michi- 
gan is  3 ft.  8 in.  7 above  the  point  I at  Cache  Island;  and 
finally  that  the  surface  water  level  of  Lake  Michigan  is  157 
ft.  11  in.  7 above  the  surface  water  level  of  the  point  where 
it  is  contemplated  to  connect  the  canal  with  the  Elver  Illi- 
nois. 

Before  dismissing  the  subject  now  under  consideration,  the 
undersigned  deem  it  expedient,  for  the  more  ready  compre-. 
liension  of  the  vertical  section  they  have  presented  of  the 
traced  route,  to  call  the  attention  of  the  Commissioners  to  the 
different  scales  used,  for  without  a constant  attention  to  this 
point,  the  representation  will  appear  quite  imperfect,  since 
the  ratio  of  the  horizontal  to  the  vertical  scale  is  as  1 to  165. 

2d.  Rivers  to  he  crossed,  their  general  characters,  and  the 
quantity  of  water  respectively  furnished  by  each. 

In  ascending  from  the  point  of  beginning,  passing  the  rear 
of  the  Butfalo  Rock,  a range  of  high  perpendicular  rocks 
on  the  northern  margin  of  the  Illinois  River,  the  first  stream 
we  meet  with,  worthy  of  notice,  is  Fox  River,  14  ms.  34  chs. 
84  distant  from  the  point  of  beginning.  This  is  a river  of 

3620  considerable  magnitude;  is  4 chs.  09  wide,  and  at  its  pres- 
ent stage,  furnishes  450,000  cubic  feet  of  water  in  an  hour. 
This  stream,  during  the  period  of  high  water,  evidently  ex- 
pands itself  beyond  its  first  banks,  and  probably  rises,  at 
those  times,  about  20  feet  above  its  present  surface  level; 
but  as  its  second  banks,  at  the  points  crossed  by  the  traced 
route,  are  nearly  35  feet  above  this  surface  level,  and  as  the 
adjacent  country  presents  no  visible  impediment  to  the  con- 
struction of  the  canal  toward  this  point,  it  appears  prac- 
ticable to  cross  this  stream  by  an  aqueduct  extending  from 
its  second  bank  on  one  side  to  the  second  bank  on  the  other, 
a distance  of,  say  600  feet.  Although  the  piers  necessary 
to  be  constructed,  to  support  the  aqueduct,  will  obstruct  the 
natural  current  of  the  stream,  and  thereby  occasion  a trifling 
accumulation  of  water  above  them,  yet,  as  the  aqueduct  may 
be  raised  ten  feet  above  the  estimated  rise  of  water,  the  ef- 
fect of  the  accumulation,  it  is  presumed,  will  be  too  incon- 
sideral)le  to  threaten  any  disastrous  results.  Were  it  de- 
sired, however,  to  construct  a dam  across  this  river,  and  on 
each  side  to  connect  the  canal  to  the  reservoir  thus  formed, 
it  is  believed  that  a position  favorable  to  this  view  may  be 
selected;  but  taking  into  consideration  the  inequable  stage 
of  the  water  in  this,  as  also  in  all  the  rivers  in  our  route, 
whenever  it  is  practicable,  it  is  most  assuredly  advisable, 

3621  in  constructing  the  canal,  to  pass  the  rivers  by  aqueduct  in 


1077 


preference  to  passing  them  by  dams.  Then,  should  any  part 
of  the  water  be  required  to  feed  the  canal  an  inconsiderable 
dam  at  some  convenient  point,  above  the  aqueduct,  may  be 
constructed  and  the  requisite  supply  of  water  drawn  from 
the  reservoir  by  a small  side  canal  of  sufficient  capacity  to 
convey  the  quantity  of  water  required. 

The  next  stream  in  our  route  of  sufficient  magnitude  to 
claim  our  attention,  is  the  river  Aux  Sable,  1 c 56  wide,  and 
at  its  present  stage,  furnishes  in  round  numbers,  say  60,000 
cubic  feet  of  water  in  an  hour.  Judging  from  the  position  of 
the  drift  wood  on  its  shores,  and  in  the  branches  of  the  tim- 
ber on  its  banks,  it  is  evident  that  this  stream,  at  the  times 
of  high  water,  rises  from  12  to  15  feet  above  its  present  sur- 
face level.  Here  an  aqueduct  of  about  320  feet  long  and  20 
feet  high  will  be  required.  Then  by  selecting  a suitable 
position  higher  up  the  stream  and  constructing  a dam  across 
it,  the  canal  may  be  fed  by  its  waters,  as  in  the  case  sug- 
gested by  the  Fox  River.  This  river  is  28  ms.  48  chs.  27 
above  Fox  River,  43  ms.  3 chs.  11  from  the  point  of  be- 
ginning; 4 ms.  18  chs.  92  below  the  confluence  of  the  rivers 
Desplaines  and  Kankakee,  which  form  the  river  Illinois. 

In  passing  from  the  River  Aux  Sable  8 mi.  31  c.  53,  on 
our  route  we  meet  with  the  river  DuPage,  a beautiful  stream 
of  water  66  feet  wide,  and  furnishing  114,000  cubic  feet  of 
water  in  an  hour.  The  maximum  perpendicular  rise  of  the 
water  of  this  stream  may  be  taken  at,  say  15  feet.  Here  an 
aqueduct,  320  feet  long  and  20  feet  high  will  be  required 
and  a dam  and  side  canal,  for  a feeder,  as  in  former  cases. 

From  the  river  DuPage,  passing  on  19  M.  28  c.  46,  we 
touched  the  river  Desplaines,  at  Cache  Island,  that  river  is 
ascertained  to  furnish  117,000  cubic  feet  of  water  in  an  hour; 
then  18  m.  56  c.  60  fufRier  we  reach  the  point  B at  the  ford 
of  this  river,  which  here  is  3 c.  34  wide,  and  furnishes  72,000 
cubic  feet  of  water  in  an  hour.  From  this  point  we  proceed 
on  7 ms.  52  c.  92  to  the  head  of  the  Chicago  River,  on  nar- 
row arm  of  Lake  Michigan,  5 m.  2 c.  long;  a natural  canal, 
averaging  say,  2 c.  50  in  width,  and  having  at  no  place  be- 
tween the  bar  at  its  entrance  into  the  lake  and  its  head,  less 
than  12  feet  of  water. 

It  must  be  observed  that  as  the  above  results  are  predi- 
cated on  the  present  stage  of  water,  and  as  the  quantities, 
at  different  periods,  is  considerably  variable,  and  may  prob- 
ably, at  some  times  be  lower  than  at  present,  it  is  advisable, 
that  on  the  route  which  may  be  selected  by  the  Commis- 
sioners, the  results  should  show  a surplus  of  water  sufficient 
to  answer  this  probable  depreciation. 

3623  Sd.  The  description  and  nature  of  the  earth  and  rocks  on 
the  route  traced  on  the  map. 

From  the  cursory  examination  the  undersigned  have  been 


1078 


Post  and  Paul  Report— Continued. 


able  to*  give  on  the  subjects  embraced  under  this  head,  hav- 
ing been  limited  to  a passing  view  of  the  mere  surface  of 
the  route,  and  the  broken  sides  of  ravines  which  occasionally 
presented  themselves,  they  are  fully  sensible  that  they  here 
offer  to  the  Commissioners  a very  imperfect  sketch  of  the 
varieties  of  the  earth,  soil,  pebbles  and  rocks  that  would  be 
met  with  in  a deliberate,  scientific  examination  of  this  sec- 
tion of  the  country. 

The  earth  in  some  of  the  small  valleys  is  alluvian  and  in 
others  gravel  and  sand,  apparently  washed  from  the  neigh- 
boring bluffs,  or  adjoining  ridges.  The  ridges  present  some 
varieties;  many  of  which,  especially  in  the  middle  and  upper 
part  of  the  route,  are  sand  and  gravel ; others  are  loam  with 
occasional  strata  of  clay;  and  the  sides  of  the  ravines  fre- 
quently exhibit  argellaceous  appearances,  and  in  some  in- 
stances, assume  a slaty  texture;  but  considering  the  earth, 
en  masse  during  the  entire  route,  it  may  be  considered  of  a 
quality  favorable  to  excavation.  On  the  greater  part  of  the 
distance'  there  are,  in  the  valleys  of  the  rivers,  loose  rocks 
of  various  sizes,  from  those  of  a finger  stone  to  those  of  sev- 
eral tons  weight,  promiscuously  scattered  over  the  surface. 
In  several  parts  of  the  route,  especially  in  the  vicinity  of 
the  Fox  Elver,  ledges  of  rock  make  their  appearance,  but 
in  ultimately  locating  the  canal  the  greater  part,  if  not  all 
these  visible  ledges,  may  be  avoided;  but  as  the  base  of  the 
country,  from  the  foot  of  the  rapids  of  the  Illinois  to  the 
ford  of  the  Desplaines  is  probably  rock,  it  is  presumable 
that  wherever  the  canal  may  be  located,  in  the  requisite  ex- 
cavations, ledges  of  rock  will  intercept  the  line  and  present 
themselves  to  view  above  the  bottom  of  the  canal,  hence  in 
estimating  the  probable  expense  of  excavation,  this  suppo- 
sition should  be  duly  regarded. 

The  principal  ingredient  in  the  composition  of  these  rocks, 
especially  those  in  the  ledges,  is  sand;  some,  however,  are 
silacious  and  very  hard,  which  is  almost  invariably  the  case 
with  these  loose  stones  on  the  surface;  some  are  calcareous 
and  some  are  apparently  ])ure  sand,  and  are  readily  decom- 
posed by  the  light  stroke  of  a hammer.  In  the  vicinity  of 
Fox  Elver,  and  between  that  stream  and  the  coal  bank, 
there  are  several  of  those  ledges,  and  on  the  surface  we 
observed  frequent  clusters  of  stones  apparently  thrown  to- 
gther  by  art,  having  a considerably  thick  coat  of  calcareous 
substance,,  containing  a perfectlv  silicious  nucleus.  In  the 
bluffs  of  the  Illinois  about  one  mile  and  a half  below  the 
Little  Vermillion  is,  to  all  appearances,  an  extensive  body 
3625  of  gray  limestone,  and  in  the  bluffs  of  the  Desplaines,  above 
Mount  Joliette,  large  (|uantities  of  similar  stone  are  ex|)osed 
to  view.  At  several  other  intermediate  points  we  discov- 
ered a species  of  calcareous  sandstone,  tolerably  hard,  granu- 


1079 


lar  in  their  texture,  and  will  probably  make  lime,  l)ut  of 
very  interior  quality.  However,  from  the  ledges  of  grey 
limestone  above  noticed,  and  from  the  bed  of  the  limestone, 
near  the  bank  of  the  Chicago  Kiver,  from  which  the  inhal)i- 
tants  in  that  section  of  the  country  obtain  their  supply  of 
this  article,  it  is  supposed  a sufficient  quantity  of  lime’ and 
building  stones  may  be  ])rocured  for  the  construction  of  the 
locks  that  may  be  required  on  the  canal. 

4th.  The  prohahle  quantity  of  excavations,  embankments 
and  grubbing  on  the  different  routes. 

What  the  undersigned  idenqminate  different  routes,  are 
the  variations  which  may  be  given  to  the  up])er  ])art  of  the 
route  lying  between  the  head  of  the  Chicago  Kiver  and  the 
])oint  in  the  River  Desplaines,  near  the  head  of  lie  a la 
Cache  or  Cache  Island.  From  this  point  to  the  mouth  of  the 
Little  Vermillion,  all  the  routes  ai*e  the  same,  excepting  in 
that  from  A to  H,  by  which  it  is  contemi)lated  to  use  the 
water  of  Lake  Michigan  alone  for  a feeder.  By  this  route, 
after  passing  the  Desplaines  l)y  an  acjuediict  at  H the  canal 
will  communicate  with  the  princpjal  line  at  K,  and  thence 
proceed  to  the  mouth  of  the  Jjittle  Vermillion.  To  avoid 
tautology  and  circumlocution  in  our  subsequent  observa- 
tions, relative  to  the  variations  here  indicated,  we  will  de- 
nominate the  route  from  the  head  of  the  Chicago  l)y  the  ford 
of  Aux  Plaines  to  B,  and  thence  lA  K,  to  l)e  the  frst  route: 
that  from  A to  P,  thence  along  the  bed  of  the  river  to  Cache 
Island,  and  thence  to  I,  K,  &c  to  be  the  second  route;  that 
from  A to  S,  thence  in  the  bed  of  the  river  to  Cache  Island, 
and  thence  by  I,  K &c  to  be  the  third  route;  that  by  A to 
Cache  Island,  I,  K to  he  the  fourth  route;  and  that  from 
A to  H,  K &c  to  be  the  ffth  route;  by  taking  the  first  route 
the  whole  line  of  the  communication  must  be  formed  by 
dams,  aqueducts,  excavations  and  embankments.  Now,  if  we 
suppose  l-lOth  of  the  distance,  or  ten  miles,  to  l)e  embank- 
ments; l-30th  of  it,  or  three  miles  excavation  in  rock  (which 
is  supposed  in  each  case  to  be  a liberal  allowance)  and  1320 
feet  of  aqueducts,  and  500  feet  of  dams,  the  remaining  ]^art 
of  the  distance  will  fall  on  ground  easily  excavated.  Then  by 
assuming  the  aclivity  and  declivity  of  the  surface  to  be 
equable,  a supposition  that  may  be  nearly  realized  in  the 
ultimate  location  of  the  canal,  it  is  believed  the  deep  cuttings 
that  will  be  absolutely  required,  will  be  compensated  by 
supposing  the  whole  capacity  of  thq  canal,  to-wit,  40  feet  wide 
3627  at  top,  28  feet  wide  at  bottom,  and  four  feet  deep  to  be  ex- 
cavated. The  small  quantity  of  timber  to  be  met  with,  on 
the  route  traced  on  the  mao,  all  lying  below  the  diverging 
lines  at  Cache  Island,  the  quantity  of  ^-rubbing,  in  all  cases 
here  considered,  will  be  the  same,  which  we  suppose  to  be  in 
all  five  miles. 


1080 


Post  and  Paid  Report. — Continued. 


Assuming  tlie  above  estimates  as  data,  the  whole  line  being 
97  ms.  2 c.  62,  we  have  on  this  route. 

Excavations  in  earth  83  ms.  58  c.  26 

do  in  rock  3 

Embankments  10 

Grubbing  5 

This  route  supposes  a canal,  from  the  ford  of  the  Des- 
plaines  to  the  head  of  the  Chicago,  to  be  supplied  from  the 
water  of  the  Aux  Plaines,  excepting  what  may  be  drawn  to 
it  from  the  small  lake  called  the  Lac  de  la  Pointe  Aux  Chenes, 
or  Oak  Point  Lake,  lying  near  the  summit  leve]  the  route. 
This  lake  is  supposed  to  be  supplied  from  water  from  the 
springs  in  the  marshy  ground  around  it,  and  as  it  is  higher 
than  the  water  of  the  Chicago,  no  difficulty  exists  in  using 
its  water  to  feed  the  canal.  Then  the  other  part  of  the  route, 
as  far  down  as  the  River  DuPage,  must  necessarily  be  sup- 
plied by  the  water  of  the  Aux  Plaines  above  the  ford,  and 
such  as  may  drawn  to  it  from  the  .spring  brooks  in  the 
route. 

3628  By  taking  the  second  route,  the  distance  from  P to  Cache 
Island,  18  ms.  56  c.  60,  will  be  in  the  bed  of  the  river,  in 
which  100  feet  of  rocksj  lying  in  stagnant  water,  must  be 
removed;  then  deducting  from  the  distance  from  P to  Cache 
Island  from  the  distance  of  earth  to  be  excavated,  we  have 
for  this  route. 

Excavation  in  earth  65  ms.  1 c.  66 

The  excavation  in  rock,  embankments  and  grubbing  the 
same  as  before.  In  this  route,  the  canal  between  the  head 
of  the  Chicago  and  Aux  Plaines  may,  more  evidently  than 
in  the  former  case,  be  fed  by  the  small  Lac  de  la  Point  Aux 
Chenes. 

By  the  third  route,  the  distance  from  A to  S,  just  above 
the  Saganashkee,  must  be  excavated,  and  that  part  of  the 
canal  supplied  from  the  river  Desplaines  and  the  waters  of 
the  lake  of  the  Saganashkee,  in  the  immediate  vicinity  of 
that  part  of  the  canal.  From  this  point  to  Cache  Island, 
the  bed  of  the  river  will  be  followed  9 m.  32  c.  60.  Deduct- 
ing this  distance  from  the  whole  extent  of  the  excavation  in 
earth,  we  shall  have  on  this  route. 

Excavation  in  earth  74  ms.  25  c.  66 

The  excavation  in  rock,  embankments  and  grubbing,  the 
same  as  before.  Sunposiug  this  route  to  be  taken,  the  same 
100  feet  of  rock  in  the  bed  of  the  river,  mentioned  in  the  last 

3629  route,  must  be  removed,  in  order  to  insure  a ready  and 
safe  passage  for  boats  at  all  stages  of  water. 

By  the  fonrtk  route,  we  have  the  'same  extent  of  excava- 
tion as  in  the  first,  however,  it  is  probable,  that  in  this  the 
digging  will  be  easier  but  more  deep  cuttiug  than  in  the 


1081 


first  route,  consequently  estimating  it  the  .same,  we  have  for 
this  route  the  same  results  as  for  the  first. 

This  route  supposes  the  water  to  be  drawn  from  Lake 
Michigan,  and  at  the  head  of  Cache  Island,  where  the  surface 
water  level  is  3 ft.  8 in.  7,  below  the  surface  water  level  of 
the  lake,  to  mingle  with  those  in  the  reservoir  formed  by 
the  dam  at  this  place.  On  this  supposition,  the  excavation 
will  naturally  form  an  artificial  river  between  the  head  of 
Cache  Island  and  the  lake,  which  will  alternately  fiow  from 
and  to  the  lake,  as  the  waters  in  the  Eiver  Desplaines  may 
be  low  or  high.  In  this  route  it  will  be  observed  that  the 
digging  will  necessarily  pass  through  the  marsh  of  the  Saga- 
nashkee,  or  British  Swamp. 

By  the  fifth  and  last  route  the  object  is  to  use  the  water 
of  Lake  Michigan  alone  to  supply  the  canal,  in  consequence 
of  which  it  will  be  necessary  to  continue  it  on  the  south  side 
of  the  river  till  the  river  has  acquired  a sufficient  descent  to 
enable  the  canal  to  be  carried  over  it  by  an  aqueduct  which 
will  be  at  a point  about  eight  miles  below  Cache  Island.  This 
3630  aqueduct,  it  is  supposed,  will  be  about  500  feet  long  and 
30  feet  high;  hence,  on  this  route  also  we  will  have  the  same 
excavations,  embankments  and  grubbing  as  in  the  first,  to- 
gether with  the  additional  expense  of  the  aforesaid  aque- 
duct. But  all  the  dams  required  on  the  other  routes  may  be 
dispensed  with  on  this. 

5th.  The  number  and  description  of  aqueducts^  dams  and 
adverts  that  ivill  prohahly  he  required. 

Whichever  of  the  above  mentioned  routes  may  be  selected 
by  the  Commissioners,  it  is  supposed  that  the  final  location 
of  the  canal  may  be  such  as  to  avoid  the  greater  part  of  the 
deep  ravine  to  be  met  with  on,  and  in  the  immediate  vicinity 
of,  the  route  leveled ; in  consequence  of  which,  and  on  the 
supposition  that  a number  of  culverts  may  be  taken  in  the 
ratio  of  two  to  each  mile,  we  shall  have,  for  the  first  route, 


Aqueduct  at  Fox  River,  say 

600 

feet  long. 

30 

feet  high 

ditto  at  Aux  Sables 

360 

ditto 

20 

ditto 

ditto  DuPage 

360 

ditto 

20 

ditto 

Dam  at  B.  on  Aux  Plaines 

300 

ditto 

4 

ditto 

‘‘  Aux  Sables 

100 

ditto 

4 

ditto 

DuPage 

100 

ditto 

4 

ditto 

Culverts,  say 

200 

By  the  second  route,  we  shall  have  the  same  aqueducts,  and 
the  same  number  of  dams  as  above,  except  the  dams  across 
the  River  Desplaines,  in  the  place  of  being  at  the  ford,  will 
be  at  the  head  of  Cache  Island,  and  the  number  of  culverts 
will  be  say,  162. 

By  the  third  route,  the  aqueducts  and  dams  will  be  the 
same  as  in  the  second  route,  but  the  number  of  culverts  will 
be  say,  174. 


1082  ^ Post  and  Paul  Report.— Continued. 

By  the  fourth  route,  the  aqueducts  and  dams  Avill  l)e  the 
same  as  in  the  former  case,  but  the  number  of  culverts  will 
be  say,  142.  This  supposes  no  culverts  from  Cache  Island 
to  the  Chicago. 

By  the  fifth  route,  in  addition  to  the  aqueducts  supposed  for 
the  former  routes,  respectively,  we  shall  have  one  at  the 
Little  Rock,  on  the  River  Desplaines,  500  feet  long  and  30 
feet  high.  On  this  route  all  the  dams,  as  before  observed, 
may  be  dispensed  with,  and  the  number  of  culverts  will  he 
the  same  as  in  the  first  route,  which  was  estimated  at  200. 

6th.  The  probable  number  and  description  of  lochs  and 
moles. 

It  has  already  been  observed  that  from  Cache  Island  to 
the  mouth  of  the  Little  Vermillion,  there  is  a descent  of  154 
ft.  3 in.;  that  from  the  ford  of  the  River  Desplaines  to  the 
3032  same  point,  there  is  a descent  of  169  ft.  3 in.  fl)  ; that  from 
the  ford  to  the  head  of  the  Chicago  River,  there  is  a descent 
of  11  ft.  3 in.  7 ; that  from  the  head  of  the  Chicago  River 
to  the  Little  Vermillion,  there  is  a descent  of  157  ft.  11  in.  7 ; 
and  from  the  head  of  the  Chicago  River  to  the  Cache  Island, 
a descent  of  3 ft.  8 in.  7 ; hence,  liy  the  first  route  we  have 
the  ascent  of  169  ft.  3 in.  4,  and  a descent  of  11  ft.  3 in.; 
giving  an  aggregate  of  180  ft.  7 in.  1.  Now,  observing  the 
small  inclination^  of  the  planes  of  the  ascent  and  descent, 
and  reflecting  on  the  general  uniformity  and  equability  of 
the  surface  of  the  country,  it  is  supposed  the  intermediate 
locks  may  he  located  at  very  nearly  equal  distances  from 
each  other,  in  consequence  of  which  the  maximum  inclina- 
tion of  the  bottom  of  the  canal  should  not,  on  any  account, 
exceed  one  inch  in  a mile.  Assuming  this  maximum  as  a 
datum,  we  shall  have  on  this  route,  172  ft.  6 in.  of  lockage, 
exclusive  of  the  entering  lock  at  the  lake,  should  that  he 
eventually  desired,  and  such  guard  locks  as  may  be  neces- 
sary. From  these  results  it  follows,  that  on  this  route  there 
must  he,  22  locks  of  7 ft.  10  in.  one  lift  each,  and  probably  11 
guard  locks. 

These  guard  locks  will  he  located  as  follows : one  on  each 

3633  side  of  the  contemplated  dam  at  the  ford;  two  at  the  sup- 
posed feeder  from  the  lake  of  the  Point  Aux  Chenes;  two 
at  the  ])ro]:)osed  feeding  canal  at  the  River  DuPage;  two  at 
that  of  the  River  Aux  Sable;  and,  say  three  small  ones  at 
tlie  si)i'ing  l)rook  whose  waters  may  he  required  to  feed  the 
canal  1)etween  the  ford  and  the  DuPage;  and  if  it  should  he 
found  necessary,  two  others  at  a feeding  canal  from  Fox 
River;  however,  it  is  believed  that  these  will  never  he  re- 
(juired. 

By  the  second  route,  we  have  an  ascent  from  the  Ifittle 
Vermillion  to  Cache  Island  of  154  ft.  3 in.,  and  from  the 
])oint  P to  the  head  of  the  Chicago  a descent  of  11  ft.  3 


108:] 


in. ; giving  an  aggregate  of  165  ft.  6 in.  Then,  assuming  the 
same  inclination  for  the  bottom  of  the  canal  as  in  the  former 
case,  there  will  result  in  ascent  and  descent  157  ft.  5 in.  of 
lockage,  giving  as  follows: 

20  locks  of  7 ft.  10  in.  4 and  probably  eight  guard  locks. 

These  guard  locks  will  be  located  as  follows:  one  at  the 
Eiver  Desplaines  at  P;  two  at  the  supposed  feeder  of  the 
lake  Point  Aux  Chenes;  one  on  the  north  side  of  the  reser- 
voir at  Cache  Island  and  from  this  to  the  lower  end  of  the 
route  the  same  guard  locks  as  mentioned  from  the  DuPage  to 
Pox  River  inclusive. 

By  the  third  route,  we  have  at  Cache  Island  an  ascent  of 
3634  154  ft.  3 in.  and  from  S to  the  head  of  the  Chicago,  a de- 
scent of  11  ft.  giving  an  aggregate  of  165  ft.  3 in.  Then,  as- 
suming as  before,  for  the  inclination  to  he  given  to  the  bot- 
tom of  the  canal,  we  shall  have  an  ascent  and  descent  157  ft. 
2 in.  of  lockage,  and  consequently, 

20  locks  7 ft.  10  in.  3 lifts  each,  and  probably  8 guarcj  locks. 

In  this  route  the  guard  locks  from  the  Cache  Island  to  Fox 
River,  inclusive,  will  be  the  same  as  in  former  cases,  but 
for  the  upper  part  of  the  route  we  shall  have  a guard  lock 
at  S,  on  the  Desplaines  River,  and  one,  or  prol)ably  two,  for 
the  feeding  canal,  from  the  Lake  of  the  Saganashkee. 

By  the  fourth  route,  we  have  the  ascent  to  the  Chicago 
equal  to  157  ft.  11  in.  7 — deducting  from  this  3 ft.  8 in.  7, 
the  ascent  from  Cache  Island  to  the  Chicago,  we  have  154 
ft.  3 in.  for  the  ascent  to  Cache  Island,  as  before  shown,  con- 
sequently, on  this  route,  making  the  same  assumption  for 
the  inclination  of  the  canal,  as  before,  we  shall  have  140 
ft.  3 in.  of  lockage,  which  will  recpiire, 

10  locks  of  7 ft.  10  in.  6 lift  each — and  ))robably  five  guard 
locks. 

In  this  case,  it  is  probable  that  all  the  guard  locks  re- 
(piired  will  be  those  already  designated  on  the  routes  be- 
tween Cache  Island  and  Fox  River,  inclusive.  Should  any 
others  be  required,  they  will  evidently  be  located  as  follows: 
one  at  the  head  of  the  Chicago  River,  and  one  on  the  south 
side  of  the  reservoir  at  Cache  Island. 

By  the  fifth  and  lost  route  considered,  the  entire  ascent, 
as  before,. is  157  ft.  11  in.  7,  which,  supposing  the  inclination 
of  the  canal  as  in  the  former  cases,  will  give  149  ft.  10  in. 
7 of  lockage,  and  require, 

19  locks  of  7 ft.  10  in.  6 lift  each. 

Adhering  in  this  route  to  the  supposition  of  obtaining 
from  Lake  Michigan  the  entire  water  sup])ly  to  be  used,  it 
is  probable  that  all  the  guard  locks  required  will  be  one  at 
the  head  of  the  Chicago  River,  and  if  required  and  found 
practicable  to  construct,  another  in  the  Saganashkee. 


1084  Post  and  Paid  Report. ^Continued. 

In  all  the  routes  above  suggested,  the  horizontal  plane 
of  the  lift  locks  are  supposed  to  be  the  same ; for  example : 

Length  76  feet 

Breadth  14  ditto  at  each  end, 

having -a  batter  on  each  side  of  the  lock  of  half  an  inch  in 
each  foot  perpendicular  height; 

The  horizontal  section  of  its  sides  being  extremely  flat 
elliptical  arches  nearly  approximating  right  lines,  the  chords 
being  respectively  76  feet,  and  each  fleclie  ^ of  an  inch  for 
each  perpendicular  foot  of  the  height  of  the  lock.  Such  is 
the  plan  of  the  principal  locks  on  the  New  York  Grand  canal. 
This  peculiar  construction  being  adopted,  without  doubt  to 
give  more  strength  to  the  sides  of  the  locks,  and,  thereby,  to 
enable  them  to  more  effectually  sustain  the  lateral  pressure 
of  the  adjoining  earth.  But  on  the  supposition  of  the  cavities 
being  left,  or  substantially  occurring  in  the  rear  of  the  ma- 
sonry, this  precaution  to  acquire  strength  and  give  stability 
to  the  lock  would  absolutely  weaken  it,  and  leave  its  sides 
more  exposed  to  the  pressure  of  the  water  in  its  chamber, 
than  would  be  experienced  by  having  the  walls  of  the  cham- 
bers straight  and  perpendicular.  The  effect  of  the  elliptical 
form  and  batter  of  the  sides  of  the  locks  has  been  experi- 
enced in  the  canal  of  Languedoc,  and  subsequently  avoided 
in  the  straight  and  perpendicular  sides  given  to  the  cham- 
bers of  those  given  in  the  canal  of  Picardie,  in  the  Gravilines, 
and  in  many  others  constructed  on  the  continent  of  Europe. 
Another  and  very  important  advantage  possessed  by  the 
locks  with  straight  and  perpendicular  siues,  is  the  additional 
facility,  and  reduction  of  expense  attending  their  construc- 
3637  tion;  a consideration  at  all  times,  where  absolute  utility, 
instead  of  ornament  is  consulted,  worthy  the  most  serious 
attention. 

The  next  subject  claiming  investigation  is  the  manner  in 
which  a convenient  and  sure  entrance  may  be  had  into  Lake 
Michigan.  On  this  point  there  has  been  considerable  di- 
versity of  opinion  expressed  by  persons  visiting  the  place; 
some  of  whom,  on  examination  of  the  sand  bar  formed  by 
the  operation  of  the  surf  of  the  fake  in  front  of  the  mouth 
of  the  Chicago  Eiver,  have  considered  the  formation  and 
continuance  of  a navigable  inlet  into  the  river,  to  be  a hope- 
less task,  the  prevailing  winds  having  a tendency  to  accumu- 
late sand  on  that  shore;  but  reflecting  on  the  improvements, 
from  time  to  time,  made  in  the  harbor  of  Dunkirk,  as  a par- 
ticular example,  the  reflecting  mind  will  readily  assent  to 
the  practicabilitv  of  the  achievement. 

To  ascertain  the  probable  expense  of  effecting  this  object, 
the  undersigned  have  sounded  the  lake  sufficiently  far  from 
the  shore  to  obtain  a depth  of  15  feet  of  water  which  is  sup- 


1085 


posed  to  be  sufficient  for  any  of  the  vessels  navigating  the 
lake.  Influenced  by  the  result  of  these  observations,  the  un- 
dersigned recommend  to  the  consideration  of  the  Commis- 
sioners the  construction  of  a double  mole,  or  wharf,  such 
as  are  constructed  on  the  shores  of  our  seaport  towns,  hav- 
ing a space  between  them  of,  say  40  feet  wide,  for  the  passage 
of  vessels  from  and  to  the  lake,  as  shown  on  the  sketch  of 
that  harbor  herewith  presented.  The  exterior  part  of  this 
mole,  or  the  part  between  the  sandbar  and  the  point  in  the 
lake  wdiere  the  requisite  depth  of  water  is  obtained,  should 
be  40  feet  at  the  bottom,  20  feet  at  top,  and  20  feet  high.  The 
interior  part,  passing  through  the  sandbar  and  entering  the 
Chicago  River,  may  be  20  feet  at  bottom,  10  feet  at  top,  and 
20  feet  high.  Then,  as  the  exterior  distance  is  18  chains,  and 
the  interior  8 chains,  we  have,  for  the  entire  contents,  371,360 
cubic  feet,  which  computed  at  the  rate  of  cents,  the  cubic 
foot,  will  give  $54,460  for  the  expense  of  construction. 

Again,  if  we  suppose  the  whole  interior  distance  of  8 chains 
long  and  20  deep,  to  be  excavated,  we  shall  have  to  remove 
15,644  cubic  yards,  which  computed  at  10  cents  the  cubic  yard,' 
will  amount  to  $1,564.40;  or,  say,  in  round  numbers  that  the 
mole  completed  will  cost  $57,000.  This  project  once  effected, 
the  Chicago  River,  for  five  or  six  miles  in  length,  will  afford 
one  of  the  finest  and  most  secure  harbors  in  the  world;  for 
here  vessels,  drawing  from  15  to  20  feet  of  water  may  ride 
perfectly  secure  from  the  destructive  effects  of  storms  and 
tempests.  In  locating  this  projected  mole,  on  the  sketch  of 
3639  the  harbor,  the  undersigned  have  been  governed  by  the  direc- 
tion of  the  prevailing  winds  on  that  lake,  and,  consequently, 
to  secure  its  entrance  from  the  severity  of  those  winds  have 
given  it  the  oblique  direction  there  shown. 

7th.  The  probable  expense  of  construction,  including  the 
different  routes  designated  on  the  plat. 

The  Commissioners  will  be  aware,  that  in  the  estimate  here 
presented  of  the  probable  expense  of  constructing  the  con- 
templated canal,  considering  the  present  stage  of  operations, 
merely  approximate  values  are  to  be  supposed;  for  absolute 
correctness  cannot  be  expected,  even  after  the  final  location, 
nor  until  it  shall  have  been  entirely  completed.  However,  the 
undersigned,  in  obtaining  these  results,  have  duly  compared 
and  deliberated  on  both  the  propitious  and  adverse  features 
which  their  operations  and  cursory  examination  of  the  country 
have  presented  to  them  in  relation  to  the  object  in  view,  and 
have  thence  drawn  the  data  used  in  their  computation. 

From  the  preceding  investigation,  we  obtain,  for  the  first 
route,  as  follows: 


108() 


Post  and  Paul  Report. — Continued. 


3()40  Excavation  in  earth  2,217,017  cubic  yards  a 10  cts  $221,701.70 


a 50 
a 18 


ditto  in  rock  79,875  do 

Embankment  265,950  do 

Three  aqueduct  (stone  piers 

and  trunk  of  wood)  1,320  linear  feet 
Three  dams  in  all  500  do  a 7 

22  locks,  of  7 ft.  10  in.  1 lift  each  a $1,000  per  ft. 
11  guard  locks  (average  value  $2,500) 

Mole  at  Chicago 

200  culverts  a $200 

Grubbing  five  miles  a $1,200  per  mile 


Sum 

Contingent  expenses,  say  5 per  centum 


39,937.59 

47.851.00 

66,000.00 

3,500.00 

172,500.00 

27.500.00 

57.000. 00 

40.000. 00 

6,000.00 


$682,010.20 

34,100.51 


Total  amount  $716,110.71 

Eor  the  second  route,  supposing  the  excavations  on  rocks, 
the  embankments,  aqueducts,  dams,  mole  and  grubbing  to  be 
the  same  in  the  above,  there  will  remain  to  be  deducted  from 
the  net  amount  there  shown,  the  following  sum  to-wit : 

Excavation  in  earth  502,385  cubic  yards  a 10  cts  $50,238.50 
15  ft.  1 in.  of  lockage  a $1000  15,083.33 


Sum 

Estimate  of  first  route 
Deduct  the  above  sum 

Remainder 

Add  for  contingencies  5 per  cent 


$72,921.83 

$682,010.20 

72,921.83 

$609,088.38 

30,454.41 


Probable  cost  of  second  route  $639,542.78 

For  the  third  route,  making  the  same  supposition  as  in 
the  last  case,  there  will  remain  to  be  deducted,  from  the  esti- 
mate of  the  first  route,  as  follows: 

Estimate  for  the  first  route  $682,010.20 

Deduct  for  excavations  in  earth 

250,105  cubic  yards  at  10  cts  $25,010.50 

Deduct  lockage  of  15  ft.  4 in.  at  $100  $15,333.33 
26  culverts  at  $200  5,200.00  45,543.83 


$636,466.37 

31,823.31 


To  this  add  5 per  cent  for  contingencies 
Probable  expense  of  third  route 


$668,289.68 


1087 


For  the  fourth  route,  take  the  estimate  of  the 


first  route 

$682,010.20 

From  which  deduct,  for 
6 guard  locks  of  $2,500  each 

$15,000 

58  culverts  a 200 

11,600 

24  ft. '3  in.  lockage  a $1000 

24,250 

50,850.00 

Remainder 

$631,160.20 

Add  for  contingency  5 per  cent 

31,558.01 

Probable  cost  of  fourth  route 

$662,718,21 

For  the  fifth  route,  take  the  estimate  of  the 

first  route 

$682,010.20 

To  this  add  for  one  aqueduct  500  feet  long  $25,000  25,000.00 

Sum 

$707,010.20 

From  this  deduct  for 

22  ft.  7 in.  3 of  lockage  a $1000 

$22,608.33 

10  guard  locks  a $2,500 

25,000.00 

3 dams  500  ft.  a 7 

3,500.00 

51,108.33 

Remainder 

$656,901.87 

Add  for  contingencies  5 per  cent 

32,845.09 

Probable  cost  of  the  fifth  route 

$689,746.96 

That  is,  the  probable  expense  of  the 
will  be 

first  route 

$716,110.71 

second  route 

639,542.78 

third  route 

668,289.68 

fourth  route 

662,718.24 

fifth  route 

689,746.96 

8th.  The  practicahility  of  construction,  inclucling  the  dif- 
ferent routes. 


The  only  requisite  to  insure  the  practicability  of  effecting 
a canal  navigation  over  any  section  of  the  country,  is  a com- 
petent supply  of  water  on  the  summit  level  of  the  desired 
route.  The  competency  of  water,  on  the  summit  level,  being 
an  indispensable  condition  in  the  successful  construction  of 
canals,  it  remains  for  us  to  examine  whether  it  can  be  obtained 
in  either,  or  on  all  of  the  respective  routes  herein  suggested. 

On  the  first  route  the  entire  demand  to  supply  the  canal 
from  the  head  of  the  Chicago  Eiver  to  the  River  DuPage,  must 
be  drawn  from  the  River  Despl nines  at  the  ford,  from  the 
Lake  De  la  Point  Aux  Chenes,  and  from  .such  spring  brooks 
as  lie  in  the  route  between  the  ford  and  the  DuPage. 

In  the  first  place,  assuming  the  dimensions  of  the  locks  as 
above  shown,  to-wit:  76  feet  long  and  14  feet  wide,  having 
straight  and  perpendicular  sides,  and  supposing  the  canal 


1088 


Post  and  Paul  Report. — Continued. 


to  be  full,  the  passage  of  each  boat  will  require  8,512  cubic 
feet  of  water;  then,  if  we  suppose  the  time  required  for  tilling 
and  discharging  the  lock  and  passing  the  boat  to  be  15  minutes, 
we  will  require  for  both  branches  of  the  canal,  emanating 
from  the  reservoir  at  the  ford,  68,096  cubic  feet  in  an  hour. 

3644  To  this  expense  must  be  added  the  water  lost  by  evaporation, 
leakage  and  absorption.  Now,  the  distance  from  the  DuPage 
to  the  ford  being  38  ms.  05  c.  06,  and  from  the  ford  to  the 
head  of  the  Chicago,  being  7 ms.  52  c.  92,  giving  an  aggre- 
gate of  45  ms.  57  c.  98,  and  the  canal  being  supposed  40  feet 
wide  at  the  surface  of  the  water,  w^e  shall  evidently  have  a 
surface  of  9,657,067  square  feet  of  water  exposed  to  the  action 
of  the  sun  and  atmosphere. 

From  this  surface,  agreeably  to  the  average  of  experiments, 
there  will  each  hour  be  dissipated  by  evaporation,  3,212.3 
cubic  feet.  Then,  if  we  suppose  the  like  quantity  to  be  lost 
by  leakage  and  absorption,  we  shall  have  for  an  hourly  aggre- 
gate demand  74,520.6  cubic  feet. 

Now,  as  the  Desplaines  Biver  has  been  ascertained  to  fur- 
nish in  each  hour  72,000  cubic  feet,  and  if  we  add  to  this  1,000 
cubic  feet  which  the  Lake  de  la  Pointe  Aux  Clienes  is  sup- 
posed capable  of  furnishing  in  an  hour,  and  22,500  cubic 
feet  which  it  is  supposed  may  be  drawn  from  spring  brooks, 
to  be  met  with  on  the  route,  between  the  ford  and  Cache 
Island  (it  being  half  the  accession  being  found  between  those 
two  points)  and  6,000  cubic  feet  receivable  from  other  small 
streams,  between  Cache  Island  and  the  DuPage,  we  shall  have 
an  hourly  fund  of  101,500  cubic  feet,  hence  the  probable  hourly 
surplus  of  water  on  this  route  may  be  estimated  at  26,980,  or 
in  round  numbers  say  27,000  cubic  feet.  It  must  be  observed 
3645  that  these  estimates  are  predicated  on  the  supposition  that 
boats  are  passing  and  repassing  in  as  rapid  a succession  as 
practicable,  a supposition  which  should,  indubitably,  obtain 
when  we  seek  for  general  results  and  maximum  effects.  The 
distance  above  determined  is  the  only  part  of  the  route  on 
which  the  least  apprehension  of  deficiency  of  water  can  exist, 
for  the  DuPage,  furnishing  114,000  cubic  feet  and  8 ms.  31  c. 
53  below  it  the  Aux  Sable  furnishing  60,000  cubic  feet  in  an 
hour,  all  of  which  is  subject  to  the  use  of  the  canal,  gives  posi- 
tive assurance  of  an  abundant  supply  for  the  remaining  part 
of  the  route. 

By  the  second  route,  we  commence  with  the  quantity  of 
water  furnished,  in  an  hour,  by  the  Biver  Desplaines  at  Cache 
Island,  117,000  cubic  feet,  and  to  this  add  the  1,000  feet  an 
hour  supposed  obtainable  from  the  Lac  de  la  Point  Aux 
Chenes,  and  6,000  cubic  feet  from  the  springs  above  DuPage, 
as  before,  which  gives  an  hourly  aggregate  fund  of  124,000 
cubic  feet.  Assuming  the  evaporation,  absorption  and  leakage 


1089 

to  be  the  same  in  this  as  in  the  former  route,  and  computing 
the  quantity  required  for  the  upper  part  of  the  route  to  be 
34,048  cubic  feet  an  hour,  there  will  remain,  subject  to  the 
. demand  of  the  route  lying  between  Cache  Island  and  DuPage, 
an  hourly  fund  of  83,479  cubic  feet.  Now,  this  demand  was 

3646  supposed  to  be  34,048  cubic  feet,  consequently,  on  this  route 
there  will  remain  an  hourly  surplus  of  49,527,  say  49,000  cubic 
feet  for  that  part  of  the  canal  above  the  Eiver  DuPage,  below 
which,  as  before  shown,  there  is  the  greatest  abundance. 

By  the  third  route  we  have  the  same  quantity  of  water  as 
in  the  second,  with  what  may  perhaps  be  obtained  from  the 
Lake  of  Saganashkee,  which  we  will  suppose  to  be  3,000  cubic 
feet  in  an  hour.  Then  suppose  the  demand,  in  all  respects 
_to  be  the  same  as  in  the  former  cases,  there  will  remain  on  the 
route  above  the  DuPage,  an  hourly  surplus  of  say  52,000 
cubic  feet. 

By  the  fourth  and  fifth  routes,  the  first  of  which  supposes 
the  canal  to  be  supplied  both  by  Lake  Michigan^and  the  Eiver 
Desplaines,  and  the  second  by  Lake  Michigan  alone,  all  de- 
sirable quantities  of  water  are  at  command;  but  relative  to 
the  entire  practicability  of  constructing  a canal  on  either  side 
of  these  two  routes,  the  undersigned  cannot  hazard  an  opinion 
without  previously  examining,  with  more  care  than  they  have 
yet  been  able  to,  the  country  in  the  vicinity  of  the  Saganash- 
kee; for  the  only  apparent  objection  to  either  of  them  emanates 
from  the  probable  necessity  of  passing  through  the  lower 
end  of  it.  If  this  swamp  cannot  be  avoided  by  some  cir- 
cuitous route,  the  difficulty  and  expense  of  constructing  a 

3647  canal  through  it,  will  in  all  probabilitly,  be  very  great;  and 
even  then,  since  this  point  is,  say  10  feet  higher  than  Lake 
Michigan,  success  in  preserving  the  canal  from  inundation 
^•md  imminent  danger  of  destruction  from  the  high  water  of 
the  swamp  and  its  lake,  will  be  extremely  doubtful. 

9tli.  Observations  and  remarks. 

By  the  preceding  estimate,  omitting,  as  will  be  noticed  in 
the  estimates  of  the  two  last  routes,  the  additional  expense 
that  would  be  necessarily  incurred  in  crossing  Saganashkee, 
the  average  cost  per  mile,  of  the  several  suggested  routes  will 
be  nearly  $7,000.  Comparing  this  with  the  cost  of  other  canals 
particularly  the  Middlesex  Canal,  which  absolutely  cost,  ex- 
clusive of  the  land  through  which  it  passes,  $13,374  per  mile, 
and  the  New  York  Canal,  by  estimation  $10,500  per  mile,  as 
also  with  others  in  Europe,  the  expenses  of  whicfi  have  been 
enormous;  and,  at  the  same  time  considering  the  relation  of 
object  effected  by  many  of  those  already  constructed,  and  to 
be  effected  by  that  now  in  contemplation,  the  mind  is  forcibly 
impressed  with  its  great  importance,  and  with  peculiar  pleas- 
ure rests  on  the  period  when  a canal  navigation  between  Lake 
Michigan  and  the  Illinois  shall  have  been  achieved. 


1090 


Post  .mid  Paul  Report. — Continued. 


3648  Many  and,  indeed  we  may  say,  nearly  all,  of  tlie  canals  that 

have  been  constructed,  except  those  in  the  State  of  New  York 
(the  ultimate  effect  of  which  are  destined  to  embrace  objects 
of  greater  importance),  are  for  the  purpose  of  facilitating  the 
communication  along  an  accustomed  highway ; opening  to  com- 
merce no  new  field — giving  to  agriculture  no  new  excitement; 
but  in  relation  to  the  intercourse  between  the  Illinois  ancl 
Lake  Michigan  the  case  is  widely  different.  Here  the  canal 
will  not  only  furnish  a safe  and  expeditious  mode  of  convey- 
ance between  two  important  points,  but  to  open  the  western 
states  a new  and  additional  market,  and,  by  the  recip- 

rocal advantages  afforded  excite  their  citizens  to  industry 
and  enterprise.  It  will,  in  truth  be  adding  one  of  the  most 
important  links  to  the  American  commercial  chain,  which  must, 
by  its  effects,  bind  together  the  respective  interests  of  the 
Atlantic  and  western  states;  consolidate  the  commercial  and 
political  policy  of  the  most  distant  parts  of  the  Union,  and  give 
to  the  patriot  a grateful  theme. 

The  western  states,  separated  from  the  eastern  by  the  Alle- 
ghany Mountains,  are  confined  to  New  Orleans  alone  for  a 
market  for  the  immense  surplus  of  produce  they  do  and  may 
supply,  much  of  which  is  liable  to  almost  immediate  injury 
from  the  humidity  and  heat  of  the  atmosphere  of  that  climate. 

3649  Long  has  this  cheerless  prospect  been  to  the  farmers  of  the 
west,  and  long  have  they  anxiously  looked  for  an  era  more 
propitious.  That  this  desideratum  may  be  realized;  that  a 
new  and  advantageous  market  may  be  opened  for  the  various 
productions  of  this  fertile  region,  and  that  we  may,  by  the 
artificial  direction  given  to  the  waters  of  our  lakes  and  rivers, 
reciprocate  with  others  the  advantages  derivable  from  com- 
mercial intercourse,  the  preceding  detail  of  results  authorize 
the  presumption. 

All  of  which  is  respectfully  submitted. 

Justus  Post 
K.  Paul 

Vandalia,  December  25,  1824.” 

Counsel  for  defendant  also  read  in  evidence  the  following  from 
page  73  of  Canal  Commissioners  Keport  1900: 

3651  ‘‘To  the  Honorable  Board  of  Canal  Coinmissioners  of  the 
State  of  Illinois: 

Gentlemen:  In  compliance  with  your  instructions,  I now 

lay  before  you  the  result  of  the  surveys  and  examinations 
confided  to  me  on  that  part  of  the  proposed  route  of  the  Illi- 
nois and  Michigan  Canal,  which  is  included  between  its  en- 
trance into  the  Chicago  Kiver  and  the  western  margin  of  the 
Ausogamashkee  swamp,  made  with  a view  to  its  permanent 
location  upon  what  has  been  considered  the  only  practicable 


1091 


plan  of  obtaining  a sufficient  supply  of  water  for  the  use  of 
the  summit  level,  assuming  the  bottom  of  the  canal  at  its  head 
to  be  four  and  one-half  feet  below  the  level  of  Lake  Michigan. 

From  the  mouth  of  the  Chicago  River  to  the  point  fixed 
upon  as  the  entrance  to  the  canal,  there  is  no  obstruction  what- 
ever to  its  navigation  by  boat  drawing  under  five  feet  for  that 
distance,  which  is  five  miles,  this  river  forms  a perfect  natural 
canal,  its  banks  being  low  and  of  uniform  heights  and  its 
waters  supplied  by  the  lake. 

Leaving  the  river  at  the  point  above  mentioned,  the  line  of 
the  canal  inclines  toward  the  Regula  (as  will  be  seen  by  a 
reference  to  the  accompanying  man),  and  follows  along  the 
margin  of  the  portage  lake  until  it  strikes  the  River  Des- 

3652  plaines  at  the  ford  a distance  of  nine  miles;  the  excavation 
throughout  this  distance  will  pass  through  a hard  ferruginous 
clay  (as  has  been  ascertained  bv  borings)  at  an  average  depth 
of  15.41  feet.’’ 

From  page  74,  I read: 

‘‘The  River  Desplaines  when  low  affords  a very  inconsid- 
erable quantity  of  water,  but  the  Calimic  River  which  empties 
into  Lake  Michigan  about  12  miles  south  of  Chicago,  furnishes 
an  abundant  supply  (320,000  cubic  feet  per  hour)  and  in  every 
respect,  so  far  as  my  observation  extends,  advantageously 
situated  as  a feeder.  Too  much  time  was  necessarily  con- 
sumed in  the  survey  of  the  line  of  the  canal  to  admit  of  as 
particular  an  examination  of  this  river  as  from  the  facts  col- 
lected respecting  it,  it  undoubtedly  deserves.” 

On  page  96  begins  a report  of  the  same  Mr.  Bucklin: 

(Objection.) 

“Sir:  Your  instructions  respecting  the  continuation  of  the 
survey  of  the  route  of  the  canal,  and  the  examinations  neces- 
sary to  a correct  understanding  of  the  adaptation  of  the 
country  between  Lake  Michigan  and  the  Illinois  River  to  the 
respective  improvements  under  consideration,  were  observed 
early  in  the  spring  of  1831  by  an  examination  into  the  prac- 

3653  ticability  of  making  the  Calamic  River  tributary  as  a feeder 
to  the  Illinois  and  Michigan  Canal.  Its  successful  result,  al- 
though highly  important  as  a means  of  avoiding  a great  source 
of  expense  in  the  event  of  the  construction  of  the  canal,  was 
lessened  in  value  by  the  development  of  unexpected  obstacles, 
over  which  it  had  no  control,  in  the  process  of  a subsequent 
survey  of  the  remaining  part  of  the  route  of  the  canal  from 
the  termination  of  the  survey  of  1830  at  the  Ausoganashkee 
swamp  to  the  navigable  waters  of  the  Illinois  River. 

The  discharge  of  the  Calamic  River  in  the  fall  of  1830,  a 
season  of  extreme  drought,  amounted  to  320,000  cubic  feet 


1092  Extract, — Cai}.  Com.  Rep.  190^.— Continued. 

per  hour,  which  may  be  safely  relied  upon  as  its  minimum 
discharge.  This  quantity  was  considered  sufficient  for  the 
upper  portion  of  the  canal,  but  by  the  late  survey  the  length 
of  the  canal  to  be  supplied  from  the  summit  until  relieved 
by  the  River  DuPage  proving  to  be  much  greater  than  was 
anticipated,  an  additional  supply  of  102,400  cubic  feet  per 
hour  will  be  required  for  its  consumption.  The  River  Des- 
plaines  in  most  seasons,  would  alone  make  up  the  deficiency, 
but  in  the  fall  of  1830  its  discharge  was  at  one  period  reduced 
to  60,000  feet  per  hour.  Relying  upon  its  contributing  this 
quantity  of  water  in  the  driest  seasons,  there  will  still  re- 
main a deficiency  of  42,400  cubic  feet  for  which  there  is  no 

3654  resource  but  the  establishment  of  an  artificial  reservoir  on 
the  summit  level.  The  Ausoganashkee  swamp  presents  great 
advantages  for  this  purpose  as  it  receives  the  drainage  of  the 
country  to  a great  extent,  and  is  susceptible  at  a comparatively 
smu^ll  expense,  of  being  rendered  more  secure  from  breaches 
and  other  casualties  than  most  works  of  a similar  descrip- 
tion.” 

On  pages  91-2  of  same  report: 

”It  has  been  also  proposed  to  effect  a water  communication 
between  the  lake  and  the  Illinois  River  by  means  of  dams  and 
locks  in  the  Desplaines,  forming  a still  water  navigation, 
knowing  the  minimum  discharge  of  this  river  the  imprac- 
ticability of  the  scheme  is  so  evident  that  the  subject  is  here 
noticed  more  as  a matter  of  form,  than  with  any  expectation 
of  rendering  it  clearer.  It  will  be  recollected  that  the  quan- 
tity of  water  provided  for  the  passage  of  96  boats  over  the 
summit  level  every  24  hours  in  the  canal,  is  86,400  cubic  feet 
per  hour,  that  is  one  lock  chamber  full  of  water  every 

3655  fifteen  minutes,  ascending  and  descending. 

The  minimum  discharge  of  the  River  Desplaines  is  only 
60,000  cubic  feet  per  hour.  Of  course,  it  is  not  competent  to 
supply  even  the  lockage  (which  on  this  plan  cannot  be  less 
than  that  required  for  the  canal)  without  taking  into  consid- 
eration the  loss  by  evaporation  and  leakage,  which  would  alone 
consume  at  least  seven  times  the  quantity  of  water  discharged 
by  the  River  Desplaines  at  its  lowest  stage.” 

On  pages  135-6  same  volume,  a letter  from  Mr.  Bucklin  to  Chair- 
man of  Senate  Committee  on  Canals: 

“Not  being  an  engineer  nor  familiar  with  the  calculations 
in  relation  to  the  quantity  of  water  required  to  supply  a canal 
of  the  size  contemplated,  I take  the  liberty  of  asking  your 
assistance,  and  request  the  favor  of  you  to  review  the  calcu- 
lations heretofore  made  by  yourself  and  others  in  reference 
to  the  quantity  of  water  in  the  Calamic,  and  to  state  the  quan- 
tity required  for  the  canal  as  at  present  proposed  to  be  con- 


109:^ 


structed.  lou  will  also  state  if  there  is  anything  peculiar 
in  the  nature  of  the  country,  to  justify  the  erecting  of  a canal 
without  providing  the  usual  quantity  of  water  for  evapora- 
tion and  leakage.  All  the  documents,  except  the  report  made 
by  you  in  1830,  will  be  furnished  if  desired. 

Very  respectfully. 

Your  obedient  servant, 

Wm.  Thomas, 

Chairmiui  of  the  Committee  on  Canals,  etc.’' 

What  1 propose  to  offer  is,  first  showing  how  this  report  came 
to  be  written : 

‘‘Sir:  It  will  give  me  great  pleasure  to  afford  you  any 

3657  information  that  I may  possess  in  relation  to  the  interest- 
ing subject  which  you  have  before  you.  I can,  however,  do 
little  more  than  recapitulate  the  information  that  has  been 
derived  from  various  sources  respecting  it. 

The  Kiver  Desplaines  was  gauged,  at  Laughton’s  Lord,  by 
Messrs.  Post  and  Paul,  in  the  first  survey  that  was  ever  made 
of  the  route  of  the  Illinois  and  Michigan  Canal,  and  the  dis- 
charge found  to  be  72,000  cubic  feet  per  hour.  They  also 
gauged  it  and  the  Cache  Island,  18  miles  below,  when  they 
ascertained  the  discharge  to  be  117,000  cubic  feet  per  hour. 
In  October,  1829,  it  was  gauged  by  Dr.  Howard,  U.  S.  Civil 
Engineer,  who  places  the  discharge  at  96,480  cubic  feet  per 
hour.  At  the  same  place  (Laughton’s  Ford)  it  was  again 
gauged  by  Messrs.  Harrison  and  Guion,  on  the  8th  of  August, 
1830,  and  found  to  discharge  60,000  cubic  feet  per  hour.  The 
(Mlamic  River  was  gauged  by  me  in  the  month  of  September, 
1830,  and  found  to  discharge  estimated  at  320,000  cubic  feet 
per  hour.  It  was  also  gauged  by  M.  Guion,  assistant  civil 
engineer,  in  the  service  of  the  United  States,  about  the  same 
time,  and  the  the  discharge  placed  by  him  at  1,033,000  cubic 
feet  per  hour.  It  may  be  proper  to  remark  here  that  the  fall 
of  1830  was  a season  of  extraordinary  drought. 

On  the  Erie  Canal  in  the  State  of  New  York,  the  supply  not 
being  very  abundant  in  some  parts  of  it,  great  care  was  taken 
to  ascertain  the  quantity  of  water  required  to  supply  the 
evaporation  and  leakage  in  dry  seasons,  and  it  was  determined 

3658  by  experiments  that  on  the  middle  and  western  division  100 
cubic  feet  per  minute  per  mile  was  a safe  estimate  ‘with 
proper  care  in  guarding  against  the  waste  of  water’.  On 
the  eastern  division  125  feet  was  required.  On  the  canals  in 
the  State  of  Ohio,  100  cubic  feet  per  minute  was  adopted  as 
the  minimum;  and  in  the  State  of  Indiana  it  has  since  been 
adopted  as  a standard  in  estimating  the  supply  required  for 
a canal  of  40  feet  surface,  and  four  feet  depth  of  water,  except 


1094  Extract, — Can.  Com.  Rep.  1900. — Continued. 

in  one  instance,  where  the  canal  passes  through  an  uncom- 
monly wet  region  of  country. 

The  allowance  of  100  cubic  feet  per  mile  per  minute  of 
evaporation  and  filtration  was  assumed  by  me  as  the  basis  of 
all  calculations  in  deliberating  the  minimum  quantity  of  water 
to  be  provided  for  the  Illinois  and  Michigan  Canal. 

The  surface  of  the  canal  as  at  present  proposed  to  be  con- 
structed, is  60  feet,  and  bears  the  proportion  of  one  and  one- 
half  to  one  to  the  surface  of  the  canal  as  at  first  proposed. 
The  depth  of  water  is  now  six  feet,  whereas  it  was  formerly 
four  feet,  consequently  the  pressure  being  as  the  squares  of 
the  heights,  and  the  leakage  nearly  as  the  square  roots  of  the 
heights,  the  pressure  will  be  more  than  doubled,  and  the  leak- 
age (taking  into  calculation  the  great  surface)  increases  in 
proportion  to  one  and  a half  to  one.  The  quantity  of  water 
then  that  will  be  required  to  supply  the  evaporation  and  leak- 
age in  a canal  of  the  dimensions  proposed,  will  he  150  cubic 
3659  feet  per  minute  per  mile ; and  with  reference  to  the  peculiar 
character  of  the  country  through  which  the  canal  passes,  I 
know  of  nothing  which  will  justify  a departure  from  the  estab- 
lished rule  in  regulating  the  supply  of  water.  It  is  true,  the 
upper  level  is  situated  in  a very  wet  country,  but  the  levels 
below  dependent  upon  summit  for  water,  are  located  on  ground 
very  badly  calculated  to  retain  it,  and  it  is  possible  that  more 
than  the  ordinary  supply  may  be  required. 

If  the  project  of  supplying  the  canal  from  Lake  Michigan 
is  abandoned,  and  the  high  level  resorted  to,  the  length  of 
canal,  including  feeders,  to  be  supplied  with  water  on  the 
upper  level,  is  56  miles,  which  will  require  8,407  cubic  feet 
per  minute  to  supply  evaporation,  and  leakage,  and  a further 
supply  of  2,112  for  lockage,  making  in  all  a minimum  supply 
of  10,512  cubic  feet  per  minute. 

Very  respectfullv  your  obedient  survant, 

J.  M.  Bucklin.'" 

Counsel  for  defendant  also  read  the  following  report  of  Judge 
Benjamin  Wright,  an  engineer,  page  173: 

3661  Dated  Chicago,  Oct.  23,  1837. 

'‘To  the  Board  of  Commissioners  of  the  Illinois  & Michigan 

Canal. 

Gentlemen  : 

Having  been  appointed  by  your  honorable  Board,  under 

the  third  section  of  the  law  of  the  State  of  Illinois  March  2, 
1837,  to  survey  and  examine  the  route  of  the  canal  as  now 
established,  with  a view  of  ascertaining  whether  there  is  a 
sufficient  quantity  of  water,  with  the  legitimate  authority  of 
the  State  of  Illinois,  to  use,  to  supply  a canal  of  the  same 


1095 


size  and  dimensions,  as  the  one  now  contemplated  to  be  con- 
structed upon  the  summit  level  of  said  line  of  canal;  I have, 
in  pursuance  of  the  duties  here  appointed  out,  passed  over  the 
whole  line  of  canal  from  Lake  Michigan  to  Peru,  examined  all 
the  plans  and  profiles,  and  received  explanations  and  descrip- 
tions of  every  part  of  the  work  as  projected  and  marked  out, 
as  well  as  all  those  parts  now  in  progress  of  working  under 
contract ; and  I think  I may  say  I have  now  possessed  myself 
of  a full  knowledge  of  the  details  of  the  work,  as  designed  by 
your  chief  engineer,  in  all  its  localities  and  hearings,  upon  the 
very  important  question  of  water,  upon  which  I am  required 
to  act. 

3662  It  appears  by  the  Act  of  the  Legislature  above  referred  to 
that  ‘a  supply  of  water  from  sources  within  the  legitimate 
authority  of  the  State  of  Illinois,  was  to  govern  all  actions 
upon  this  matter,  and  that  your  Board  had  early  directed 
such  river  to  be  more  fully  examined  than  had  heretofore  been 
done. 

From  an  examination  of  the  various  canal  documents  of  the 
last  session  of  the  Legislature,  it  seems  that  the  question 
stands  as  follows: 

Shall  the  feeding  water  be  taken  from  Lake  Michigan  by  a 
deep  cut!  Or  shall  the  summit  be  raised  10  feet  above  the 
lake,  and  fed  from  streams  to  be  brought  into  it!  It  has  been 
supposed,  and  no  doubt  correctl^q  that  only  three  streams  of 
water  can  be  brought  on  the  summit  level;  First,  the  Des- 
plaines  Eiver ; then  second,  the  Calumet  Eiver ; third,  the  Fox 
Elver. 

The  Desplaines  was  not  in  a proper  situation  to  gauge,  as 
there  had  been  copious  rains;  I,  therefore,  take  the  former 
measurements  of  the  United  States  engineers,  as  stated  in  the 
reports  of  the  Canal  Committee,  at  54,800  cubic  feet  per  hour. 

By  calculation  it  is  found  that,  if  12  boats  pass  per  hour, 
the  lockage  water  to  lock  up  and  down  10  feet  will  be  475,200 
per  hour.  If  we  then  add  for  leakage  at  the  locks  (a  small 
item),  and  for  the  evaporation,  we  ought  not  to  say  less  than 

3663  500,000  cubic  feet  of  water  per  hour  will  be  required,  when 
boats  are  passing  as  fast  as  they  can  be  let  through  (or  12 
per  hour).  It  is  true  that,  if  boats  passing  each  way  were  to 
meet  so  as  to  pass  a boat  up  with  the  same  water  which 
passed  one  down,  the  only  half  above  amount  of  lockage 
water  should  be  estimated  for  the  12  boats  per  hour,  al- 
though, I believe  12  boats  per  hour  may  be  passed  each  way, 
if  the  locks  are  well  attended,  and  are  in  perfect  order  for 
filling  and  discharging  the  water  rapidly. 

These  premises  being  admitted,  we  have  to  look  for  445,200 
cubic  feet  of  water  per  hour  more  than  the  Desplaines  gives 
us  at  low  water. 


1096 


Extract^ — Can.  Com.  Rep.  1900. — Continued. 


Then  on  page  146: 

‘'In  the  quarterly  report  of  the  Board,  transmitted  to  the 
General  Assembly  in  July,  1837,  it  was  stated  that  the  cor- 
respondence had  been  opened  with  Judge  Wright,  an  emi- 
nently ‘skillful  engineer,’  with  a view  of  the  surveys  and 
examinations  required  by  the  3rd  section  of  the  amendatory 
law  passed  in  the  previous  March.  In  the  meantime  Mr. 
Burnett,  who  is  the  resident  engineer  of  the  3rd  division, 
was  instructed  to  make  a critical  and  thorough  survey  of  the 
dividing  ridge  between  the  Fox  and  Desplaines  Eivers,  and 
within  the  limits  of  the  state.  This  duty  he  performed  with 
great  care,  eliciting  information  from  every  accessible  source, 
and  indulging  those  persons  who  desired  explorations  of  par- 
ticular depressions  previously  supposed  and  asserted  to  be 
sufficiently  low  to  afford  a cheap  feeder. 

Judge  Wright  arrived  at  Chicago  in  the  early  part  of  Oc- 
tober, and  on  the  20th  of  the  same  month,  Mr.  Burnett  made 
a detailed  report,  with  a topographical  map,  and  estimate 
of  the  quantities  of  excavations  and  other  work  necessary 
to  effect  the  object  on  the  most  favorable  route  of  the  country, 
was  susceptible.  At  that  time,  and  through  the  whole  sum- 
mer, the  Desplaines  River  was  generally  admitted  to  be  un- 
usually flush,  as  was  also  the  Calamic.  Xo  gauges  were 
therefore,  ordered,  and  consequently,  those  of  the  Desplaines 
made  by  the  United  States  Engineers  in  1830,  and  of  the 
Calamic,  by  Mr.  Bucklin,  were  adopted  as  the  basis  of  the 
investigation.  Keeping  in  view,  however,  that  the  truth  of 
these  gauges  had  been  strenuously  controverted  by  the  ad- 
3665  vocates  of  the  upper  level  or  ‘shallow  cut’  and  that  capacity 
of  the  Calamic  had  been  contended  to  be  even  superabundant, 
the  attention  of  the  examining  engineer  was  particularly  di- 
rected to  the  question,  whether  the  Calamic  could  in  any 
event  be  classed  among  waters  which  the  law  contemplated 
as  ‘sources  within  the  legitimate  authority  of  the  State  of 
Illinois’;  a question  which  his  reputation  for  sound  judg- 
ment in  everything  connected*  with  canaling,  his  knowledge 
of  the  requirements  of  Indiana  dependent  on  the  Calamic, 
and  his  great  experience  in  the  adjustment  of  similar  claims, 
pre-eminently  fitted  him  to  answer  with  confidence.  His 
])lain,  free  and  very  decided  report,  marked  ‘G,’  to  which 
Mr.  Burnett’s  is  appended,  will  afford  all  the  information 
required  by  the  statute  which  enjoined  the  examinations.  But 
notwithstanding  the  opinion  of  the  Commissioners,  that  the 
report  of  Judge  Wright, — so  completely  confirming  their 
original  plan — should  alone  determine  the  mode  of  feeding 
the  canal,  they  still  thought  it  advisable  to  seize  the  first 
opportunity  of  regauging  the  summit  streams,  and  examin- 
ing the  suitability  of  the  country  for  sustaining  assistant 
reservoirs.  The  past  dry  season  rendered  the  measuring  of 


1097 


the  Desplaines  almost  unnecessary,  since,  for  nearly  four 
months  the  tightest  dam  that  could  he  erected,  would  not  at 

3666  the  point  for  taking  out  the  feeder,  have  saved  water  enough 
to  propel  a single  pair  of  ordinary  mill  stones.  Repeated 
gaugings  from  the  20th  of  July  to  the  22nd  of  August,  and 
it  was  afterwards  still  lower,  gave  an  average  of  less  than 
the  measurement  of  1830.^’ 

Counsel  for  Defendant.  I want  to,  in  connection  with  this, 
to  call  attention  also'  to  the  Act  of  the  revised  statutes  of  Illi- 
nois of  1874,  Section  265, 

“That  all  bridges  now  constructed,  or  hereafter  to  l)e  con- 
structed, over  the  navigable  portion  of  the  Illinois  River, 
there  shall  be  built,  and  kept  in  good  repair  bridge  pier 
booms.’’ 

3667  Thereupon  counsel  for  defendant  introduced  in  evidence 
extracts  from  the  following  report  of  the  Canal  Commission- 
ers, dated  December  13,  1838,  addressed  to  his  Excellency  Thomas 
Carling,  Governor  of  Illinois,  read,  page  20: 

(Objected  to;  overruled.) 

“From  Norman’s  Island  to  Dam  No.  1,  which  is  located 
upon  canal  land  just  above  the  Town  of  Joliet,  two  strong 
walls  with  embankments  between  them  will  be  constructed 
upon  the  east  side  to  confine  the  water  in  the  pool  of  the 
dam.  It  is  proposed  to  raise  these  walls  and  embankments 
seven  feet  above  the  comb  of  the  dam,  to  be  perfectly  se- 
cure from  the  highest  floods.  From  Dam  No.  1 to  Dam  No. 
2,  a similar  defense  will  be  required  to  a much  less  height. 
Both  dams  will  be  made_of  good  cut  stone  masonry  laid  in 

3668  hydraulic  cement.  Dam  No.  1 will  be  connected  with  lock 
No.  5 which  will  be  upon  the  west  or  towing  path  side.  Here 
also  a large  amount  of  water  power  will  be  created,  which 
at  this  point  will  be  particularly  valuable  and  confer  great 
additional  value  upon  the  State  property.” 

Counsel  for  Complainant.  And  I also  ask  your  Honor,  in  this 
connection,  that  whenever  I simply  state  “I  object”  it  may  be 
upon  the  ground  of  immateriality,  and  all  other  reasons  which 
might  be  suggested. 

3669  The  Court.  Very  well. 

Thereupon  counsel  for  defendant  offered  in  evidence  a cer- 
tified copy  by  Christopher  Mamer,  Clerk  of  the  Supreme  Court  of 
the  State  of  Illinois,  the  certificate  being  dated  x\pril  1st,  1908,  of 
a stipulation  in  the  case  of  Philo  A.  Haven  and  Orlando  H.  Haven 


1098 


vs.  Board  of  Trustees  of  Illinois  and  Michigan  Canal,  tiled  in  that 
office  on  the  11th  day  of  June,  1849. 

(Objected  to  as  immaterial;  overruled.) 

3670  Counsel  for  Defendant.  There  is  a stipulation  as  to  an 
order  of  the  court;  final  judgment.  I do  not  intend  to  read 

this  entire  stipulation,  at  least  not  at  this  time,  but  I offer  it  all  in 
evidence. 

The  Court.  It  may  be  considered  as  read. 

3671  Counsel  for  Defendant.  I think  I will  read  the  whole 
of  it.  Said  document  is  as  follows: 


‘‘Philo  AY.  Haven  & Orlando  H.  Ha- 
ven 
vs. 

The  Board  of  Trustees  of  the  Illi- 
nois and  Michigan  Canal. 


AYill  Circuit  Court 
► October  Term, 
A.  D.  1848 


The  plaintiffs  and  defendants  in  this  cause  agree  upon  the 
following  statement  of  facts  to  be  submitted  to  the  court 
for  their  decision  thereon. 

1.  The  plat  hereto  annexed  numbered  (1)  is  a plat  of 
Section  Sixteen  in  Township  Thirty-five  North  of  Eange  Ten 
East  of  the  Third  Principal  Meridian  and  also  the  plat  of 
Section  nine  in  the  same  Township  being  two  plats  of  said 
section  as  returned  by  the  Surveyor  General  of  the  United 
States  and  deposited  in  the  land  office  at  Chicago,  on  which 
said  plat  is  represented  the  Desplaines  River  as  it  runs 
through  said  section. 

And  it  is  admitted  that  said  Desplaines  River  is  meandered 
through  the  entire  length  of  said  sections  as  appears  from 
the  minutes  of  said  survey  in  the  said  Surveyor’s  Office,  a 
copy  of  which  minutes  are  also  attached  marked  (2)  and 
delineated  on  said  map. 

It  is  also  admitted  that  said  Section  Sixteen  is  one  of  the 
sections  granted  by  Congress  to  the  State  of  Illinois  for  the 
use  of  the  inhabitants  of  the  township  in  which  the  same  is 
situated  for  the  use  of  the  schools  and  accepted  by  an  or- 
3672  dinance  accepting  certain  propositions  made  by  Congress 
April  18th,  1818.  On  the  26th  of  August,  1818.  It  is  also 
admitted  that  the  plat  hereto  annexed  marked  (3)  is  a true 
copy  of  the  plat  of  said  Section  Sixteen  and  duly  laid  out 
and  subdivided  and  certified  and  acknowledged  and  recorded 
according  to  law  as  set  forth  on  said  plat;  and  a plat  of  said 
river,  and  canal,  with  the  dams,  basins  and  locks,  as  made 
and  constructed  JProm  Lockport  44  miles,  above  the  said  plain- 


1099 


tiff’s  mill  clam  to  and  below  plaintiff’s  mills  is  hereto  an- 
nexed marked  No.  41. 

It  is  also  admitted  that  at  a sale  of  lots  in  said  Section 
Sixteen  in  October,  1834,  by  and  under  the  authority  of  the 
State  in  pursuance  of  the  statute  in  such  case  made  and  pro- 
vided, John  H.  Kinzie,  purchased  lots  one  and  two  in  block 
57  and  that  patents  issued  to  John  H.  Kinzie  for  the  same 
in  1835  conveying  title  and  fee  simple  as  by  law  directed 
and  that  said  John  H.  Kinzie  conveyed  to  Martin  H.  Dem- 
mund  and  John  M.  Wilson  his  title  as  above  stated  and 
that  Martin  H.  Demmund  and  John  M.  Wilson  subsequently 
conveyed  the  same  to  the  plaintiffs  herein,  lots  one  and  four 
in  block  56  were  sold  at  the  sale  of  said  Section  Sixteen  in 
1834  and  were  afterwards  purchased  by  the  plaintiffs  for 
taxes  and  a deed  bearing  date  obtained  of  the  sheriff  and 
they  have  until  this  time  remained  in  undisputed  possession 
of  said  lots  except  so  much  of  them  as  has  been  appropri- 
ated by  the  Canal.  It  is  admitted  that  the  Illinois  and  Michi- 
gan Canal  was  commenced  in  1836  and  that  portion  of  the 
canal  through  said  section  was  put  under  contract  in  1838 
and  the  Guard  Lock  on  Section  Nine  near  the  dam  across 
said  river  just  above  said  Section  Sixteen  was  commenced 
in  1840  by  digging  the  pit  in  the  spring  and  a part  of  the 
stone  laid  in  the  fall.  The  stone  for  the  same  were  quar- 
ried and  dressed  during  the  spring  and  summer  of  the  same 
year.  The  stone  Tor  the  said  dam  on  Section  Nine  (which 
is  a cement  and  cut  stone  dam)  were  commenced  the  same 
season  and  the  dam  was  commenced  the  following  season  in 
being  quarried  and  cut  in  the  spring  and  finished  in  the  fall 
of  1841,  the  contracts  for  building  said  lock  and  dam  were 
made  in  1839  and  it  was  generally  understood  as  early  as 
1839  that  said  lock  and  dam  were  to  be  built.  It  is  agreed 
that  in  the  spring  of  1839  the  plaintiffs  commenced  building 
a mill  on  said  lot  one  in  block  57  on  Section  Sixteen,  and 
also  a dam  across  the  Desplaines  Eiver  connecting  said  lot 
one  in  block  57  on  the  east  bank  of  said  river  with  the  di- 
vision line  between  lots  one  and'  four  in  block  56  on  the  west 
bank  of  said  river  and  completed  said  dam  and  saw  mill  so 
as  to  use  the  same  in  the  following  October  or  November. 
Soon  thereafter  the  Commissioners  of  the  Illinois  and  Michi- 
3674  gan  Canal  in  constructing  said  canal  reserved  the  west  end 
of  said  dam  so  that  it  became  connected  with  the  east  bank 
of  the  canal,  which  bank  encroached  upon  the  material  chan- 
nel of  the  river  about  ten  feet.  The  head  and  fall  at  said 
plaintiff’s  dam  used  by  them  in  propelling’  their  machinery 
is  six  feet  leaving  a fall  on  said  lots  one  and  two  in  block 
57  of  about  six  inches  more.  In  the  year  1842  the  plain- 


1100  Stipnlatiou , — Havru  vs.  Canal  Com. — Continued. 

tiffs  also  built  a grist  mill  on  said  lot  two  in  block  57,  also 
added  to  the  saw  mill  a lathe  miU  in  1843  and  built  a dwell- 
ing bouse  on  said  lot  one  in  block  57  in  1846  and  also  a 
machine  shop  on  said  lot  one  in  block  57  in  1847.  Said  mill 
and  buildings  have  been  used  by  the  plaintiffs  for  the  uses 
and  purposes  for  which  they  were  built  from  the  time  they 
were  built  as  aforesaid  till  the  20th  day  of  April,  1848.  The 
water  in  said  river  being  at  times  insufficient  for  all  said  ma- 
chinery. On  the  20th  of  April,  1848,  the  defendants  diverted 
or  caused  to  be  diverted  into  the  Canal  for  the  use  of  said 
Canal  from  the  material  channel  of  the  river  the  whole  or 
principal  part  of  the  waters  of  said  river  by  turning  the 
same  from  the  basin  made  in  said  river  by  means  of  the  dam 
on  Section  Nine  being  a canal  section  and  about  4 mile  next 
above  the  dam  of  said  plaintiff  so  that  the  plaintiffs  are 
3675  wholly  deprived  of  the  use  of  the  water  at  their  said  mills 
and  have  not  since  been  able  to  run  their  machinery.  From 
the  time  of  imtting  this  ]3ortion  of  the  canal  under  con- 
tract in  1838  and  up  to  the  year  1843  there  had  been  no 
change  in  the  original  plan  of  su])plying  the  canal  with  water 
from  Lake  Michigan  by  the  deep  cut  as  originally  contem- 
plated, and  all  contracts  let  previously  to  1843.  And  all  the 
arrangements  of  said  canal  were  made  notoriously  upon  the 
plan  aforesaid  and  with  a view  to  supply  the  canal  from 
Lake  Michigan.  It  is  also  admitted  that  the  Desplaines 
Kiver  is  not  navigable  in  fact  although  a portion  of  it  is 
declared  to  be  so  by  act  of  the  Legislature,  the  work  upoTi 
the  canal  commenced  being  sns]>ended  in  1841  and  was  en- 
tirely suspended  from  1842  to  1845.  The  (piestion  of  law 
arising  from  the  state  of  facts  is  whether  the  plaintiffs  are 
entitled  to  compensation  for  the  injury  and  damage  they 
have  sustained  in  consequence  of  the  diversion  of  the  water 
of  the  Desplaines  Eiver  as  aforesaid  into  the  canal  as  afore- 
said, and  it  is  stipulated  and  agreed  that  whichever  way  the 
judge  decides  said  (]uestion  either  party  shall  have  30  days 
from  and  after  notice  of  said  decision  to  take  an  appeal 
therefrom  or  bring  a writ  of  error  to  the  Supreme  Court  if 
the  said  decision  shall  be  made  in  favor  of  the  plaintiffs  by 
the  Circuit  Court  and  the  defendants  do  not  appeal  there- 
from or  bring  a writ  of  error  within  the  time  aforesaid  or 
if  u])on  appeal  the  Supreme  Court  shall  decide  in  favor  of 
the  plaintiffs’  right  to  recover  their  damages  as  aforesaid 
then  appraisers  shall  be  a])pointed  by  the  judge  of  said  Cir- 
cuit Court  to  appraise  the  damages  under  and  in  pursuance 
of  the  9th  section  of  the  Act  of  2nd  starch,  1837,  and  party 
reserving  the  right  to  make  objections  to  the  report  of  said 
appraisers  before  tbe  Circuit  Court  and  to  api^eal  from  the 


1101 


decision  or  order  of  the  Circuit  Court  upon  such  appraisal 
as  provided  for  in  said  act. 

Collins  & Wilson, 

Plff's.  Attys. 

' T.  N.  Butterfield, 

Atty.  for  Defts/^ 

Certificate  of  C.  Mamer,  Clerk  of  Supreme  Court  attached  to 
above. 


Cyrus  Copelantz, 

called  on  behalf  of  defendant,  testified : 

Direct  Exa  min  a lion. 

3678  My  name  is  Cyrus  Copelantz.  I live  in  Joliet.  Have 
lived  there  since  1866;  from  ’54  to  ’66  I lived  five  miles 

southwest  from  Joliet  on  the  east  side  of  the  river.  Came  to  Will 
County  in  1854  wdien  ten  years  old.  Lived  on  farm  two  and  a 
half  or  three  miles  from  Desplaines  River.  In  1866  went  into 
butchering  business  in  Joliet.  Was  in  the  livery  business 

3679  in  1880-1884.  In  the  boot  and.  shoe  business  from  1880  to 
1884. ' Moved  to  Kansas  City  in  1884,  back  in  1891.  Lived 
in  Joliet  since.  From  1854  to  1871,  I was  along  and  across 

3680  the  Deseplaines  River  at  various  times,  often.  Possibly 
every  V;eek  or  two  week's  from  ’54  to  ’66  but  from  ’66  to 

’80  and  since,  except  when  in  Missouri,  have  been  along  the 
river  almost  every  week.  Am  acquainted  with  it  from  Channa- 
hon,  that  is  ten  miles  below  Joliet,  up  to  Romeo,  above  Joliet. 
Have  seen  the  river  below  Channahon,  but  not  very  fre- 

3681  quently.  In  the  years  prior  to  1871  the  condition  of  the  river 
would  depend  on  the  rainfall.  In  the  spring  there  would 

be  water  flowing  all  the  while  up  until  along  the  last  of  May, 
and  as  the  summer  season  came  on,  the  water  would  diminish  in 
quantity  until  in  places  there  would  not  be  any  to  speak  of.  Other 
low  places,  there  would  be  water  the  year  around  in  holes.  From 
the  last  of  May  to  the  first  of  November  there  would  be  water  in 
]Jaces  and  in  places  it  would  not  be  dry,  but  there  would  be  no 
water  to  speak  of.  There  would  be  no  running  water  seep- 

3682  ing  along  in  places.  The  bottom  of  the  river  varies  and  is 
not  level.  There  is  a space  at  Treat’s  Island  from  that  on 


1102  Copelantz, — Direct  Exam, — Continued. 

north  up  to  the  lower  end  of  what  is  called  Lake  Joliet,  there 
is  riffles  there  that  would  not  have  much  water  there,  and  then 
after  we  got  to  the  north  end  of  Lake  Joliet,  up  near  Brandon’s 
bridge,  up  to  what  has  been  called  Adam’s  Dam,  it  is  riffles,  and 
there  is  no  water  to  speak  of  at  all.  You  can  walk  across  any 
time.  I am  acquainted  with  the  riffles;  they  extended  from 
Adam’s  Dam  south  down  towards  Lake  Joliet,  about  a mile;  in 
those  riffles  were  boulders  which  varied  in  size,  some  three  feet 
through,  some  two  feet,  and  so  on.  They  were  numerous.  Also 
down  at  the  lower  riffles  at  Treat’s  Island.  On  the  riffles 

3683  from  Adam’s  Dam  to  the  head  of  Treat’s  Island,  in  the 
years  before  ’71,  there  would  not  He  water  to  speak  of  at 

times  there.  The  average  condition  along  that  riffle  in  a dry 
season  or  an  ordinary  season  there  was  no  time  that  the  water 
was  so  extensive  but  what  you  could  walk  right  across  it  with- 
out getting  your  feet  wet,  on  the  stones.  Some  seasons  it  was 
that  way  during  practically  the  entire  summer  season.  In  the 
ordinary  season,  that  is,  an  ordinary  rainfall,  the  w^ater  would 
vary^  when  the  rains  would  come;  there  was  no  time  but  what 
you  could  get  across  there  without  any  trouble.  There  was  enough 
water  along  that  riffle  to  float  a skiff  in  the  spring  of  the 

3684  year,  after  the  freshets,  but  not  that  I know  of  during  the 
remainder  of  the  year.  I could  not  tell  you  just  exactly 

how  many  boulders  were  there,  but  I know  they  were  very  nu- 
merous. A fellow  would  be  in  danger,  if  the  water  was  high 
enough  for  him  to  go  down  with  a skiff,  in  getting  by  them.  I 
know  some  fellows  tried  if.  There  was  a friend  of  mine  and  his 
boy  tried  it  and  he  ran  into  one  and  upset  his  boat.  I was  at 
his  funeral.  There  is  a riffle  down  near  Treat’s  Island,  that 

3685  is  at  the  south  end  of  Lake  Joliet.  They  were  not  so  rapid, 
the  fall  is  na.t  so  great  as  they  are  at  the  north  end.  I 

should  judge  they  were  from  a half  a mile  to  three  quarters  of 
a mile  in  length'i;  say  half  a mile.  I did  not  see  those  as  often 
prior  to  1871  as  I did  at  the  north  end.  I have  been  there  when 
there  was  no  water  to  speak  of  at  all,  and  walked  right  across 
just  above  there,  and  again  when  there  was  a little 

3686  more  water;  it  varied.  The  quantity  of  water  would  be 
about  the  same  as  it  would  be  at  the  north  end.  I never 

saw  enough  water  along  those  rapids  at  any  time  after  the  spring 


1103 


freshets  when  it  would  be  possible  to  float  a skiff.  There  were 
boulders  along  there  so  numerous  a person  could  not  go  down 
with  safety  when  the  water  is  high  enough  to  float  a boat  without 
being  in  danger.  They  are  all  over  the  channel.  I never  saw  a 
boat  there  after  the  spring  freshet  was  over.  There  is  one  small 
riffle  still  down  quite  a ways  but  I am  not  veiy^  familiar  with  it. 

I never  was  there  but  once  and  the  water  was  very  low  at 
3687  that  time.  That  rapids  is  along  near  Smithes  bridge.  There 
were  numerous  boulders  there,  not  so  many  as  at  Treat’s 
Island.  Prior  to  1871,  I have  been  down  to  the  mouth  of  the 
river.  I don’t  remember  the  conditions  there.  Before  1871, 
I have  crossed  the  river  at  a ford  at  Brandon’s,  before  the 
bridge  was  there;  also  at  Channahon.  I have  been  in  a rowboat 
on  Lake  Joliet.  We  used  our  boat  to  go  across  to  the  swamp 
on  the  west  side  to  hunt  for  ducks.  There  were  several  row- 
boats there  used  for  the  same  purpose.  Never  knew  of  any  boats 
being  used  on  Lake  Joliet  for  any  other  purpose.  I never  knew  of 
boats  either  going,  up  or  down  the  Desplaines  between  its  mouth 
and  Adams’  Dam,  prior  to  1871.  They  cannot  go  up,  there  is  no  use 
talking  about  it.  It  is  impossible  for  a man  to  row  a boat 

3689  up  that  river  at  any  time  of  the  year;  that  was  so  before 
1871.  When  there  was  water  the  current  was  too  swift 

and  there  were  too  many  boulders  in  the  river,  and  when  there 
is  not  water,  they  cannot  row  boats.  Never  knew  but  the  one 
boat  I spoke  of  a while  ago  going  down  stream  from  Adam’s 
Dam  to  the  mouth  of  the  river;  that  was  the  one  the  fellow  got 
drowned  in.  I don’t  know  that  the  boat  was  capsized;  know 

3690  that  they  got  drowned.  They  started  in  a boat  and  we 
found  the  boat  and  one  of  the  boys  very  close  by.  That  is 

the  only  time  I recall  anybody  trying  to  take  a boat  down.  I 
never  heard  of  any  commercial  navigation  being  carried  on  on 
the  Desplaines  Eiver,  either  before  or  after  1871.  I have  seen 
the  river  frequently  since  ’71,  also  since  1900,  when  the  Sani- 
tary District  commenced  to  discharge  water  into  it.  You  cannot 
row  a boat  on  the  river  from  Jefferson  street — from  the  upper 
dam.  The  current  is  too  swift.  I have  heard  of  one  or  two 

3691  men  that  went  down  in  boats  but  they  never  came  back. 
Since  1900,  I never  knew  of  anybody  trying  to  take  a boat 

up  the  river  above  Lake  Joliet.  I never  knew  of  anyone  trying 


1104 


to  take  a boat  up  from  the  mouth  of  the  river  as  far  as  Lake 
Joliet,  or  any  point  below  Lake  Joliet. 

Copelaniz  Cross-Examincffwn. 

3693  When  I was  a boy  living  on  the  farm  I saw  the  river  oc- 
casionally. Generally  went  down  there  on  Sundays  in- 
stead of  going  to  Sunday  School.  After  we  got  our  fall  work 
done  and  our  spring  work  done,  and  wanted  to  go  hunting  we 
would  take  a day  off.  When  we  lived  in  Joliet,  I would  see  the 
river  oftener  in  the  city  than  any  other  place*  but  in  buying 
cattle  and  driving  we  were  up  and  down  across  the  river.  When 
I was  in  the  boot  and  shoe  business,  I saw  it  less  than  any  other 
time.  I did  not  see  it  during  the  seven  years  I was  in  Kansas 
City.  Since  1891  until  the  present  time,  have  not  paid  much 
heed  or  attention  to  the  river  except  as  it  appeared  in  Joliet. 

3695  I was  not  identified  with  river  business  of  any  kind.  The 
rapids  near  Joliet,  I should  judge,  I am  simply  guessing, 

was  about  a mile  long.  I have  crossed  the  river  on  the  rapids. 
I never  went  up  and  down  the  length  of  the  raoids  in  the  river. 
There  was  a ford  over  the  rapids  where  I have  crossed  a good 
many  times.  Not  every  year  for  the  last  thirty  years  out- 

3696  side  of  the  time  I was  in  Kansas  City.  I crossed  with  a 
team.  Sometimes  there  would  not  be  any  water  to  speak 
of;  other  times  if  there  was  rain  for  a time  or  a day  or 

3697  two  ahead  there  would  be  twelve  or  fourteen  inches  of 
water.  I don’t  remember  that  I ever  crossed  it  when  it 

came  up  to  the  wagon  bed.  I probably  have  crossed  it  when  it 
was  over  the  hubs  of  the  wagon  wheels.  If  it  was  underneath 
the  hubs  or  did  not  cover  the  hubs,  I would  not  consider  there 
was  much  water  there.  Don’t  know  how  many  boulders  there 
were  in  that  rapids,  never  crossed  them  in  a boat.  Below  that, 
I should  judge  it  is  close  to  five  miles,  there  is  another  rap- 

3698  ids.  It  commences  at  the  north  end  of  Treat’s  Island,  I 
should  judge  the}"  were  half  a mile  long.  T never  passed 

over  those  ra])ids  in  a boat.  I have  crossed  the  river  at  those 
rai)ids  with  a team.  I went  ov-er  one  l)ranch  of  the  river  to 
Treat’s  Island  and  then  crossed  the  other  branch  of  the  river. 
That  was  quite  a while  ago,  when  I was  living  on  the  farm.  I 


1105 


have  not  crossed  over  the  ford  there  since  1866.  Don’t  remem- 
ber just  how  deep  it  was  then.  There  is  rapids  on  each  end  of 
Lake  Joliet.  I never  passed  over  the  rapids  at  the  lower 

3701  end  of  Lake  Joliet  in  a boaL  nor  through  them.  My  ob- 
servation of  the  boulders  was  had  either  from  the  bank  or 

while  crossing  the  stream.  I would  not  say  how  many  boulders 
there  are.  I have  not  noticed  them  since  1866.  Since  the  drain- 
age water  is  in  you  can  see  where  they  are,  but  you  could  not 
see  the  boulder  proper  itself.  The  water  covers  them.  You 

3702  see  a disturbance  of  the  water  where  they  are.  It  is  not 
literally  true  that  I saw  boulders  two  or  three  years  ago, 

nor  last  fall,  nor  for  the  last  eight  years.  The  truth  is  I have 
not  forded  the  river  there  since  1866.  Have  not  observed 
3705  the  boulders  except  when  I forded  the  river.  They  have 
built  a bridge  below  there.  Since  the  water  is  turned  in, 
I did  not  go  across  that  ford  at  all,  because  I could  not.  They 
built  a bridge  below  and  of  course  we  do  not  come  in  contact 
with  the  boulders.  They  built  the  bridge  in  1892.  I have  crossed 
the  ford  after  1866.  Between  1854  and  1866  I crossed  it  oftener 
than  I did  since.  I will  not  say  positively  whether  I crossed 

3707  the  ford  since  1866  or  not.  I am  not  clear  about  it.  I 
might  and  I might  not.  I cannot  call  it  to  mind  if  I did 
cross  the  ford  since  1866.  I have  not  observed  those  bould- 

3708  ers  since  1866.  Don’t  assume  to  know  how  many  boulders 
they  have  there,  nor  their  size.  There  is  another  rapids 

down  the  river  before  you  get  to  the  mouth  but  1 don’t  have 
much  recollection  of  that.  I have  been  there  once  but  I would 
not  describe  them.  You  could  tell  there  was  boulders  in  the  river 
along  the  rapids  by  the  action  of  the  water  running  around 
them.  I don’t  know  how  much  water  there  is  over  them.  I think 
the  rapids  extend  the  whole  length  of  Treat’s  Island.  I never 
measured  so  I don’t  know  how  long  the  island  is. 


1106 


Isaac  W.  Richaeds, 

3714  a witness  eallecl  by  defendant,  testified  as  follows: 

Direct  Examination. 

My  name  is  Isaac  AY.  Richards.  I am  42  years  old  and  live  at 
Joliet.  Came  to  this  country  in  1866,  was  22  j-ears  old  then.  Live 
just  outside  the  city  limits,  southeast.  Have  lived  in  and  close 
to  Joliet  since  1866.  Business  is  farming  principally.  Farm  is 
six  miles  southeast  of  city,  about  four  miles  from  Desplaines  River. 
Lived  on  that  farm  eight  years.  After  that,  I lived  in  Lockport 
for  three  years;  after  that  was  living  southwest  of  the  city.  Live 
in  city  now.  I am  familiar  with  the  Desplaines  River,  commenc- 
ing with  Jackson  street  and  down  as  far  as  Lake  Joliet.  During 
five  years  after  1866,  I saw  the  river  probably  three  times  a week. 
When  I would  be  in  Joliet,  I would  have  to  cross  the  river  at 
Jefferson  or  Cass  street.  I^sed  to  go  down  to  Malcolm’s  Mill  where 
Adam’s  Dam  was.  There  was  a sawmill  and  a giist-mill  together. 
AVould  go  down  there  probably  once  a month  between  1866  and 
1869.  M^ould  observe  the  river.  The  mill  would  be  operated  a 
very  light  portion  of  the  year.  My  father-m-law  took  some 
3716  logs  there  to  be  sawed  in  ’68  or  ’69  and  we  had  to  take  those 
logs  over  there.  Could  not  get  them  sawed  because  there 
was  not  water  enough.  We  took  them  away  from  there  on  the 
snow.  I think  my  father-in-law  kept  them  waiting  there  eighteen 
months.  Did  not  succeed  in  getting  them  sawed.  We  took  them 
up  to  Hickory  Creek,  four  miles,  to  Bevington  Mill.  I think  they 
were  sawed  there.  AVe  used  to  take  grain  to  the  grist-mill 
3718  and  sometimes  would  be  a good  while  in  getting  it.  Would 
not  take  the  grist  there  until  the  fall  and  would  wait  some- 
times two  months  before  we  got  it.  They  were  only  able  to  oper- 
ate, I would  say,  in  the  fall  and  winter.  Malcolm’s  Mill  is  about 
four  or  five  blocks  below  Jefferson  street.  From  1866  to  1871, 
the  conditions  were  such  as  that  there  was  very  little  water  in 
the  river.  I have  seen  the  river  so  low  just  below  Dam  Xo.  2 that 
1 could  cross  the  riffle  with  slippers  and  never  get  my  feet  wet,  by 
stepping  on  stones  in  the  dam.  I could  not  say  how  long  it  would 
be  continually  in  that  condition  but  I might  say  for  six  months 
out  of  the  year  there  is  practically  no  water  going  over  that  dam. 


1107 


The  spring  freshets  would  occur  when  the  snow  was  getting 
3719  off.  Sometimes  would  have  a June  freshet.  ’69  was  a wet 
year.  There  was  water  coming  over  then  more  than  any 
other  year.  From  the  period  after  the  spring  freshet  throughout 
the  summer  and  fall,  there  would  not  be  any  water  going  over 
there  worth  mentioning  until  November  or  into  December.  There 
would  be  just  what  would  seep  through  the  dam,  just  a few  inches. 
Never  knew  of  a row  boat  being  taken  up  or  down  the  river  be- 
tween Jefferson  street  and  Lake  Joliet  during  the  summer  or  fall. 
I don’t  think  it  was  possible. 

I recall  the  rapids  from  Jefferson  street  and  Brandon’s 
road.  Below  Adam’s  Dam  the  stream  had  a good  many 
3721  boulders  in  it,  lying  promiscuously  across  the  stream.  They 
extended  down  as  low  as  Hickory  Creek.  They  would  vary 
from  half  a bushel  to  three  or  four  tons.  They  were  there  before 
1871  and  have  remained  there  since.  I don’t  think  it  possible  for  a 
row  boat  to  pass  down  through  those  boulders;  they  were  lying  in 
such  shape  that  if  you  dodged  one,  you  would  hit  another,  the  rap- 
ids there  being  quite  fast.  I saw  the  river  below  Lake  Joliet  prior 
to  ’71,  but  not  very  often.  I may  have  crossed  the  river  at  Treat’s 
Island  and  I never  noticed  the  condition  of  the  river.  I would 
approximate  the  stretch  from  Adam’s  Dam  to  north  Hickory 
Creek  half  a mile.  I never  knew  of  a boat  used  on  the  river 

3723  at  any  point  for  commercial  purposes.  Never  knew  of  any 
boats  of  any  kind  being  used  above  Lake  Joliet.  I used  them 

on  Lake  Joliet  for  fishing  purposes.  There  were  other  boats 
there  used  for  same  purpose,  little  row  boats.  Never  knew  of  any 
boats  used  on  Lake  Joliet  for  commercial  purposes.  I remember 
when  the  deep  cut  was  opened  into  Lake  Michigan  drawing  water 
to  the  river,  in  1871.  We  got  more  water  after  the  pump  started. 
It  killed  all  the  fish  in  the  stream.  The  water  was  very  dark. 

3724  There  has  been  no  fishing  in  the  river  since  then  to  amount 
to  anything.  I am  familiar  with  the  river  since  1900  when 

the  Sanitary  District  water  was  discharged  into  it.  I have  not 
known  of  any  boats  having  been  up  or  down  between  Malcolm’s 
Mill  and  the  head  of  Lake  Joliet  since  1900.  It  might  be  possible 
to  take  a boat  down  the  river  but  I think  it  would  be  impossible 
to  take  one  up,  the  water  runs  too  fast.  I have  never  known  of 


1108 


any  steamboat  used  for  commercial  purposes  on  the  river,  at  any 
23oint,  since  1900. 

3725  Richards  C ross-Examination. 

I came  to  Will  County  in  the  spring  of  1866.  I was  22  years  old 
at  that  time.  The  first  two  years  I lived  in  Will  County  I lived 
about  a mile  and  a half  southeast  of  Joliet,  about  a mile  and  a 
half,  perhajDs  not  that  far,  from  the  Desplaines  Biver.  I used 
to  see  the  river  pretty  often,  twice  or  three  times  a week,  I would 
be  in  Joliet  a good  many  times  and  always  crossed  the  river  when 
I was  in  town,  generally  at  the  Jefferson  street  bridge.  At  times 
I was  at  the  mill,  and  at  times  I was  hunting  and  fishing  up  and 
down  the  river.  At  Joliet,  there  was  very  little  water  in  the  river 
most  of  the  time,  there  was  always  some.  We  fished  at  the  mouth 
of  Hickory  creek  and  down  to  Lake  J oliet.  We  succeeded  in  getting 
fish  there  better  than  in  the  river.  We  got  bullheads,  bass,  red 
horse  and  suckers.  There  were  holes  four  or  five  feet  deep 

3727  in  Hickory  Creek,  and  possibly  down  about  Lake  Joliet  there 
were  holes  in  the  river  deeper  than  that.  It  is  about  a mile 

and  a quarter  or  a mile  and  a half  from  Joliet  to  the  head  of  Lake 
Joliet,  I never  measured  it.  We  fished  at  the  lake  as  much  as  any- 
where; we  set  our  lines  out  there. 

3728  There  was  water  enough,  constantly,  for  fish  to  pass  up 
and  down  the  river  if  they  wanted  to,  up  as  far  as  Dam  No. 

2, — that  was  the  Jefferson  Street  Dam.  I have  seen  the  water  so 
low  there  just  below  the  Jefferson  Street  Dam  that  a duck  could 
not  float  up  and  down  it.  He  would  have  to  walk,  and  he  would 
not  get  his  feet  wet  either.  I have  never  seen  ducks  walking  up 
and  down  stream,  but  I saw  water  so  light  in  that  stream  that  I 
could  cross  it  in  my  slippers  and  never  get  my  feet  wet.  I would 
step  on  the  little  flat  stones  in  there,  stones  no  bigger  than  a 
dinner  plate.  They  were  about  two  inches  thick.  It  might 

3729  have  been  a hundred  feet  across  the  bed  of  the  stream  at 
that  place.  There  was  very  little  water  there,  a little  seeping 
through  the  stone.  I mean  the  stream  was  100  feet  wide. 

3730  The  bed  of  the  stream  was  100  feet  wide,  but  the  stream  of 
water  running  down  it  would  not  be  over  6 inches  to  a foot 

and  a half  wide  between  the  stones,  just  a little  water.  There 


1109 


was  no  stream  there  that  I would  call  a stream.  I would  not  have 
to  step  on  the  stones  to  avoid  getting  my  feet  wet  for  more  than 
half  the  distance  across,  say  50  feet,  maybe  not  over  25, — that  is 
a good  while  ago  tq  remember  how  far  I stepped.  I did  not 

3732  measure  the  stones.  The  best  of  my  judgment  is  that  they 
were  not  over  two  inches  thick.  Some  of  those  stones  were 

just  at  the  top  of  the  water  and  some  were  clear  out  of  the  water. 
There  was  more  water  in  the  bed  of  the  creek,  there  was  more 
trickling  down  through  the  center.  There  was  a little  water  run- 
ning down  there  all  the  time.  That  was  in  the  summer  time, 

3733  anywhere  between  June  and  September.  Usually  there  would 
be  a freshet  in  the  spring,  when  the  snow  and  ice  melted,  and 

3735  at  least  as  often  as  every  other  year,  there  would  be  a June 
freshet.  After  that  generally  we  would  not  get  any  water 
until  at  late  fall  we  might  get  a freshet  in  November,  or  the  first 
of  December,  just  before  the  closing  up  for  the  winter. 

3737  The  grist-mill  was  there  when  I came  to  Joliet  in  1866. 
It  was  there  from  1866  to  1870,  but  I do  not  know  when  it  was 

taken  down.  I took  grists  of -wheat  there  to  be  ground,  generally, 
buckwheat.  I have  waited  for  it  to  be  ground  for  six  weeks  or 
two  months.  iV  fellow  named  Malcomb  run  and  operated  the 

3738  mill.  My  grist  would  consist  of  from  50  to  100  bushels,  that 
was  my  entire  crop  of  buckwheat.  I usually  had  it  milled  at 

one  time,  and  shipped  it  to  Joliet  and  sold  it.  There  were  other 
grists  in  the  mill  while  I was  waiting  for  mine  to  be  ground,  evi- 
dently,— I suppose  my  grist  was  waiting  its  turn.  I took 

3740  it  for  granted  that  the  mill  did  not  run.  I did  not  know  how 
long  it  would  take  to  grind  the  100  bushels.  I had  buckwheat 
ground  there  in  1868  and  ’9. 

3741  I am  living  in  Joliet  now.  I have  been  engaged  in  the  wire 
business,  and  in  selling  western  lapds  for  some  time. 

Re-direct  Examination, 

3742  In  regard  to  this  grist  which  I had  to  wait  to  get  ground 
in  1868  and  ’9,  I could  not  say  whether  the  mill  was  running 

when  I took  my  grist  there  to  get  ground,  I do  not  think  that  it 
was.  When  I had  to  wait  so  long  to  get  my  flour  ground,  I made 
inquiries  why  it  was  not  ground  sooner. 


1110 


Q.  And  wliat  did  you  learn?  A.  Tliat  they  had  not  water 
enough. 

(Objected  to  as  hearsay;  overruled;  exception.) 

James  G.  Elwood, 

a witness  for  the  defendant,  testified  as  follows: 

Direct  Examination. 

3743  My  name  is  James  G.  Elwood.  I was  born  in  Lockport  in 
1839,  and  my  family  moved  to  Joliet  in  1843,  where  I hawq 

made  my  home  ever  since,  except  when  I was  in  the  army  and 
abroad  and  in  school.  My  father  came  West  in  the  engineering 
corps  on  the  canal.  That  is  what  brought  him  to  Lockport.  I 
have  been  familiar  with  the  Desplaines  Elver  more  or  less  all 

3744  my  life.  I have  been  in  the  real  estate  bii^siness  since  1861. 
I have  been  interested  in  waterway  questions  and  drainage 

questions  out  in  that  vicinity,  and  have  been  a representative  for 
the  City  of  Joliet,  on  the  Illinois  Valley  Committee,  in  opposition 
to  the  Chicago  Drainage  Plan.  I was  interested  in  having  the 
deep  waterway  put  through  down  there. 

3745  I waded  across  the  Desplaines  Eiver  in  Joliet  many  a time 
as  a boy,  and  fished  in  it  a great  deal,  and  have  traveled 

up  and  down  it.  The  river  has  at  times  been  so  dry  that  no  water 
was  passing  through  it.  My  first  recollection  of  wading  in  the 
river  was  before  the  canal  was  opened  in  1848,  and  after  the  canal 
was  opened  there  has  been  many  years  when  there  was  not  suf- 
ficient water  passing  down  the  river  to  supply  the  Channahon 
level.  I have  seen  the  sluice  gates  at  Jefferson  street  bridge,  or 
Dam.  No.  2 I think  it  is  called,  wide  open  and  the  lock  gates  at 
the  guard  lock  that  were  formerly  there,  opened  wide.  Not  the 
sluice  gates  in  the  lock  gates,  but  the  gates  themselves  with  every 
drop  of  water  that  was  coming  down  the  Desplaines  Eiver  passing 
into  that  Chanahon  level,  and  the  canal;  and  I have  frequently 
crossed  the  river  on  the  old  stone  Dam  No.  2 on  the  crest  of  it, 
with  the  water  three  or  four  or  perhaps  five  feet  away  from  the 
crest.  AYe  waded  between  that  dam  and  the  Adams  Dam 

3746  many  a time  with  no  water  flowing  down  the  stream,  so  far 
as  I can  recall,  whatever,  except  some  possible  seepage 

through  the  Stone  Dam.  That  condition  existed,  in  frequent  years. 


1111 


but  I would  not  be  able  to  say  how  long  it  existed  each  season.  The 
river  has  sometimes  been  so  full  of  water  as  to  make  it  serious  and 
uncomfortable  for  us  in  Joliet.  I recollect  in  1866  it  flooded  a 
section  of  the  country  I am  interested  in.  That  did  not  last  more 
than  four  or  five  days.  Prior  to  1871,  we  called  it  a dry  stream 
during  the  summer  season.  I think  so  far  as  I am  able  to 
3747  recall  almost  every  year  there  were  times  when  there  was 
no  water  passing  down  the  river.  There  may  have  been 
years  that  it  did  so,  but  my  impression  is  that  there  never  was  a 
year  until  the  deep  cut  was  made  in  the  canal  but  what  it  was 
dry — that  is,  no  flow  of  water.  Before  1871,  I had  been  down  the 
river  several  times  in  a skiff,  when  the  wmter  was  at  ample  stage. 
AVe  would  put  the  boat  in  just  below  the  Adams  Dam.  The  water 
then  was  just  high  enough  so  that  we  could  get  over  the  boulders, 
and  those  we  could  not  get  over  we  would  try  to  dodge.  I donT 
think  at  any  time  that  I have  been  fishing  down  there  but  what 
I could  wade  across  the  river  without  my  clothes  off  without  any 
serious  trouble.  Not  much  higher  than  that  (indicating  his  stom- 
ach) except  in  cases  of  extreme  flood.  I went  down  to  the  mouth 
of  the  Kankakee  in  my  skitf,  to  the  junction  of  the  Kankakee  and 
Illinois  Eivers.  I had  better  success  below  Lake  Joliet  than  I 
had  from  Adam’s  Dam  down  to  the  lake.  AVe  upset  once,  on  one 
of  those  boulders  near  the  mouth  of  Hickory  Creek,  but  we  were 
able  to  dodge  the  boulders  around  Treat’s  Island.  Aly  fishing 
experiences  and  vacations  were  usually  taken  along  the  latter 
part  of  April  and  through  the  month  of  Alay.  There  was  a rem- 
nant of  a dam  in  the  west  channel  below  Treat’s  Island,  and  there 
was  a number  of  boulders  in  both  channels.  I do  not  recall  any 
rapids  at  the  point  called  Smith’s  bridge.  In  going  down  the  river, 
I never  went  beyond  the  Kankakee  feeder.  AA^e  made  a port- 
3749  age  there  over  into  the  canal,  and  came  back  by  the  canal  into 
the  lock  and  back  home.  It  was  easier  as  a rule  to  make  the 
portage  there,  we  were  told.  I never  took  a boat  up  stream ; I have 
no  desire  to  go  up  against  the  current  or  the  boulders.  It  would 
have  been  possible  with  sufficiently  strong  pulling  oars  to  have 
taken  a skiff  up  the  stream  at  any  season  of  the  year  before  1871, 
from  the  aqueduct  up  to  say  the  Jefferson  street  bridge.  The 
water  was  amply  deep.  I never  knew  of  anybody  doing  it.  The 


1112 


Elivood, — Direct  Exam. — Continued. 


only  upstream  boating  I ever  knew  of  was  on  Lake  Joliet,  where 
there  was  no  current  perceptible,  ordinarily.  I have  never  known 
of  any  boats,  skiffs,  or  other  boats  used  for  commercial  pur- 
3750  poses  on  the  river,  only  for  pleasure.  I would  not  venture 
to  send  any  merchandise  on  the  river  by  any  kind  of  boat 
adapted  to  commercial  purposes. 

Shortly  after  the  deep  cut  was  made,  the  water  became  so  black 
and  stagnant  and  foul  that  no  fish,  snakes,  or  turtles  lived  in  the 
river  at  all,  and  that  was  the  condition  until  the  Drainage  District 
opened  their  supply,  except  when  there  was  a very  heavy  freshet. 
I have  not  known  of  any  boats  being  used  on  the  river  between 
Joliet  and  Ottawa  for  commercial  purposes  since  1900.  I would 
not  want  to  risk  the  enterprise.  I have  not  seen  skiffs  on  the  river 
since  the  -water  was  turned  in  in  1900  except  down  at  Lake  Joliet 
a dugout  or  scow  boat,  in  passing  over  the  bridge.  They  were 
used  for  hunting  or  fishing, — I have  used  them  myself. 

Cross-Examination. 

3752  At  the  upper  dam,  or  Dam  No.  1,  the  water,  whenever 
there  was  enough  of  it,  ran  over  the  dam.  When  there  was 

not  enough  it  was  let  through  the  lock  gate  or  the  sluice  gate  on 
the  east  side.  Dam  No.  2,  the  Jefferson  Street  Dam, — there  was 
a basin  between  the  two  dams,  extending  about  five-eighths  of  a 
mile — and  the  Channahon  level  was  let  out  from  this  basin,  at  the 
ordinary  full  stage  of  water  in  the  Channahon  level.  In 

3753  speaking  of  the  Channahon  level,  I mean  the  level  of  the 
canal.  There  was  a guard  lock  there  for  the  purpose  of  pre- 
venting overflow  of  water,  and  for  providing  more  water  than 
could  be  passed  through  the  sluice  gates,  which  were  also  feeders. 
The  sluice  gate  and  guard  lock  were  feeders  to  that  portion  of  the 
canal  which  extended  about  eleven  miles  between  Joliet  and  Chan- 
nahon, and  called  the  Channahon  level.  My  opinion  is  that  in 
low  water,  every  drop  of  water  that  could  be  obtained  from  the 
Desj^laines  Diver  was  turned  into  the  canal  and  as  I said  in  my 
direct  testimony,  the  lock  gates  themselves  were  swung  wide  open 
and  fastened  opened  so  as  to  let  all  the  water  run  through  the 
width  of  the  lock  as  well  as  the  other  gates. 


1113 


3754  The  DuPage  Kiver  crossed  the  canal  at  Channahon,  be- 
tween two  locks,  and  the  level  following  down  the  river 

from  Channahon  is  fed  by  the  water  between  those  two  locks, 
part  of  which  comes  down  through  the  DuPage  River  when  there 
is  water  flowing.  The  excess  that  didn’t  follow  down  onto  the 
next  level  below  passed  over  the  dam  and  went  down  into  the 
Desplaines  River  below  Channahon.  The  DuPage  River  comes 
in  from  the  north,  and  crosses  the  basin  between  the  two  locks 
there.  Its  water  is  poured,  in  the  first  instance,  right  into  the 
body  of  the  canal,  and  then  when  the  canal  had  a sufficient 
amount  of  water  in  it  the  balance  of  it  passed  over  the  side  and 
into  the  valley  or  bed  of  the  Desplaines  River,  so  that  from  Chan- 
nahon at  the  crossing  of  the  canal  in  the  DuPage  River  at  Chan- 
nahon, whatever  volume  of  water  there  Ts  either  in  the  river,  or 
in  the  river  and  canal  together,  which  is  not  required  for 

3755  the  canal  beyond  that,  is  put  back  in  the  Desplaines,  that 
is,  the  excess  over  and  above  what  is  needed  for  that  next 

level  comes  back  into  the  canal.  The  canal  is  90  feet  across  at 
the  surface,  and  slopes  in  somewhat  at  the  bottom,  depending 
on  whether  it  is  a stone  wall  or  dirt.  I think  about  60  feet  is 
right,  including  the  Berme  Bank  and  Towpath.  The  average 
depth  is  about  five  and  a half  feet,  and  as  a rule  there  is  plenty 
of  water. 

3756  The  Deep  Cut  was  made  in  1871,  but  the  pumps  were  not 
started  at  South  Chicago  until  about  1883.  It  was  the  sew- 
erage from  the  city  that  killed  the  fish.  I have  waded  across  the 
river  up  the  center  of  it  almost  all  the  way  from  opposite  the 
penitentiary  clear  up  to  Lemont,  that  is,  above  where  the  water 
was  turned  into  the  canal  .and  prior  to  1871.  The  places  I picked 
out  were  the  shallowest,  I do  not  know  how  deep  it  was  in  the 
deeper  places.  The  river  was  virtually  dry;  all  that  section  is 
a flat,  limestone  bottom,  and  I cannot  tell  you  how  deep  the 
holes  were,,  but  I did  not  get  over  knee  deep  in  any  of  my  wad- 
ing, not  over  my  rubber  boots. 

3757  Above  where  the  Desplaines  River  discharges  itself  into 
the  canal,  the  water  in  the  canal,  the  upper  basin,  was  from 

12  to  14  feet  deep  before  the  sewage  was  turned  in,  and  the 
deposit  made  there.  Above  the  basin,  on  the  next  level 


1114 


Elivood, — Cross-Exam.— Continued. 


3758  above,  between  the  twin  locks,  I think  the  water  was  five 
and  a half  feet  deep  all  the  way  in  the  canal. 

I never  went  with  a boat  below  the  old  feeder,  the  Kankakee 
feeder,  which  is  about  three-eighths  of  a mile  from  the  mouth 
of  the  river.  Then  I transferred,  and  made  a portage  going  back 
into  the  canal.  We  found  no  great  difficulty  in  getting  the  boat 
down  that  far;  we  upset  once  or  twice,  but  that  was  part  of 
the  fun.  The  water  was  a little  over  knee  deep,  so  there  was  no 
real  danger  except  our  provisions  got  wet  and  our  powder 

3759  would  .not  stay  dry.  Just  below  Treat’s  Island,  the  river 
at  ordinary  stage  of  water  was  from  70  to  90  feet  wide.  The 

channels  on  either  side  of  Treat’s  Island  were  neither  of  them 
in  my  judgment  75  feet  wide,  although  if  a survey  were  made 
showing  them  to  be  100  feet  wide,  I would  yield  to  the  engineer 
who  had  measured  it.  I am  only  giving  my  eye  in  measurement, 
and  from  wading  across,  just'  as  it  impressed  me.  I am  speak- 
ing about  the  width  when  I used  to  go  fishing  there. 

R e-di rect  Exa mi na  tion . 

3760  I have  been  wading  up  the  river  above  the  upper  basin, 
above  where  the  river  was  discharged  into  the  canal.  I have 

been  up  there  when  there  was  no  water  moving  at  all,  just  little 
pools  here  and  there.  The  bottom  of  the  river  is  almost  an  en- 
tire flat  limestone  rock,  very  level,  and  there  are  places — 1 

3761  suppose  or  know  there  are  holes  there,  but  how  deep  they 
are,  I do  not  know.  The  length  and  breadth  of  these  holes 

depended  on  how  dry  the  river  was.  There  have  been  times 
when  you  could  wade  across  dry-shod  from  one  bank  to  the  other. 
The  general  condition  when  I have  been  up  there,  with  but  one  ex- 
ception was  that  there  was  no  water  running  down.  AVhat  time 
of  year  those  visits  were  made,  I do  not  know.  I began  wading 
across  the  Desplaines  River  in  Joliet,  before  the  canal  was  com- 
pleted, I think  about  1850  is  about  the  time  of  my  first  recollec- 
tion of  paddling  around  in  the  river  itself.  It  was  before  the 
bed  of  it  was  changed  l)y  the  Drainage  District.  Above  Lock- 
port  and  before  the  canal  was  open,  there  was  a certain  time 
when  the  river  was  in  the  condition  I have  described,  and  other 
times,  when  there  was  water  in  there,  it  was  a river. 


1115 


3764  There  was  then  offered  in  evidence  on  behalf  of  the  de- 
fendant portions  of  the  report  upon  the  survey  of  the  Illi- 
nois Kiver  signed  by  James  H.  Wilson,  Lieutenant  Colonel,  35th 
Infantry,  Brevet  Major  General  U.  S.  A.  and  William  Gooding,  U. 
S.  Civil  Engineer  and  Brevet  Major  General  A.  A.  Humphreys, 
Headquarters  Corps  of  Engineers,  Washington,  D.  C.  The  report 
is  dated  ^‘United  States  Engineering  Office,  Davenport,  Iowa,  De- 
cember 17,  1867.”  It  is  headed  ^Gleport  upon  the  Survey  of  the 
Illinois  Kiver,”  and  begins  at  page  438  of  the  volume  entitled 

Messages  and  Documents,  War  Department,”  and  the  title  page 
reads,  House  of  Representatives,  40th  Congress,  3rd  Session.  Ex. 
Doc.  1,  pt.  2.  Message  of  the  President  of  the  United  States  and 
Accompanying  Documents” — A part  of  the  message  of  the  Presi> 
dent,  and  one  of  the  accompanying  documents. 

(Objection;  overruled;  exception.) 

The  portion  of  said  report  referred  to  is  as  follows : 

3765  ‘^General:  Having  been  designated  by  direction  of  the 

secretary  of  war,  through  engineer  orders  dated  Washington, 
May  8,  1867,  as  a board  Go  conduct  surveys  and  examinations, 
and  to  prepare  plans  and  estimates  for  the  system  of  nav- 
igation by  way  of  the  Illinois  River,  between  the  Mississippi 
and  Lake  Michigan,  adapted  to  military,  naval  and  commer- 
cial purposes,  in  accordance  with  the  act  of  March  2,  1867,’  we 
have  the  honor  to  submit  the  following  report: 

In  carrying  out  the  instruction  of  the  engineer  department, 
we  have  steadily  kept  in  view  the  following  considerations : 

1.  The  selection  of  the  best  route  for  the  purposes  pro- 
posed. 

2.  The  capacity  which  should  be  given  to  the  improvement 
so  as  to  adapt  it  more  fully  to  the  requirements  indicated  in 
the  orders  of  the  War  Department. 

3.  The  accomplishment  of  the  object  with  the  least  possible 
cost  consistent  with  the  magnitude  and  permanency  of  the  im- 
provement, and  in  such  order  as  to  secure  the  greatest  advan- 
tage to  the  commerce  and  navigation  of  the  country. 

“W  detailed  report  of  the  results  of  the  survey  of  the  Illi- 
nois River  during  the  latter  part  of  1866,  under  the  direction 
of  Brevet  Major  General  J.  H.  Wilson,  was  made  on  the  17tli 
of  February,  1867,  but  as  his  operations  were  confined  to  that 
part  of  the  river  below  LaSalle,  it  was  thought  necessary  to 
continue  the  surveys  to  Lake  Michigan  by  all  the  possible 
routes,  before  absolutely  fixing  the  details  of  the  plan  of  im- 
provement. Accordingly,  at  as  early  a date  as  the  season 


1116  Wilson  Rep., — Eng.  Rep.  1867. — Continued. 

would  permit,  we  organized,  under  the  general  authority 
heretofore  cited,  three  surveying  parties  under  the  immediate 
supervision  of  Civil  Engineer  Assistant  James  Worrall,  for  the 
purpose  of  making  a thorough  and  exhaustive  examination  of 
the  entire  region  lying  between  the  southern  and  western  end 
of  Lake  Michigan  and  LaSalle  on  the  Illinois  Elver,  and  also  ' 
for  the  purpose  of  conducting  a low  water  survey  of  the  river 
from  LaSalle  to  its  mouth.  To  the  first  of  these  parties,  under 
Civil  Engineer  Assistant  George  Butler  Griffin,  and  after- 
wards under  Civil  Engineer  Assistant  H.  Alppers,  was  assign- 
ed the  duty  of  surveying  the  line  of  the  canal  from  Chicago 
to  LaSalle,  the  Desplaines  and  the  Illinois  Eivers,  and  all 
the  alternate  lines  which  had  at  any  time  been  spoken  of,  in- 
cluding that  of  Mud  Lake.” 

3767  Also,  from  page  440  of  said  report: 

General  consideration  of  the  proposed  improvement. 

‘‘No  fact  can  he  better  established  than  that  the  system  of 
navigation  between  the  Mississippi  and  Lake  Michigan,  by 
way  of  the  Illinois  Elver,  should  be  adapted  to  the  steam- 
boats and  barges  employed  in  the  navigation  of  the  Mississipp? 
and  its  principal  tributaries,  and  not  to  ocean  and  lake  vessels, 
except  such  as  are  required  for  the  defense  of  our  lake  com- 
merce and  cities.  In  other  words,  the  produce  of  the  West, 
on  its  way  to  eastern  markets,  must  be  transferred  to  a dif- 
ferent class  of  vessels  as  soon  as  it  reaches  the  lakes;  and 
hence  in  determining  the  dimensions  of  the  canal;  it  will  be 
amply  sufficient  for  all  practicable  purposes  to  arrange  it  for 
the  navigation  of  the  largest  class  of  river  steamboats.  It 
will  be  remembered  that  the  western  steamboats  are  built  with 
overhanging  guards,  so  that  a boat  75  feet  wide  over  all  will 
not  usually  exceed  45  feet  in  the  hull.”  * * * 

“It  is  true  that  it  has  long  been  generally  understood  that 
the  only  practicable  route  for  such  improvement  from  Lake 
Michigan  to  the  Illinois  Eiver  would  be  to  follow  the  course 
of  the  present  Illinois  and  Michigan  Canal  from  Chicago  untiT 
a point  was  reached  v/here  it  would  be  expedient  to  improve 
and  occupy  the  river,  rather  than  enlarge  the  canal  to  the 
requisite  dimensions. 

“This  canal,  from  a point  eight  miles  southwest  of  Chicago, 
follows  the  valley  of  the  Desplaines,  a tributary  of  the  Illinois, 
until  it  forms  a junction  with  the  Kankakee  Eiver,  some  50 
miles  southwest  of  Chicago,  below  which  the  river  is  known 
upon  the  map  as  the  Illinois.  The  latter  name  would  have  been 
more  appropriate  for  the  Kankakee  above  that  point,^  as  it  is 
the  main  river,  and  Desplaines,  in  low  water,  contributes  a 
comparatively  insignificant  quantity  to  its  volume. 

“The  Kankakee  supplies  water  sufficient  to  make  a good 


1117 


‘‘slack- water  navigation;  the  Desplaines  of  itself  does  not,  and 
alttioiigli  the  direction  of  the  former  was  such  that  it  was  not 
probable  that  a favorable  connection  with  Lake  Michigan 
could  be  made  through  its  channel,  yet  it  was  deemed  advisable 
to  determine  that  fact  beyond  cavil.” 

3768  Also  on  page  442: 

“The  Desplaines  River  rises  in  the  State  of  Wisconsin  and 
runs  nearly  due  south,  parallel  with  the  lake  shore,  and  gen- 
erally not  more  than  eight  or  ten  miles  from  it,  until  it  reaches 
a point  about  thirteen  miles  in  a southwest  direction  from  the 
mouth  of  the  Chicago  River.  Here  is  a slight  depression,  a 
mile  or  more  in  width,  extending  across  from  the  Desplaines 
to  the  south  branch  of  the  Chicago  River,  through  which  a 
part  of  the  waters  of  the  former  river — in  time  of  floods 
flow  into  the  lake.  In  this  depression  is  what  was  known  once 
as  Portage  Lake  (so  designated  on  the  old  maps  of  the  coun- 
try), but  now  better  known  as  Mud  Lake,  a succession  of  shal- 
low ponds  on  the  same  level  connected  with  each  other  and 
with  the  Desplaines  River  and  extending  about  six  miles 
tov/ards  Chicago  River.  This  was  the  portage  or  carrying 
place  between  the  waters  of  the  lakes  and  the  Mississippi 
made  memorable  by  the  early  French  voyageurs,  and  so  well 
known  to  the  fur  traders.  But  Portage  or  Mud  Lake  has 
ceased  to  exist,  the  shallow  ponds  having  been  drained,  and  the 
impassible  sw^amps  rendered  valuable  land. 

“There  can  be  no  doubt  that  through  this  depression  there 
was  once  an  outlet  from  the  lakes  to  the  Mississippi,  which  was 
closed  by  the  recession  of  the  waters  of  the  lakes.  Even 
now,  at  the  present  stage  of  Lake  Michigan  its  surface  is  only 
between  8 and  9 feet  below  this  summit.  The  Desplaines 
River,  from  the  depression  described,  changes  its  course  and 
runs  in  nearly  a southwestern  direction  until  it  forms  a junc- 
tion with  the  Kankakee.  The  river  itself,  except  in  floods, 
is  very  shallow,  being  often  reduced  in  dry  seasons  to  a mere 
brook,  discharging  less  than  one  thousand  cubic  feet  of  water 
per  minute.  But  the  valley  averages  a mile  wide  and  is  ter- 
minated on  both  sides  by  well  marked  terraces  which  become 
higher  and  higher  as  they  approach  the  Illinois.  Evidence 
at  every  step  presents  itself  that  the  water,  when  this  was 
the  great  outlet  of  the  lakes,  extended  from  bluff  to  bluff.” 

3770  Also,  from  page  444,  as  follows : 

“For  half  the  distance  between  Lockport  and  Joliet,  no  ad- 
vantage can  be  gained  by  any  deviation  from  the  present  line, 
but  some  expense  may  be  saved  by  a different  adjustment  of 
lockage  on  the  enlarged  canal. 

“Below  this  point  three  different  lines  were  surveyed  to 


1118  Wilson  Rep., — Eng.  Rep.  1867. — Continued. 

head  of  Lake  Joliet,  an  expansion  of  the  Desplaines 
Liver,  two  miles  below  the  City  of  Joliet. 

‘‘The  first  of  these  lines  follows  the  present  canal  through 
Joliet,  and  the  pools  formed  by  the  two  dams  across  the  Des- 
plaines now  in  use  would  be  occupied  by  the  proposed  im- 
])rovement.  These  dams  are  built  of  stone  upon  a rock  foun- 
dation, and,  having  stood  more  than  twenty  years  without  in- 
jury, may  be  regarded  as  sufficiently  permanent.  It  will  re- 
quire considerable  rock  excavation  under  water  to  form  a chan- 
nel of  sufficient  width  for  the  proposed  improvement,  and 
there  will  be  considerable  difficulty  in  obtaining  the  necessary 
room  at  and  near  the  two  dams  without  injury  to  the  improved 
property,  or  that  which  is  regarded  as  very  valuable.  A short 
distance  below  the  lower  dam  for  the  proposed  improvement 
would  leave  the  present  canal  and  be  made  as  direct  to  the 
head  of  Lake  Joliet  as  practicable.” 

There  was  also  read  in  evidence,  from  the  document  “Annual  Ee- 
port  of  the  Chief  of  Engineers,  IT.  S.  Army,  part  III,  1884,”  the 
title  page  being:  “48  Congress,  2nd  Session.  House  of  Eepre- 

sentatives.  Ex.  Doc.  1,  pt.  2,  Vol.  II.  Annual  report  of  the  Chief 
of  Engineers,  United  States  Army,  to  the  Secretary  of  War,  for 
the  year  1884.  In  four  parts.  Part  III.  Washington:  Govern- 

ment Printing  House,  1884,”  and  therein  from  page  1958,  which  is 
headed:  “Survey  of  Illinois  and  Desplaines  Eivers,  between  La 

Salle  and  Joliet,  Illinois,”  signed  by  W.  H.  H.  Benyaurd,  Major 
of  Engineers,  as  follows: 

“LMited  States  Engineer  Office, 
Chicago,  March  5,  1884. 

General : 

“I  have  the  honor  to  present  the  following  report  upon  the 
survey  of  the  Desplaines  and  Illinois  Eivers  from  Joliet  to  La 
Salle,  with  estimates  of  cost  of  improvement,  as  provided  for 
in  the  river  and  harbor  act  passed  August  2,  1882. 

“The  survey  party,  under  the  charge  of  Mr.  George  Y.  Wis- 
ner,  assistant  engineer,  was  not  sent  into  the  field  until  the  1st 
of  October,  1883,  as  it  was  deemed  better  to  wait,  and  take  ad- 
vantage of  the  very  lowest  stage  of  water  that  could  be  found, 
not  only  as  a matter  of  economy,  but  as  affording  the  advan- 
tage of  obtaining  the  fullest  information  when  the  rivers  were 
in  their  worst  condition,  upon  which  state  it  was  necessary  to 
base  the  proper  plan  of  improvement. 

“The  survey  was  commenced  at  big  Dam  No.  1 on  the  Des- 
plaines Eiver,*at  Joliet,  and  continued  to  a point  on  the  Illi- 
nois Eiver  near  LaSalle,  where  the  Illinois  and  Michigan  Canal 
enters  the  pool  created  by  the  lock  and  dam  constructed  by 
the  State  at  Henry. 


1U9 


“The  rivers  have  an  average  width  of  at)out  (iOO  feet,  with 
hanks  from  8 to  23  feet  in  height  above  low  water,  so  that 
within  ordinary  stages  the  stream  flows  within  fixed  banks. 
The  oscillation  between  high  and  low  water  is  about  15  feet, 
though  a height  of  23  feet  has  been  recorded,  occasioned  by  an 
ice-gorge. 

“The  fall  in  the  low  water  surface  between  the  points  indi- 
cated above,  a distance  of  64.2  miles,  is  100.25  feet.  This  fall  is 
not,  however,  equally  distributed  over  the  entire  distance,  but 
occurs  at  various  points,  principally  at  the  ripples,  separating 
the  different  pools,  and  amounting  in  some  cases  to  ten  feet 
per  mile. 

“It  is  evident,  after  consideration,  that  tlie  only  feasible 
plan  to  render  the  stream  navigable  is  to  slack  water  the  entire 
distance.  This  can  be  accomplished  by  a construction  of  nine 
locks  and  dams,  the  cost  of  which  depends  upon  whether  the 
plan  adopted  shall  be  in  conformity  with  that  now  in  course 
of  execution  for  the  lower  Illinois  Eiver,  or  whether  the  locks 
shall  be  of  the  size  recommended  for  the  Hennepin  Canal.  In 
addition  to  the  requisite  locks  and  dams,  the  plan  also  contem- 
plates the  construction  of  a short  canal  at  the  falls  of  Joliet, 
and  one  at  Marseilles.  The  location  of  the  various  structures 
and  the  two  canals,  were  fixed  upon,  so  that  there  should  be 
no  conflict  between  the  United  States  and  persons  owning  val- 
uable manufacturing  interests  along  the  river,  where  water 
])ower  is  used.”. 

Attached  is  the  report  of  Mr.  George  Y.  AVisner,  assistant  en- 
gineer, referred  to  in  the  document  last  read,  signed  in  that  name, 
addressed  to  Major  H.  H.  Benyaurd,  Corps  of  Engineers, 
headed : 

“Beport  of  Mr.  George  Y.  AVisner,  Assistant  Engineer  : 

Chicago,  111.,  February  22,  1884. 

3771  Major:  I have  the  honor  to  make  the  following  report  on 
the  survey  of  the  Desplaines  and  Illinois  Kivers  from  Joliet  to 
LaSalle,  111.,  and  to  submit  estimates  of  cost  for  improvement 
of  the  rivers  by  locks  and  dams,  so  as  to  give  a minimum 

depth  of  7 feet  at  low- water  stages.” 

******* 

“The  survey  was  commenced  at  Dam  No.  1,  on  the  Des- 
plaines Kiver,  at  Joliet,  and  continued  to  the  mouth  of  the 
Illinois  and  Michigan  Canal,  on  the  Illinois  Eiver,  at  LaSalle. 

“The  fall  of  the  low  water  surface  from  above  dam  No.  1, 
to  LaSalle,  a distance  of  64.2  miles  was  found  to  be  100.25 
feet.  The  greater  portion  of  this  fall,  however,  occurs  in  less 
than  half  the  above  distance,  at  the  ripples  separating  the 
various  pools,  and  which  in  some  cases  amount  to  10  feet 
per  mile. 


1120  Wisner  Rep., — Eng.  Rep.  1884. — Continued. 

^‘The  river  for  the  entire  distance  flows  either  over  a rock 
hed  or  a strata  of  earth  of  only  a few  feet  thickness,  overlying 
the  rock  formation. 

‘‘With  one  exception,  at  Treat’s  Island,  all  the  locks  and 
dams  may  be  established  on  rock  foundations. 

******* 

3775  “It  will  also  be  seen  from  the  accompanying  maps  that 
the  river  below  the  Adams  Dam  is  shallow,  with  channel  ob 
structed  with  numerous  small  islands,  and  if  improved  by 
raising  water  surface  by  a dam  at  the  head  of  Lake  Joliet, 
the  pool  thus  formed  would,  in  all  probability,  soon  fill  up  with 
deposits  from  the  Illinois  and  Michigan  Canal,  so  that  a nav- 
igable way  could  only  be  maintained  by  continual  dredging. 

“Lake  Joliet,  however,  is  5 miles  long  and  10  feet  to  20  feet 
deep,  and  consequently,  by  commencing  slack-water  improve- 
ment at  the  head  of  this  pool  there  will  be  little  or  no  liability 
of  the  navigable  channel  becoming  obstructed  by  deposits. 

“At  the  lower  end  of  this  pool  Treat’s  Island,  4,500  feet 
long,  is  situated,  past  which  the  low- water  plane  of  the  river 
has  a slope  of  10  feet  to  the  mile. 

“At  the  lower  end  of  Treat’s  Island  (6.3  miles  below  canal) 
Lock  No.  3 is  located,  having  a lift  of  9.9  feet,  and  dam  350 
feet  in  length.  This  lock  will  probably  have  to  be  built  on  a 
timber  foundation.  No  borings  were  made,  but  the  strata  of 
sand  and  gravel  overlying  the  rock  formation  probably  does 
not  exceed  12  feet  in  thickness. 

“Below  Lock  No.  3 a pool  from  four  feet  to  15  feet  deep 
extends  down  to  the  mouth  of  the  DuPage  River  (2  miles), 
below  which  is  a ripple  three-quarters  of  a mile  long,  having 
a low  water  slope  of  two  feet  per  mile. 

“From  this  point  the  river  is  from  10  feet  to  20  feet  deep  to 
within  a short  distance  of  the  mouth  of  the  Kankakee  River 
(three  miles),  the  junction  of  which  with  the  Desplaines  forms 
the  Illinois.  At  the  mouth  of  the  Kankakee  -the  river  flows 
over  a rock  bed,  and  for  a distance  of  1.7  miles  has  a low 
water  slope  of  4.4  feet  per  mile. 

“Lock  No.  4 is  located  at  the  lower  end  of  this  ripple,  having 
a lift  of  8.8  feet,  and  dam  650  feet  long.” 

Counsel  foe  Defendant.  That  is  the  site  of  the  dam  now  un- 
der consideration  in  this  case,  and  is  the  site  of  one  of  the  supposed 
dams  in  this  report. 

Counsel  foe  Complainant.  I suppose  it  is  understood  with  re- 
gard to  each  and  all  of  these  documents  that  what  is  put  in  are 
short  extracts,  and  upon  examination  if  we  desire  to  supplement 
what  is  offered  by  other  passages — 


1121 


The  Court.  Yes,  and  they  are  made  a part  of  the  defendant’s 
ctfer,  wherever  they  are  germain  to  the  offer. 

There  was  also  read  in  evidence  on  behalf  of  the  defendant  from 
^‘Sanitary  District  of  Chicago.  A concise  report  on  its  organiza- 
tion, recourses,  constructive  work,  methods  and  progress.”  ^‘Sep- 
tember, 1903.  Prepared  by  the  Chief  Engineer,”  the  preface  being 
signed  “I.  E-. ” 

Counsel  for  Defendant.  There  cannot  be  any  question  about 
who  the  Chief  Engineer  was.  A list  of  officers  is  published  on 
one  of  the  pages,  and  it  shows  that  Isham  Randolph  is  the  Chief 
Engineer. 

There  was  read  from  said  report,  on  page  12,  as  follows: 

3778  “The  Desplaines  Valley  is  traversed  by  the  river  from 
which  it  takes  its  name — a stream  of  wide  fluctuations  with 
no  constant  and  reliable  fountain  supply.  During  some  sea- 
sons its  whole  discharge  would  pass  through  a six-inch  pipe, 
and  at  others  its  volume  reaches  800,000  cubic  feet  a minute. 
Then  it  rolls  majestically  along,  flooding  the  whole  valley.  Such 
being  the  situation,  control  of  this  stream  was  a condition 
precedent  to  the  successful  prosecution  of  the  work  upon  the 
Main  Channel.” 

3779  There  was  also  offered  in  evidence  on  behalf  of  the  defend- 
ant, page  8,  executive  Document  No.  264,  House  of  Repre- 
sentatives, immediately  following  the  list  of  all  steamboats  of  more 
than  50  tons  register  navigating  the  Mississi|)pi  River,  etc.,  as 
supplementing  and  as  a part  of  the  exhibit  previously  offered  by 
the  complainant  of  pages  6,  7 and  8 of  said  report,  and  which 
is  as  follows: 

“The  act  of  Congress  in  question,  requiring  plans  and  esti- 
mates for  a channel  at  least  14  feet  deep  and  at  least  160 
feet  in  width,  has  been  complied  with,  and  estimates  on  this 
basis  are  also  submitted.  This  channel  will  accommodate,  of 
course,  with  greater  facility,  all  large  vessels  that  can  reach 
its  terminus  at  La  Salle  through  the  channel  of  the  Mississippi 
River,  at  present  about  four  and  one-half  feet  in  depth  at 
low  water,  to  be  increased  if  practicable  to  8 feet  at  low  water 
below  St.  Louis,  and  to  6 feet  on  the  Upper  Mississippi  and 
through  the  lower  Illinois  River,  at  present  from  16  to  18 
inches  in  depth  on  the  unimproved  section,  to  be  ultimately 
seven  feet  deep  at  extreme  low  water,  with  locks  350  feet  in 
length  and  75  feet  in  width  of  lock  chamber.  No  vessels  now 
existing  on  the  Mississippi  River  that  cannot  be  accommodated 


1122 


Extract, — House  Doc.  264. — Continued. 


by  the  8 feet  deep  cliannel  at  extreme  low  water  will  be  accom- 
modated by  the  14  foot  channel  160  feet  wide,  but  every  in- 
crease in  depth  up  to  a certain  limit  of  a navigable  waterway 
increases  the  facility  with  which  it  can  be  navigated  by  large 
vessels ; a channel  from  14  feet  in  depth  at  extreme  low  water 
in  Lake  Michigan  to  18  feet  at  high  water  across  the  Chicago 
Divide,  can  be  navigated  by  similar  large  boats  if  still  water, 
or  with  a very  moderate  current,  with  greater  facility  and  ease 
than  a still-water  channel  from  8 to  12  feet  in  depth.  This  is 
the  best  argument  for  such  a channel,  based  upon  the  pres- 
ent or  probable  future  navigation  of  the  Mississippi  River 
and  its  tributaries;  it  is  not  a public  necessity. 

‘^As  for  the  practicability  of  such  a channel  under  the  con- 
dition imposed  by  the  act  that  it  shall  occupy  the  bed  of  the 
Illinois  and  Desplaines  Rivers,  more  will  be  said  hereafter  in 
this  report. 

‘‘Artificial  water-ways  connecting  superior  navigations, 
even,  are  generally  restricted  and  obstructive,  and  limited  by 
motives  of  economy  to  the  least  dimensions  that  will  accommo- 
.date  the  vessels  that  will  probably  seek  their  use.  For  this 
reason,  probably,  no  channel  has  been  recommended,  by  any  en- 
gineer under  Governmental  or  State  authority,  exceeding  8 
feet  in  depth  across  the  Chicago  Divide. 

“The  strongest  presentation  of  the  necessity  for  a minimum 
channel  14  feet  in  depth  from  Lake  Michigan  to  the  Mississippi 
River,  at  the  mouth  of  the  Illinois  River,  is  given  by  the  Chief 
Engineer,  of  the  Chicago  Sanitary  District,  lately  organized 
under  the  act  of  the  Illinois  legislature,  approved  May  29,  1889, 
entitled  “An  act  to  create  Sanitary  districts  and  to  remove 
obstructions  in  the  Desplaines  and  Illinois  Rivers,”  in  an  ar- 
ticle published  in  the  Chicago  Tribune  dated  January  29,  1890. 
It  is  given  here  because  the  author  represents  the  only  interest 
demanding  a large  channel,  and  presumably  offers  the  most 
cogent  arguments  available  for  governmental  action. 

“Criticising  the  statements  contained  in  the  Annual  Report 
of  the  Chief  of  Engineers  for  1889,  page  2130,  et  seq.,  he  says : 
“ (The  italics  are  mine,  not  appearing  in  the  article  in  ques- 
tion.) ” 

********* 

3782  “The  government  is  now  engaged  upon  an  improvement 
which  will  secure  10  feet  at  all  stages  below  Cairo  and  8 feet 
from  St.  Louis  to  Cairo.  Certainly  if  it  secures  10  feet  to 
Cairo,  this  will  extend  to  St.  Louis,  as  suggested  by  the  i\Ls- 
sissippi  River  Commission.  We  may  be  sure  that  this  mini- 
mum depth  will  sometune  be  obtained  to  St.  Louis,  and  that 
u'lien  it  is,  the  ordinary  boating  stage  will  be  as  much  in  excess 

as  now,  or  not  less  than  14  feet  to  St.  Louis.” 

# * * * * * * * * 


1123 


'‘If  these  depths  were  maintained,  no  one  questions  that 
the  utility  of  greater  depth  would  be  apparent  and  would  be 
undertaken.  * * * 

“If,  however,  a minimum  depth  of  10  feet  is  to  he  secured 
to  St.  Louis,  it  is  certainly  practicable  to  carry  it  over  the 
same  river,  precisely  to  the  mouth  of  the  Missouri,  16  miles 
above,  and  then  only  24  miles  intervenes  to  the  mouth  of  the 
Illinois. 

“No  one  will  contend  that  this  depth  cannot  he  had  over  this 
24  miles,  if  there  is  any  wise  purpose  to  be  subserved,  as  there 
would  be. 

“And  here  the  gentleman  leaps  to  Lake  Michigan,  seeking 
the  mother  of  invention  to  help  him  over  that  24  miles,  and 
begs  the  entire  question  before  he  can  get  further  with  his 
10-foot  improvement. 

“If  we  can  carry  fourteen  foot  from  Lake  Michigan  to  the 
Mississippi. 

“If  the  government  can  improve  1,000  miles  of  river  below 
St.  Louis,  we  need  not  be  balked  by  40  miles  above  to  the 
mouth  of  the  Illinois. 

“If  the  improvement  below  St.  Louis  is  made  on  the  basis 
of  8 feet. 

“It  is  progressing  slowly  and  laboriously  on  the  basis  of 
eight  feet,  then,  we  need  14  feet  from  the  Illinois  to  Lake  Mich- 
igan to  meet  that  work,  because  the  lower  water  stage  on  the 
Illinois  is  long  continued. 

“He  does  not  say  how  it  is  with  the  low  water  on  the  Upper 
Mississippi,  subject  to  nearly  the  same  climatic  conditions,  and 
we  would  only  have  a canal  and  slack-water  navigation  sub- 
ject to  an  oscillation  of  from  four  to  20  or  more  feet,  from 
Chicago  to  LaSalle,  with  little  variation  in  depth. 

“The  significance  of  the  ‘ifs^  and  ‘ whens’  may  be  made  ap- 
parent in  part  by  stating  that  the  first  Lf’  presupposes  the 
expenditure  as  originally  estimated  by  the  Mississippi  Eiver 
Commission  of  not  less  than  $33,000,000  to  secure  10  feet  mini-, 
mum  depth  below  Cairo,  which  estimate  has  not  been  repeated 
in  later  reports,  and  might  probably  be  modified  by  their  ex- 
perience. Whether  the  Government  will  ‘secure’  10  feet  below 
Cairo  is  yet  problematical.  The  Mississippi  River  Commis- 
sion have  satisfactory  reasons  for  reporting  that  they  have 
solved  the  question  of  the  possibility  of  obtaining  that  depth, 
but  its  realization  is  distant.  The  possibility  of  securing 
that  depth  is  not  so  clear.  No  one  knows  how  many  years 
or  centuries  of  time,  or  dollars  it  will  require,  under  ap- 
propriations irregularly  made,  to  obtain  the  depth  of  10  feet, 
or  to  maintain  or  secure  the  depth  after  obtaining  it. 

“No  estimate  has  yet  been  made  of  the  cost  of  fulfilling 
the  requirements  of  the  second,  Lf,’  i.  e.,  to  ‘secure’  ten  feet 


1124 


Extract, — Bouse  Doc.  264. — Continued. 


'‘minimum  depth  to  St.  Louis;  $17,000,000,  approximately  total 
expenditure,  is  estimated  to  get  8 feet  from  St.  Louis  to  Cairo, 
The  consummation  of  this  8-foot  project  is  not  yet  in  sight, 
though  favorably  progressing.  What  it  will  cost  to  get  and 
‘secure’  or  even  maintain  by  continued  labor  the  additional 
two  feet  in  that  region  of  moving  sands  no  one  knows. 

"The  same  remarks  apply  to  the  third  'iC  in  the  progress 
towards  the  mouth  of  the  Illinois.  No  estimates  have  been 
made  to  jcarry  10  feet  to  the  mouth  of  the  Missouri,  nor  to 
the  mouth  of  the  Illinois,  nor  14  feet  of  the  Illinois  to  La 
Salle,  but  for  14  feet  from  La  Salle  to  Lake  Michigan  an 
estimate  is  herewith  of  more  than  $48,000,000. 

"The  definite  estimates,  then,  so  far  submitted  foot  up 
nearly  $100,000,000  and  leave  us,  granting  estimates  correct 
and  the  work  done  and  ‘secured’  at  St.  Louis  with  8 feet 
minimum  draught  below  the  city,  and  not  exceeding  5 feet 
minimum  depth  above  La  Salle. 

"It  is  evident,  therefore,  accepting  the  gentleman’s  conclu- 
sions which  do  not  necessarily  follow,  even  from  his  hypothe- 
ses, that  the  necessity  for  the  14-foot  channel  is  not  urgent, 
and  as  far  as  navigation  is  concerned  can  wait,  pending  further 
consideration,  without  injury  to  public  interests.  All  mechan- 
ical constructions  would  decay,  if  built  now,  before  their  full 
use  would  be  available,  awaiting  the  realization  of  the  condi- 
tions expressed  by  the  ‘ifs’  and  ‘whens’  if  built  of  the  stone 
accessible  to  this  line. 

"He  concludes  his  argument — ” 

****#*##* 

"No  one  in  Chicago  or  in  the  Illinois  Valley  is  interested 
in  a 7-foot  navigation.  That  is  passing  away  after  the  stage- 
coach and  plank  road. 

"Eight  feet  minimum, is  proposed  across  Chicago  Divide, 
rising  to  from  10  to  12  feet  across  the  divide,  and  to  20  feet 
in  the  rivers,  with  the  oscillation  of  lakes  and  rivers.  Less 
than  7 feet  navigation  exists  on  the  Mississippi  Eiver  today, 
and  upon  all  its  branches  and  navigable  tributaries, 
and  upon  every  non-tidal  river,  probably  on  the  globe,  not 
slack- watered  or  canalized  around  obstructions,  and  on  nearly 
every  canal  on  the  globe  not  connecting  tidal  or  deep  waters. 

"All  commerce  by  means  of  non-tidal  waters  (excluding 
inland  lakes  and  seas)  of  the  world,  except  an  insignificant 
percentage,  is  effected  on  boats  and  barges  of  7 feet  or  less 
draught  of  water,  and  interest  in  a 7-foot  navigation  will  cease 
in  Chicago  when  the  Erie  canal  no  longer  exists,  and  gener- 
ally when  all  rivers  and  canals,  as  well  as  men,  are  thoroughly 
regenerated.” 

There  was  also  read  in  evidence  from  the  report  of  the  War 
Department,  1900,  Chief  of  Engineers,  Part  V,  Title  page  "Annual 


1125 


Reports  of  the  War  Department  for  the  fiscal  year  ending  June  30, 
1900.  Report  of  the  Chief  of  Engineers.  Part  V,  from  the  report 
of  the  Board  of  Engineers,  signed  ‘M.  W.  Barlow,  Colonel,  Cor})s 
of  Engineers,  etc.,  a report  on  the  survej’^  of  the  Upper  Illinois 
and  Lower  Desplaines,  beginning  on  page  3857,  as  follows : 

3787  ‘‘General:  The  Board  of  Engineers,  officers,  constituted 

by  paragraph  I special  orders  No.  14,  headcjuarters  Corps 
of  Engineers,  IT.  S.  A.,  March  12,  1899,  to  make  a survey  and 
estimate  of  cost  for  the  improvement  of  the  Upper  Illinois 
River  and  Lower  Desplaines  River,  with  a view  to  the  ex- 
tension of  navigation  from  the  Illinois  River  to  Lake  Mich- 
igan at  or  near  Chicago,  met  at  the  LTiited  States  Engineer 
office,  Chicago,  Illinois,  April  10  and  11,  1899.” 

Also  from  page  3859: 

“If  the  route  by  the  Chicago  River  and  Drainage  Canal  be 
adopted,  there  remains  but  little  more  than  half  of  the  work 
involved  in  the  eight-foot  project  of  1890,  for  the  Govern- 
ment now  to  take  in  hand  in  order  to  complete  the  improve- 
ment, since  the  estimated  cost  of  this  portion  of  the  channel 
(about  28  miles)  was  nearly  $14,000,000.  By  the  Calumet 
and  Sag  route  only  about  104  miles  of  the  Drainage  Canal  can 
be  utilized. 

“But  while  the  Drainage  Canal  covers  about  half  of  the 
work  involved  in  the  project  by  way  of  Chicago  River,  it  at  the 
same  time  has  turned  an  additional  flow  into  the  Desplaines 
River,  materially  changing  its  low-water  regimen.  The  re- 
quirements of  this  flow  at  present  are  5,000  cubic  feet  per  sec- 
ond, while  the  limit  of  ten  thousand  is  probably  more  nearly 
the  flow  that  will  have  to  be  dealt  with,  at  least  not  long  after 
the  completion  of  the  present  project.  As  nearly  as  can 
be  estimated,  this  flow  gives  a water  line  indicated  upon  the 
accompanying  profile  and  the  contrast  is  shown  with  the  low- 
water  conditions  hitherto  existing.  The  steep  slope  shown 
on  the  profile  indicates  that  with  so  large  a volume  of  dis- 
charge the  velocity  of  the  current  would  be  too  great  for  up- 
stream navigation  in  an  open  river.  This  might  be  overcome 
to  a great  extent  by  canalizing  the  river  by  high  dams  en- 
tailing great  expenditures  for  the  necessary  works,  as  well  as 
for  the  purchase  of  lands  overflowed,  the  cost  of  which  can- 
not even  be  approximated  from  present  information. 

Also  at  the  foot  of  the  page,  the  last  paragraph: 

“At  the  Marseilles  Rapids,  a canal  about  7.4  miles  in  length 
is  required  to  overcome  the  steep  slope  there  encountered,  and 
it  is  proposed  to  make  the  section  not  less  than  160  feet  wide 
at  bottom,  and  ten  feet  deep  in  order  to  correspond  to  an 
eight-foot  navigation  in  the  river  channel  at  low  water.  * * * 


1126  Report, — Barlow  Board  Eng.  Rep.  Continued, 

‘‘The  Marseilles  Canal,  beginning  at  the  head  of  the  Utica 
reach,  will  have  two  locks,  each  with  a lift  of  15  feet  at  an  esti- 
mated cost  of  $460,000;  a gnard  lock  and  a dam  at  the  head, 
estimated  at  $300,000,  and  7.4  miles  of  canal,  estimated  at 
$1,052,500.  From  the  head  of  the  canal  the  route  will  follow 
the  channel  of  the  river  to  a point  below  and  near  the  mouth 
of  the  Kankakee.  Similar  conditions  with  respect  to  depth 
and  velocity  of  current  will  be  met  in  this  stretch  as  in  that 
between  Utica  and  Marseilles,  and  an  estimate  for  both  ex- 
cavation and  bank  revetment  is  provided.  From  the  head  of 
this  section  a canal  is  necessary  to  reach  the  Joliet  Basin,  with 
locks  to  overcome  a fall  of  54  feet  at  low  water  in  a distance 
of  17  miles,  provision  also  being  necessary  for  fluctuations 
of  level  at  the  upper  lock.  The  estimates  of  the  board  are 
based  upon  overcoming  this  difference  of  elevation  by  five 
locks,  but  further  study  may  result  in  a reduction  of  the  num- 
ber. ’ ’ 

There  was  also  read  from  the  volume  “Book  of  Eeports  of  the 
AVar  Department,  1901.  Chief  of  Engineers,  Part  4,”  the  title  page 
being  “Annual  Reports  of  the  War  Department  for  the  Fiscal  year 
ending  June  30,  1901.  Report  of  Chief  of  Engineers.  Part  4’’ — and 
from  the  same  the  report  of  Major  Willard  and  Col.  Barlow  and 
Major  Townsend,  to  Brig.  Gen.  John  M.  AVilson,  dated  November 

18,  1900,  the  opening  sentence  reading : 

3790  “Chicago,  111.,  November  18,  1900. 

‘ ‘ General : 

“The  River  and  Harbor  Act  approved  June  6,  1900,  pro- 
vides : 

“That  the  Board  of  three  engineers  appointed  by  the  Secre- 
tary of  AYar,  in  pursuance  of  a paragraph  in  the  river  and 
harbor  Act  approved  Alarch  3,  1899,  to  make  a survey  and 
estimates  of  cost  of  the  improvement  on  the  Upper  Illinois 
River  and  the  Lower  Desplaines  River  in  Illinois,  with  a view 
to  the  extension  of  navigation  on  from  the  Illinois  River 
to  Lake  Michigan  at  or  near  the  City  of  Chicago,  is  hereby 
authorized  to  report,^’  etc. 

Also  from  page  3061,  there  was  read  as  follows: 

“AVhile  the  Upper  Illinois  and  Desplaines  Rivers  are  at  pres- 
ent non-navigable,  the  commerce  of  the  Illinois  and  Alichigan 
Canal,  which  has  been  constructed  in  the  valleys  of  these  rivers 
may  be  taken  to  represent  the  present  commerce  of  such  a 
route.  The  tonnage  carried  on  the  Illinois  and  Alichigan  Canal 
since  1860,  derived  from  the  reports  of  the  Board  of  Trade 
of  Chicago,  is  also  appended.” 

Also,  from  the  same  volume,  there  was  read  in  evidence  a re- 


1127 


port  of  the  Board  of  Engineers,  page  3,049,  signed  by  Barlow,  Wil- 
lard and  Townsend,  and  addressed  to  John  M.  Wilson,  Chief  of 
Engineers,  dated  November  17,  1900,  beginning : 

^‘General: — The  Board  of  Engineer  Officers  constituted  * 
* * to  make  ^a  survey  and  estimates  of  cost  for  the  im- 

provement of  the  Upper  Illinois  River  and  Lower  Uesplaines 
River,  in  Illinois,  with  a view  to  the  extension  of  navigation 
from  the  Illinois  River  to  Lake  Michigan,  at  or  near  Chi- 
cago,’ ” as  follows : 

Page  3050: 

3791  ‘^The  Board  finds  the  most  economic  route  for  waterways 
of  seven  feet  and  eight  feet  depth  to  be  from  Utica  to  Mar- 
seilles in  the  bed  of  the  river,  1L4  miles;  then  around  the  Mar- 
seilles Rapids  by  canal,  7.4  miles;  thence  in  the  bed  of  the 
river  to  near  the  mouth  of  Kankakee  River,  21.2  miles;  thence 
by  enlarging  the  Illinois  and  Michigan  Canal  to  the  Joliet 
Basin,  18.3  miles;  thence  by  canal  through  Joliet  Basin  and 
along  the  east  bank  of  the  Desplaines  River,  44  miles,  con- 
nected with  the  Sanitary  Canal  at  Lockport,  and  thence 
through  the  Sanitary  Canal  and  the  Chicago  River  to  Lake 
Michigan,  thus  complving  with  the  terms  of  the  act  of  March 
3,  1899.” 

There  was  also  read  from  House  Document  No.  263,  heretofore 
referred  to  by  counsel  for  the  complainants,  as  follows : 

Page  7 (for  the  purpose  of  identifying  a party  hereafter  to  be 
a witness  for  the  defendant)  : 

^‘For  details  of  the  methods  employed  and  the  results  accom- 
plished in  the  actual  work  of  the  survey,  attention  is  invited  to 
the  report  of  Assistant  Engineer  J.  W.  Woerman,  which  is 
hereto  appended.” 

3792  On  Page  9,  ‘Whicago  Drainage  Canal”  there  was  read: 

^‘Besides  being  a highway  of  commerce  the  Illinois  and  Mich- 
igan Canal  has  from  the  beginning  served  to  carry  off  the 
sewage  of  Chicago.  The  Chicago  River  has  always  been  the 
main  receptacle  of  the  sewage  of  the  city,  and  as  the  volume  of 
sewage  has  increased  with  the  growth  of  the  city  additional 
facilities  for  discharging  it  into  the  canal  have  become  neces- 
sary. When  Ihe  canal  was  opened  in  1848  a pumping  plant 
was  established  at  Bridgeport  where  it  joins  the  Chicago  River. 
In  1860  the  capacity  of  this  plant  was  nearly  doubled,  being 
increased  to  about  400  cubic  feet  per  second.  Later  on  the 
summit  level  of  the  canal  was  cut  down  so  as  to  provide  a 
continuous  gravity  flow  from  the  Chicago  River  and  Lake 
Michigan.  That  work  was  completed  in  1871  and  the  pumping 


1128 


Extract, — House  Doc.  263. — Contimied. 


‘‘plant  abandoned.  In  1883  a new  pumping  plant  was  brought 
into  use,  having  a nominal  capacity  of  750  cubic  feet  per 
second,  but  it  soon  became  evident  that  the  discharge  capacity 
of  the  old  canal  was  quite  inadequate  to  carry  the  volume  of 
water  required  to  dilute  the  sewage,  and  that  a new  and  great- 
ly enlarged  channel  must  be  provided.  The  Chicago  Drainage 
Canal  was  then  constructed  and  was  brought  into  use  in  Jan- 
uary, 1900.  It  has  not  yet  been  completed  to  its  full  capacity 
as  designed.  When  fully  completed,  it  will  have  a capacity  of 
10,000  cubic  feet  per  second,  flowing  at  a low  velocity. 

Also,  on  page  12,  under  the  head  “Vested  Rights.” 

“The  steep  slope  of  the  Desplaines  River  and  of  the  Illi- 
nois River  above  Utica  is  favorable  to  the  development  of 
water  power.  Rights  of  this  nature  have  acquired  additional 
importance  with  the  recent  increase  in  the  discharge  of  the 
Drainage  Canal,  and  will  acquire  still  further  importance  with 
the  further  increase  contemplated.  An  important  water  power 
has  been  developed  by  the  State  of  Illinois  at  Joliet,  and  is 
now  in  use  under  lease  by  a private  corporation.  The  Sanitary 
District  of  Chicago  is  engaged  in  the  construction  of  works 
for  the  development  of  water  power  just  above  Joliet,  an  im- 
portant water  power  is  in  use  also  at  Marseilles. 

3794  Various  other  schemes  for  the  development  of  water  power 
have  been  projected.  In  all  such  cases  fixed  dams  with  their 
resultant  back  flowage  are  a necessity.  In  fixing  the  location 
and  height  of  its  dams,  the  board  has  endeavored  to  avoid  the 
injury  of  any  of  these  schemes.  It  has  succeeded  in  doing 
this  for  all  that  are  developed,  and  probably  also  for  those 
that  are  undeveloped.  It  has  accepted  the  levels  of  the  pools 
at  and  above  Joliet  as  fixed  by  the  dam  now  in  existence  at 
the  former  and 'that  under  construction  at  the  latter;  and  at 
Marseilles  the  canal  around  the  rapids  has  enabled  it  to  avoid 
the  power  dam  at  that  place  entirely.  At  other  places  econ- 
omj  in  excavation  and  avoidance  of  overflow  have  been  the 
guiding  considerations.  The  best  development  of  water  power 
would  no  doubt,  in  some  cases,  call  for  a different  arrange- 
ment. Fewer  dams  and  those  of  a greater  height  and  of  the 
fixed  type  might,  from  that  point  of  view,  be  desirable.” 

“The  plan  submitted  is  not  designed  to  develop  water 
power;  but  there  will  probably  be  no  difficulty  in  modifying  it 
so  as  to  conform  to  such  development,  if  those  who  are  to  bene- 
fit thereby  will  co-operate  with  the  government.  They  should 
pay  the  cost  of  the  dams  and  the  damages  from  flowage 
which  is  no  more  than  they  would  be  compelled  to  do  if  the 
Government  made  no  improvement.” 


1129 


3796  Tliereuijon  counsel  for  defendant  offered  and  read  in  evi- 
dence the  deposition  of  George  Alexander,  a witness  for  the 

defendant. 

(For  rulings  on  same  see  Abstract  of  Depositions,  supra, 
p.  506.) 

3797  Daniel  W.  Mead, 

a witness  for  the  defendant,  testified  as  follows: 

Direct  Examluatiou. 

My  name  is  Daniel  W.  Mead;  age  46;  occupation  civil  engineer 
and  at  present  residing  in  Madison,  Wisconsin.  I have  an  office 
in  the  First  National  Bank  Building  in  Chicago. 

3798  I graduated  from  the  department  of  Civil  Engineering  at 
Cornell  University  in  June,  1884.  1884-5  I was  topographer 

in  the  U.  S.  Geological  Survey,  working  in  Chippewa  Valley,  AVis- 
consin.  AVent  up  there  after  the  flood  of  1884  to  study  the  condi- 
tions along  the  river.  In  1885  I was  engaged  in  making  maps 
and  a report  to  Prof.  T.  C.  Chamberlain,  who  was  in  charge  then, 
and  is  now,  of  the  glacial  division  of  the  U.  S.  Geological  Sur- 
vey. After  that  I was  city  engineer  of  Rbckford,  Illinois,  for  about 
two  years,  during  which  time  I designed  the  sewerage  system  for 
that  city,  and  in  1887  was  one  of  the  organizers  of  what  was  known 
as  the  Rockford  Construction  Company,  a contracting  company 
that  made  a specialty  of  building  municipal  public  works.  I was 
engineer  and  manager  of  that  company  until  about  1896.  AAV 

3799  built  sewers,  water  works,  bridge  works,  and  other  municipal 
works  of  that  sort.  Previous  to  that  I had  done  some  work 

in  general  practice  as  a civil  engineer,  and  from  1896  up  to  the 
present  time  I have  been  in  practice  in  general  lines  of  engineering, 
principally  on  hydraulic  works.  Aly  first  experience  on  water 
power  works  was  in  1886,  when  I was  retained  by  the  Rockford 
AAVter  Power  Company  to  study  the  ([uestion  of  fiowage  above 
their  dam.  I have  done  work  for  various  members  of  the  com- 
pany,— the  designing  of  a new  dam  and  the  construction  of  a por- 
tion of  it  across  Rock  River,  the  construction  of  the  hydraulic 
power  plant  for  the  Rockford  Edison  Company,  a plant  of  about 
1,500  horsepower.  I designed  and  made  note  of  a plant  for  Mr. 
AA^ade  Talcott,  one  of  the  water  power  owners,  l)ut  the  plant  has  not 


1130 


Mead, — Direct  Exam. — Continued. 


yet  been  constructed.  I acted  as  engineer  at  Sterling  for  the 
Sterling  Hydraulic  Company  in  the  study  of  the  probable  effect  of 
the  Hennepin  Canal  feeder  on  the  water  power  at  that  place. 

3800  I also  designed  and  built  the  plant  of  the  Sterling  Hydraulic 
Company  at  that  place  at  the  request  of  Captain  Eoche,  now 

Major  Ebche  of  the  TJ.  S.  Engineers.  I made  a study  of  the  prob- 
able back-water  flowage  from  the  Government  Dam.  I have  design- 
ed and  built  various  dams  among  which  are  the  dam  at  Batavia 
of  the  Fox  Eiver,  a concrete  dam  at  Danville  on  the  Vermillion 
Kiver,  and  am  building  a small  dam  just  at  present  at  Muscoda,  a 
wooden  timber  dam  at  New  Albany,  Ind.,  and  am  building  a dam  at 
Kilbourn,  AVis.,  for  a power  plant  that  will  cost  about  a million  and 
a quarter  to  develop,  at  the  present  time  about  12,500  horsepower, 
with  future  extensions  to  about  17,000  or  18,000  horsepower.  I 
have  made  reports  on  a good  many  water  power  plants.  I am 
just  now  designing  a plant  for  the  Northern  Hydro-electric  Com- 
pany of  Green  Bay,  on  the  Peshtigo  Eiver  in  northeastern  Wis- 
consin. We  are  spending  nearly  a million  dollars  there  and  wih 
take  the  power  to  Green  Bay,  and  through  the  Fex  Eiver  below,  up 
as  far  as  Neenah  and  Menasha.  I have  made  reports  on  hydraulic 
matters  for  various  bond  dealers  in  Chicago  on  water  power 

3801  projects.  In  water  supply  works,  I built  water  supply  sys- 
tems at  Eockford,  and  at  Fort  Worth,  Texas, — two  artesian 

supplies  where  we  sunk  shafts  and  drove  tunnels  connecting  with 
wells.  I have  been  connected  with  a good  many  cities  of  the  states 
in  water  supply.  I might  mention  Joliet,  LaSalle,  Eock  Island, 
Springfield,  Decatur,  Danville,  Lawrenceville,  and  I presume  a 
dozen  or  so  others  in  this  state.  In  other  states  I might  mention 
Fort  Wayne,  Terre  Haute,  Winchester,  Ligonier,  Indiana,  Water- 
loo and  Fort  Dodge,  Iowa,  Eichland  Center  and  Green  Bay  in  Wis- 
consin, and  a number  of  water  suijplies  for  private  individuals.  I 
have  just  completed  installing  two  six  million  gallon  pump- 

3802  ing  engines  for  the  Schlitz  Brewing  Company.  I installed 
a number  of  deep  wells  and  pumps  for  raising  water  with 

a capacity  of  about  three  and  a half  million  a day  for  the  Pabst 
Brewing  Company  for  washing  purposes.  I have  been  connected 
with  some  levee  work,  although  I have  not  made  much  of  a spe- 
cialty in  that  line.  I designed  and  built  the  levees  of  the  Meredosia 


1131 


Drainage  District,  just  below  Albany,  Illinois,  on  the  Mississippi 
Diver.  I also  examined  a number  of  drainage  districts  for  bond 
dealers,  who  have  taken  bonds  on  the  districts.  Two  years  ago  I 
prepared  plans  for  the  Smnas  Development  Company,  along  the 
Fraser  Diver,  in  British  Columbia.  We  expect  to  spend  three 
quarters  of  a million  there.  We  have  a river,  the  Chilliwack,  which 
flows  at  present  through  the  district  into  Lake  Sumas,  and 

3803  we  expect  to  change  its  course  for  about  four  miles.  It  is  a 
river  of  considerable  size,  having  a low  water  flow  of  about  a 

thousand  second  feet,  and  a high  water  flow  of  about  sixty  thousand 
feet.  The  drainage  of  the  Chilliwack  is  not  very  different  from 
the  Desplaines,  but  it  is  fed  by  glaciers  from  the  mountains,  and 
has  very  high  floods  and  continuous  flow.  Its  storm  floods  would 
probably  be  three  or  four  times  that  of  the  Desplaines.  The 

3804  Fraser  flows  over  this  territory  of  some  35,000  acres,  that  we 
expect  to  reclaim.  The  Chilliwack,  flowing  through  the  dis- 
trict, flows  into  Lake  Sumas,  a lake  of  about  12,000  acres,  that  we 
expect  to  drain  entirely,  and  to  do  so  we  are  obliged  to  divert  the 
Chilliwack  from  Lake  Sumas  directly  into  the  Fraser,  and  we  carry 

it  across  from  its  present  bed  across  the  district  between 

3805  earth  levees.  We  have  a bank,  a new  bed  there  that  will 
be  about  four  miles  in  length  and  we  are  constructing  a 

channel  that  will  carry  the  low  water  flow  across  the  dis- 
trict. The  high  water  flow  here, — the  design  calls  for  two 
earth  embankments  of  about  700  feet  across,  and  some  18  feet  in 
height,  as  I recall  it,  to  carry  the  flow  at  flood  times.  The  fall  is 
considerable,  and  to  eliminate  the  high  velocities  we  are  building 
three  dams  across  the  river  so  as  to  reduce  the  gradient  and 
control  the  velocity.  In  addition  to  that,  we  have  dikes  across  the 
Fraser,  some  very  large,  quite  large  pumps,  etc. 

I am  chief  engineer  of  the  Economy  Light  & Power  Plant, 

3806  being  selected  for  that  place  by  the  people  who  hold  the 
bonds.  I have  acted  as  appraiser  in  a good  many  water- 
works cases,  that  is,  for  the  taking  over  of  the  water  works  by 
municipalities. 

I have  been  professor  of  hydraulic  and  sanitary  engineering 
at  the  University  of  Wisconsin  since  1904.  I had  never  taught 
before,  and  went  there  because  of  the  opportunity  for  the  con- 


1132 


Mead, — Direct  Exam. — Continued. 


tinuation  of  my  outside  practice,  and  for  research  work. 

3807  My  interest  in  regard  to  research  work  has  been  largely 
from  the  fact  that  a great  many  of  the  formulae  that 

hydraulic  engineers  are  obliged  to  use  are  more  or  less  ap- 
proximate, and  in  order  to  determine  the  actual  value  of  con- 
stants and  the  actual  truth  of  the  formula,  a large  amount  of 
work  is  necessarily  based  on  experiments.  I have  built  a labora- 
tory at  Madison  for  the  University,  and  have  a number  of  men 
engaged  in  studies  under  my  direction.  That  laboratory  is 

3808  larger  than  found  in  other  universities,  and  experiments  can 
be  done  on  work  of  considerable  size.  I have  written  a num- 
ber of  papers  on  hydraulic  subjects,  on  hydro-geology,  one  paper 
on  water  supply,  and  water  power,  or  water  supplies  and  water 
resources  of  Illinois;  one  on  hydro-geology  of  the  Upper  Missis- 
sippi Valley.  I have  published  a small  book  on  hydrology,  used 
as  a text  at  the  University  of  Wisconsin.  I have  published  the 
early  part,  about  a third  of  a book  on  water  power  engineering, 
which  will  appear  in  its  entirety  in  July. 

I designed  the  dam  for  the  Economy  Light  & Power  Company 
that  was  under  construction  at  the  time  this  injunction  stopped 
it.  (Witness  is  handed  ‘‘Sheet  1 of  plans  of  dam.  May  20, 

3814  1908.”)  In  a general  way,  the  structure,  as  proposed,  con- 
sists of  an  earthen  embanlmient  connecting  with  the  canal 

embankment  of  the  Illinois  and  Michigan  Canal,  reserving  a space 
of  about  175  feet  to  the  wall  of  the  power-house  proper.  The 
present  proposed  power-house  runs  from  this  point  out  about 
285  feet.  The  structure  is  intended  to  include  penstocks  for  8 
units  of  hydraulic  turbines,  there  being  8 turbines  to  the  unit, 
the  turbines  being  connected  tandem,  that  is,  with  a single  shaft, 
the  shaft  projecting  into  the  machinery  room  where  there 

3815  will  be  8-750  kilowat  generators.  A penstock  is  a space  or 
room  in  which  the  turbines  sit;  the  water  enters  the  pen- 
stock around  the  turbines  from  above  the  dam,  that  is  from  the 
headwaters,  passes  down  through  the  turbines  and  out  through 
the  tail  race  into  the  river  below.  The  turbines  are  wheels,  and 
the  water  passes  through  the  penstocks,  or  rooms  where  these 
wheels  are  placed.  The  penstocks,  including  these  little  round 
rings,  re])resent  the  draught  tubes,  each  of  which  have  a pair  of 


1133 


wheels.  There  are  four  draught  tubes  and  eight  wheels.  These 
wheels  are  set  in  this  concrete  room  below  the  surface  of  the 
headwater.  The  water  flows  into  this  room  through  three  gate- 
ways, passing  around  the  turbines  down  through  the  gates  and 
through  the  wheels  into  the  tail  race,  over  which  the  wheels  are 
located.  From  the  tail  race  it  passes  away  at  the  head  of  the  tail 
water,  the  fall  taking  place  directly  through  the  turbines  that 
take  the  energy  of  the  moving  water.  The  headwater  is  the 
height  of  the  water  above  the  dam.  In  speaking  of  the  head- 

3816  water,  we  refer  to  the  surface  of  the  water,  it  is  the  fall 
between  the  headwater  and  the  tail  water  that  gives  us 

the  opportunity  to  develop  power  from  the  water.  The  water 
which  develops  the  power  goes  through  the  structure,  that  is,  into 
the  penstocks  down  through  the  wheels  and  out  below.  The  water 
would  then  pass  through  the  gates  and  over  the  spillway,  that  is, 
that  taintor  gates.  Next  to  the  proposed  power-house  proper 
are  a series  of  gates  similar  in  their  character  to  the  penstocks 
already  mentioned.  This  is  for  a proposed  extension  of  the 
power  house  and  includes  24  openings,  each  similar  to  the  open- 
ings in  the  penstocks.  These  will  be  closed  with  gates,  and  are 
not  ordinarily  intended  to  be  used  unless  for  emergency  pur- 
poses. That  is  about  250,  nearly  260  feet  long.  The  next 
comes  the  taintor  gates,  gates  that  are  a section  of  a cylinder,  and 
they  close  and  open  as  we  may  desire  to  control  the  headwaters 
above  the  dam. 

3817  The  next  is  the  fishway,  to  allow  fish  to  ascend  from  the 
tail  water  to  the  headwater;  and  then  follows  the  overflow 

or  spillway  proper  part  of  the  dam  which  is  440  feet  in  width. 
That  is  concrete,  with  an  0.  G.  face  to  conduct  the  water  up 
tangentially  from  the  bottom,  and  to  prevent  any  eroding  of 
rock  in  the  vicinity  of  the  dam.  ^^0.  G.”  means,  a reverse  curve, 
a convex  curve  at  the  top  and  a concave  curve  at  the  bottom,  so 
that  the  water  leaves  the  foot  of  the  dam  in  the  direction  of  the 
rock  itself,  and  instead  of  falling  directly  on  the  rock,  which 
would  have  a tendency  to  destroy  and  remove  it, — it  leaves  parallel 
with  the  rock,  and  with  no  such  effect. 

Beyond  this  spillway  is  a concrete  abutment,  against  which 
abuts  the  earth  embankment  that  carries  the  structure  onto  the 


1134  Mead, — Direct  Exam. — Continued. 

higher  ground.  By  the  term  ‘‘waters  above  the  dam,’^  I 
3818  mean  on  the  up  stream  side  of  the  dam;  that  may  or  may 
not  be  going  over.  When  the  wheels  are  in  operation  there 
will  be  absolutely  no  water  flowing  over  the  dam,  because  we  take 
all  of  the  water  under  ordinary  conditions.  The  water  simply 
comes  through  the  gate  and  through  the  wheels.  That  is,  the 
plant  is  large  enough  to  take  the  entire  quantity  of  water  that 
would  go  with  the  stream  running  in  its  ordinary  capacity.  If 
the  stream  should  he  very  high,  the  water  would  go  over  the  spill- 
way, ordinarily,  or  if  you  desired  to  reduce  the  head,  we  would 
open  the  taintor  gates,  and  in  that  way  control  the  height  of  the 
head  water,  and  we  could  also  open  these  24  gates,  if  it  was  de- 
sired to  do  so.  The  capacity  of  those  gates  under  high  water 
conditions  would  be  more  than  double  the  entire  flood  flow  of  the 
river,  and  the  taintor  gates  themselves  would  pass  the  ordinary 
flood  flow,  and  the  spillway  itself  will  pass  the  ordinary  flood 
flow  with  a height  of  about  7 feet  on  the  crest.  By  “ those gates, 
I refer  to  the  future  penstock  gates.  I would  estimate  the  total 
possible  flow  at  flood  water  as  not  to  exceed  25,000  second 

3820  feet.  We  could  pass  with  a head  available  at  high  water 
over  four  times  the  fiood  flow,  or  a head  of  seven  feet,  or 

we  could  reduce  the  height  of  the  flood  water  about  two  and  a 
half  to  possibly  three  and  a half  feet  by  the  openings  that  are 
provided;  that  is,  with  all  gates  closed,  the  flood  flow  would  pass 
over  the  spillway  with  a height  on  the  crest  of  seven  feet.  That 
brings  it  two  feet  below  our  proposed  top  embankment,  or  the 
top  of  the  towpath  bank.  I cannot  conceive  any  possible 

3821  condition  that  would  arise  under  any  extreme  flood  such  as 
we  have  in  the  Upper  Mississippi  Valley  under  which  the 

flood  would  pass  over  the  top  of  the  towpath  bank.  I would  not 
say  that  it  was  utterly  impossible,  because  floods  entirely  un- 
precedented, are  among  the  possible  conditions  that  I have  not 
anticipated,  and  yet  might  occur.  There  is  no  flood  that  I have 
any  record  of  in  the  whole  Upper  Mississippi  Valley  that  would 
give  rise  to  flood  conditions  that  would  raise  the  water  or  could 
raise  the  water  above  our  embankment.  I could  conceive  con- 
ditions that  might  do  so, — if  the  head  ymrks  of  the  drainage 
canal  should  go  out  and  let  Lake  ^Michigan  down  on  it,  something 
of  that  sort.  Those  are  possible,  not  probable.  I count  that  with- 


1135 


out  question  we  could  during’  the  most  extreme  flood  that  is  lia- 
ble to  occur,  that  we  could  drop  the  water  above  the  dam  two  and 
a half  to  three  feet  with  the  openings  that  have  been  provided 
in  the  dam,  but  under  those  conditions  it  would  be  about  five  feet, 
or  from  four  and  a half  to  five  feet,  five  and  a half  feet 

3822  below  the  towpath  bank.  I mean,  at  the  highest  flood,  with- 
out opening  up  the  gates,  the  water  would  be  seven  feet 

above  the  crest  of  the  dam  and  would  be  two  feet  below  the  top 
of  the  embankment,  or  the  towpath  as  projected.  And  if  we 
lowered  it  three  feet  and  a half,  we  would  still  have  three  feet 
and  a half  flowing  over  the  dam,  which  we  could,  without  ques^ 
tion,  do;  that  is,  from  two  and  a half  to  three  feet,  by  opening 
up  various  gates  that  we  have  provided  and  by  letting  the  waters 
go  through  the  wheel.  The  waters  would  go  over  the  spillway 
that  is  provided.  This  condition,  with  seven  feet  above  the  dam, 
would  be  with  the  plant  entirely  shut  down,  or  no  wateT  goiug 
through  the  wheels. 

3823  To  the  left  of  the  wheels,  it  is  higher  than  the  towpath 
itself.  That  is  an  earthen  embankment,  riprapped  on  the 

other  side,  and  is  about  eleven  feet  above  the  crest  of  the  dam,  or 
a couple  of  feet  above  the  towpath,  as  raised.  I do  not  think  it 
would  be  possible,  with  the  apparatus  we  have  arranged  there, 
the  appliances,  to  keep  the  pool  down  to  its  normal  level  under  or- 
dinary conditions.  There  is  always  resistance  in  passing  water 
two  or  three  feet  above  its  normal  condition.  Of  course  the 

3824  plan  of  construction  is  to  take  the  river  through  this  open- 
ing where  we  are  building  this  spillway.  This  opening  is 

sufficient  to  carry  that  off  with  very  little  head.  We  could  have 
the  relation  of  the  river  above  the  dam  the  same  as  within  two 
or  three  feet  below  the  dam. 

Q.  Commencing  at  the  towpath,  I want  first  to  ask  you 
whether  in  your  experience,  it  is  or  is  not  usual — I don’t  say 
usual,  but  the  practice  that  obtains,  to  attach  dams  to  banks  of 
this  character. 

Counsel  for  Complainant.  To  that  I object. 

The  Court.  He  may  answer. 

A.  I should  say  a very  common  practice.  To  illustrate: — I 
know  of  a great  many  dams  along  the  Upper  Fox  Eiver  that  are 


1136 


Mead, — Direct  Exam. — Continued. 


attaclied  to  the  embankment  of  the  canal  leading  from  Green  Bay 
to  Lake  Winnebago.  I do  not  recall  them  in  very  great  detail, 
but  I know  that  this  same  class  of  construction  is  practiced  all 
along  that  river.  My  old  home  is  along  the  Oswego  Eiver  and  the 
Erie  Canal  at  Fulton,  New  York.  There  are  a number  of  dams 
that  are  attached  to  the  embankment  of  the  canal  from  Syracuse 
down  to  Oswego.  The  one  at  Constantine,  Michigan,  is  essen- 
tially the  same.  There  is  no  canal  in  the  sense  of  a navi- 
3825  gable  canal.  The  head  race  there,  as  I recall  it,  is  about 
two  thousand  feet,  and,  as  I remember,  it  runs  from  the  dam, 
is  attached  from  the  embankment  down  to  the  power-house  that  is 
located  about  two  thousand  feet  below.  The  water  is  carried  to 
the  power-plant  through  this  canal,  and  on  the  other  side  is  the 
river  that  is  against  the  embankment,  I think  at  all  times,  and  at 
flood  times  it  is  very  high  on  the  embankment.  The  strip  of  land 
between.the  canal  and  the  river  at  Constantine  is  a very  narrow 
strip;  the  embankment,  as  I recall  it,  runs  right  into  the  river 
on  one  side  and  the  canal  on  the  other.  It  is  the  St.  Joe  River, 
or  the  St.  Joseph,  I don’t  know  which.  The  dam  there  is  about 
250  feet  wide  there.  An  artificial  bank  lies  between  the  river  ‘ 
and  the  canal,  it  is  some  22  or  23  feet  above  the  river.  This 
bank  is  on  a foundation  of  marl,  a very  unsatisfactory  bank  on 
account  of  the  seepage  of  water  under  it,  and  is  built  of  sandy 
clay.  There  is  no  protection  to  the  canal  side  whatever,  but 
there  is  riprapping  on  the  river  side.  I have  only  been  in  touch, 
with  that  plant  perhaps  eight  or  nine  years,  but  the  dam  and  the 
race  is  a very  old  one, — it  is  reputed  to  have  been  there  some  50 
years  or  more,  and  I have  no  doubt  from  the  construction  of  the 
canal  that  that  is  the  case.  I was  called  in  by  the  people  who 
were  putting  their  money  into  the  plant,  and  found  it  in  very 
bad  condition,  in  danger  of  being  destroyed  -if  they  ever  let 
water  in,  and  I designed  and  built  head  gates,  and  was  obliged 
to  drive  30  feet  sheet  piling  down  in  the  marl,  so  that  the  water 
would  not  get  in  under  the  house.  The  l)ank  had  stood  there  a 
good  many  years,  and  was  in  good  condition ; there  was  nothing 
to  do  exce])t  to  clean  it  u])  and  take  the  weeds  out.  We  did  noth- 
ing to  the_bank,  with  the  exce])tion  of  the  race,  the  bank  was 
raised  a little  on  account  of  the  matter  of  fact  that  we  wanted 
to  carry  a higher  head. 


1137 


There  was  a district  at  Meredosia,  on  the  Mississippi  Eiver 
that  the  Trowbridge  and  Niver  Company  had  purchased  the 
bonds,  on  the  understanding  that  the  work  was  to  he  made  satis- 
factory to  myself.  I found  that  for  about  a mile  and  a half,  the 
levee  work  along  the  Mississippi  was  contemplated  which  must  pass 
over  the  Meredosia  Slough,  that  occuj^ies  the  old  and  now  pretty 
well  filled  channel  of  the  Mississippi  Eiver,  and  the  distance  to 
rock  in  that  channel  is  something  like  300  feet.  It  is  a slough 
or  marsh.  The  Meredosia  drainage  district  included  8,000 
3829  acres  of  bottom  land,  and  into  it  drains  probably  double  that 
amount.  In  order  to  reclaim  this  land  it  was  necessary  to 
dike  oft  this  district  from  the  Mississippi  floods,  the  Mississippi 
rising  there  in  extreme  floods  as  high,  as  I now  recall  it,  as  about 
18  or  20  feet.  The  structure  proposed  across  was  a masonry 
structure  with  a comparatively  narrow  base.  I considered  the 
masonry  structure  dangerous,  and  instead,  we  build  an  earthen 
embankment.  Of  course,  masonry  itself  is  a safe  proposition, 
but  the  nature  of  the  foundation  was  such  that  there  was  bound 
to  be  a passage  of  water  under  this  structure,  and,  in  order  to 
make  it  safe,  we  must  make  that  water  in  the  subsoil  travel  as 
far  as  possible,  so  we  built  an  earth  embankment  and  simply 
put  the  earth  right  in  the  slough  and  piled  it  up  in  the  form  of 
an  embankment.  The  embankment  across  the  slough  itself  was 
probably  300  feet  long.  It  had  a slope  of  two  to  one  on  both 
sides,  and  on  top  its  width  is  about  8 feet.  We  did  not  carry 
a core  wall  or  sheet  piling  down  through,  as  finances  would  not 
permit.  We  have  installed  a couple  of  pumping  plants  that  will 
pump  about  50,000  gallons  per  minute,  and  at  times  of  flood  the 
gates  which  are  carried  through  this  embankment,  which  really 
would  be  the  weak  places  in  the  embankment,  are  closed,  and 
any  water  that  falls  on  the  inside  will  begin  to  pile  up,  and  as 
the  water  in  the  Mississippi  rises,  it  cannot  run  out,  so  we  try 
to  pump  it  out.  During  floods  we  have  18  to  20  feet  against  that 
embankment  on  the  outside,  while  we  try  to  keep  it  down  to  about 
6 or  8 feet  on  the  inside,  but  frequently  it  comes  up  to  about  8 or 
10  feet  above  its  normal  level.  The  levee  extends  on  either  side 
of  that,  the  total  length  of  the  levee  being  about  a mile  and  a 
half.  This  emhankment  has  been  built  about  ten  years,  and  is 


1138 


Mead,— Direct  Exam. — Continued. 


made  of  a good  deal  of  sand  and  gravel ; we  selected  and  got 
as  inucli  clay  as  we  could.  It  is  about  the  usual  material 

3831  used  for  levees  along  the  Mississippi.  AVe  selected  as  much 
clay  as  we  could,  as  we  always  endeavor  in  levee  work  to 

make  the  outer  side  of  the  levee  as  impervious  as  possible  to 
water,  so  that  the  river  side,  the  clay  was  placed  along  there,  or 
the  most  impervious  material  we  could  get.  Of  course  no  material 
is  entirely  impervious,  but  we  selected  the  most  impervious  in 
order  to  bring  the  seepage  down  to  the  smallest  amount  possi- 
ble. 

It  is  a very  common  condition  or  situation  as  to  mills  with 
tail  races  paralleling  rivers,  to  have  a strip  of  land  between  the 
tail  race  and  the  river.  They  draw  the  water  from  the  river, 
and  turn  it,  return  it  to  the  river;  their  head  race  and  tail  race 
are  built  so  as  to  secure  the  greatest  amount  of  fall.  There  are  a 
great  many  natural  banks,  and  a great  many  artificial  banks.  It 
frequently  happens  that  these  artificial  banks  are  of  earth,  and 
they  remain,  within  my  memory,  for  long  periods  of  time. 

3832  I remember  particularly,  the  Constantine  that  I mentioned, 
also  a good  many  embankments  of  the  canal  type  along 

near  Fulton,  New  York,  between  the  canal  and  the  river. 

The  old  towpath  bank  at  the  point  where  the  work  of  the 
Economy  Light  & Power  Company  is  being  constructed,  is  of 
the  local  material  of  clay,  mixed  with  more  or  less  gravel,  taken, 
I suppose,  from  the  bed  of  the  canal.  Examination  leads  me  to 
believe  that  the  material  is  the  same  as  the  high  bluffs  on  what 
are  known  as  Dresden  Heights.  It  is  a very  excellent  quality 
of  material, — material  that  withstands  wave  wash,  and  would 
stand  with  a considerable  slope.  It  is  material  ver^^  simila;'  to 
that  we  ordinarily  select  for  the  lining  of  reservoirs,  or  for  the 
walls  that  are  put  in  reservoirs,  a material  that  is  practically 
impervious. 

Q.  Taking  into  account  the  proposed  construction  of  this  dam 
according  to  the  plans  which  you  have  before  you,  and  the  pool 
which  will  thereby  be  created,  if  the  work  is  carried  out, — I will 
ask  you  whether  that  bank  will  or  will  not,  in  your  opinion,  in- 
juriously affect  the  towpath  bank? 

CouxsEu  FOR  CoMPLAix^ANT.  I object  to  that. 


1139 


The  Court.  He  may  answer. 

3833  The  Witness.  I think  it  will  not.  I have  had  occasion  to 
observe  wave  wash  on  the  levees  on  the  Mississippi  River, 

on  the  shores  of  onr  lakes,  in  fact,  all  places  where  we  have  open 
bodies  of  water,  to  get  the  effect  of  both  the  current  and- the  ef- 
fect of  the  wind,  that  w^e  have  to  take  care  of,  depending  upon 
the  character  of  the  body  of  water  contiguous.  I have  observed 
the  wave  effect  of  the  sea,  and  Lake  Michigan,  and  smaller  lakes. 
At  Lake  Mendota,  at  Aladison,  a lake  perhaps  four  by  six  miles, 
we  get  quite  a wave  wash.  On  the  smaller  lakes  there,  that  are 
perhaps  a mile  or  a mile  and  a half  wide,  we  have  comparatively 
little,  and  on  the  smallest  lake,  Lake  AVingree,  the  effect  of  the 
wave  wash  from  the  whnds  is  very  small.  On  the  levees  of 

3834  the  Mississippi  we  have  more  or  less  trouble  with  that.  I 
rip-rapped  part  of  the  Aleredosia  very  largely  on  that  ac- 
count, to  take  care  of  the  wave  wash.  AVe  found,  after  it  had  been 
built  a couple  of  years,  that  Avaves  were  affecting  it,  and  threw 
some  rubble  along  near  the  surface  of  the  water,  and  there  has 
never  been  any  trouble  there  since,  to  my  knowledge. 

Q.  Returning  to  this  towpath  bank,  assuming  the  construc- 
tion of  the  work  in  accordance  with  these  plans,  and  the  rising  of 
the  pool  level,  what,  if  any,  danger  will  there  be  to  the  tow- 
path  bank  from  wave  wash! 

(Objection;  overruled;  exception.) 

The  plans  are — the  plan  shown  by  this  sheet — (marked 

3838  ‘‘Sheet  1 of  plans  of  dam,  Alay  20,  1908”)  does  not  show 
any  improvement  or  change  otherwise  than  in  the  raising  of 

the  towpath.  It  shows  nothing  in  the  way  of  rip-rap  or  other  im- 
provement; and,  if  the  water  was  raised  without  rip-rapping  or 
other  change,  otherwise  than  the  one  referred  to,  the  raising 
of  the  bank,  there  might  possibly  be  some  effect  from  wave  wash 
that  would  have  to  be  repaired  by  the  addition  of  riprapping. 

3839  Rip-rapping  consists  of  fragmentary  rock  of  fair  size 
placed  on  the  embankment  to  be  protected, — the  slopes  to  be 

protected. 

A.  Assuming  that  this  bank  were  rip-rapped,  would  there  be 
any  danger  from  wave  wash  on  the  construction  from  the  pool 
created  by  such  "construction  as  you  described  this  morning! 


1140 


M ead, — Direct  Exam. — Continued. 


Counsel  for  Complainant.  I object. 

The  Court.  He  may  answer. 

A.  I think  not,  I don’t  consider  that  there  would  be  any  danger 
whatever  from  wave  wash.  I have  estimated  the  distance  it  would 
be  necessary  to  rip-rap  this  towpath  bank  in  order  to  protect, it. 

Q.  What  is  the  aggregate  of  the  distance  of  the  bank,  the 
parts  of  the  bank  that  you  consider  it  would  be  necessary  to 
riprap. 

Counsel  for  Complainant.  I object  to  that. 

The  Court.  He  may  answer.  . , 

A.  Not  more  than  a mile,  or  very  little  over  a mile,  perhaps 
from  5,200  to  5,600  feet  might  need  rip-rapping.  I have  estimated 
tiie  cost  of  rip-rapping  that  much  of  the  bank. 

Q.  What  in  your  judgment  would  be  the  cost? 

Counsel  for  Complainant.  I will  ask  that  the  objection  be 
considered  as  to  each  one  of  these,  your  Honor? 

The  Court.  Yes,  he  may  answer. 

3840  A.  My  estimate  would  be  from  fifteen  to  possibly  eighteen 
thousand  dollars.  I would  estimate  the  cost  of  rip-rapping 

the  whole  bank  where  the  pool  would  rest  against  it,  from  the 
site  of  the  dam  up  to  Channahon,  from  about  forty  to  an  ex- 
treme forty-five  thousand  dollars.  That  would  be  about 

3841  20,000  feet.  This  at  the-  contract  price  of  $2.50  per  cubic 
yard,  as  made  in  the  contract  for  this  dam.  (Motion  by 

complainant  to  exclude  the  last  answer,  as  to  the  contract 
price.) 

(Witness  here  indicates  on  the  map,  ^‘Woerman  Exhibit  4,”  At- 
las, p.  3980;  Trans.,  p.  6634;  Abst.,  p.  1934,  the  portion  of  the 
canal  bank  on  which  the  pool  may  rest,  as  follows:  ‘^From  the 

point  on  the  ma23  entitled  ^Projiosed  dam  of  the  Economy  Light 
& Power  Company,’  ” following  the  line  of  canal  embankment,  the 
back  water  is  sent  up  against  the  canal  embankment  and  the  land 
adjacent  back  very  nearly  to  the  }ioint,  to  the  limit  shown  as  Chan- 
nahon; in  other  words,  the  small  dam  that  is  located  across  the 

DiiPage  Piver  near  the  Village  of  Channahon.) 

3842  The  only  |)ortion  that  I consider  it  necessary  to  rip-rap 

is  those  portions  that  would  be  more  directly  exjDosed  to 


1141 


the  current,  the  portions  adjacent  to  the  Desplaines  itself,  and 
such  points  where  the  river  or  the  backwater  from  the  dam  would 
be  close  to  the  embankment,  and  the  embanlanent  in  such  places 
would  not  be  protected  by  the  growth  of  trees  and  bushes;  that 
is  to  say,  there  is  some  places  that  are  protected  that  would  not 
be  necessary  to  rip-rap,  and  where  they  are  unprotected  it 

3843  would  or  might  be  desirable  to  rip-rap.  The  top  of  the  tow- 
path  bank  varies  in  height  in  relation  to  the  base  or  ground 

from  which  it  rises,  I should  think  at  the  lowest  it  is  eight  feet 
high,  and  is  perhaps  as  high  as  sixteen  feet  in  places.  That  is 
approximately.  None  of  the  work  of  rip-r.apping  was  completed 
at  the  time  the  injunction  was  ol)tained  in  this  case. 

Q.  Do  you  know  whether  or  not  after  the  injunction  was  ob- 
tained any  of  the  stone  that  had  been  deposited  there  on  the  bank 
for  riprapping  purposes  was  removed?  A.  I authorized  the 
contractor  to  take  the  stone  immediately  adjacent  to  the  coffer- 
dams and  place  them  on  the  coffer-dams  to  protect  the  coffer-dams 
during  the  winter.  I know  that  he  did  that,  and  a great  many 
of  the  stones  that  he  originally  placed  against  the  bank  were  so 
removed.  They  had  been  removed  prior  to  the  14th  of  April, 
1908. 

I don’t  think  there  would  be  any  other  source  of  injury  to 
the  towpath  bank  in  the  event  that  this  pool  should  be  raised 

3844  against  it  other  than  wave  wash.  I think  that  the  danger 
from  vermin,  musk-rats  or  crawfish  in  case  the  pool  were 

raised  against  this  bank  as  contemplated  would  be  rather  less  than 
otherwise,  on  account  of  the  less  exposure  of  the  bank. 

I do  not  think  there  would  be  any  danger  from  saturation  of 
this  bank,  if  the  pool  were  constructed  as  contemplated.  We  say 
a material  is  saturated  when  it  is  full  of  water.  Saturation  and 
stability  are  not  inconsistent,  assuming  you  have  a material  that 
is  durable  and  resists  water.  As  to  this  canal  bank  in  question 
so  far  as  saturation  is  concerned : — Those  parts  of  the  bank  below 
the  water  surface  on  a line  between  the  permanent  waters  in  the 
canal  and  river  would  become  saturated,  there  would  be  a 

3845  water  plane  established  approximately  on  a line  between 
those  two,  just  as  there  is  in  any  material  that  is  below  a 

water  surface.  The  flow  through  clay  and  gravel  is  exceedingly 


1142 


Mead, — Direct  Exam. — Continued. 


slow,  probably  not  more  than  a foot  per  year,  while  through 
gravel  it  is  very  rapid,  sometimes  going  as  fast  as  17  feet  in  a 
day.  The  material  of  this  bank,  is  similar  to  that  used  for  pud- 
dle, and  we  use  it  on  account  of  its  being  very  dense,  what  is 
called  impervious,  although  there  is  no  material  that  is  strictly 
impervious,  but  it  is  used  for  puddle  walls  and  for  lining  reser- 
voirs, because  it  keeps  the  water  from  flowing  out  rapidly. 

3846  Puddle  walls  are  sometimes  placed  in  embankments,  usually 
consisting  of  clay  base,  mixed  with  sand  and  gravel,  in  the 

better  classes  of  puddle  sometimes  worked  through  a pug  mill  or 
brick  mill.  I never  knew  of  a puddle  wall  being  built  in  a bank 
of  the  material  of  which  this  bank  is  composed. 

In  a general  way  I know  the  conditions  that  existed  at  the 
Adams  Dam  at  Joliet,  before  it  was  removed.  I know  the  condi- 
tions all  along  the  tow-path  at  Joliet. 

3847  The  slope  of  stability  is  the  slope  that  any  material  will 
take  without  sloughing  off,  or  rolling  off.  An  embankment 

along  a river,  as  it  becomes  saturated  in  the  spring,  or  becomes 
wet  through  the  rains,  will  slope  off  until  it  gradually  reaches 
the  stable  slope,  and  that  slope  it  retains,  barring  other  influ- 
ences which  sometimes  come  in,  it  gradually  adjusts  itself  more  or 
less.  The  tow-path  bank  near  Dresden  Heiglits  varies  somewhat 
at  different  places,  it  is  practically  about  two  to  one,  two  hori- 
zontal to  one  vertical.  In  material  of  this  character,  I think  it 
could  safely  be  placed  on  one  and  a half  to  one. 

3848  Q.  Is  there  at  that  point  at  Dresden  Heights  any  illus- 
tration of  the  fact  that  a slope  of  one  and  a half  to  one 

would  be  stable?  A.  The  Heights  themselves,  they  are  composed 
of  similar  material  to  that  in  the  levee.  The  towpath  levee  has 
assumed  its  normal  slope  since  the  canal  was  cut  through,  some 
50  years  or  more  ago.  The  banks  rising  from  the  canal  up  to 
the  heights,  the  top  of  the  bluffs,  in  places,  I should  judge,  are 
easily  one  to  one,  and  other  places  one  and  a half  to  one.  They 
assumed  this  slope  due  to  the  seepage  of  water  through  it  and  a 
gradual  adjustment  to  a line  that  would  stand  of  itself.  I should 
say  that  there  would  be  less  rather  than  more  danger  to  this  tow- 
path  above  the  dam  with  the  pool  existing  as  contemplated  from 
ice  gorges  or  jams  than  there  is  at  'the  present  time,  we  have 


1143 


less  current  above  the  dam,  due  to  the  pool.  The  water  is  backed 
from  the  dam  or  will  be  up  to  Lake  Joliet.  We  greatly  increase 
the  cross  section,  consequently  slow  down  the  current,  as  I 

3849  spoke  regarding  my  work  on  Sumas.  We  are  putting  in 
dams  there  for  that  purpose.  The  cross  section  of  a 

stream  is,  roughly  speaking,  its  width  multiplied  by  its  depth.  If 
the  water  is  raised  in  the  stream,  you  double  the  cross  section, 
and  consequently  diminish  the  current  by  one-half. 

The  building  of  the  dam  and  the  raising  of  the  pool  here 

3850  will  throw  the  current  out, — especially  during  flood  condi- 
tions, the  main  current  is  thrown  out  to  the  spillway.  It  is 

nearly  800  feet  to  the  spillway  from  the  embankment,  so  that 
the  current  that  is  not  running  in  the  channel  will  be  thrown  on 
the  other  side  of  the  river  and  nearly  800  feet  away  from  the 
embankment. 

I have  examined  the  inside  of  the  canal  bank.  It  has  been  rip- 
rapped  on  the  inside  to  about  the  water  surface.  The  rip-rapping 
was  discontinued  at  that  point  and  has  left  a berm  that  varies  from 
two  or  three  to  five  or  six  feet  in  width.  That  is  just  above  the 
level  of  the  water.  Sometimes  it  is  above,  sometimes  it  is  below, 
depending  on  the  amount  of  water  in  the  canal.  This  part  of  the 
work  was  not  done  by  the  Economy  Light  & Power  Company, — 
I suppose  it  was  the  original  construction,  at  least  it  has  been 
put  there  by  the  canal  authorities.  Neither  the  Economy  Light 
& Power  Company,  nor  I for  them,  have  encroached  on  the 

3851  navigable  waters  of  the  canal,  not  on  the  canal  prism, 
proper.  We  have  done  some  rip-rapping;  beginning  at  this 

bench,  we  have  carried  that  slope  out  to  the — not  part  of  the 
canal ; we  have  simply  carried  it  up  to  the  height  to  which  the 
towpath  is  to  be  raised.  We  have  not  rip-rapped  in  the  naviga- 
ble waters,  simply  upon  that  bench  and  up  above.  It  lies  on  the 
old  rip-rapping  and  continues  it  on  the  same  slope.  We  have 
prolonged  the  original  slope  of  the  canal,  simply  brought  it  up 
to  the  top  of  the  towpath.  I do  not  think  there  was  ever 

3852  any  rip-rapping  in  the  canal  above  the  water’s  edge.  We 
filled  the  bench  above  the  water  in  the  canal  which  varies 
from  perhaps  dwo  feet  in  some  places  where  it  is  narrow 

3853  to  perhaps  five  or  six  feet  in  others.  In  some  places  the 
water  had  evidently  eaten  away  a small  portion,  in  other 


1144  Mead, — Direct  Exam. — Continued. 

words,  it  simply  means  that  riprapping  had  stopped  at  that 
place. 

3854  I know  where  the  old  aquednct  pillars  are. 

Q.  Do  you  know  what  the  condition  of  the  pillars  is,  the 
stone  pillars  or  piers! 

Counsel,  for  Complainant.  I object  as  totally  immaterial 
what  the  condition  is. 

The  Court.  You  may  answer. 

A.  The  piers  and  pedestals  and  abutments  are  very  much  de- 
cayed, and  some  of  them  are  tipped,  not  in  any  condition  for  any 
practical  use  at  the  present  time. 

Q.  Would  it  be  possible  without  the  use  of  an  aqueduct  on 
piers  to  convey  water  from  the  Kankakee  feeder  to  the  canal 
in  case  the  pool  were  established  as  contemplated! 

(Objection;  overruled;  exception.) 

A.  It  would  be  possible  by  what  we  term  an  inverted  siphon.  I 
have  given  special  study  to  that  work  of  conveying  water  through 
pipes,  it  is  part  of  the  subject  upon  which  I have  made  some 

3855  publication.  Assuming  the  low  water  discharge  of  the  Kan- 
kakee Kiver  is  30,000  cubic  feet  a minute,  it  would  be  possi- 
ble to  construct  an  inverted  siphon  that  would  take  the  entire  low 
water  of  the  Kankakee  Elver  to  the  Illinois  and  Michigan  Canal. 
The  dimensions  of  such  a pipe  would  depend  upon  the  difference 
in  heads  which  you  would  allow  between  the  two  sides.  A ten 
foot  pipe  with  a fill  of  say  eight  inches  for  400  feet  would  carry 
away  very  readily  500  second  feet,  or  30,000  cubic  feet  per  min- 
ute. Assuming  that  it  was  desired  to  carry  through  the  Kanka- 
kee feeder  sufficient  water  for  navigation  in  that  feeder,  and  that 
there  was  to  he  water  enough  to  give  lockage  every  twenty  min- 
utes, I should  judge  that  every  twenty  minutes  would  be  about 
time  to  pass  a boat  through.  It  would  be  necessary  to  carry 

about  a thousand  feet  a minute,  or  about  17  or  18  feet  a sec- 

3856  ond.  A pipe  three  or  four  feet  in  diameter  would  readily 
accomodate  it.  Six  feet  would  accommodate  the  water  with 

a fall  of  not  more  than  an  inch  in  400  feet,  and  give  a velocity 
of  about  two  feet  a second,  and  two  feet  a second  would  mean  a 
discharge  of  about  54  cubic  feet  a second  in  a six  foot  pipe,  which 


1145 


would  be  about  3,000  cubic  feet  per  minute,  or  about  three  times 
the  amount  that  would  ordinarily  be  needed  for  lockage. 

(Motion  by  complainant  to  strike  out  the  last  question  and 
answer  for  immaterialty ; denied;  exception.) 

3859  Q.  What  will  be  the  cost  of  the  inverted  siphon  of  six 
feet  that  you  have  last  described?  A.  I would  estimate  it 

about  $15,000. 

The  Court.  Your  objection  stands  to  this  whole  line,  Mr. 
Reeves. 

Counsel  for  Defendant.  How  much? 

A.  About  $15,000. 

Q.  How  would  that  compare  with  the  cost  of  carrying  the 
aqueduct  across  the  river? 

(Objection;  overruled;  exception.) 

A.  I have  made  no  careful  estimate  of  the  cost  of  an  aqueduct, 
but  my  opinion  would  be  from  one-third  to  one-half  the  cost  of 
the  aqueduct. 

Counsel  for  Complainant.  I ask  to  have  that  answer  stricken 
out  because  the  witness  says  he  has  made  no  calculation. 

The  Court.  No  careful  estimate. 

Counsel  for  Complainant.  On  that  basis  I move  to  strike  it 
out,  because  we  cannot — we  want  him  to  be  very  careful  on  these 
things. 

The  Court.  It  may  stand  for  what  it  is  worth. 

3860  Q.  Could  this  pool  exist  and  still  admit  of  the  passage 
of  boats  from  the  Kankakee  River  through  the  feeder  to  the 

Illinois  and  Michigan  Canal. 

(Objection;  overruled;  exception.) 

3861  A.  It  could,  by  means  of  locks.  (Objection.)  By  a lock  on 
either  side  of  the  river,  one  of  which  would  let  the  boat 

down  into  the  pool,  and  the  other  would  raise  it  into  the  feeder. 
The  existence  I suppose  would  not  interfere  with  the  possibility 
of  that  pool  and  those  locks  for  actual  navigation. 

Q.  It  has  been  testified  that  under  modern  practice,  dams 
for  navigation  purposes  are  put  at  the  foot  of  rapids,  and  that 


1146 


Mead, — Direct  Exam. — Continued. 


if  this  dam  were  constructed  it  would  be  in  the  way  of  a deep 
water  way.  What  is  your  opinion  to  that,  Mr.  Mead? 

(Objected  to  as  improper;  overruled;  exception.) 

3862  A.  Under  most  conditions  the  location  of  a navigation 
dam  would  be  at  the  foot  of  the  rapids,  but  the  conditions  ex- 
isting would  be  a point  that  would  have  to  be  carefully  considered, 
and  in  the  present  condition,  I do  not  believe  a dam  at  the  lower 
end  of  the  rapids  would  be  a proper  one  for  power  or  naviga- 
tion purposes.  The  conditions  at  and  above  the  junction  of  the 
Desplaines  and  Kankakee  make  it  impossible  to  build  a dam  at 
the  lower  site  without  flooding  a great  deal  of  land.  Tiiley’s 
ih'eek,  for  example,  about  two  miles  above  the  location  of  the 
present  dam,  drains  a considerable  territory,  and  in  order  to 
avoid  flooding  the  territory  with  the  present  dam  we  are  con- 
structing a cut-off  behind  our  southern  levee,  and  bringing  Kiley’s 
Creek  and  its  flood  waters  down  and  discharging  them  below  the 
dam  into  the  Kankakee.  If  the  dam  were  a mile  and  a half  be- 
low the  present  site,  that  would  not  be  possible,  and  it  would 
necessarily  'flood  Riley’s  Creek  Valley  and  certain  low  lands 
along  the  Kankakee.  We  will  flood  about  1,500  acres  of  land 
if  we  raise  the  river  to  the  proposed  level.  We  would  also  have  to 

control  the  flood  waters  of  the  Kankakee,  which  have  a drain- 

3863  age  area  of  about  four  times  the  Desplaines.  The  floods  might 
be  controlled  by  an  adjustable  dam,  or  navigation  dam,  but  not 

by  a water-power  dam,  as  the  water-power  would  be  destroyed  in 
time  of  high  water.  The  1,500  acres  that  would  be  flooded  include 
farm  houses,  farms,  and  improvements  of  considerable  importance. 

Cross-Examination. 

3864  I planned  the  dam  that  the  defendants  are  building.  jMucli 
of  my  work  was  done  b}^  assistants,  but  I have  examined  the 
entire  locality  and  all  the  details.  The  bottom  of  the  river 

3865  is  very  irregular,  I should  say  that  an  average  of  23  or  24 
feet  of  the  dam  is  to  be  built  above  the  bottom  of  the  Des- 

])laines  River.  It  would  raise  the  water  surface  at  low  water 
about  16  feet.  Before  our  coffer-dam  was  put  in,  the  Desplaines 
was  four  or  five  feet  deep  at  this  place  at  the  low  water  stage. 
The  water  was  very  rapid  and  had  considerable  depth.  The  top 


1147 


of  the  dam  is  about  five  feet  below  the  wmter  level  in  the  Illinois 
and  Michigan  Canal, — the  water  in  the  canal  is  about  five  feet 
deep,  so  the  bottom  of  the  canal  and  the  top  of  the  dam  would 
be  about  the  same  height.  Under  flood  conditions,  it  would  be 
desirable  to  have  the  top  of  the  towpath  bank  raised  at  least 
two  feet.  Part  of  that  work  has  been  done,  we  have  raised 
3868  it  some.  The  stone  used  for  the  protection  of  the  coffer 
dam  was  some  spoil  or  waste  that  I had  given  the  con- 
tractor permission  to  dump  on  the  canal  bank.  About  the  time 
the  temporary  injunction  was  issued  some  flood  water  came  down 
and  partially  destroyed  the  coffer  dam,  and  permission  was  given 
by  the  court  and  consented  to  by  counsel  to  protect  what  had  been 
there  until  this  suit  was  tried. 

3870  There  is  a dam  across  the  Oswego  liiver,  which  attaches  to 
the  bank  of  the  Syracuse  and  Oswego  branch  of  the  Erie 
Canal,  a branch  about  thirty  miles  long.  As  I remember, 

3871  the  tow-path  in  places  runs  through  Trenton  Rock,  Trenton 
Limestone.  There  may  be  rock  in  the  lower  part  of  that 

embankment,  I know  there  is  in  a good  many  places  along  there. 
My  recollection  is  that  the  tow-path  sets  up  three  or  four  feet 
above  the^water  in  the  canal  there,  and  that  the  canal  prior 

3872  to  this  present  construction  had  some  four  or  five  feet  in 
depth  of  water  there.  I would  not  undertake  to  go  into 

details  in  regard  to  the  slope  of  the  bank  on  the  river  side  where 
this  dam  attaches.  I really  would  not  wish  to  be  understood  as 
saying  that  the  conditions  at  Channahon  were  duplicated,  I simply 
remember  it  as  a condition  somewhat  similar, — a place  where  the 
river  and  the  canal  are  contiguous.  Considerable  rock  has  been 
used  in  the  embankment  there. 

3873  Through  the  village  of  Fulton  itself,  the  canal  above  the 
lower  dam  and  below  what  is  known  as  Oswego  Falls  runs 

along  against  the  lower  pool,  the  canal  being  on  one  side  of 
the  bank,  and  the  river  being  on  the  other.  The  bank  there  is 
in  my  recollection,  the  ordinary  depth,  with  a width  of  about  12 
feet.  I should  think  that  the  bank  had  more  or  less  stone  in  it, 
because  there  is  a great  deal  of  stone  available  there  at  Fulton 
in  the  bed  of  the  stream.  The  only  places  that  I have  mentioned 
that  resemble  the  situation  down  here  at  the  dam  of  the  defend- 


1148 


M ead, — C ross-Exam. — C ontinued. 


ant,  are  at  Meredosia  and  Constantine.  There  are  others  T 
might  mention  that  I have  a little  better  knowledge  of  than  the 
ones  I have  just  been  questioned  about.  The  Meredosia 

3874  Slough  is  a mile  and  a half  or  two  miles  below  Albany  on 
the  east  side  of  the  Mississippi  Eiver,  on  the  Illinois  side. 

The  eight  thousand  acres  reclaimed  did  not  constitute  the  bed 
of  the  slough.  The  slough  ran  through  the  center  of  the  district, 
and  during  high  water  in  the  Mississippi,  the  slough  flooded  and 
overflowed  valuable  farm  land.  It  is  perhaps  ten  miles  between 
the  Mississippi  and  Eock  Eivers  here,  and  there  was  another 

3875  district  on  the  Eock  Eiver  side.  The  part  that  I had  to  do 
with  does  not  extend  to  the  Eock  Eiver,  although  there  are 

times  when  this  Meredosia  Slough”  did  extend  from  the  Missis- 
sippi to  the  Eock  Eiver,  and  the  waters  of  the  Mississippi  would 
flow  through,  and  in  times  of  high  water  in  the  Eock,  the 

3876  water  has  been  known  to  pass  the  other  way.  A great 
deal  of  the  upper  land  in  the  district  was  fine  farming  land 

whenever  the  river  did  not  rise  high  enough  to  over-flood  it,  but 
they  were  kept  sour  by  the  water  coming  up  in  the  spring.  The 
bottom  lands  were  marsh.  I was  called  on  to  protect  that  8,000 
acres  of  land  from  flood,  and  my  work  consisted  of  building  a 
levee  along  the  Mississippi  side,  and  also  a levee  at  the  upper 
part  across  the  channel,  about  half  way  between  the  Mississippi 
and  the  Eock,  also  placing  conduits  through  the  levee  at  the  mouth 
of  the  slough  that  could  be  closed  at  high  water,  and  during  low 
water  would  let  the  water  out  by  gravity;  also  construct- 

3877  ing  a pumping  plant  to  pump  the  flood  water  from  the  dis- 
trict when  the  river  was  high.  The  slough  proper  was 

about  three  or  four  hundred  acres  that  were  flooded  and  really 
reserved  as  a reservoir  to  take  the  storm  flows  of  the  district. 

On  the  land  side  of  the  levee,  the  rain-water  sometimes  ac- 
3879  cumulates  faster  than  we  can  pump  it  out  with  the  pumps 
provided,  and  fills  the  slough  up  six  or  eight  feet  behind  the 
levee.  The  high  land,  all  the  land  outside  the  slough,  is  kept  from 
overflowing  by  our  pumping  that  water  out  of  the  slough,  and  pre- 
venting the  water  from  the  Mississippi  from  getting  in.  A very 
small  percentage  comes  through  and  under  the  bank.  The  rain- 
water that  falls  directly  on  this  and  what  comes  in  under  this 
surface,  and  under  that  bank,  is  what  constitutes  the  water  that 


1149 


is  found  there,  on  the  land  side  of  the  levee.  The  levee 

3880  we  built  is  about  a mile  and  a half  long.  It  varies  in  width 
at  the  bottom,  and  is  about  eight  feet  wide  on  top.  It  is 

brought  up  two  or  three  feet  above  the  high  water  flow.  At  the 
Meredosia  itself  it  is  about  22  or  23  feet  in  height.  The  bank  has 
not  failed  at  any  time  so  that  we  have  had  to  rebuild  it.  We  had 
the  river  on  one  side,  and  a slough  on  the  land  side,  and  there  is 
low  land  under  it,  of  course.  There  was  no  power-plant  there 
to  create  power  for  commercial  purposes,  only  a pumping 

3881  plant.  It  was  only  a real  estate  piece  of  work,  no  canal,  or 
towpath  or  anything  of  that  kind. 

At  Constantine,  there  was  a bank  between  the  head  race  and 
the  river.  The  head  race  was  quite  good  sized,  was  built  for  2,000 
feet  a second.  It  went  from  the  head  race  up  at  the  dam  down 
to  the  power-house  about  2,000  feet  below,  and  after  passing 
through  the  power-plant,  went  into  the  tail  race  and  into  the 
river.  This  embankment  ran  lengthwise  with  the  river, 

3882  between  the  river  on  one  side  and  the  head  race  on  the 
other.  This  embankment  is  quite  narrow,  on  top  I should 

say  it  is  six  or  eight  feet,  with  a slope  on  the  river  side  of  about 
one  and  a half  to  one.  There  is  no  rock  in  the  embankment.  The 
water  on  the  river  side  against  this  bank  in  ordinary  conditions 
is  in  low  water  2 or  3 feet  deep,  and  in  high  water  probably  6 or 
7 feet  deep.  On  the  race  side  it  is  about  six  or  seven  feet 

3883  deep.  The  water  is  higher  in  the  race  than  in  the  river.  This 
bank  is  about  7 or  8 feet  above  the  water  in  the  race,  and 

the  bank  on  the  race  side  about  12  or  14  feet  wide  from  the  race 
bottom.  It  is  embankment  on  both  sides  at  least  part  of  the  way, 
and  built  on  a low  stretch  of  land.  The  earthen  embankment  or 
wall,  commencing  way  down  by  the  power-house,  was  built  up 
along  the  side  of  the  river  to  a point  where  the  river  was  higher 
than  the  power-plant,  and  some  of  the  water  diverted  into  the 
channel.  This  race  was  some  40  or  50  feet  wide.  The  river  on 
the  other  side  was  lower  than  the  bottom  of  the  race  and  the 
farther  you  went  down  towards  the  power-house,  the  lower  it 
became,  relatively,  so  that  in  low  water  the  river  only  came 
3886  up  to  this  bank  two  or  three  feet.  In  high  water,  it  came 
up  six  or  seven  feet.  In  low  water,  the  bank  was  seven  or 


1150 


M ecid, — Cross-Ex  a m . — C on  tin  iiecl. 


eight  feet  above  the  water  in  the  race,  and  in  high  water,  the 
water  came  np  to  within  two  or  three  feet  of  the  top.  This  race 
embankment  was  built  so  much  higher  above  ordinary  water  so 
that  when  floods  came  it  would  not  be  overflowed.  The  current 
in  the  race  was  in  the  entire  cross  section ; also  in  the  river.  The 
current  in  the  river  was  quite  rapid  on  the  bottom.  The  actual 
channel  of  the  river  was  about  250  feet  wide,  and  the  depth  in 
low  water  not  more  than  2 or  3 feet.  In  high  water  it  was 
3887  six  or  seven  feet.  I don’t  think  there  is  any  stone  in  this 
bank,  just  an  earthen  bank.  I think  it  has  stood  there  more 
than  fifty  years.  On  the  lower  slope  on  the  outside  of  the  em- 
bankment it  has  been  rip-rapped.  There  is  no  rip-rap  on  the  in- 
side. I never  have  seen  or  heard  of  any  navigation  on  the  race. 
It  was  not  constructed  for  any  purpose  of  that  kind.  I examined 
this  plant,  and  found  it  in  bad  condition.  They  built  the  plant 
on  a marl  foundation,  and  if  they  had  let  the  water  into  the  race 
in  that  condition,  it  would  simply  have  gone  under  and  destroyed 
the  power-house.  This  bad  condition  was  due  to  bad  material  and 
bad  engineering. 

3889  There  are  no  plans  for  rip-rapping  the  bank,  in  the  way  of 
drawings,  for  rip-rapping  the  bank  or  towpath  of  the  canal 
in  the  plans  that  I made  for  the  dam  of  the  defendant  company  on 
the  Desplaines  River.  We  did  build  a little  wall  or  embankment 
constituting  a part  of  this  dam,  of  earth,  which  connects  with  the 
towpath  bank  of  the  canal.  I made  specifications  for  rip-rapping 
that  embankment.  ‘‘Exhibit  F”  is  a specification  that  refers 
to  that  earth  embankment.  (After  argument,  tlie  offer  of  said 
- document  in  connection  with  this  examination  was  reserved 

3891  until  the  recall  of  the  witness,  Lyman  E.  Cooley.) 

3892  The  dam  in  the  Rock  River,  at  the  head  of  the  feeder  of 
the  Hennepin  Canal,  was  simply  a dam  across  the  river  to 
back  up  the  water  to  let  it  into  the  feeder. 

3893  On  direct  examination,  I said  that  in  my  judgment,  there 
would  be  less  danger  on  account  of  muskrats  and  other 

vermin  in  this  towpath,  if  the  water  was  raised  on  the  other  side  of 
it  than  there  is  at  the  present  time,  simply  because  the  effect 
would  be  practically  in  proportion  to  the  exposed  banks.  I 
3891  have  been  informed  that  they  have  occasionally  had  trouble 


1151 


with  the  canal  bank,  in  having  to  make  repairs  on  it  where 
it  has  given  away. 

3895  Saturation  of  a bank  would  have  its  effect,  dei)ending  upon 
’ a great  many  conditions.  I would  not  say  tliat  a wet  hank 

was  any  stronger  than  a dry  one,  and  it  might,  if  the  conditions 
were  favorable,  be  no  weaker;  there  would  be  a tendency  in  any 
moist  bank  to  weaken  it  as  a general  proposition.  A good  many 
materials,  if  wet,  would  be  absolutely  valueless  as  a bank; 

3896  they  would  simply  slough  down.  I can  conceive  conditions, 
where  vertical  cement  walls,  the  bottom  not  being  sus- 
tained by  lateral  support,  resting  on  a clay  foundation,  and  where 
the  clay  becomes  soaked  with  the  water,  that  the  wall  would  slip 
and  break  down.  If  in  a ditch  three  feet  wide  a cement  wall  a foot 
wide  was  built,  a wall  eight  feet  high,  with  water  flowing  in  the 
ditch  on  the  outside  so  as  to  soak  the  bottom  of  it,  the  wall  gave 
way  and  slipped  17  inches,  I would  attribute  it  to  the  clay  be- 
coming moist,  saturated  and  slippery  and  no  sufficient  bond  be- 
tween the  concrete,  so  that  it  easily  slides. 

3898  Q.  Then,  professor,  is  it  not  true  that  if  you  take  a 
bank  made  of  stone,  even  cement,  and  place  it  upon  a 
foundation  of  that  kind  and  let  it  come  through  wet,  such  a 
wetting  as  a bank  would  receive  with  water  nearly  up  to  its  toj) 
on  both  sides  of  it,  is  there  not  danger  of  it  slipping  and  moving, 
unless  it  is  absolutely  bound?  A.  You  refer  in  your  question  to 
the  concrete? 

Q.  No.  I mean  any  kind  of  a bank.  Clay  bank  or  any  other 
kind  of  a bank  that  is  permitted  to  be  saturated?  A.  For  water 
to  get  into  a plane  that  would  allow  slipping  it  would  easily  take 
place. 

3900  There  were  some  defects  on  the  canal  side  that,  I think,  are 
probably  due  to  wave  wash.  Each  body  of  water,  where  it 
is  big  enough  to  have  a wave  on  it,  either  caused  by  a boat  pass- 
ing through  or  by  the  wind,  in  time  creates  what  is  called  a wave 
berm.  Take  an  earth  bank  18  or  20  feet  high  and  put  a pool  of 
water  on  it  such  as  will  be  formed  by  this  dam,  a pool  two  or 
three  hundred  feet  wide,  and  rip-rap  it,  in  the  ordinary  sense  of  the 
term  rip-rapping,  and  let  it  stand  for  half  a dozen  or  ten  years, 
and  add  to  that  condition  boats  passing  through  this  waterway 


1152  , Mead, — Cross-Exam. — Continued. 

that  would  cause  a big  wave  to  come  to  the  side  of  it,  if  nothing 
is  done  with  it,  this  condition  will  in  time  break  it  down,  and  tear 
out  the  rip-rapping.  With  no  maintenance,  I think  it  might, 
3901  depending,  of  course,  on  the  size  of  the  waves,  and  a great 
many  matters  of  that  sort. 

Eef erring  to  the  location  of  the  proposed  dam  of  the  defendant; 
for  navigation  purposes  I think  a dam  should  be  placed  at  the 
bottom  of  the  rapids.  Not  necessarily  for  power  purposes.  The 
foot  of  the  rapids  is  about  a mile  and  a half  below  the  site  of  the 
proposed  dam.  I think  there  is  about  two  feet  fall,  or  two  and  a 
half,  between  the  two  points.  Easy  navigation  in  the  event  of  a 
deep  water  canal  being  formed  there  would  not  necessarily  re- 
quire a dam  at  the  foot  of  the  rapids.  It  would  require  a dam  to 
create  slack  water  navigation.  The  dam  might  be  located  at  the 
upper,  at  the  foot  of  the  rapids,  or  some  other  point  farther  down 
the  stream.  The  location  of  another  dam,  having  in  mind  easy 
and  proper  navigation,  would  be  to  flood  back  and  get  slack  water 
navigation  on  the  rapids.  A dam  would  have  to  be  built  for  slack 
water  navigation  at  some  point  there,  together  with  excavations 
in  the  channel  that  would  allow  boats  to  approach  the  upper  locks. 
If  this  dam  that  is  proposed  to  be  constructed  was  not  constructed 
and  a deep  water  navigation  was  required,  the  dam  at  the  foot  of 
the  rapids  or  near  there  would  form  a pool  that  would  destroy 
these  rapids  entirely,  clear  back  to  Treat’s  Island.  If  a dam 

3903  were  placed  at  the  foot  of  the  rapids  and  this  dam  were  con- 
structed with  a lock  in  each,  it  would  require  two  locks,  and 

two  lockages. 

Re-direct  Examination. 

Assuming  that  the  Economy  Dam  is  built  where  it  is  contem- 
jilated,  it  would  not  be  necessary  that  the  next  dam  should  be  at 
the  foot  of  the  rapids,  for  the  purpose  of  deep  navigation.  I do 
not  know  how  far  below  it  would  be  possible  to  go.  I have  not 
given  that  subject  attention. 

3904  Assuming  that  this  contemplated  pool  were  created,  and 
that  there  was  navigation  by  big  boats,  that  would  make 

waves  which  might  break  down  the  bank  in  time  if  nothing  were 
done  to  it;  it  would  be  possible  to  maintain  it  so  that  that  result 


115?> 


would  not  follow,  and  there  would  not  be  difficulty  in  so  main- 
taining it. 

Counsel  for  Complainant.  Mr.  Scott,  I have  one  item  that 
slipped  my  eye.  May  I ask  him  about  it  now? 

Counsel  for  Defendant.  If  you  prefer,  you  may  do  so. 

Further  Cross-Examination. 

3905  In  estimating  the  cost  of  riprapping  this  canal  bank,  I 
took  into  account  simply  the  side  of  the  bank  next  to  the 
river,  not  on  top  of  the  towpath  or  on  the  canal  side.  In  the 
portion  that  I regarded  it  desirable  to  riprap,  I took  a strip  33^ 
feet  up  on  the  incline.  That  would  be  3.7  cubic  yards  of  rip-rap- 
ping to  every  yard  in  length.  The  cost  of  the  rip-rapping  I esti- 
mated at  $2.50  per  cubic  yard,  or  $3.10  per  lineal  foot,  which  would 
be  about  $16,000  per  mile.  The  basis  of  my  estimate  for  that 
cost  I got  from  the  contract  price  named  by  Mr.  Heyworth. 
3909  That  is  the  price  he  is  receiving  for  that  kind  of  work  he 
has  done. 


Be-direct  Examination  Continued. 

There  is  no  necessity  for  paving  or  rip-rapping  the  bank 
3910  on  top.  I said  on  cross-examination  that  if  the  water  would 
get  into  a plane  that  would  allow  sloughing,  that  would  nat- 
urally take  place.  There  is  no  danger  of  any  such  result  in  this 
bank,  as  I know  it.  No  new  clay  is  contemplated  to  be  put  on 
the  inside  of  this  bank.  A bank  which  has  stood  for  60  years  is 
much  more  stable  than  a new  one — it  has  got  settled  and  com- 
pact. 

The  bank  at  Constantine  leads  down  to  a mill,  a hydro-electric 
plant,  furnishing  electric  light  and  power  to  Constantine  and  Three 
Rivers,  16  or  18  miles  away.  In  the  Meredosia  Slough  there  is 
about  16,000  acres  draining  into  this  slough.  The  district  itself 
is  8,000  acres,  and  there  is  about  as  much  more  which  receives  the 
rainfall. 


1154 


W.  H.  Whislee, 

a witness  for  the  defendant,  testified  as  follows: 

Direct  Examination. 

3911  My  name  is  W.  H.  Whisler;  I am  a steamboat  man.  I 
have  traveled  on  the  river  all  my  life.  I have  had  a license 
since  1870,  and  before  I had  a license  I floated  logs  and  lumber. 
My  experience  has  all  been  on  the  Mississippi.  I first  commenced 
pulling  oars,  floating  lumber,  in  1865,  from  the  mouth  of  the  Chip- 
pewa, and  went  to  Lyons  Island.  After  that,  we  floated  in  dif- 
ferent places  through  to  St.  Louis  and  different  points  on  the 
river  till  we  got  to  using  small  boats,  then  larger  boats,  running 
without  oars.  Then  we  got  to  running  double  rafts  and  using 

3913  the  bowboats.  The  largest  raft  I have  ever  run  was  290 
feet  wide,  1,422  feet  long.  My  first  license  was  for  pilot  in 

1870.  Three  years  later  I got  a license  for  master  and  pilot.  I 
ran  second  pilot  for  three  or  four  years,  then  I got  to  be  master. 
The  first  boat  I run  on  was  a little  side-wheeler,  then  a small 
stern-wheel,  and  then  larger  boats.  I took  out  the  steamer  Dayton, 
130  feet  wide,  30  foot  beam  and  about  150  feet  long  over  all,  in 
1881,  running  her  eleven  years.  Then  they  built  a new  boat,  and 
I run  her  for  the  last  year.  She  was  137  feet  long  with  32  foot 
beam.  We  were  in  the  rafting  business.  During  the  last 

3914  year  I have  been  running  the  Steamer  Weyerhauser,  a jjleas- 
ure  boat,  142  feet  long  and  33  foot  beam.  I have  been 

familiar  with  navigation  on  the  Mississippi  since  about  1865.  The 
fartherest  run  I have  been  was  from  St.  Paul  or  Stillwater  to 
Memphis,  on  floating  rafts,  but  most  of  my  runs  have  been  to  St. 
Louis,  Albany  and  a great  deal  to  Keokuk  and  Hannibal. 

3915  But  for  the  last  three  or  four  years  to  Pock  Island.  I have 
been  generally  familiar  with  navigation  as  it  is  carried  on 

in  the  Mississippi  between  the  points  mentioned  since  1865. 

I have  seen  the  Desplaines  Eiver  twice,  from  the  shore.  The 
first  time  was  six  weeks  ago  last  Sunday — I went  from  Joliet  to 
Treat’s  Island.  I went  down  again  this  morning,  from 
.3916  Joliet  to  the  mouth  of  the  river.  I went  up  with  an  auto., 
and  stopped  at  different  places.  AVe  crossed  the  river  sev- 
eral times  on  the  first  trip;  only  once  yesterday,  that  at  the  first 
bridge  below  Joliet.  I am  familiar  with  the  Bock  Island  Bapids 


1155 


in  the  Mississippi,  and  have  done  a little  warping  and  cordelling 
of  boats.  I understand  the  process. 

3917  The  Desplaines  is  very  swift,  swifter  than  any  water  we 
have  on  the  Eock  Island  Eapids;  very  much  narrower;  it 

looks  to  me  like  there  is  a good  many  boulders  or  rocks  on  the 
bottom;  I don’t  know  what  they  are.  When  you  go  to  the  rapids, 
I can  tell  you  what  they  are,  but  I have  not  been  on  the 

3918  water  of  the  Desplaines.  I think  there  are  boulders  in  the 
Desplaines  because  wherever  the  big  falls  are  there  is  a big 

break  in  the  water. 

Q.  From  your  observation  or  examination  of  the  Desplaines 
river,  I will  ask  you  whether,  in  your  opinion,  that  stream  from 
Joliet  to  the  Illinois  Eiver  is,  or  is  not,  a navigable  river  f 

(Objection;  overruled;  exception.) 

I don’t  think  it  is  navigable.  I would  say  it  is  not  navigable, 
by  any  means.  It  is  too  narrow,  too  swift.  I don’t  think  you  could 
take  any  kind  of  a boat  safe. 

Q.  Do  you  think  it  would  be  possible  to  carry  on  profitable 
commerce  in  any  kind  of  a boat  on  that  river  between  Joliet  and 
its  mouth? 

(Objection;  overruled;  exception.) 

I don’t  think  so.  I don’t  think  it  is  possible. 

C ross-Exa  mi  n a ti  o n. 

3919  In  taking  logs  down  the  Mississippi,  we  fioated  them. 
When  we  got  in  still  water,  we  had  to  have  boats  to  shove  us 

between  Lake  St.  Croix  and  Lake  Pippin.  Most  of  my  work  was 
from  the  foot  of  Lake  Pippin  to  Eock  Island.  I was  pulling 

3920  an  oar,  for  guidance  of  rafts,  in  1867.  I have  seen  the  Mis- 
sissippi when  it  was  very  difficult  to  navigate.  I have  taken 

different  length  boats  up  and  down  the  (Moline)  ra]uds — from  132 
to  142  feet  long,  32  feet  wide,  and  from  180  to  216  tonnage.  I do 
not  know  what  the  fall  is  at  the  Moline  Eapids.  But  take  it  at 
Moline  Chain,  Duck  Creek  Chain,  Campbell’s  Chain,  Sycamore 
Chain  and  Cabin  Chain,  is  the  heaviest  chain.  I think  the  Moline 
Chain  they  claim  for  six  miles  there  or  about  two  miles,  it  is  six 
feet  or  something;  I have  heard  that  said.  I do  not  know  any- 


1156  Whistler, — Cross-Exam. — Continued. 

thing  about  the  navigation  of  the  Snake  Eiver;  never  heard 

3922  of  the  navigation  on  that  river  and  over  rapids  that  are  six- 
teen feet  fall  to  the  mile.  If  they  do  navigate  rivers  of  that 

much  fall  it  is  a kind  of  navigation  with  which  I am  not  familiar. 

I would  not  say  that  they  could  not  do  it ; I would  mot  want  to  try 
anything  of  that  kind.  From  my  experience  I would  think  it  was 
impossible.  I do  not  know  anything  about  navigating  rivers 

3923  that  have  a fall  of  25  feet  to  the  mile.  I think  the  Desplaines 
is  too  narrow  for  navigation.  The  narrowest  place  on  the 

Mississippi  where  I have  navigated  it,  the  channel  was  supposed 
to  be  200  feet  wide.  That  is  the  rapids  between  Rock  Island  and 
LeClair,  on  the  different  chains,  where  they  have  dredged  out. 
The  water  there  must  be  half  a mile  wide.  The  Desplaines  looks 
pretty  small  to  me  after  having  had  that  kind  of  experience. 

3924  I do  not  know  of  any  place  where  they  are  navigating 
rivers  not  over  40  to  30  feet  wide.  I have  never  been  on  any 

of  those  little  rivers.  I have  never  passed  through  Crooked  Eiver, 
the  little  stretch  of  lakes  down  to  Cheboygan  Eiver,  near  Petos- 
key,  Michigan.  It  is  possible  to  navigate  a river  30  feet  wide, 
crooked,  so  much  so  that  it  bears  that  name,  by  boats  75  to  100 
feet  long,  depending  on  the  depth  of  the  water  and  swiftness  of  the 
current.  If  the  water  was  24  feet  deep,  I don’t  know  what  you 
would  take  over  her.  You  couldn’t  handle  a boat  unless  you  would 
drop  a line.  We  don’t  handle  that  light  draught  boats.  My  ex- 
perience is  on  a river  that  draws  more  water  than  that.  My  ob- 
jection to  the  Desplaines  is  that  the  current  is  too  swift  and  the 
stream  too  narrow — that  is  why  I think  it  is  not  navigable. 
3926  I have  seen  the  Desplaines  twice.  The  first  time  it  was  a 
wet,  rainy  day,  and  we  went  to  Treat’s  Island,  I think  about 
12  miles.  We  crossed  the  river  three  or  four  times,  got  out  and 
looked  at  the  river  at  several  places,  and  from  the  bridges. 

Re-direct  Examination. 

3928  The  road  runs  along  close  to  the  river — we  saw  the  river 
from  the  road  as  we  went  down. 

3929  Q.  I will  ask  you  whether  or  not  the  obstructions  which 
you  mentioned  in  the  river  would  have  any  effect  upon  its 

navigability? 

(Objection;  overruled;  exception.) 


1157 


A.  It  has. 

Q.  Has  the  velocity  of  the  water  anything  to  do  with  the  navi- 
gability of  a narrow  stream? 

(Objection;  overruled;  exception.) 

A.  It  has;  in  the  swift  water  in  the  whirls  and  rapids  it  is 
5930  impossible  to  handle  a boat,  and  if  the  boulders  are  in  the 
channel  you  cannot  sway  from  side  to  side  and  get  your  boat 
safely  through.  For  instance,  in  low  water,  with  a boat  drawing 
three  feet,  and  there  is  Imt  four  feet  of  water,  her  rudder  is 
3931  close  to  tlie  bottom  and  won’t  take  effect;  she  will  run  away 
from  you,  will  go  from  one  side  of  the  river  to  the  other; 
she  will  go  to  the  rocks,  and  you  have  got  to  back  up  a hundred 
yards  or  two  to  get  her  and  give  her  another  pull,  and  come  ahead 
on  her  again.  Sometimes  you  will  go  down  through  a chain  side- 
ways to  a xdace  where  you  can’t  stoj)  or  start  her  again. 

(Motion  by  complainant  to  exclude  question  and  answer  as 
improper  re-direct  examination;  overruled;  exception.) 

John  McCaffrey, 

a witness  for  the  defendant,  testified  as  follows; 

Direct  Examination. 

3933  My  name  is  John  McCaffrey.  I am  sixty-five  years  old, 
and  have  been  in  the  steamboat  business  since  1865.  I 

started  in  the  lumber  business  on  a small  steamer  in  1865,  on  the 
Mississipxii.  The  boat  was  about  75  to  80  feet  long  and  16  or  18 
feet  wide.  I have  been  in  the  steamboat  business  since  that  time 
from  St.  Paul  to  New  Orleans.  We  run  up  the  Chippewa  and 
IlenneiDin  Canal,  ran  a boat  ui3  the  Illinois  to  thirty  or  forty  miles 
above  Peoria,  on  the  Ohio  from  Carroll  to  Golconda,  on  the  Ten- 
nessee from  Paducah  to  Florence,  Alabama.  I have  been  around 
the  Mussel  Shoals  on  a boat;  went  around  by  canal.  I have 

3934  been  up  the  Cumberland  100  or  150  miles.  Governor  Van 
Sandt  and  I were  in  partnership  for  fifteen  years.  I got  my 

3935  first  }3apers  in  1865,  as  a master  and  pilot  both,  from  the 
United  States.  I have  not  followed  the  river  for  three  years. 

When  I (luit,  I owned  the  Pen  Brook,  a boat  135  feet  long,  running 
between  Paducah  and  as  high  on  the  Tennessee  as  Florence,  Ala- 
bama. The  last  boat  I built  or  had  built  was  the  Joe  Long;  I built 


1158  McCaffrey, — Direct  Exam. — Continued. 

her  for  the  upper  Eock  Island  Eapids.  I was  a rapids  pilot 

3936  for  12  or  13  years.  From  1865  to  1905  I followed  the  river. 
I have  had  experience  with  warping  and  cordelling  boats; 

it  was  the  only  way  to  get  up  the  Chippewa  when  we  first  started, 
because'  of  the  rapids.  I have  seen  the  Desplaines  Eiver,  on  the 
25th  or  26th  of  April,  1908,  and  again  yesterday.  The  first 

3937  time  we  crossed  all  the  bridges  down  to  Treat’s  Island.  I 
took  a look  at  the  river,  got  off  at  the  bridges.  I went  down 

the  second  time  to  the  mouth  of  the  Desplaines  and  Kankakee.  I 
saw  the  coffer-dam  or  work  that  was  put  up  or  commenced.  The 
first  trip  we  saw  the  river  from  the  road  on  the  way  down. 

3938  It  did  not  look  much  like  a river  to  me — 'like  a creek  or 
slough.  The  water  was  very  swift  that  I saw  in  there,  and 

crooked,  and  seemed  a very  rough  bottom  from  the  way  the  water 
reared  and  pitched  at  different  places,  because  of  rocks  or  some 
obstructions.  The  water  was  very  swift  and  very  rough  at  the 
point  where  the  dam  is  being  built.  It  was  not  so  rough  at  Treat’s 
Island,  but  it  was  very  swift  and  crooked.  You  could  not  get  noth- 
ing up  that  way. 

Q.  From  your  observation  of  the  Desplaines  Eiver,  what  have 
yoi,i  to  say  as  to  whether  or  not  the  stream  between  Joliet  and 
the  mouth  is  a navigable  stream? 

(Objection;  overruled;  exception.) 

A.  I would  say  that  it  was  not.  I don’t  think  you  could  get 
anything  up  there  that  would  do  any  business. 

3939  I began  on  a small  boat  about  75  feet  long,  and  have  navi- 
gated the  Mary  Morton,  200  feet  long.  The  Desplaines 

would  not  be  navigable  for  any  boat  that  I have  been  familiar  with 
on  the  Mississippi  or  its  tributaries  engaged  in  any  kind  of  com- 
merce. I never  saw  a boat  that  I think  could  navigate  the  Des- 
plaines Eiver  for  purposes  of  navigation. 

Counsel  for  Complainant.  I want  it  understood  that  I have 
an  objection  to  all  this. 

The  Court.  Yes,  your  objection  stands  to  all  these  questions. 

The  river  is  too  swift  and  too  crooked,  and  there  is  not 

3940  enough  water  in  it  to  be  navigable.  If  there  is  not  enough 
water  over  the  obstructions,  they  are  the  worst  kind. 


1159 


Q.  Would  it  be  possible,  in  your  opinion,  to  navigate  the  rapids 
of  the  Desplaines  River  hy  the  method  of  warping  or  cordelling! 

(Objection;  overruled;  exception.) 

A.  Not  with  a steamboat;  it  is  too  crooked,  and  there  is  not 
width  enough  in  it.  A boat  can  be  cordelled  on  a stream  the  shores 
of  which  are  heavily  wooded,  if  the  limbs  do  not  stick  out  too 
far.  You  can  lay  a rope  any  place  where  it  is  not  too  swift. 
o941  You  cannot  cordell  a boat  if  the  stream  is  too  narrow;  you 
cannot  keep  it  otf  the  bank.  When  the  water  sets  in  to  the 
bank,  the  boat  will  go  in  there.  If  the  water  sets  out,  the  boat 
will  swing  out,  going  at  a slant.  It  would  not  be  possible  to  do 
anything  wdth  any  boat  I have  ever  been  familiar  with  in  a narrow 
channel  and  swift  water  by  way  of  cordelling.  You  have  no  room. 
You  could  not  cordell  in  the  Desplaines;  there  is  no  water.  It  is 
not  wide  enough. 

C ross-Exam  in  at  ion. 

8942  Most  of  my  work  has  been  done  on  the  Mississippi  and  its 
tributaries.  I have  been  down  the  Desplaines  twice,  on  the 

request  of  someone  who  wanted  me  to  come  over  here  and  testify, 
and  I made  an  examination  on  that  account.  There  is  not 

8943  water  enough  in  the  Desplaines,  and  the  current  is  too  swift 
for  navigation.  A little  stream  can  go  as  fast  as  a big  one  if 

you  give  it  slope  enough.  I do  not  know  what  the  slope  of  the  river 
is;  I did  not  take  soundings.  In  my  mind’s  eye,  the  water  was 
swifter  than  anything  I ever  saw  before.  I have  never  been  on  the 
St.  Lawrence,  or  the  Fox,  have  never  been  on  any  river  except 
3945  what  I told  you.  I have  been  on  the  Tennessee  and  the 
Ouachita.  I was  on  the  latter  river  with  a boat  II5  by  20, 

8947  which  would  carry  80  or  90  tons.  I call  that  a small  boat. 
A flat  bottom  boat,  with  15  feet  beam,  would  have  to  he  15 

to  16  feet  long.  I suppose  that  a boat  10  or  12  feet  wide,  to  carry 
10  tons,  wmiild  have  to  be  20  feet  long.  I never  operated  a boat  of 
that  size,  nor  saw  one  operated — not  a steamboat.  I think 

8948  there  are  some  gasoline  boats,  flatboats,  scow  built,  that  I 
have  seen  that  would  carry  that  much.  I have  never  seen 

them  navigating  from  point  to  point  carrying  freight  for  commer- 
cial purposes;  they  say  there  are  some  of  them,  but  I have  never 


1160 


«een  them.  I have  never  seen  a boat  of  that  kind  on  the  Wabash 
or  Ohio  Rivers ; they  may  he  there  on  the  upper  yiver. 

3950  The  shallowest  water  we  have  ever  run  on  in  the  Ten- 
nessee River  was  4^  feet.  I have  navigated  a boat  on  less 

than  that  in  the  Mississippi,  with  a minimum  depth  of  3 feet.  I 
have  never  navigated  on  two  feet.  I have  done  some  warp- 

3951  ing  of  boats  on  the  Chippewa  and  Ouachita  Rivers.  The 
latter  comes  into  the  Mississippi  about  16  miles  from  New 

Orleans.  They  have  big  boats  running  up  there  when  the  water 
is  at  a good  stage.  It  is  seven  or  eight  years  since  I was  up  there. 
I warped  a boat  up  there  in  one  place.  I do  not  know  how  steep 
the  slope  was;  the  river  was  pretty  swift  and  crooked;  it  must 
have  been  300  feet  wide,  deep  in  to  the  shore,  and  got  shallow  out 
in  the  middle.  This  was  at  a bend.  We  pushed  the  boat  up  to 
make  a turn  there.  The  slope  of  the  Desplaines  looks  to  me  about 
double  what  we  have  on  the  rapids;  I think  it  is  about  18  inches 
to  the  mile  on  the  rapids.  I never  knew  of  people  navigat- 

3954  ing  on  rivers  that  had  a slope  of  10  or  12  feet  to  the  mile, 
or  as  high  as  6 or  7 feet  to  the  mile.  I don’t  think  they  could 

navigate  a slope  of  16  feet  to  the  mile.  At  the  Muscle  Shoals  of 
the  Tennessee  there  is  nine  miles  that  has  a slope  of  80  feet;  they 
have  a canal  around  that. 

J.  W.  Rambo. 

a witness  for  the  defendant,  testified  as  follows : 

Direct  Examincitiou . 

3955  My  name  is  J.  W.  Rambo.  I am  sixty-four  years  old,  and 
reside  at  LeClair,  Scott  County,  Iowa.  My  occupation  is 

that  of  a pilot.  I have  been  following  the  rivers  for  50  years.  I 
got  my  first  papers  in  1864.  My  life  work  has  been  on  what  is 
known  as  the  Rock  Island  Rapids,  extending  from  LeClair  to 
Rock  Island.  I have  been  there  for  45  years.  Before  that  I 
worked  as  a raftsman,  and  went  from  Stillwater  to  St.  Louis  for 
three  or  four  years.  I am  still  in  active  work.  I have  owned 

3956  three  or  four  boats,  operated  at  the  rapids.  My  navigation 
has  been  entirely  on  the  Mississippi,  except  one  year  I took 

a circus  to  Vicksburg. 

3957  I saw  the  Desplaines  River  on  the  26th  of  April  for  about 
seven  miles  from  Joliet  down  the  river,  from  different  points 


1161 


along  where  we  could  reach  it,  and  crossed  the  river  on  several 
bridges.  Then  again  I made  a trip  down  to  the  mouth  of  the  river 
where  it  enters  the  Illinois,  yesterday.  We  found  rather  a rougli- 
looking  piece  of  water.  From  the  appearance  of  the  surface  of 
the  water  there  must  be  very  rough  and  rugged  and  snarly  bottom 
under  it  on  account  of  the  constant  swirls  and  things  on  top  of  the 
water.  Of  course,  we  did  not  see  any  in  most  of  the  water. 

3958  There  were  a great  many  trees  sticking  out,  but  we  did  not 
see  any  boulders;  but  there  must  be  something  pretty  solid 

under  those  swirls.  I am  used  to  that  kind  of  water,  but  I have 
not  seen  anything  where  I lived  that  compared  with  it  at  all.  These 
trees  we  saw  were  sticking  out  in  the  river.  Just  where  the  river 
empties  into  the  Illinois  there  seems  to  be  a very  rough  place, 
(juite  a fall. 

Q.  State  whether  or  not,  in  your  opinion,  and  from  your  ob- 
servation of  the  river,  the  Desplaines  is  or  is  not  a navigable 
stream? 

(Objection;  overruled;  exception.) 

A.  I would  say  that  no  sane  man  \vould  ever  try  to  take  any- 
thing up  or  down  the  Desplaines  river  in  the  shape  of  a steamboat. 
I would  not  go  down  it  in  a skitf. 

(Motion  to  have  the  answer  excluded.) 

3959  The  Court.  It  may  stand  as  the  answer  he  wants  to  make 
to  it. 

I have  navigated  the  river  at  Eock  Island  about  45  years.  We 
can  navigate  the  Eock  Island  Eapids,  and  we  could  not  navigate 
this,  and  nobody  else,  I don’t  think.  The  normal  low  water  stage 
of  the  Eock  Island  Eapids  is  about  34  feet — low  water  now;  before 
it  was  improved  I have  seen  it  when  there  was  not  20  inches  in 
the  channel,  in  1864.  That  is  the  low  water  gauge  of  the  Govern- 
ment, the  lowest  mark  they  know  of.  It  was  navigated  at  that 
low  water  mark;  we  had  a little  boat  or  two  that  we  got  over  it  at 
that  time ; she  was  about  85  or  90  feet  long  and  probably  18  or  20 
feet  beam.  ‘‘The  Enterprise,”  they  called  it.  Twenty  inches 

3960  was  the  best  water  we  could  find.  Aside  from  that  one  year 
before  the  improvements  were  put  in,  the  normal  low  water 

flow  over  the  rapids  was  30,  31  or  32  inches.  The  boat  that  we 
took  over  in  20  inches  used  to  carry  a small  amount  of  freight. 


1162  Bamho, — Direct  Exam.— Continued. 

I have  seen  some  cordelling.  I have  had  plenty  of  it  on 

3961  hand.  It  is  not  possible  on  the  Desplaines,  on  account  of  the 
bad  shore;  too  many  obstructions,  and  the  water  will  not 

permit.  It  is  a very  swift  water  and  crooked  river.  You  can  cor- 
ded wherever  you  have  a shore  to  walk  on.  Cordelling  is  where 
you  take  a line,  put  it  over  your  shoulder  and  pull  something  up 
behind  you.  Warping  is  where  you  fasten  up  above  you  and  run 
a line  down  and  pull  up  to  that.  In  warping  you  have  to  have  a 
little  width  on  account  of  the  sheering  of  the  boat.  She 

3962  would  run  first  one  way  and  then  the  other  unless  you  could 
hold  her  steady;  in  warping  around  a bend  you  are  pulling 

straight  toward  the  warp.  The  boat  will  not  go  around  the  bend 
and  go  straight  toward  the  warp;  you  have  to  have  side  lines  to 
hold  her  in  the  channel,  and  pull  her  first  one  way  and  then  the 
other.  It  sometimes  happens  that  your  boat  will  swing  off  and 
present  her  side  to  the  water;  you  have  to  have  enough 

3963  width  to  let  her  run  a little,  and  then  she  will  come  back.  I 
do  not  think  a boat  could  be  warped  at  Treat’s  Island 

Rapids.  I never  tried  such  a job  as  that.  I have  had  to  warp  a 
good  many  boats  into  the  swift  water  of  the  Rock  Island  Rapids 
a hundred  times. 

3964  Nothing  in  the  line  of  a steamboat  could  go  up  that  river. 
I don’t  know  of  a boat  in  our  country  that  could  go  up  that 

river,  and  I have  seen  them  all,  and  handled  pretty  nearly  all  of 
fhem  in  the  Mississippi  for  the  last  40  years.  I include  all  sizes 
and  all  kinds,  and  I am  there  for  that  purpose  at  the  rapids. 

Cross-Examination. 

3965  There  is  about  a foot  and  a half  fall  in  the  rapids  at  Rock 
Island,  two  feet  at  what  we  call  Smith’s  Chain;  Sycamore 

l)elow  that  has  three  and  a half,  then  there  is  two  and  a half,  then 
Hamden’s  Lake,  three  miles  long,  where  there  is  no  fall  at  all; 
then  Campbell,  with  a fall  of  a couple  of  feet,  and  from  there  to 
the  Rock  Island  bridge  I think  the  total  fall  is  something  like  21 
feet.  I think  the  distance  is  about  15  by  channel.  A 21-foot  fall 
in  about  15  miles,  1.4  feet  of  fall  per  mile.  In  low  water 

3966  there  would  not  be  so  much.  The  greatest  fall  in  this  dis- 
tance is  34  feet  per  mile. 


1163 


3967  I do  not  know  of  any  navigation  on  any  river  that  has  a 
fall  of  6,  7 or  8 feet  per  mile.  I have  never  seen  anything 
of  that  kind;  have  never  been  on  very  many  rivers;  have  never 
been  on  the  rapids  of  the  St.  Lawrence.  I have  heard  of  the  Snake. 
I do  not  know  anything  about  the  fall  in  that  river,  nor  whether 
it  is  navigable  or  not.  I do  not  think  it  possible  to  navigate  a 
river  with  a fall  of  16  feet  per  mile,  with  anything  we  have  in  the 
steamboat  line  in  this  country — that  is,  the  Mississippi  Eiver  and 
its  tributaries.  We  have  as  good  steamboats  there  as  anywhere. 
Boiled  down,  then,  to  the  final  analysis,  I do  not  think  it  possible 
to  navigate  a river  with  a fall  of  16  feet  per  mile.  I never  heard 
of  navigating  a river  with  a fall  of  25  feet  per  mile.  I have  heard 
of  the  Fox  Eiver,  and  have  run  boats  that  have  been  run- 

3969  ning  there,  but  they  could  not  go  up  over  our  rapids  here. 
I have  run  boats  on  the  Eock  Island  Eapids  for  40  years; 

there  are  a lot  of  people  who  know  the  channel  there,  but  who 
cannot  take  a boat  over.  That  is  the  most  difficult  rapids 

3970  that  I know  anything  about  personally.  I base  my  state- 
ment of  the  non-navigability  of  the  Desplaines  a good  deal 

on  my  experience  on  the  falls  of  the  Mississippi.  The  smallest 
steamer  that  is  operated  on  the  falls  of  the  Mississippi  is  about 
75  feet  in  length.  There  are  some  electric  launches,  mostly  pleas- 
ure boats,  from  16  to  90  feet  long,_that  go  up  and  down  the  river. 
I have  carried  lots  of  them  up  and  down  the  rapids.  There 

3971  are  also  a good  many  larger  steamers  going  up  and  down 
these  rapids.  I would  not  like  to  risk  a boat  LOO  feet  long 

on  the  Desplaines.  The  smallest  steamboat  that  I spoke  of,  about 
70  feet  long,  was  about  17  feet  beam,  and  carried  40  to  50  tons.  I 
do  not  know  of  any  boat  carrying  ten  tons.  A boat  15  feet  wide, 
flat  bottom,  carrying  ten  tons,  would  have  to  be  about  as  long  as 
she  was  wide.  I think  that  a boat  30  feet  long  by  15  wide, 

3972  built  on  the  flat  bottomed  plan,  would  carry  ten  tons  with- 
out any  trouble.  I am  not  operating  any  boat  of  that  kind, 

have  never  seen  any  of  that  kind,  under  any  kind  of  power; 
have  had  no  experience  with  that  kind  of  navigation. 


Eamho  Be-direct  Examination, 

Q.  In  Yoiir  opinion,  could  sncli  gasoline  boats  as  you  have 
seen  on  the  Mississippi  Eiver  go  up  the  Desplaines? 

(Objection;  overruled;  exception.) 

A.  There  is  nothing  of  that  character  on  the  upper  Mississippi 
Kiver,  not  that  I have  seen  there. 

Q.  You  were  asked  about  a steamboat  able  to  carry  ten  tons, 
20  or  25  feet  long.  In  your  opinion,  could  such  a boat  go  up  the 
Desplaines  Eiver!  A.  No. 

My  business  as  pilot  on  the  Eock  Island  Eapids  is  to  replace 
the  regular  pilot  on  the  ships,  and  take  the  boat  up  and  down  .the 
rapids.  There  are  five  or  six  of  us. 

There  was  then  offered  in  evidence  on  behalf  of  the  defendant, 
from  the  Canal  Commissioner’s  report  of  Illinois  for  1900,  a list 
of  the  leases  of  the  90-foot  strip  of  lots,  on  pages  17  and  18 
thereof. 

3974  (Objection.) 

3976  Mr.  Scott.  I put  in  first,  from  page  15,  heading  of  this 
part  of  the  report,  ‘‘StatemenI  showing  amount  of  receipts 
and  disbursements  on  account  of  the  Illinois  and  Michigan  Canal 
and  locks  in  the  Illinois  Elver  at  Henry  and  Copperas  Creek,  from 
December  1,  1899,  to  November  30,  1900,  inclusive,”  with  sub- 
heads. And  then  I particularly  refer  to  ‘^C,”  ^‘Leases  of  ^90-foot 
strip’  ” and  lots  on  pages  17  and  18,  as  follows: 


1165 


3978  “Leases  of  ‘Ninety-Foot  Strip’  and  Lots. 


Number 

of 


Date 

Receipt 

Name  of  Lessee. 

Location 

Amount 

1899 

Dec. 

13 

5 

John  Liker 

Joliet 

$ 5.00 

26 

7 

Carrington,  Hannah  & Co. 

Chicago 

1,250.00 

1900 

Jan. 

11 

33 

John  B.  Allison 

Lemon  t 

20.00 

Feb. 

6 

44 

Ottawa  Development  As’n 

Ottawa  (in  part) 

180.00 

U 

6 

45 

Field  Electric  Co. 

Morris 

6.00 

12 

47 

W.  D.  Leser 

Ottawa 

1.00 

Mar. 

22 

56 

Repauno  Chemical  Co. 

Romeo 

10.00 

22 

57 

J.  G.  Bodenschatz 

Lemont 

25.00 

U 

28 

58 

W.  R.  Stubs 

Willow  Springs 

25.00 

April 

4 

59 

S.  J.  Howe  for  E.  N.  Davis 

Chicago  (part  pay- 
ment) 

100.00 

“ 

10 

61 

Russell  & Cavanaugh 

Utica 

75.00 

24 

62 

Mary  Sheehan 

Bridgeport 

100.00 

63 

Albert  T.  Randall 

Channahon 

21.00 

27 

70 

Chicago  Strawboard  Co. 

Morris 

100.00 

30 

71 

John  Schroeder 

iMorris 

5.00 

May 

25 

79 

Peter  Ring 

Willow  Springs 

15.00 

June 

8 

87 

Chicago  & Alton  Ry.  Co. 

Chicago 

] 00.00 

July 

9 

toi 

Carrington,  Hannah  & Co. 
E.  F.  Pulsifer 

Chicago 

1,250.00 

<( 

10 

102 

Utica 

50.00 

16 

105 

Illinois  Steel  Co. 

Joliet 

500.00 

106 

Emery  N.  Davis 

Chicago  (part  pay- 
ment) 

400.00 

31 

108 

J.  F.  Killduf  (two  leases) 

La  Salle 

150.00 

Aug. 

7 

114 

George  Woodruflf 

Copperas  Creek 

50.00 

20 

115 

Ottawa  Developm’t  As’n. 

Ottawa 

1,020.00 

Sept. 

U 

5 

121 

Houck  & Brown 

Joliet 

100.00 

128 

Robert  Schofield 

Morris 

3.00 

ii 

17 

129 

Chicago  & Alton  Ry.  Co. 

Corwith 

25.00 

18 

131 

John  Liker 

Joliet 

5.00 

Oct. 

25 

132 

George  M.  Campbell 

Romeo 

50.00 

.31 

141 

Norton  & Co, 

Lockport 

190.00 

u 

142 

Norton  & Co. 

Lockport 

10.00 

143 

H.  S.  Norton 

Lemont 

300.00 

Total  $6,141.00” 


3980  There  was  also  offered  from  said  book,  page  41,  heading, 
“Unsold  Canal  Lands,  November  30,  1900.” 

(Objection;  overruled;  exception.) 

Also  the  table  found  on  page  43  of  said  book,  “Unsold  Canal 
Lands,  November  30,  1900.”  Said  passages  so  offered  on  pages 
41,  42  and  43  of  the  Canal  Commissioners’  report  for  1900  are 
as  follows : 


1166 


Extract, — Canal  Com.  Rep.  1900. — Continued. 


3983 


^‘Unsold  Canal  Lots^  Novembeh  30,  1900. 


Lots 

Chicago 

Being  in  Canal  Commissioner’s  subdi- 
vision of  that  part  of  southwest  ^ 
section  29,  Tp.  39,  R.  14  east,  lying 
south  of  the  main  canal,  west  of  river, 
and  known  as  blocks  12  and  13  of 
Canal  Trustee’s  subdivision  of  blocks 
10,  10>^,  11,  12,  13  and  southwest  34 
section  29,  39,  14.  Also  block  “A”  not 
previously  surveyed  or  platted,  in 
southwest  J4  section  and  east  of  Chi- 


Block  Valuation 


cago  river  

12 

1234 

$ 50,000.00 
50,000.00 

13 

12,000.00 

A 

1,000.00 

In  Canal  Trustee’s  new  subdivision  east 
fraction  southwest  fraction  54  section 

21,  29,  14 

35 

6,000.00 

Lockport. 

Sub  Lots  2 and  3 of  subdivision  of  lot  3 

63 

100.00 

Sub  Lot  2 of  subdivision  of  lot  4 

63 

50.00 

1,  2 

71 

10,000.00 

3,  4,  5 

102 

3,000.00 

Vacated  street  between  blocks 

102-3 

600.00 

1,  2,  3,  4,  5 

103 

3,000.00 

Vacated  street  between 

103H4 

600.00 

1,  2,  3,  4,  5 

103 

3,000.00 

1,  2,  3 

114 

1,400.00 

2 

116 

800.00 

5,  6,  7,  8,  9,  10,  11,  12 

121 

3,500.00 

1,  2,  3,  4,  5,  6 

Strip  northeast  of  and  adjoining 

122  ' 

4,000.00 

122 

300.00 

1,  2,  3,  4,  5 

123 

3,000.00 

I,  2,  3,  4 

126 

400.00 

129 

150.00 

131 

25.00 

134 

50.00 

135 

100.00 

8-65/100  acres  west  of  river  west  V2  sec- 

tion  23,  T.  36,  R.  10,  Lockport 

865.00 

Lots 

Block 

Valuation 

Joliet 

South  6 lots  of  block  1,  North  Joliet..  .. 

$ 1,200.00 

Block  2,  North  Joliet,  10  lots 

2,000.00 

Block  3,  lots  4,  5,  6,  7,  8-5  lots  at  $200 

each 

1,000.00 

Block  5,  lot  10 

Vacated  street  between  blocks  36  and  37 

1,000.00 

500.00 

Block  37,  lots  11,  12,  13,  14,  15 

3,800.00 

East  V2  of  lots  8,  9,  10,  12  block  1,  West 

Joliet 

740.00 

Haven  (On  the  Little  Wabash  River.) 

27  acres,  at  $10.00 

270.00 

DuPage  (Now  called  Channahon). 

4 

100.00 

8,  9,  (worth  nothing),  inundated 

4 

3 

16 

10.00 

1,  2 

21 

40.00 

52 

300.00 

Total 


$119,000.00 


$ 34,940.00 
Total 

$ 10,240.00 
270.00 


450.00 


1167 


P.  42 

Kankakee. 


Blocks  30,  31,  32,  34,  37,  38,  39,  40  and  42 
being  in  section  31,  township  34,  range 
9 east,  3rd  P.  M.  containing  16-32/100 


acres,  at  $25.00  per  acre 

408.00 

408.00 

Morris. 

Lying  between  canal  and  Illinois  River 

B 

200.00 

200.00 

Ottawa  (Original  Town). 

1,  2,  3,  4,  5,  6,  7,  8 

20 

10.00 

1,  2,  3,  4,  5,  6,  7,  8,  9,  10,  11,  12 

21 

4,000.00 

L 2,  3,  4,  5,  6 

22 

600.00 

23 

600.00 

24 

300.00 

25 

500.00 

26 

500.00 

27 

400.00 

28 

2,850.00 

$ 

6,960.00 

State’s  Addition  to  Ottawa. 

3,  4,  5 

38 

3,500.00 

$ 10,460.00 

LaSalle. 

1,  2,  3,  and  part  of  4 

141  $ 

1,400.00 

1,  2,  3 

142 

750.00 

$ 

2,150.00 

Lots 

Block  Valuation 

Total 

Peru 

Outlots’  7,  8,  9 and  10  in  Canal  Trustee’s 

subdivision  northeast  fractional  section 

21,  33,  1 

$ 

1,000.00 

$ 

1,000.00 

City  of  Henry. 

3,937  acres,  being  east  part  lot  26 ’ 800.00  800.00 

Banner,  Fulton  County. 

23  acres  near  Copperas  Creek 240.00  240.00 


Unsold  Canal  Lands  November  30,  1900. 

P.  43 

Description  Section.  Town.  Range.  Acres.  Valua-  Valua- 

tion per  tion  per 
acre.  tract. 


Three  small  islands 

15 

33 

4 

$5.00 

Part  of  island  in  north  half 

17 

33 

4 

5.00 

Island  in 

1 

33 

7 

13.09 

$1.00 

13.09 

Strip  in  1 and 

12 

38 

12 

2.25 

150.00 

337.50 

Total 

Recapitulation  . 

$360.59 

Canal  Lots  and 

Tracts. 

Valuation 

Total. 

Chicago 

7 

$119,000.00 

Lockport 

49 

34,940.00 

Joliet 

43 

10,390.000 

Du  Page 

7 

550.00 

Kankakee 

.11 

408.00 

Morris 

1 

200.00 

Ottawa 

35 

10,460.00 

La  Salle 

7 

2,150.00 

Peru 

4 

1,000.00 

Henry 

3.37  acres 

800.00 

Banner,  Fulton  County 

24 

240.00 

$180,138.00 

Unsold  lands  360.59 


Total 


$180,498.59’ 


1168 


3987  There  was  also  offered  in  evidence  on  behalf  of  the  defend- 
ant from  the  Senate  Journal  of  Illinois,  for  1836  and  1837, 

from  the  documentary  history  of  the  Illinois  and  Michigan  Canal 
the  following : 

(Objection;  overruled;  exception.) 

3988  ‘‘Monday,  January  23,  1837. 

“Mr.  Thomas,  from  committee  on  canals  and  canal  lands, 

reported  following  facts  in  relation  to  subject  matter  of  the 
bill : 

“Five  persons  were  appointed  a Board  of  Commissioners, 
to  adopt  measures  requisite  to  effect  communication  by  canal 
and  locks  between  the  navigable  waters  of  the  Illinois  Eiver 
and  Lake  Michigan,  and  were  authorized  to  employ  an  en- 
gineer and  such  other  persons  as  might  be  necessary  to  dis- 
charge the  duties  imposed  upon  them. 

“They  were  also  authorized  to  cause  that  part  of  the  terri- 
tory of  the  state  which  may  lie  upon  or  contiguous  to  the 
probable  courses  and  ranges  of  said  canal,  to  be  explored  and 
examined  for  the  purpose  of  fixing  and  determining  the  most 
eligible  and  proper  route  for  the  same;  and  to  cause  all  nec- 
essary surveys  and  levels  to  be  taken,  and  accurate  maps  filed, 
and  books  and  drafts  thereof  to  be  made. 

“They  were  also  required  to  make  a report  to  the  next 
session  of  the  general  assembly,  or  to  an  extra  session:  Pro- 
vided, the  governor  should  commence  the  same  under  the 
power  here  granted. 

“The  board  employed  Justus  Post  and  Rene  Paul  as  en- 
gineers, who  made  an  experimental  survey  and  estimates  of 
(^ost,  etc. 

“Post  was  paid  for  his  services;  Paul  was  not.  The  ques- 
tion is  now  presented — shall  he  be  paidf 

“The  fact  that  he  was  employed  and  devoted  his  time  to  the 
service  of  the  state,  appears  from  the  report  of  the  Canal  Com- 
missioners made  to  the  General  Assembly  in  1825. 

“The  time  of  his  employment  has  been  proven  to  be  120 
days — the  amount  claimed  is  $4.00  per  day.  To  the  commit- 
tee, the  question  is  plain  that  the  claim  ought  to  be  allowed.” 

Counsel  for  Complainant.  The  balance  of  that  report  would 
occupy  a page  and  a half.  I ask  that  the  whole  report  go  in  with 
the  letter.  It  is  simply  the  letter  of  Thomas  (chairman  of  the 
committee  on  canals  of  the  senate)  and  the  reply  of  Bucklin, 
and  the  committee’s  report. 

Counsel  for  Defendant.  The  ])art  that  I read  from  is  page  136, 
])art  of  the  proceedings,  part  of  the  report  of  the  committee  on 


1169 


canal  and  canal  lands,  which  was  reported  to  the  Governor,  trans- 
mitting annual  reports  made  on  the  25th  of  February,  1887  (Read- 
ing-) 

Page  137 : 

3992  '‘The  magnitude  of  the  work  and  the  difficulties  attending 
its  execution  have  been  long  known  and  considered.  The 
representatives  of  the  people  did  not  engage  in  the  work  with- 
out due  consideration  of  those  difficulties.  The  interest  which 
the  nation  has  taken  in  the  project  is  evidenced  by  the  act  of 
congress  changing  the  northern  boundary  line  of  the  state  by 
the  purchase  from  the  Indians  of  a strip  of  territory  extend- 
ing from  the  Illinois  to  the  lake,  with  an  eye  single  to  this  pro- 
ject, by  the  act  of  congress  granting  right  of  way  to  the  state, 
and  by  the  subsequent  act  granting  lands  of  value  sufficient  to 
defray  the  whole  cost  of  the  work.’^ 

Also : 

3993  "The  surface  of  the  canal  as  at  present  proposed  to  be 
constructed,  is  60  feet,  and  bears  the  proportion  of  one  and 
one-half  to  one  to  the  surface  of  the  canal  as  at  first  proposed. 
The  depth  of  water  is  now  six  feet,  whereas  it  was  formerly 
four  feet,  consequently,  the  pressure  of  water  being  as  the 
squares  of  the  heights,  and  the  leakage  nearly  as  the  square 
roots  of  the  heights,  the  pressure  will  be  more  than  doubled, 
and  the  leakage  (taking  into  calculation  the  great  surface), 
increased  in  proportion  to  one  and  a half  to  one.  The  quan- 
tity of  water  then  that  will  be  required  to  supply  the  evap- 
oration and  leakage  in  a canal  of  the  dimensions  proposed,  will 
be  150  cubic  feet  per  minute  per  mile;  and  with  reference 
to  the  peculiar  character  of  the  country  through  which  the 
canal  passes.  I know  of  nothing  which  would  justify  a de- 
parture from  the  established  rule,  in  regulating  the  supply  of 
water.  It  is  true,  the  upper  level  is  situated  in  a very  wet 
country,  but  the  levels  below  dependent  upon  the  summit  for 
water,  are  located  on  ground  very  badly  calculated  to  retain  it, 
and  it  is  possible  that  more  than  the  ordinary  supply  may  be 
required. 

"If  the  project  of  supplying  the  canal  from  Lake  Michigan 
be  abandoned,  and  the  high  level  resorted  to,  the  length  of 
canal  includingTeeders,  to  be  supplied  with  water  on  the  upper 
level  is  56  miles,  which  will  require  8,407  cubic  feet  per  minute 
to  supply  the  evaporation  and  leakage,  and  a further  supply  of 
2,112  for  lockage,  making  in  all  a minimum  supply  of  10;512 
cubic  feet  per  minute. 

Very  respectfully. 

Your  obedient  servant, 

J.  M.  Buckltn.^’ 


1170  Senate  Report  on  Canal  1837. — Continued. 

3995  Aside  from  tlie  fact  that  according  to  the  most  authentic 
information,  the  Calamic  and  Desplaines  do  not  afford  suffi- 
cient water  for  the  use  of  the  canal,  it  is  an  admitted  fact 
that  the  Calamic  takes  its  rise  in  Indiana.  From  the  latest 
maps  it  appears  to  bend  through  the  corner  of  Illinois  and  pass 
into  the  lake  near  the  state  line.  It  is  contended  by  some  that 
it  formerly  passed  into  the  lake  in  Indiana;  it  is,  however,  cer- 
tain that  the  State  of  Indiana  may  use  the  water  of  the  river 
to  the  exclusion  of  Illinois.  The  committee  are  not  advised  of 
any  improvement  projected  by  the  State  of  Indiana  requiring 
the  use  of  the  river.  But  the  testimony  of  Lieutenant  Bur- 
nett herewith  submitted,  although  not  conclusive,  tends  strong- 
ly to  prove  that  a company,  incorporated  by  the  State  of 
Indiana  have  projected  a canal,  which  will  require  the  use  of 
at  least  a half  of  the  water  of  that  stream. 

‘‘Upon  the  point  now  under  consideration,  the  committee 
have  arrived  at  the  following  conclusions : 

“First,  that  the  Calamic  and  Desplaines  do  not  afford  suffi- 
cient water  for  the  use  of  the  canal. 

“Second.  That  if  they  did,  it  would  not  be  prudent  or  safe 
' to  rely  upon  the  Calamic. 

“In  arriving  at  these  conclusions,  the  committee  have  relied 
upon  the  evidence  referred  to,  consisting  of  extracts  from  re- 
ports and  other  authentic  documents.  It  must  be  evident  to  all 
those  who  have  given  the  subject  any  examination,  that  the 
point  on  the  Calamic  where  it  is  proposed  to  take  the  water, 
is  below  the  summit  of  the  canal  line,  and  only  2 feet  81-100 
above  the  level  of  the  lake.  The  erection  of  a dam  across 
the  Calamic  would,  therefore,  be  absolutely  necessary,  the 
effects  and  consequences  of  which  can  not  with  certainty  be  cal- 
culated or  ascertained.  One  effect  would  doubtless  be  the 
overflowing  of  an  immense  tract  of  country  and  a subsequent 
loss  of  water  by  evaporation,  absorption,  etc. 

“Your  committee  will  now  proceed  to  the  examination  of 
the  second  and  third  reasons  assigned  why  a change  should 
be  made  in  the  summit  division  of  the  canal,  viz.:  the  length 
of  time  required  and  the  difficulty  and  cost  of  construction. 
These  are  reasons  which  have  often  been  urged  and  acted 
upon  by  those  who  have  opposed  to  the  policy  of  the  state’s 
undertaking  so  stupendous  a work;  but  the  judgment  of  the 
people  has  long  since  been  pronounced  against  their  suffi- 
ciency. Your  committee  will  not  pretend  but  that  there  are 
many  difficulties  to  be  encountered  in  the  prosecution  of  the 
work,  and  that  from  five  to  eight  years  may  be  required  for 
its  completion.  Having  arrived  at  the  same  conclusion  with 
all  others  who  have  examined  the  subject  (except  the  commit- 
tee of  the  house)  that  in  order  to  construct  such  a canal  as 
the  nation  has  a right  to  expect,  the  waters  of  the  lake  must 


1171 


'‘be  used.  The  question  naturally  recurs,  shall  the  state  ])re- 
severe  in  the  work,  or  shall  the  project  be  abandoned!  These 
are  the  real  questions  to  be  considered,  in  answering  the  rea- 
sons assigned  for  the  proposed  change;  and  as  these  questions 
are  general  and  applicable  to  the  whole  line  of  the  work,  their 
consideration  will  be  deferred  until  the  second  proposition,  for 
a change  is  considered  and  disposed  of. 

"The  second  reason  urged,  viz.:  that  the  cost  of  the  im- 
provement will  be  greatly  diminished,  will  not  be  controverted, 
but  of  the  value  of  that  improvement  compared  with  the  value 
of  the  canal  and  the  comparative  advantages  of  the  two  de- 
scriptions of  improvements,  have  not  been  discussed  in  the  re- 
port. 

"It  is  a work  national  in  its  character,  and  the  people  of 
Illinois  should  rejoice  at  the  opportunity  offered  of  being  in- 
strumental in  executing  a work  of  such  vast  magnitude  and  im- 
portance. The  eyes  of  the  civilized  world  are  resting  upon  us 
with  intense  interest,  for  our  success  in  a work  which  prom- 
ises such  extensive  and  incalculable  advantages  to  these  United 
States.  The  people  of  the  United  States  are  looking  to  the 
completion  of  this  work,  as  forming  the  last  link  in  an  endless 
chain  which  shall  forever  hold  these  United  States  in  the  bonds 
and  pledges  of  Union,  and  your  committee  ask  in  the  name 
of  the  civilized  world,  in  the  name  of  the  people  of  the  United 
States,  and  in  the  name  of  Illinois,  that  no  local,  sectional  or 
private  interest  be  consulted  in  the  decision  about  to  be  made. 

"The  magnitude  of  the  work,  and  the  difficulties  attending 
its  execution  have  long  been  known  and  considered.  The  rep- 
resentatives of  the  people  did  not  engage  in  the  work  without 
a due  consideration  of  those  difficulties.  The  interest  which 
the  nation  has  taken  in  this  project  is  evidenced  by  the  Act 
of  Congress  changing  the  northern  boundary  line  of  the  state 
by  purchase  from  the  Indians  of  a strip  of  territory  ex- 
tending from  the  Illinois  to  the  lake  with  an  eye  single  to  this 
project,  by  the  Act  of  Congress  granting  right  of  way  to  the 
state,  and  by  the  subsequent  act  granting  land  of  value  suffi- 
cient to  defray  the  whole  cost  of  the  work.  It  has  always 
been  regarded  as  a national  work,  and  the  nation  having  fur- 
nished the  means  for  its  execution,  have  a right  to  expect  that 
the  work  shall  be  projected  and  executed  in  a manner  suited 
to  the  character  and  views  of  an  united  and  enlightened  peo- 
ple. The  fund  for  this  purpose  is  admitted  on  all  hands  to 
be  ample,  and  no  citizen  of  Illinois  ought  to  be  willing  to  see 
the  faith  of  the  state  violated,  public  expectation  disappointed, 
and  the  beneficience  of  the  national  government  abused  by  au- 
thorizing any  other  description  of  work. 

"The  questic!!  may  be  confidently  asked — why  should  any- 
one desire  to  disappoint  the  hopes  and  expectations  of  the  na- 


1172  Senate  Report  on  Canal  1837. — 'Continued. 

‘'tion  in  regard  to  the  character  of  this  work?  Can  it  be  sup- 
posed that  the  nation  would  have  extended  assistance  by  so 
large  and  extensive  a grant  of  lands  toward  the  execution 
of  a project  purely  local,  a project  which  at  best  would  not 
accommodate  the  trade  of  Illinois  alone  five  years  hence. 

''To  engage  in  such  a project  would  be  sporting  with  the 
bounty  of  the  nation  and  degrading  to  the  character  of  the 
state.  Who  among  us  would  be  willing  to  stand  forth  before 
an  enlightened,  liberal  and  magnanimous  nation,  and  pro- 
claim the  sentiment;  the  nation  has  furnished  us  with  means 
to  execute  a great  national  work,  and  although  by  accepting 
those  means,  we  stand  pledged  to  use  them  for  the  purpose 
intended,  yet  as  the  work  of  a totally  different  and  greatly 
inferior  character,  can  be  executed  for  one-half  the  amount 
furnished,  we  will  make  such  a work  and  vest  the  other  half 
of  those  means  in  bank  stock  or  in  improvements  of  a char- 
acter purely  local.  If  there  be  among  us  any  who  would  be 
^villing  to  assume  such  an  attitude,  and  in  the  face  of  the 
world  proclaim  such  a sentiment,  it  is  to  be  hoped,  for  the 
honor  of  the  people  and  dignity  of  the  state,  none  such  can 
be  found  in  the  walls  of  the  legislature.  Such  a sentiment 
strikes  at  the  very  foundation  of  the  public  faith,  and  if 
acted  upon  would  lead  to  a total  subversion  and  overthrow 
of  our  free  institutions.  The  proposition  is  too  monstrous  and 
involves  consequences  too  disastrous  to  be  entertained  for 
a moment;  and  your  committee  will  not  act  upon  the  pre- 
sumption, nor  indulge  the  idea  that  any  citizen  of  Illinois  will 
ever  be  found  giving  countenance  to  such  a sentiment. 

"Your  committee  are  satisfied  that  the  canal  lands  will  de- 
fray all  expenditures  required  in  the  construction  of  the 
canal,  upon  the  enlarged  plan  proposed  by  the  Canal  Commis- 
sioners, and  they  hope  to  see  the  time  when  its  navigation  will 
be  made  free  to  all  the  people  of  these  United  States. 

"There  should  be  no  question  asked  in  regard  to  a supply 
of  water  from  any  other  source  than  the  lake,  so  long  as  it  is 
known  that  the  means  furnished  by  the  nation  are  simply  suffi- 
cient to  execute  the  work.  In  the  completion  of  such  a pro- 
ject, computations  of  time  should  be  made  with  reference  to  the 
existence  of  the  union,  and  not  with  reference  to  the  growth 
of  a village.  If,  contrary  to  all  calculations,  eight  or  fifteen 
years  shall  be  required  for  its  completion,  this  would  not 
justify  the  state  or  the  people  in  a violation  of  their  plighted 
faith.  The  time  is  not  distant  when  Illinois  must  stand  at 
the  head  and  in  the  front  of  all  of  the  western  states,  and  when 
that  time  shall  arrive,  that  nothing  could  be  a source  of  greater 
mortification  to  her  citizens  or  her  sisters,  than  a knowledge 
that  in  her  infancy,  she  had  been  guilty  of  a violation  of  public 
faith. 


1173 


‘‘Your  committee  are  of  the  opinion  that  a lateral  canal  con- 
necting the  waters  of  the  Illinois  and  Michigan  Canal  with  the 
waters  of  the  Calamic,  is  practicable,  and  will  probably  be  re- 
quired at  some  future  time.  Before  any  expenditure  of  money 
is  authorized  for  that  purpose,  the  consent  of  the  State  of 
Indiana  should  be  obtained  to  the  use  of  the  water  of  that 
stream,  and  an  agreement  irrevocable,  except  by  the  consent 
of  both  states,  should  be  entered  into,  fixing  the  terms  upon 
which  the  water  may  be  used,  and  the  terms  upon  which  the 
citizens  of  Illinois  shall  be  allowed  to  navigate  said  river. 

“Your  committee  highly  approve  of  the  decision  of  the  coin- 
• missioners  fixing  the  size  and  dimensions  of  the  canal,  and 
they  cannot  but  remark,  that  nothing  but  the  greatest  in- 
dustry and  attention  to  their  duties  could  have  enabled  the 
commissioners  to  have  made  such  progress  in  the  prosecution 
of  the  work. 

“It  appears  from  the  report  of  the  commissioners  that  no 
addition  will  be  required  to  the  canal  fund  during  the  present 
year,  but  that  provision  must  be  made  for  the  year  1838. 
For  this  purpose,  it  is  proposed  to  sell  alternate  lots  in  the 
town  at  the  termination  of  the  canal,  and  other  towns  along 
the  line,  to  the  amount  of  $1,000,000,  and  to  authorize  a further 
loan  of  $500,000  in  the  event  of  that  amount  being  required. 

“In  the  present  state  of  things  it  is  deemed  bad  policy  to 
bring  into  market  any  of  the  canal  lands.  It  is  believed  that 
under  the  provisions  of  an  Act  passed  during  the  present  ses- 
sion, those  lands  can  be  protected  against  all  further  depreda- 
tions. To  carry  out  the  views  of  the  committee,  they  report  a 
bill,  and  recommend  its  passage.” 

4003  Alsb,  on  page  210: 

“Previous  to  1816  the  United  Tribes  of  Indians  known  as  Ot- 
tawas,  Chippewas  and  Pottawattomies,  claimed  all  the  land 
between  Chicago  and  the  mouth  of  the  Fox  Eiver.  In  order 
to  secure  undisputed  possession  of  the  river  between  these  two 
points,  a treaty  was  arranged  between  these  tribes  and  Ninian 
Edwards,  William  Clark  and  August  Chonteau,  commission- 
ers plenipotentiary  of  the  United  States;  this  treaty  was  con- 
summated the  24th  day  of  August,  1816,  and  was  signed  by  the 
above  named  commissioners  and  F.  Assikinock,  otherwise 
known  as  Black  Partridge,  chief  of  the  United  Tribes.  The 
object  in  securing  this  strip  was  to  construct  a military  road  to 
facilitate  the  building  of  the  proposed  ship  canal.” 

Also,  on  the  preceding  page,  from  Woodruff’s  History  of  Will 
County : 

“The  project  of  a ship  canal  to  connect  the  waters  of  Lake 
Michigan  with  the  navigable  waters  of  the  Illinois  Eiver  was 
first  suggested  during  the  war  of  1812,  by  some  writer  in 


1174  Senate  Report  on  Canal  1837. — Continued. 

the  Niles  Eegister  in  1816.  The  title  to  a strip  20  miles 
wide  was  obtained  of  the  Indians  with  a view  to  such  work.^^ 

Also,  from  page  269  of  the  report  of  E.  W.  Willard,  land  agent, 
in  the  same  volume,  referring  to  the  Indian  question,  there  was 
• read  as  follows: 

4006  ‘^In  the  various  histories  of  Illinois  there  has  been  little 
said  of  the  Illinois  and  Michigan  Canal.  The  work  was  na- 
tional in  its  character  and  its  progress  was  observed  with 
intense  interest  throughout  all  the  states.  The  interest  which 
the  general  government  had  taken  in  the  project  is  evidenced 
by  the  Act  of  Congress  changing  the  northern  boundary  lines 
of  the  state,  by  purchasing  from  the  Indians  a strip  of  terri- 
tory extending  from  the  Illinois  Elver  to  Lake  Michigan — 
by  the  Act  of  Congress  of  1822,  granting  the  right  of  way  to 
the  state,  and  the  act  of  1827  granting  land  to  defray  the  cost 
of  construction.^’ 

4007  Page  204  and  205  from  the  report  of  William  Grooding, 
chief  engineer  of  the  canal,  dated  canal  office,  Lockport, 

December  15, 1842,  showing  gauge  readings,  introduced  in  evidence. 
(Objection.)  The  report  shows  ‘^Gauges  of  Calumet  Eiver  by  U. 
S.  engineers — 17,281  per  minute.  By  Bucklin,  5,333  per  minute. 

S.  Desplaines  Eiver,  Post  & Paul,  1950,  by  Bucklin  1,000  per 
min. 

S.  DuPage  Eiver,  U.  S.  Engineers,  1665,  by  Bucklin  6916  per 
min. 

The  aggregate  minimum  discharge  of  the  three  rivers  would  be 
thus  shown: 

4008  Calumet  5,333,  Desplaines  1,000,  DuPage  1,655=7,998  cubic 
feet  per  minute.  This  quantity  of  water  was  to  supply  filtra- 
tion and  evaporation  of  74  miles  of  canal,  necessary  lockage  water 
and  loss  at  dams  and  upon  Calumet  feeder.  It  is,  therefore,  obvi- 
ous that  there  would  have  been  barely  a supply  for  a canal  of 
ordinary  dimensions,  admitting  that  the  water  could  have  been 
introduced  (as  it  might  have  been)  at  the  points  desired. 

Quantity  of  water  in  all  these  streams  continues  to  diminish 
till  the  1st  of  November,  when  the  total  would  be  about  7,- 

4009  300  cubic  feet  per  minute  for  all  three  rivers.  The  water  nec- 
essary to  supply  the  canal  from  Chicago  to  Marseilles  is  9,924 

cubic  feet  per  minute,  or  a deficiency  of  2,624  cubic  feet  per  minute. 


1175 


There  would  he  some  loss  at  the  dam  at  the  Calumet,  upon  three  or 
four  miles  of  the  feeder,  and  also  at  the  DuPage  dam.  It  would 
be  safe  to  calculate,  however,  that  there  could  be  introduced  into 
the  canal  from  these  three  rivers  6,300  cubic  feet  per  minute.  The 
total  supply  needed  is  9,924  or  a deficiency  of  3,624  cubic  feet  per 
minute. 

4010  Here  complainants  asked  that  part  of  the  gauge  reading 
shown  on  page  202  of  said  report  be  read,  as  follows: 

Desplaines  Eiver  at  Cache  Island,  117,000  feet  per  hour. 

DuPage  River  at  Cache  Island,  114,000  feet  per  hour. 

Aux  Sable  River  at  Cache  Island,  60,000  feet  per  hour. 

Fox  River  at  Cache  Island,  450,000  feet  per  hour. 

The  report  states  that  the  engineer’s  remark  in  relation  to  these 
gauges  that  the  results  are  predicated  upon  the  present  stage  of 
water,  and  that  the  quantities  may  sometimes  be  lower. 

4012  The  defendant  here  introduced  certified  copies  of  certain 
records  of  the  Will  County,  Illinois,  Circuit  Court,  in  the  case 
of  James  McKee  v.  The  Board  of  Canal  Commissioners  of 
4019  the  Illinois  & Michigan  Canal,  the  final  order  of  said  Circuit 
Court  providing  ^Dhat  the  said  James  McKee  is  entitled  to 
damages  for  his  land,  mill  site  water  and  water  privileges  taken 
from  him  by  the  defendants  for  the  construction  of  the  Illinois  and 
Michigan  Canal;  and  the  said  Court  do  assess  the  damages  of  the 
said  James  McKee  on  occasion  of  the  premises  at  the  sum  of  seven- 
teen thousand  six  hundred  and  fifty  dollars  upon  his  releas- 
4023  ing  to  the  commissioners  the  land  taken.”  Deed  of  James 
McKee  and  Sally  McKee,  his  wife,  in  conformity  with  the  said 
decree. 

4030  Certificate  of  recording  of  said  deed. 

4031  Thereupon  counsel  for  the  defendant  offered  and  read  in 
evidence  the  deposition  of  Stephen  J.  Williams,  a witness 

for  defendant. 

(For  rulings  on  same  see  Abstract  of  Deymsitions,  supra,  p.  522.) 

4032  Thereupon  counsel  for  the  defendant  offered  and  read  in 
evidence  the  deposition  of  William  S.  Meyer,  a witness  for 

the  defendant. 

(For  rulings  on  same  see  abstract. of  depositions,  supra,  p.  530.) 


1176 


Thereupon  counsel  for  the  defendant  offered  and  read  in  evi- 
dence the  deposition  of  George  E.  Gurney,  a witness  for  the  de- 
fendant. 

(For  rulings  on  same  see  abstract  of  depositions,  supra,  p.  532.) 

Thereupon  counsel  for  the  defendant  offered  and  read  in 

4033  evidence  the  deposition  of  Xavier  Munch,  a witness  for  the 
defendant. 

(For  rulings  on  same  see  abstract  of  depositions,  supra,  p.  539.) 

Joseph  E.  McCullough, 
a witness  for  the  defendant,  testified  as  follows: 

Direct  Examination. 

4034  My  name  is  Joseph  E.  McCullough.  I live  at  St.  Louis, 
Missouri.  I am  sixty-two  years  old.  I am  a steamboat  mas- 
ter and  pilot.  I have  been  a pilot  for  forty  years  and  a master 
for  twenty-seven  years.  I commenced  to  learn  the  river  in  1862, 
served  an  apprenticeship  until  1865,  got  my  license  from  Cincin- 
nati to  Memphis  on  the  Mississippi  Eiver,  afterwards  learned  the 
river  from  St.  Louis  to  New  Orleans  and  commenced  piloting 
there  in  1867.  Learned  the  Cumberland  Eiver  just  after  the  war, 
1862  or  1863;  I am  a uilot  from  West  Virginia — Huntington,  West 
Virginia,  to  New  Orleans,  and  from  St.  Louis  to  New  Orleans, 
and  from  Nashville  on  the  Cumberland  to  its  mouth.  Was  one 
of  the  founders  and  am  president  of  the  Pilot  Organization,  a 
benevolent  organization. 

The  most  rapid  river  I ever  navigated  was  the  falls  of  the  Ohio 
and  Harbor  Shoals  on  the  Cumberland.  Took  a boat  over  the 
falls  of  the  Ohio  twice  this  season.  Have  not  been  over  the  Cum- 
berland for  a good  many  years.  Have  never  navigated  more  dif- 
ficult or  more  rapid  waters  in  any  river.  Saw  the  Desplaines 
Eiver  in  April,  1908,  and  again  this  morning  (June  2,  1908) 
from  Joliet  down  to  the  mouth  of  the  river.  I certainly  think 
it  is  not  navigable.  (Objection.)  It  could  not  be  used  for 
4038  useful  purposes  of  commerce.  It  is  a hard-bottomed  river 
with  a very  rapid  current,  very  crooked  and  very  narrow. 
I don’t  think  that  it  would  be  possible  for  any  steamboat  on  earth 
that  I ever  saw  or  ever  will  be  here  to  either  ascend  or  descend 


1177 


it.  This  river  is  much  swifter  than  the  falls  of  the  Ohio  or 

4039  the  Harbor  Shoals  of  the  Cumberland.  Much  swifter  than 
the  Des  Moines  and  Eock  Island  Eapids  on  the  Mississippi. 

Never  knew  of  any  steamboat  in  my  experience  that  could  navi- 
gate the  Desplaines  River.  Assuming  that  450,000  cubic  feet  a 
minute  of  water  has  been  added  to  the  natural  flow  of  the  Des- 
plaines River,  I would  say  that  in  its  natural  condition  it  would 
go  dry. 

4040  I am  familiar  with  the  process  of  cordelling.  It  is  just 
simply  to  get  out  with  a lot  of  men,  take  a line  over  the  shoul- 
der and  go  to  pulling.  I am  familiar  with  the  process  of  w^arping', 
which  is  done  by  laying  a line  to  the  bank,  or  even  laying  an  an- 
chor out  in  the  river,  using  your  steam  capstan  and  nigger. 

4041  A boat  could  not  be  cordelled  on  the  Desplaines  River  be- 
cause it  is  too  crooked;  you  could  not  get  out  on  the  bank. 

Nor  could  a boat  be  warped,  because  you  could  not  get  any  craft 
that  you  could  lay  an  anchor  with,  and  even  were  an  anchor  laid, 
a boat  could  not  be  hauled  up  the  river  by  it,  because  the  current 
would  swing  it  into  the  banks.  I have  a boat  that  draws  but  two 
feet  of  water,  and  I would  not  attempt  to  try  to  take  her 

4042  down  the  Desplaines.  I do  not  think  this  river  here  could 
be  navigated  with  a good  sized  canoe  in  safety. 

Cross-Examination. 

The  steepest  rapids  I ever  passed  over  are  the  Ohio  Rapids. 
4044  The  fall  there  is  about  28  feet  from  the  head  to  the  foot  of 
the  fall,  which  is  about  two  miles  long.  The  shoals  of  the 
Cumberland  River  are  a little  over  a mile  in  length,  and  the 

4046  fall  is  about  eight  feet.  In  shallow  water  they  have  to  warp 
over  it,  or  did  before  the  Government  placed  a lock  and  dam, 

4047  which  gives  a slack  water  navigation.  I have  heard  of  the 
Snake  River,  but  do  not  know  whether  it  is  navigable  or  not. 

4048  If  you  had  all  the  water  needed  to  make  the  best  navigation, 
I would  not  say  you  could  get  up  and  down  a slope  over  four 

or  five  feet  to  the  mile.  When  navigation  is  accomplished  over 
the  falls  of  the  Ohio,  the  river  is  banked  full,  with  very  little  fall. 
Going  up  the  river  is  the  hard  part.  In  going  over  the  Cumber- 


1178  M cC  idlougli, — Cross-Exam . — C on  tinii  ed. 

land  Shoals  in  low  water,  boats  have  to  be  warped  along. 

4050  If  I were  told,  even  by  Government  engineers,  that  naviga- 
tion was  accomplished  on  the  Snake  Kiver,  in  Oregon,  over 

a fall  of  29  feet  in  one  mile,  I would  have  to  be  shown  the  river 
before  I would  believe  it. 

4051  There  are  a number  of  dams,  wing  dams,  built  in  the  Mis- 
sissippi Eiver,  simply  built  out  from  the  shore  to  narrow 

the  stream.  In  a number  of  places  they  have  helped  the  river, 
but  the  balance  they  have  made  worse.  Dredges  are  working  in 
the  river,  but  they  do  not  accomplish  much,  for  the  reason  that 
whatever  is  dredged  out  is  washed  right  back  in  again.  I believe 
a 14-foot  channel  can  be  made  through  the  valley,  but  not  with 
dredges.  I think  if  they  were  to  wall  up  the  banks  of  the  3Iissis- 
sippi  Eiver  and  narrow  it  in  its  widest  place  it  will  dig  its  own 
channel. 

All  the  navigation  I have  participated  in  is  such  as  has  been 
mentioned  on  the  Mississippi,  Ohio  and  Cumberland  Eivers. 
4055  I have  never  gone  up  or  down  the  St.  Lawrence  Eiver,  the 
Columbia  or  the  Snake,  nor  do  I know  how  they  are  navi- 
gated. 

I did  not  say  that  no  boat  had  ever  navigated  the  Desplaines 
Eiver;  what  I said  was  that  I did  not  think  that  there  ever 

4057  would  be  a boat  come  up  or  down.  The  only  small  boat  I 
have  had  any  experience  with  was  a small  gasoline  boat 

which  would,  in  my  judgment,  carry  less  than  eight  tons.  I took 
the  boat  to  Memphis  with  a small  party  a year  ago  this  spring. 
With  that  exception  I have  never  had  to  do  with  a boat  of 

4058  that  sort.  I have  seen  a great  many  boats  used  in  commer- 
cial navigation  that  were  only  capable  of  carrying  about  ten 

tons. 

Q.  Do  you  mean  boats  that  are  engaged  in  carrying  freight? 
A.  No,  sir;  pleasure  boats. 

A boat  12  feet  wide,  flat  bottomed,  60  or  70  feet  long,  could 

4059  carry  ten  tons  of  freight  on  six  or  seven  inches  of  water. 

When  I saw  the  Desplaines  Eiver  I knew  it  was  a rock 
bottom  stream,  because  of  the  boulders  that  showed  in  the  river. 

Boulders  would  not  make  the  same  appearance  in  a mud 
4061  bottom  because  a mud  bottom  would  deaden  the  current. 


1179 


Re-direct  Llxamination. 

A boat  60  to  70  feet  long  and  12  feet  wide,  such  as  lias  been 
described,  if  operated  by  steam,  could  not  carry  ten  tons  of 
freight,  because  she  would  be  loaded  with  machinery.  It 
4063  would  take  six  or  eight  inches  of  water  to  carry  her  ma- 
chinery. Well,  I said  at  first,  and  I will  stick  to  my  text,  I 
don’t  think  you  could  bring  a canoe  up  the  Desplaines  Kiver. 

My  record  as  a navigator  and  pilot,  if  I do  say  it  myself,  I can 
prove  it,  there  are  few  equals  and  none  my  superiors. 

In  the  list  of  boats  shown  on  page  119  of  Executive  Document 
No.  264,  being  a survey  of  a waterway  from  Lake  Michigan  to 
the  Illinois  Kiver,  I recognize  the  names  of  a great  many  boats 
with  which  I am  familiar.  The  depth  of  the  boats  Abner  O’Neil, 
Adam  Jacobs,  Albert  F.  Wills,  Alice  Brown,  Artemus  Lamb, 
4067  E.  B.  Wood,  B.  E.  Kay,  Bald  Eagle,  as  given  in  that  list,  is 
the  depth  of  the  boats  empty.  As  to  the  Alex  Swift,  Belle 
McGowan  and  Big  Kanawha,  they  are  towboats,  carry  no  freight, 
and  the  depth  given  is  their  depth  loaded  with  coal  for  their  own 
use.  From  my  examination  of  this  list,  the  depths  given  are  for 
the  boats  empty,  except  the  passenger  l)oats., 

Re-cross  Examination. 

4069  In  the  boats  which  I have  mentioned,  where  the  table  gives 
the  length  and  breadth  and  depth,  in  referring  to  the  depth 
it  means  the  extent  to  which  you  can  put  the  shallowest  part  of 
your  boat  down  into  the  water,  loaded. 

4074  Thomas  F.  Boyle, 

a witness  for  the  defendant,  testified  as  follows: 

Direct  Examination. 

My  name  is  Thomas  F.  Boyle.  I am  about  sixty  years  old  and 
live  at  St.  Louis,  Missouri.  I have  been  on  the  river  since  1867; 
got  a first  class  pilot’s  license  in  1871,  and  have  had  a master’s 
license  for  over  25  years.  My  license  covers  from  Grafton 

4075  to  St.  Louis  and  New  Orleans;  the  Ohio  Kiver  to  Paducah, 
the  Ouachita  Kiver  and  its  tributaries  and  the  Arkansas 

Kiver  to  Little  Kock.  I piloted  for  ten  years  during  the  cotton 


1180 


Boyle, — Direct  Exam.— Continued. 


seasons  on  tlie  Arkansas  Eiver,  before  they  built  tlie  railroad. 
During  the  summer  season  there  was  not  enough  water  to  run  a 
boat.  I have  been  on  the  biggest  boat  that  ever  left  New  Orleans, 
and  I have  been  on  the  smallest  of  them.  The  Arkansas 

4077  Eiver  is  the  toughest  river  on  earth,  the  worst  of  them  all. 
I piloted  a big  boat  on  that  river,  and  when  there  was  not 

enough  water  for  it,  I piloted  a small  one.  The  lightest  boat  I 
ever  piloted  on  that  river  does  not  draw  over  18  inches.  I know 
the  John  H.  Harbin.  It  is  a very  small  boat;  does  not  draw  over 
12  inches. 

I saw  the  Desplaines  Eiver  once  last  April,  and  again  this  morn- 
ing with  Captain  McCullough;  saw  it  from  Joliet  down  to 

4078  the  mouth.  It  has  a rough  bottom,  as  far  as  I can  under- 
stand; it  is  crooked,  and  no  boat  on  earth,  of  any  size,  or 

any  account,  would  ever  attempt  or  no  fellow  would  ever  attempt 
to  go  up  in  it. 

4079  Q.  In  your  opinion  is  it  or  is  it  not  a navigable  stream? 
(Objection;  overruled;  exception.) 

A.  It  is  not  a navigable  stream. 

It  could  not  now  be  used  for  useful  commercial  purposes. 

Q.  Assuming  that  over  400,000  cubic  feet  a second  of  water 
has  been  added  to  its  natural  condition,  what  would  you  say  as 
to  whether  in  its  natural  condition  it  was  navigable? 

(Objection;  overruled;  exception.) 

A.  I think  if  it  dropped  down  a little  there  would  be  no  water 
in  there  at  all. 

Counsel  for  Defendant.  I meant  per  minute  when  I said  per 
second. 

4080  The  smallest  boats  that  I have  known  navigated  could  not 
be  taken  up  the  Desplaines  Eiver.  I am  familiar  with  the 

process  of  warping.  I have  never  done  any  of  it,  but  have  seen  a 
good  deal  of  it,  and  could  do  it  if  I had  to. 

Q.  Could  a boat  be  warped  up  by  Treat’s  Island  on  this  river? 
A.  I don’t  think  so. 

Q.  Why  not? 

Counsel  for  Complainant.  Just  a minute,  your  Honor.  I 


1181 


move  to  exclude  the  last  question  and  answer.  It  was  an- 

4081  swered  so  promptly  I did  not  get  time  to  object— on  the 
ground  that  this  witness  has  not  qualified  for  that  kind  of  an 

answer.  He  says  he  never  did  any  of  it  in  his  life. 

Counsel  for  Defendant.  He  says  he  has  seen  it  done  and  could 
do  it  himself. 

The  Court.  It  may  stand. 

It  would  w^ear  the  bottom  off  of  a boat  to  warp  it  up  either  of 
the  channels  at  Treat’s  Island,  because  they  are  so  narrow  and 
crooked.  You  cannot  warp  a boat  up  a stream  no  wider  than  the 
boat  is  long;  you  could  not  get  men  enough  to  do  it,  line  enough, 
power  enough  to  do  it.  I saw  obstructions  in  the  river,  consisting 
of  snags,  logs,  bars  and  the  rock  bottom  itself.  I think  you  could 
not  see  the  logs;  they  were  under  the  breaks.  We  call  that  a break 
when  you  don’t  see  it;  that  is  a break  in  the  water. 

Cross-Examination. 

4082  Of  course  the  Desplaines  could  be  made  navigable,  but  it 
would  take  a great  amount  of  money  to  do  it.  I cannot  give 
any  idea  of  what  the  greatest  slope  is  that  I have  ever  navi- 

4086  gated.  I have  never  had  any  experience  on  any  rivers  ex- 
cept these  central  rivers  here,  such  as  I have  named.  I have 

4087  never  been  on  the  St.  Lawrence,  the  Fox,  or  any  of  the  New 
England  rivers.  I do  not  know  whether  a boat  could  be  run 

on  a river  that  had  a fall  of  16  feet  to  the  mile,  or  one  that  had  a 
fall  of  10  feet  to  the  mile.  I have  had  no  experience  with 

4088  reference  to  that.  The  Arkansas  Eiver  is  pretty  narrow. 
In  some  places  it  is  so  narrow  that  in  low  water  you  have  to 
get  a yawl  down  and  go  ahead  and  tow  it.  The  river  at  those 

4089  places  is  from  a quarter  of  a mile  to  an  eighth  of  a mile 
wide.  The  navigable  part  was  about  40  feet  wide.  There 

are  times  when  this  boat  the  John  H.  Harbin  cannot  go  up  the 
river.  That  boat  only  draws  about  12  inches  light.  You  can 

4090  load  her  down  about  between  four  to  four  and  a half  feet. 
The  boat  is  about  150  or  160  feet  long  and  about  30  feet 

beam.  That  is  the  smallest  boat  I ever  saw  on  the  Arkansas 
River.  Below  St.  Louis  the  current  in  the  Mississippi  Eiver 

4091  runs  between  six  and  seven  miles  an  hour.  I think  a boat 
can  be  navigated  in  a greater  current,  depending  on  the 


1182 


l^ower  of  the  boat.  My  boat  can  go  against  a ten-mile  current, 
l)ut  I have  no  idea  how  many  feet  per  mile  of  slope  would 

4092  produce  that  current.  From  my  view  of  the  Desplaines  the 
other  day,  I do  not  think  there  was  over  three  and  a half  feet 

4093  of  water  at  the  shoalest  place.  I could  not  tell  how  many 
cubic  feet  of  water  in  the  river  passed  at  any  one  place. 

Re-direct  Examination. 

4094  There  is  no  place  below  Grafton  that  I know  of  where 
there  is  a ten-mile  current  in  the  Mississippi;  the  current  of 

that  river  averages  about  two  and  a half  miles  an  hour.  I might 
have  na\dgated  water  at  ten  miles  an  hour,  but  I don’t  know. 

Joseph  E.  McCullough,  Recalled: 

4095  In  the  navigation  of  swift  waters,  the  depth  of  the  water 
affects  the  possibilities  of  navigating  such  waters.  For  in- 
stance, in  the  Mississippi  River,  at  flood  time,  of  course  the  cur- 
rent is  greater,  at  medium  tide  it  is  very  much  less,  and  when  the 
river  gets  low,  when  it  confines  the  current  to  small  places,  between 

bars  and  shoals,  it  is  a great  deal  greater  then,  but  I would 

4096  say  the  average  current  in  the  Mississippi  at  medium  stage 
would  not  be  over  two  and  a half  to  three  miles  an  hour.  If 

a steamboat  comes  up  out  of  very  deep  water  onto  very  shallow 
water,  a stern  wheel  boat  especially,  she  will  pull  the  water  right 
out  from  under  her,  and  sit  right  down  on  it  and  just  simply  quit 
going  at  all.  If  she  came  up  out  of  12  feet  of  water  into  six, 

4097  you  wmuld  -think  she  would  stop.  A sidewheel  boat  will  do 
the  same.  In  shoal  water  such  a boat  will  not  stem  at  all; 

she  will  throw  the  water  right  out  from  under  her,  and  will  not 
steer.  The  highest  current  that  is  navigable  in  shoal  water  would 
not  be  over  four  and  a half  to  five  mile  current. 

Cross-Examination. 

4098  The  speed  of  the  boat  is  a very  important  factor  in  deter- 
mining whether  a boat  can  go  up  shallow  streams  with  rapid 

currents,  because  the  more  rapidly  you  turn  the  wheels,  the  more 
water  will  be  thrown  out  from  under. 


1183 


Re-direct  Examination. 

4099  When  you  get  to  swift,  shallow  water,  the  number  of  revo- 
lutions you  may  turn  your  wheel  will  not  insure  a given  rate 

of  speed;  you  can’t  run  in  swift,  shallow  water  with  the  same 
revolutions  that  you  can  in  deep  water  and  make  the  same  speed. 

Lyman  E.  Cooley, 

recalled : 

4100  There  was  produced  by  the  witness  and  offered  and  re- 
ceived in  evidence  various  documents  used  in  the  prepara- 
tion of  the  consolidated  profile  Cooley  Exhibit  3,  as  follows : 

Cooley  Exhibit  21 — Profile  of  United  States  survey  of  1902-4 
(Atlas,  p.  3963;  Trans.,  p.  6596;  Abst.,  p.  1930). 

Cooley  Exhibit  22 — Sheet  55,  accompanying  the  foregoing  pro- 
file (Atlas,  p.  3964;  Trans.,  p.  6598;  Al)st.,  p.  1930). 

Cooley  Exhibit  23 — Sheet  56,  accompanying  said  profile  (Atlas, 
p.  3965;  Trans.,  p.  6600;  Abst.,  1930). 

Cooley  Exhibit  24 — Sheet  57,  accompanying  said  profile  (Atlas, 
p.  3966;  Trans.,  p.  6602;  Abst.,  p.  1931). 

(Note:  The  witness  indicated  that  Sheets  11  and  12  in 

House  Documents  263  of  1905  embrace  the  material  Cooley 
Exhibits  22,  23  and  24 ; said  Sheet  11  was  marked  Cooley  Ex- 
hibit 22a  (Atlas,  p.  3967;  Trans.,  6604;  Abst.,  p.  1931),  and 
said  Sheet  12,  Cooley  Exhibit  23a  (Atlas,  p.  39fe;  Trans.,  p. 
6606  ; Abst.,  p.  1931). 

Cooley  Exhibit  25 — Sheet  13,  Marshall’s  survey  of  Waterway 
from  Lake  Michigan  to  the  Illinois  Eiver  of  1890,  being  duplicate 
of  Zarley  Exhibit  and  the  sheet  used  in  cross-examination  of  wit- 
ness Mills,  containing  marks  put  thereon  during  said  cross-exam- 
ination (Atlas,  p.  3969;  Trans.,  p.  6608;  Abst.,  1931). 

Cooley  Exhibit  26 — Sheet  15  of  Benyeaurd  survey  of  1893  (At- 
las, p.  3970;  Trans.,  p.  6610;  Abst.,  p.  1932). 

Cooley  Exhibit  27— Sheet  16  of  foregoing  (Atlas,  p.  3971  ; 
Trans.,  p.  6612;  Abst.,  p.  1932). 

Cooley  Exhibit  28 — Sheet  2 of  plans  of  dam.  May  20,  1908  (At- 
las, p.  3957;  Trans.,  6584;  Abst.,  1928). 


1184 


Cooley  Exhibit  29 — Map  and  profile  of  Desplaines  and  Illinois 
Rivers,  Lockport  to  Henry,  by  the  Sanitary  District  of  Chicago 
(Atlas,  p.  3972;  Trans.,  p.  6614;  Abst.,  p.  1932). 

Cooley  Exhibit  30 — Profile  Lake  Michigan  to  Cairo,  Sheet  No. 

I,  by  the  Drainage  District  of  Chicago  (Atlas,  p.  3973;  Trans., 
p.  6616;  Abst.,  p.  1932). 

Cooley  Exhibit  31 — (Previously  pnt  in  evidence  as  Cooley  Ex- 
hibit 15.) — The  Seddon  profile,  showing  flow  lines  of  Desplaines 
and  Illinois  Rivers  between  Joliet  (Atlas,  p.  3953;  Trans.,  p. 
6576;  Abst.,  p.  1927). 

Pages  189  to  192,  inclusive,  of  House  Document  263,  59th  Con- 
gress, First  Session,  1905,  containing  data  of  discharge,  measure- 
ments of  Illinois  and  Desplaines  Rivers  (App.  II,  p.  3901;  Trans., 
p.  6011;  Abst.,  p.  1730). 

Pages  478  to  520,  inclusive,  of  said  House  Document  263  (App. 

II,  p.  3890;  Trans.,  p.  6011;  Abst.,  p.  1730). 

Cooley  Exhibit  32 — Gauge  readings  of  the  Desplaines  River  at 
Riverside  for  the  year  1905,  taken  from  the  Proceedings  of  the 
Sanitary  District  of  Chicago,  that  year  (x\pp.  II,  p.  3902;  Trans., 
p.  6014;  Abst.,  p.  1730). 

Cooley  Exhibit  33 — (Previously  introduced  as  Cooley  Exhibit 
13;  Trans.,  p.  7642;  Abst.,  p.  876.) — Pages  944  to  962,  inclusive. 
Proceedings  of  the  Board  of  Trustees  of  the  Sanitary  District  of 
Chicago,  November  27,  1907  (App.  II,  p.  3900;  Trans.,  p.  5990; 
Abst.,  1730). 

Cooley  Exhibit  34 — Gauge  readings.  Riverside  gauge,  1907, 
from  Proceedings  of  Sanitary  District  of  Chicago  (App.  II,  p. 
3903;  Trans.,  p.  6028;  Abst.,  p.  1730). 

Cooley  Exhibit  4 — Tabulation  of  flow  in  main  channel,  by  Sani- 
tary District  of  Chicago,  for  the  year  1900  (App.  II,  p.  3892; 
Trans.,  p.  5863;  Abst.,  p.  1729). 

Cooley  Exhibit  5 — Tabubtion  of  flow  in  main  channel,  by  Sani- 
tary District  of  Chicago,  for  the  year  1901  (App.  II,  p.  3893; 
Trans.,  p.  5881;  Abst.,  p.  1729). 

Cooley  Exhibit  6 — Tabulation  of  flow  in  main  channel,  by  Saiii- 


1185 


tary  District  of  Chicago,  for  the  year  1902  (A])p.  IT,  p.  3894; 
Trans.,  p.  5899;  Ahst.,  p.  1729). 

Cooley  Exhibit  7 — Tabulation  of  flow  in  main  channel,  by  Sani- 
tary District  of  Chicago,  for  the  year  1903  (App.  II,  p.  3895; 
Trans.,  p.  5918;  Abst.,  p.  1729). 

Cooley  Exhibit  8 — Tabulation  of  flow  in  main  channel,  by  Sani- 
tary District  of  Chicago,  for  the  year  1904  (App.  IT,  p.  3890; 
Trans.,  p.  5937;  Abst.,  p.  1729). 

Cooley  Exhibit  9 — Tabulation  of  flow  in  main  channel,  by  Sani- 
tary District  of  Chicago,  for  the  year  1905  (App.  II,  p.  3897; 
Trans.,  p.  5954;  Abst.,  p.  1729). 

Cooley  Exhibit  10 — Tabulation  of  flow  in  main  channel,  by  Sani- 
tary District  of  Chicago,  for  the  year  1900  (Ai)p.  II,  p.  3898; 
Trans.,  p.  5909;  Abst.,  p.  1730). 

Cooley  Exhibit  11 — Tabulation  of  flow  in  main  channel,  by  Sani- 
tary District  of  Chicago,  for  the  year  1907  (App.  II,  p.  3899; 
Trans.,  p.  5984;  Abst.,  p.  1730). 

Cooley  Exhibit  35 — Original  profile  of  Desplaines  and  Illinois 
Kivers,  by  General  J.  A.  Wilson,  1807  (Atlas,  p.  3974;  Trans., 
p.  0018;  Abst.,  p.  1933). 

Cooley  Exhibit  30 — Original  profile  of  Desplaines  and  Illinois 
Eivers,  by  Colonel  J.  A.  Macomb,  1874  (Atlas,  p.  3975;  Trans.,  p. 
0020;  Abst.,  p.  1933). 

Profile  Sheets  7 and  8,  House  Document  192,  54th  Congress, 
Second  Session,  Eeport  of  Deep  Waterways  Commission  (Atlas, 
pp.  3975a  and  3970;  Trans.,  pp.  0022-0024;  Abst.,  p.  1933). 

Title  page  of  said  book  is  as  follows: 

Eeport  of  the  United  States  Deep  Waterways  Commission, 
prepared  at  Detroit,  Michigan,  December  18-22,  1890,  by  the 
Commissioners,  James  B.  Angell,  John  E.  Eussell,  Lyman  E. 
Cooley.  Accompanied  by  the  report  on  Technical  Work  and 
the  Several  Topical  Eeports  ancl  Drawings  pertaining  there- 
to. January  18,  1897. — Deferred  to  the  Committee  on  Inter- 
state and  Foreign  Commerce,  with  accompanying  papers,  and 
ordered  to  be  printed.  Washixgtox:  Government  Printing 

Office.  1897.” 


1186 


In  response  to  a request  of  the  defendant,  I now  produce 
4102  a pamphlet  by  Judge  Taylor  entitled  ‘‘The  present  aspect 
of  the  Mississippi  Eiver  Commission”  and  refer  to  pages 
14  and  15,  which  is  one  of  the  sources  from  which  I made  up  my 
opinion  that  the  Desplaines  Elver  is  navigable.  (Upon  objection 
by  the  defendant,  the  court  did  not  allow  the  subject  matter  of 
said  pamphlet  to  be  introduced  in  the  record.) 

4116  Whereupon  there  was  read  in  evidence,  from  the  official 
report  of  the  Sanitary  District  on  the  Lakes  to  the  Gulf 
Waterway  of  1890  and  1891,  pages  3 and  4 and  pages  8 and  9,  the 
following : 

‘ ‘ Historical  Eesume. 

1.  First  Thought  of  a AVateravay. — Great  navigable  rivers, 
separated  by  a short  and  lovv'  portage,  the  favorite  trail  of 
the  Indian  and  the  trapper,  guided  the  first  explorers, 
Joliet,  Marquette,  LaSalle  and  Hennepin,  whose  names  are 
memorialized  in  the  geography  of  the  route.  The  possibil- 
ities which  dawned  on  these  early  visitors  appealed  to  the 
pioneer  until  the  “Chicago  Portage”  was  better  knov/n  to 
statesmen  a hundred  years  ago  than  to  those  of  to-day,  bet- 
ter known  in  an  era  when  water  transportation  was  the  great 
instrument  of  commerce. 

2.  Early  Consideration,  1808-1838. — Albert  Gallatin,  in 
his  celebrated  report  of  1808,  on  means  of  internal  communi- 
cation, gave  a prominent  place  to  the  project  of  a ship  canal 
across  this  portage,  and  in  1811  it  was  reported  in  Congress 
in  a bin  along  with  the  projected  Erie  and  other  canals.  From 
1808-1825  Clinton  and  Morris  urged  the  “proposed  ship 
canal”  as  an  extension  of  the  Erie  Canal  to  the  Mississippi, 
thus  opening  up  water  communication  by  the  lakes  from  the 
Hudson  Eiver  to  the  Gulf.  In  1838  General  Dearborn  writes 
of  the  canal  as  “of  such  enlarged  dimensions  as  to  permit  the 
passage  of  large  vessels,  being  ten  feet  deep,”  or  all  that 
could  then  be  carried  by  lake  across  the  St.  Clair  flats.  The 
navigable  waters  of  the  Desplaines,  as  reserved  for  public 
use  by  the  original  land  survey  (made  in  1821),  approached 
at  Summit  within  seven  miles  of  the  waters  of  Lake  Michigan, 
at  the  South  Branch  of  the  Chicago  Eiver  at  Bridgeport. 

3.  Early  Surveys.  The  first  surveys  appear  to  have  been 
made  by  Capt.  Long  in  1816,  and  the  United  States  passed  its 
first  act  in  1822,  and  legislated  farther  in  1827,  1833,  1842  and 
1854.  The  State  of  Illinois  took  action  in  1823,  authorized 
canal  construction  in  1829,  and  inaugurated  the  work  in  1836. 
The  State  submitted  plans  in  1825,  a survey  was  made  by 


1187 


‘‘the  United  States  in  1830,  and  further  surveys  by  the  State 
in  1833. 

4.  Canal  Versus  Kiver:  Canal  Constructed. — The  ques- 
tion of  canal  or  slackwater  (locks  and  dams  in  the  river)  be- 
tween La  Salle  and  Joliet  was  in  controversy,  and  with  the 
present  it  can  be  said  was  wrongly  decided  in  favor  of  the 
canal.  The  work  was  prosecuted  under  various  financial  vicis- 
situdes, and  finally  opened  in  1848  on  a modified  plan,  with 
summit  level  across  the  ‘Chicago  Divide’  eight  feet  above  low 
lake  level  and  supplied  from  the  Calumet  River  by  a feeder 
through  the  Sag,  a side  branch  of  the  ancient  outlet  leading 
out  by  Blue  Island.  This  summit  level  was  finally  cut  down 
to  lake  level,  according  to  the  original  plan,  in  1866-1871,  by 
the  City  of  Chicago  for  sanitary  purposes,  thus  fulfilling  in  a 
minor  degree  the  dream  of  two  hundred  years,  a flow  of 
water  from  the  Great  Lakes  to  the  ^Mississippi. 

III.  The  Policy  of  the  State  and  the  Sanitary  District. 

1.  State  Legislation.  The  policy  of  the  State  of  Illinois 
and  of  the  Sanitary  District  of  Chicago  is  defined  in  the  leg- 
islation by  the  General  Assembly  of  1889,  viz. : 

1.  An  act  to  create  Sanitary  Districts  and  to  remove  ob- 
structions in  the  Desplaines  and  Illinois  Rivers.  Apuroved 
May  29,  1889.  In  force  July  1,  1889. 

2.  An  act  in  reference  to  the  improvement  of  the  Illinois 
and  Desplaines  Rivers,  and  to  rejieal  an  act  entitled,  ‘An  Act 
to  cede  certain  locks  and  dams  in  the  Illinois  River  to  the 
United  States.  Approved  May  31,  1887.  In  force  May  31, 
1887.’  Approved  June  4,  1889.  In  force  July  1,  1889. 

Joint  resolution  defining  the  policy  of  the  State  in  regard 
to  a waterway  of  the  greatest  jiracticable  depth  and  useful- 
ness for  navigation  from  Lake  Michia'an  via  the  Desplaines 
and  Illinois  Rivers,  and  to  encourage  the  construction  of 
feeders  thereto  of  like  proportions  and  usefulness : 

2.  Organization  of  the  Sanitary  District.  This  policy 
was  further  defined  and  the  laws  given  a practicable  bear- 
ing by  the  petition  for  a sanitary  district,  the  decision  of  the 
three  judges  acting  as  a commission  to  determine  the  boun- 
daries of  said  district  and  the  vote  of  80,000  electors  against 
less  than  200,  by  which  the  Sanitary  District  of  Chicago  be- 
came an  accomplished  fact. 

3.  Statement  of  policy.  The  policy  thus  defined  may  be 
epitomized  as  follows: 

1.  To  construct  a waterway  of  a capacity  of  not  less  than 
10,000  cubic  feet  per  second  (600,000  cubic  feet  per  minute) 
from  Lake  Michigan  at  or  near  the  Chicago  River  across  the 
Chicago  Divide  of  a width  of  not  less  than  160  feet  and  of  a 
depth  of  not  less  than  18  feet,  to  some  point  on  the  Desplaines 
River  where  the  water  may  be  released  to  the  public  river 
anywhere  between  Lockport  and  Lake  Joliet.  The  joint  res- 


1188  Extract, — Lakes  to  Gulf  Waterway. — ■Continued. 

“olution  in  contemplation  of  co-operation  by  the  United 
States,  specifies  the  depth  at  not  less  than  22  feet  to  Lake 
Joliet. 

2.  To  secure  a depth  of  not  less  than  14  feet  from  Lake 
Joliet  to  La  Salle. 

3.  To  so  design  the  works  from  Lake  Michigan  to  La 
Salle  as  to  permit  further  developments  for  any  additional 
capacity  and  for  a depth  from  Lake  Joliet  to  La  Salle  equal 
to  that  across  the  Chicago  Divide. 

4.  To  remove  the  state  works  at  Henry  and  at  Copperas 
Creek,  on  the  lower  Illinois,  within  four  years  or  sooner,  if 
accession  of  water  will  permit,  and  to  stop  work  upon  the 
Government  locks  and  dams  at  La  Grange  and  Kampsville, 

,and  to  improve  the  lower  river  from  La  Salle  to  the  mouth  in 
such  manner  as  to  develop  progressively  all  the  depth  prac- 
ticable by  the  aid  of  a large  water  supply  from  Lake  Michi- 
‘ gan  at  Chicago.^ 

4.  Work  of  the  Sanitary  District.  The  Sanitary  District 
is  obligated  to  construct  a channel  not  less  than  18  feet 
deep  and  of  not  less  than  the  specified  capacity  across  the 
Chicago  Divide  and  may  deliver  the  water  to  the  public  river 
at  any  point  between  Lockport  and  Lake  Joliet.’’ 

The  preface  of  said  book  reading  as  follows: 

^^To  the  Board  of  Trustees  of  the  Sanitary  District  of 

Chicago. 

Gentlemen : — 

4122  I submit  herewith  a preliminary  report  which  is  designed 
to  cover  the  issues  involved  in  a waterway  from  the  Great 
Lakes  to  the  Gulf  of  Mexico,  and  the  relations  which  such 
waterway  may  bear  to  the  Sanitary  District  of  Chicago. 

(Signed)  L.  E.  Cooley, 

Chief  Engineer. 

Chicago,  August,  1890.” 

The  court  thereupon  ruled  that  documents  which  were  used 
in  the  prej^aration  of  the  profile  Cooley  Exhibit  3,  were  properly 
admitted  in  evidence. 

4123  There  was  offered  in  evidence  Cooley  Exhibit  37,  being 
the  document  known  as  Continental  Waterway  Profile,  coun- 
sel for  complainant  stating  that  the  same  had  come  to  their  at- 
tention since  the  introduction  of  evidence  in  chief  and  urging 
that  the  same  was  properly  admissible  at  this  time  as  evidence 
in  chief  under  the  reservation  as  to  matters  overlooked  or  after- 
wards discovered,  to  the  admission  of  which  document  counsel 
for  the  defendant  objected,  which  objection  the  court  sus- 
tained. 


1189 


4124  Tliere  was  offered,  received  and  read  in  evidence  a passage 
in  the  annual  report  of  the  Chief  of  Engineers  of  th  United 

States  Army,  part  2 1883,  pages  1340  to  1345,  (a  part  of  which 
is  above  the  falls,  and  part  below  the  falls  in  the  Missouri  River), 
as  follows,  to-wit: 

4125  ‘‘There  is  sufficient  water  for  light  draught  boats.  The 
practical  difficulties  are  the  great  slope  and  consequent  rapid 
current  and  the  narrowness  of  some  of  the  chutes.  From 
Stubb’s  Ferry  to  the  foot  of  Blackbird  Ripple,  a distance  of 
68  3/4  miles,  there  is  an  average  fall  of  3.89  feet  to  the 
mile.  This  comprises  the  canyon  section  of  the  river.  The  ob- 
structions are  gravel  shoals,  in  wide  or  divided  reaches  of  the 
river,  and  boulders.  Between  Stubb’s  and  Gibson’s  ferries 
there  are  fifteen  places  at  which  the  depth  at  low  water  is 
less  than  2.5  feet,  and  twenty-eight  places  in  which  the  depth 
is  less  than  three  feet.  Of  the  fifteen  places  there  are  three 
at  which  the  shoal  is  short  and  smootli,  and  the  water  is  barely 
less  than  2.5  feet.  No  improvements  have  been  estimated  for 
at  those  places.  From  Gibson’s  Ferry  to  Sun  River,  the  slope 
is  very  uniform  and  about  0.49  foot  to  the  mile.  The  river 
is  sinuous,  the  cross  section  very  much  larger  than  above 
and  the  depth  everywhere  sufficient  for  low  water  naviga- 
tion. 

Below  is  given  a table  of  locations  and  estimated  cost  of 
improvements  necessary  to  obtain  a channel  depth  of  2.5 
feet.  The  estimates  are  for  dams  of  stone  alone.  The  depth 
of  2.5  feet  is  considered  sufficient  for  the  demands  of  any  com- 
merce which  may  resort  to  this  portion  of  the  river.  A possi- 
ble landing  for  Helena  freight  is  just  below  Twin  Islands. 
From  that  point  to  Helena  the  distance  is  seventeen  miles. 
From  Stubbs’  Ferry  to  Helena  it  is  twelve  miles.  Hence  witli 
an  additional  land  haul  of  five  miles  there  would  be  saved  a 
haul  of  eighteen  miles  of  the  most  difficult  portion  of  the 
river,  and  improvements  costing  about  $17,000  or  about  one- 
third  of  the  total  cost  of  improving  the  130  miles  of  the  river. 
From  Twin  Islands  to  Sun  River,  112  miles,  the  cost  of  im- 
proving the  river  to  a depth  of  2.5  feet  would  be  about 
$33,000,  or  about  $300  per  mile.  Considering  only  the  por- 
tions upon  which  these  improvements  would  be  made,  the 
cost  of  the  47  miles  from  Twin  Islands  to  the  foot  of  Lone 
Pine  IHalf  Breed)  Rapids  would  be  about  $700  per  mile. 

Table  showing  slopes  and  location  of  improvements  re- 
quired, and  estimated  cost  of  same  to  obtain  a 2.5  foot  chan- 
nel from  Stubbs’  Ferry  to  Sun  River,  in  the  Missouri  River: 


1190 


U.  S.  Eng.  Bep.  1883. — Continued, 


Locations 


E-S 

E o 


S-s 


‘Excessive  slope 


s 

(/) 

T3 

C 

a 

(U 

u. 

u 

u 

aj 

-a 

<u 

^ o 

*7~: 

a 

, . 

o ■- 

o 

to 

c 

cn 

c3 

a cr 

E IS 

t^’^E 

a; 

a 

0^ 

(U 

1 ^ 

6- 

W 


Trout  Creek  Ripple  1.3 

2640  6.86 

1.6 

Wing  dams 

1181 

$4.50 

$5,314.50 

Eldorado  Shoal 

8.5 

1080  8.02 

1.5 

do 

807 

5.50 

4,438.50 

Helena  Canon 

14.0 

Removal  of 

rocks 

75 

10.00 

750.00 

American  Shoal 

16.0 

3300  6.01 

2.0 

Wing  dam 

400 

3.50 

1,400.00 

American  Shoal 

16.6 

2.9 

Hilger’s  Shoal 

17.1 

2.3 

Wing  dam 

250 

4.50 

1,025.00 

Twin  Islands 

17.3 

2640  8.38 

1.7 

do 

740 

5.00 

3,700.00 

Proposed  landing 

18.0 

16,628.00 

Gate  Rapids 

22.3 

1220  8.65 

2.4 

Removal  of 

rocks 

50 

10.00 

500.00 

Cliff  Rapids 
Bear’s  Teeth 

24.9 

1960  8.89 

2.8 

Rapids 

26.1 

1430  18.61 

2.3 

Removal  of 

rocks 

200 

10.00 

2,000.00 

Bear’s  Teeth  Shoal  26.9 

5500  10.56 

1.4 

Closing  dams 

1580 

2.75 

4,345.00 

Island  No.  40 

Mandible  Point 

30.5 

1.5 

Wing  and  clos 

- 

Island  No.  43 

ing  dam 

2760 

2.75 

7,590.00 

Mandible  Point 

31.1 

2000  12.51 

2.3 

Removal  of 

Island  No.  45 

rocks 

20 

.10.00 

200.00 

Mandible  Point 

33.5 

2900  9.50 

2.3 

Closing  dam 

1560 

3.00 

4,680.00 

Wide  Ripple 

)36.9 

) 

2.3 

do 

1220 

4.50 

5,940.00 

Island 

) 

8880  5.42) 

Mitler’s  Island 
Mouth  Little 

)38.5 

) 

2.5 

Prickly  Pear 

43.1 

4710  3.10 

2.8 

Rock  Creek  Ripple  44.7 

3400  4.7 

2.7 

Nettleton  Ripple 

55.1 

1250  6.37 

2.3 

Cut  Bank  Island 

46.0 

2850  5.35 

2.4 

Dog  Creek  Ripple 

47.7 

2300  6.66 

2.4 

Jay  Cooke  Island 
Above  De  Lacey’s 

52.3 

5100  4.59 

2.8 

Point 

61.0 

1850  7.48 

2.8 

De  Lacey’s  Point 
Finnikin’s  Rapids 

62.0 

1010  7.79 

2.5 

64.2 

1250  7.39 

2.7 

Lone  Pine  Rapids 

65.0 

2670  18.16 

3.1 

Removal  of 

rocks 

125 

10.00 

1,250.00 

Scattering  Boulders 

above  Lone  Pine 

Removal  of 

Rapids 

Blackbird  Ripple 

68.3 

4340  5.44 

2.8 

rocks 

200 

10.00 

2,000.00 

Island  No.  118 

69.7 

1850  4.85 

2.7 

Sieben’s  Ford 

71.8 

6940  2.59 

3.0 

Cottonwood  Ripple  76.5 

537(1  4.07 

2.5 

Island  No.  133 

77.8 

4450  2.39 

2.9 

Estimated  cost 
Contingencies 


44,683. 

5,317. 


Total  cost  of  improvement 


$50,000. 


1191 


4129  ‘‘The  profitable  use  of  steamboats  is  made  questionable  as 
far  as  the  river  alone  is  concerned,  only  by  the  great  slopes. 
The  swiftest  observed  current  was  over  a slope  of  7.33  feet 
to  the  mile  and  was  5 miles  per  hour.  The  current  at  Lone 
Pine  Rapids,  having  a slope  of  18.16  feet  per  mile,  is  only 
4.5  miles  per  hour  for  one-half  mile. 

The.  greatest  slopes  are  given  in  the  above  table.  From 
the  head  of  Lone  Pine  Rapids,  for  a distance  of  2^  miles 
there  is  an  average  slope  of  9.77  feet  per  mile.  For  a com- 
parison of  the  slopes  with  those  of  a stream  of  the  same 
height  which  lias  been  and  is  navigated,  the  Yellowstone  af- 
fords an  opportunity.  The  maximum  fall  of  the  Yellow- 
stone (as  far  as  surveyed)  is  for  33  miles  below  Fort  Keogh 
at  the  rate  of  4 feet  per  mile.  The  maximum  fall  for  a 
distance  of  68  miles  (the  length  of  the  Missouri  slope  from 
Stubbs^  Ferry  to  the  Foot  of  Blackbird  Ripple)  is  3.55  feet 
per  mile,  or  0.34  foot  less  per  mile  than  for  the  Missouri. 
A graphical  comparison  of  the  slo])es  exhibits  the  following: 
Both  rivers  show  a succession  of  ])ools  and  rapids.  The 
changes  from  one  to  the  other  on  the  Yellowstone  are  mucli 
more  frequent.  If  the  rapids  are  short  boats  can  run  them 
by  ‘spurts’  or  judicious  ‘bottling  up’  of  steam,  while  an  in- 
creased length,  even  with  less  slope,  demands  ‘laying  lines.’ 
The  volume  of  water  in  the  Yellowstone  is  greater  than  in 
the  Missouri,  the  discharge  being  near  Fort  Keogh,  for  a 
stake  of  (plus)  0.24  foot,  6,014.85  cubic  feet  per  second,  while 
at  Stubbs’  Ferry  on  the  Missouri,  the  discharge  for  a stage 
of  (plus)  0.5  foot  was  3770  cubic  feet  per  second. 

All  through  freight  carried  on  the  river  above  the  falls 
would  have  to  be  portaged  from  Benton  to  Sun  River,  a dis- 
tance of  45  miles,  or  from  the  foot  of  the  falls  to  Sun  River, 
a distance  of  25  miles.  The  river  from  Benton  to  the  foot  of 
the  falls  may  be  navigated,  but  its  great  slope  would  render 
navigation  difficult.  It  is  thus  to  be  seen  that  there  would 
have  to  be  two  rehandlings  of  freight,  one  at  Benton,  or  at 
the  foot  of  the  falls,  and  one  at  Sun  River,  and  thus  a great 
expense  incurred.  A railroad  is  either  now  being  built  or 
will  shortly  be  built  from  Helena  to  Benton.  I do  not  believe 
the  river  above  the  falls  will  ever  be  navigated  by  steam- 
boats, except  perhaps  at  some  future  day  one  or  two  small 
pleasure  boats  may  be  placed  on  the  river  for  the  benefit  of 
tourists.  The  river  is  beautiful,  and  the  adjacent  country  was 
in  1880  well  stocked  with  game  of  all  kinds.  The  scenery  is 
grand  beyond  description.  The  almost  vertical  sides  of  the 
canon  rise  to  great  heights,  and  are  rendered  very  pictur- 
esque by  the  dark  srreen  pines,  the  rocks  of  every  possible 
shade  from  pure  white  to  dark  purple,  green,  and  black,  and 
the  vivid  scarlet,  yellow  and  green  mosses  and  creeping 
plants  which  here  and  there  cover  the  faces  of  the  rocks. 


1192 


U.  S.  Eng.  Rep.  1883. — Continued. 

Missouki  Kiver  Below  the  Falls. 

This  portion  of  the  river  from  Benton  to  St.  Louis  is  of 
great  value  and  interest  as  a line  of  transportation, — and 
must  ever  remain  so.” 

Counsel  for  Defendant.  I do  not  think  there  is  any  contention 
that  that  has  any  hearing  on  the  slope  of  the  navigation  by  steam- 
boats. I donT  think  anybody  contends  it  was  not  navigated  at  that 
time. 

Said  report  continues  as  follows : 

4131  ‘‘Nature  of  the  Navigation. 

The  conditions  under  which  steamboats  operate  on  the 
Missouri  Eiver  in  the  transportation  of  freight  and  passen- 
gers are  so  totally  different  from  those  on  eastern  rivers 
that  their  design  in  all  senses  have  to  conform  to  the  necessi- 
ties of  the  case.  Persons  who  have  never  traveled  on  the 
western  rivers  laugh  at  the  idea  of  a great  improvement,  in 
navigation  being  attained  by  making  a free  channel  of  3 feet 
or  30  inches  depth. 

The  iirominent  feature  of  the  river  with  which  this  re- 
port is  concerned  is  its  shallowness,  and  hence  it  is  the  style 
.of  hull  which  is  of  main  importance.  The  boat  must  be  of 
very  light  draught  and  hence  their  great  length  and  width  in 
proportion  to  their  depth.  The  style  of  the  hull  varies  in 
shape  from  the  flat  bottom  scow  model  to  one  possessing  some 
elegance  of  proportion.  But  in  general  the  sides  between 
the  ends  of  the  forward  and  stern  shears  and  the  bottom  of 
the  hull  are  true  planes,  at  right  angles  to  each  other.  A 
cross  section  of  the  hull  near  amidships  will  generally  be  a 
rectangle.  It  is  necessary  to  make  the  bottom  a horizontal 
plane  from  the  fact  that  in  shallow  water  the  boat  is  con- 
stantly touching  bottom,  and  often  lies  aground  for  hours  at 
a time,  in  which  case  a large  part  of  the  boat’s  weight  is  sup- 
ported by  the  river  bed.  Hulls  designed  to  carry  are  built 
with  reference  chiefly  to  buoyancy  or  total  displacement — ” 
4135  (Whereupon,  on  objection,  the  court  ruled  that  all  after 
the  statement  that  the  head  of  navigation  is  at  Fort  Benton 
be  stricken  out,  for  the  reason  that  it  had  no  reference  to 
the  question  of  slope  of  the  river.) 

There  was  offered,  received  and  read  in  evidence  a passage  in 
the  annual  report  of  the  Chief  of  Engineers  of  the  United  States 
Army,  part  1,  1878,  page  696,  as  follows: 

“A  very  full  and  complete  description  of  the  Missouri 
Eiver  is  given  in  Howell’s  report,  and  it  is  therefore  unnec- 
essary to  enter  into  any  minute  details.  I will  simply  state 


no:] 


“that  the  river  between  Benton  and  Carroll  may  he  eonsid- 
ered  as  having  a fixed  regimen,  and  the  work  necessary  for  its 
improvement  is  simply  in  its  character  and  will  be  perma- 
nent in  its  etfects.  There  is  plenty  of  water,  the  low  water 
discharge  at  Daukin’s  Eapids,  computed  from  current  obser- 
vations made  last  summer,  being  11,062  cubic  feet  per  second. 
The  surface  rate  of  current  for  low  water  is  3.2  miles  per 
hour,  and  for  a medium  high  stage  it  is  4.3  miles  per  hour. 
The  average  fall  for  a distance  of  3,200  feet  is  at  the  rate  of 
8.9  feet,  and  for  1,000  feet  of  that  distance  the  fall  is  at  the 
rate  of  11.42  feet  per  mile. 

Before  making  any  suggestion  as  to  the  work  which  should 
be  done  in  this  portion  of  the  river,  I shall  refer  to  the  lower 
reach  of  the  stream  or  that  between  Carroll  and  the  mouth  of 
the  Yellowstone. 

The  obstructions  to  the  navigation  of  this  latter  portion 
consists  of  snags  and  shifting  sand  bars.  The  snags,  how- 
ever, are  not  of  frequent  occurrence,  and  as  the  boats  never 
run  at  night  save  when  there  is  a bright  moon,  and  as  they 
run  entirely  by  the  appearance  of  the  water,  I do  not  con- 
sider the  snags  of  sufficient  importance  to  call  for  an  ex- 
penditure of  time  and  money  for  their  removal.  I under- 
stand too  that  the  ice  each  year  removed  a great  portion  of 
them  and  that  their  places  are  supplied  by  new  ones  during 
each  flood.  I have  learned  of  no  boat  which  has  ever  been 
injured  by  snags  in  the  Missouri  above  the  mouth  of  the  Yel- 
lowstone. 

Sketches  9 and  10,  flie  former  of  Bird’s  Island,  about  fifteen 
miles  below  Carroll,  and  the  latter  of  Spread  Eagle  Bar,  will 
convey  a slight  idea  of  the  nature  of  the  obstructions  due  to 
shifting  sand  bars.  While  these  bars  cause  delays  still  they 
are  not  impassable  and  the  boats  can  ^get  over’  by  bsparring’ 
or  Maying  lines.’  ” 

Counsel  for  Complainant.  Then  there  follows  a list  of  24 
rapids  and  obstructions  with  suggestions  for  their  improvements, 
the  description  of  which  involves  a great  deal  of  repetition  and  I 
will  offer  the  whole  business  in  down  to  the  mark,  to  Yo.  24  on 
page  698: 

4138  “Shonkin  Bar  (Sketch  No.  1) — two  bars  are  found  at  this 
place,  the  upper  one  dry  and  the  lower  one  submerged  at  all 
times.  From  the  upper  bar  a gravel  reef  makes  out  obliquely 
across  the  stream  to  the  point.  At  low  water  stage  there  are 
only  20  inches  of  depth  on  the  reef.  In  the  sketch  the  full 
line  indicates  the  high  water  channel  and  the  broken  one  the 
low  water  channel.  To  improve  this  place  it  is  proposed  to 
build  out  from  the  upper  bar  on  the  reef  a wing  dam  so  as  to 
confine  the  water  to  a narrower  channel  and  thus  obtain  an 


1194 


U.  S,  Eng,  Rep.  l^S?>.-—Contin%ied. 


“increased  depth  on  the  reef.  The  term  reef  is  here  used  ar- 
bitrarily (and  will  be  so  used  throughout)  to  indicate  a sub- 
merged gravel  bar  as  distinguished  from  the  larger  and  more 
sandy  bars  which  during  low  water  assume  almost  the  pro- 
portion of  islands. 

2.  Acker’s  Island  (sketch  No.  2) — a gravel  reef  makes  from 
the  head  of  the  island  toward  the  right  bank,  leaving  a very 
narrow  and  crooked  channel.  The  two  heavy  dots  indicate 
a snag  and  rocks  which  should  be  removed.  The  left  chute 
should  be  closed. 

Ackley  Bars — The  river  is  here  divided  into  two  chutes  by 
bars,  and  there  are  rocks  in  the  channel  near  the  foot  of 
the  bars.  The  left  chute  should  be  closed  by  a dam  and  the 
rocks  removed. 

4.  Bluft  Rapids  (Sketch  No.  3) — The  river  is  here  divided 
into  two  chutes  by  Gould  Island,  and  there  are  few  rocks 
near  the  head  of  the  channel  or  right  chute.  The  left  chute 
should  be  closed  and  the  rocks  removed. 

5.  Kipp’s  Rapids — Broad,  shallow,  and  full  of  rocks.  Water 
very  swift.  A good  channel  should  be  made  by  a removal 
of  some  of  the  rocks. 

6.  Eagle  Reef  (Sketch  No.  4) — The  channel  here  is  very 
narrow  and  crosses  the  rocks  as  shown  in  the  sketch.  The 
chute  A closes  of  itself  during  low  water.  Some  of  the  rocks 
should  be  removed. 

7.  Hole  in  the  Wall — At  Hole  in  the  Wall  the  river  is  di- 
vided into  different  chutes  by  three  bars.  The  water  is  shal- 
low, and  an  increase  of  depth  should  be  obtained  by  closing 
some  of  the  chutes. 

8.  McKnight’s  Bars — Here  the  channel  is  to  the  left  of 
the  bars;  it  is  very  narrow,  and  contains  rocks  which  should 
be  removed. 

9.  Rapids  half  a mile  below  McKnight’s  Bars  (Sketch 
No.  5) — The  river  at  this  point  is  obstructed  by  two  reefs  of 
boulders,  as  shown  in  the  sketch.  Rocks  should  be  removed 
from  a point  of  each  of  these  reefs  so  as  to  straighten  the 
channel. 

10.  Double  Islands — At  the  Double  Islands,  just  below  the 
Niches,  the  river  was  divided  into  two  chutes,  the  ‘suck’  be- 
ing at  the  right.  Boulders  lie  across  the  channel  at  the  head 
of  the  islands,  running  obliquely  up  stream  toward  the  right 
bank.  These  boulders  should  be  removed. 

11.  Pablost  Rapids — The  Pablost  Rapids  commence  at 
Point  of  Rocks,  and  are  quite  long  and  broad.  There  is  a 
sufficient  depth  of  water,  but  the  channel  is  filled  with  bould- 
ers. A free  channel  should  be  made  by  the  removal  of  some 
of  the  boulders. 

12.  Holmes’  Rapids.  (Sketch  No.  6) — These  rapids  com- 
mence above  Birch  Creek,  and  are  over  a mile  in  length.  The 


1195 


water  is  very  swift,  and  there  are  a number  of  boulders  in 
the  channel.  Boats  cannot  pass  these  rapids  during  low 
water  on  account  of  tlie  boulders.  A clear  channel  should  be 
made  by  removing  some  of  them. 

13.  Lone  Rock  Rapids. — Here  the  river  is  divided  into  two 
chutes  by  a very  long,  narrow  bar  which  runs  up  close  to  the 
right  bank,  leaving  a narrow  but  deep  channel,  which,  how- 
ever, has  situated  in  it  a large  rock  some  12  feet  in  diameter, 
and  which  cannot  be  passed  in  low  water.  The  removal  of 
this  rock  would  make  a channel  a good  and  safe  one. 

14.  Big  Boulder — This  boulder  projects  about  two  feet 
above  low  water,  and  has  damaged  several  boats.  It  should 
be  removed. 

15.  Gallatin  Rapids — The  obstruction  at  this  point  con- 
sists of  a broad  diagonal  reef  of  boulders.  It  is  difficult  for 
even  a Mackinac  to  pass  without  hitting.  A channel  should 
be  made  here  by  removing  boulders. 

16.  Bear’s  Rapids. — At  this  point  there  is  a bad  reef  of 
boulders  which  cannot  be  passed  by  steam  boats  during  low 
water.  A channel  should  be  made  by  removing  boulders. 

17.  Dauphin’s  Rapids — At  a small  island  above  the 
rapids  there  are  a few  rocks  in  the  channel  which  should  be 
removed.  The  work  on  the  Rapids  themselves  should  be 
continued  and  finished.  For  a distance  of  about  eight  miles 
below  the  foot  of  the  Rapids  proper  the  channel  is  obstructed 
at  various  places  by  rocks  which  should  be  removed. 

18.  Magpie  Rapids — The  removal  of  rocks  is  all  that  is 
required  here. 

19.  Bird’s  Rapids. — These  rapids  are  caused  by  a rocky 
reef  which  extends  out  from  the  right  bank.  There  is  plenty 
of  water,  but  the  channel  is  only  about  twenty  feet  wide  at 
law  water  and  should  be  widened  by  the  removal  of  some  of 
the  rocks. 

20.  Sturgeon  Island — There  is  plenty  of  water  in  the 
channel,  but  at  the  head  of  the  island  there  is  a boat  ‘suck’ 
into  the  left  chute  ad  the  boats  are  sometimes  drawn  over 
onto  the  bar.  This  can  be  prevented  by  closing  the  left  chute 
with  a dam. 

21.  Snake  Point. — The  lateral  chute  here  should  be  closed 
by  a dam. 

22.  Cow  Island — The  Dam  closing  the  middle  chute  and 
marked  on  the  map  ‘Proposed  dam’  should  be  built  and  the 
upper  one  should  be  finished.  There  should  also  be  a short 
spur  at  the  foot  of  the  islands. 

23.  Grand  Island  (Sketch  No.  8) — The  difficulties  at  this 
point  are  caused  by  two  gravel  reefs,  one  at  the  head  and 
the  other  at  the  foot  of  the  island.  The  water  on  these  reefs 
is  very  shoal,  being  only  twenty-one  inches  in  depth  at  low 
water  stage.  All  the  lateral  chutes  should  be  closed  with 


1196  V.  S.  Eng.  Rep.  1883. — Continued. 

clams,  and  it  will  probably  be  found  necessary  to  rake  the 
bars  and  build  wing  dams  to  raise  the  water  on  the  reefs. 

24.  Two  Calf  Islands  (Sketch  No.  7) — At  this  point  the 
lateral  chutes  should  be  closed  by  dams.”  * 

4413  There  was  also  read  the  report  of  Mr.  Stevens,  the  assist- 
ant engineer,  found  on  page  699,  as  follows: 

Dauphin’s  Eapids  are  caused  by  an  excessive  fall  and 
an  unusual  widening  of  the  river.  There  is  no  navigable 
three-foot  channel  clear  of  rocks  for  a distance  of  3,100  feet. 
The  lower  part  of  the  rapids  is  divided  by  a gravel  bar  2,000 
feet  long,  300  feet  wide,  projecting  about  2.5  feet  above  low 
water.  The  main  channel  assumes  nearly  the  shape  of  the 
left  bank.  The  chute  to  the  right  of  the  bar  is  used  by  boats 
during  high  water.  In  places  the  bottom  is  paved  with 
boulders  varying  in  size  from  six  cubic  inches  to  three  cubic 
yards;  these  are  often  found  in  groups,  one  or  more  large 
rocks  forming  the  nucleus  about  wdiich  the  others  gather  and 
take  their  places  in  the  most  compact  form.  Again  it  is  of 
coarse  gravel,  studded  with  boulders  buried  deep,  often  reach- 
ing through  to  the  sub-soil  of  clay. 

The  low  water  discharge  of  the  river  at  Dauphin’s  Eapids 
is  11,062  cubic  feet  per  second;  of  this,  5,047  cubic  feet  per 
second  flows  to  the  right  of  the  bar. 

The  surface-rate  of  current  at  low  water  in  the  main 
channel  is  3.2  miles  per  hour;  at  a medium  high  stage  it  is 
4.3  miles  per  hour.  Only  the  better  boats  upon  the  river  can 
stem  it  without  the  use  of  a line. 

The  average  fall  for  3,200  feet  is  at  the  rate  of  8.9  feet 
per  mile,  and  for  1,000  feet  of  this  distance  it  is  11.42  feet 
per  mile.  The  slow  rate  of  the  current  compared  with  the 
great  fall  can  be  accounted  for  by  the  fact  of  the  shoal  water 
and  the  presence  of  so  many  boulders.  * * * 

Had  the  work  been  finished  at  Dauphin’s  (this  being  the 
worst  place  on  the  river),  nearly  all  of  next  year’s  freight 
could  have  been  carried  through  to  Benton  by  river.  As  it 
now  is,  it  will  be  necessary  to  wait  for  low  water  for  the 
completion  of  the  work,  and  freigTit  taken  up  river  during  the 
latter  part  of  the  season  will  have  to  be  unloaded  below  as 
formerly  and  hauled  over  land. 

I went  to  Cow  Island  the  28th  of  September.  The  river 
here  is  divided  by  two  islands,  separated  by  a narrow  shute. 
About  two-thirds  of  the  water  passes  down  the  main  chan- 
nel to  the  left.  From  the  conformation  of  the  river  and  its 
banks  the  main  channel  should  be  along  the  right  bank.  This 
channel  is  very  narrow,  and  in  places  rocky  and  swift.  The 
main  channel  to  the  left  is  obstructed  by  two  coarse  gravel 
bars  and  by  a few  rocks.  The  fall  for  a distance  of  6,000 
feet  is  at  the  rate  of  5.16  feet  per  mile;  the  rate  of  the  cur- 


1197 


“rent  is  2.7  miles  per  hour.  The  improvements  proposed  were 
to  remove  the  rocks  in  the  main  channel  and  to  close  the  two 
island  chutes  by  low  water  dams.  Dams  to  be  of  boulders.” 

4145  There  was  also  read  in  evidence  from  the  Government  En- 
gineers’ “Annual  Report  of  the  Chief  of  Engineers,  U.  S. 

Army,  part  5,  1891,  Appendix  W.  W.  8,  as  follows : 

“Improvement  of  Upper  Columbia  and  Snake  Rivers, 
Oregon  and  Washington.  Description  of  original  condi- 
tion. 

Under  the  above  head  it  has  been  deemed  proper  to  of- 
ficially include  the  continuous  Columbia  and  Snake  Rivers 
from  Celilo,  at  the  head  of  the  Dalles,  to  Lewiston. 

The  Upper  Columbia  and  Snake  form  a continuous  line  of 
navigable  river,  but  broken  by  many  rapids,  rendering  navi- 
gation difficult  and  dangerous. 

These  rapids  are  in  nearly  every  instance  caused  by  rocky 
bars  with  occasional  boulders,  and  the  channels  were  crooked 
and  narrow. 

Before  improvement  the  ruling  depth  at  low  water  was  two 

to  three  feet  on  many  of  these  bars,  some  of  which  were 

practically  impassable  at  low  water.” 

***#=}{: 

Page  3212: 

“Recommendations  and  remarks.  In  the  year  of  1858  the 
Col.  Wright,  of  302  tons  capacity,  was  built  at  the  Des  Chutes, 
to  run  between  Celilo  and  Lewiston,  that  stretch  of  river  of- 
ficially known  as  the  Upper  Columbia  and  Snake. 

In  1873,  the  Government  commenced  the  work  of  improv- 
ing the  navigation  of  river  by  removing -rocks,  etc.,  and  up 
to  the  present  'time  $256,000  has  been  appropriated  for  this 
work. 

With  the  advent  of  railroads  into  the  country  the  import- 
ance of  the  river  as  a commercial  highway  decreased,  until 
now  navigation  is  confined  to  the  Snake  River  between  Lew- 
iston and  Riparia,  a distance  of  77  miles,  there  being  no  nav- 
igation between  Celilo  and  Riparia,  a distance  of  189  miles. 

Upon  this  portion  of  the  river  between  Lewiston  and  Ri- 
paria there  are  three  steamboats : the  Annie  Faxon,  Spokane 
and  Almota.  Only  one  of  these  is  kept  in  commission,  how- 
ever, and  this  makes  tri-weekly  trips  G:>etween  Lewiston  and 
Riparia.  These  boats  lay  up  in  the  winter  when  there  is  dan- 
ger from  ice,  and  also  when  business  on  the  river  is  slack. 

The  Northern  Pacific  Railroad  Company  has  two  steamers 
at  Pasco,  but  has  made  no  use  of  them  for  several  years. 

The  problem  of  cheap  transportation  from  the  interior  to 
the  seaboard  is  one  deserving  of  the  most  careful  and  earnest 
attention.  The  people  are  not  satisfied  with  the  rates  exacted 


1198 


U.  S.  Eng.  Bep.  1891.— Continued. 


the  railroad  companies,  and  in  the  minds  of  most  of  the 
people  interested  the  solution  of  the  problem  lies  in  the  nav- 
igation of  the  Columbia  and  Snake  Elvers. 

There  are  two  complete  obstructions  to  navigation  between 
the  interior  and  the  seaboard,  the  Dalles  and  the  Cascades. 

^‘Whatever  part  these  rivers  are  to  play  in  the  transport 
tation  of  the  future  for  the  carriage  of  the  products  of  the 
country,  it  must  be  evident  that  everything  depends  primarily 
on  overcoming  these  obstructions  at  the  Dalles  and  the  Cas- 
cades.” 

Counsel  foe  Complainant.  I think  there  will  be  no  dispute  and 
we  perhaps  ought  to  agree  to  it,  that  at  the  present  the  Govern- 
ment is  building  a canal  I think  four  miles  long,  around  that. 

Counsel  foe  Defendant.  I think  it  is  building  a canal. 

‘‘The  project  for  the  improvement  of  the  river  at  the  Dalles 
and  Celilo  Falls  should  include  the  project  for  the  complete 
and  permanent  improvement  of  the  upper  rivers. 

These  upper  rivers  in  their  present  condition,  or  as  they 
might  be  improved  under  the  existing  project,  would  be  very 
heavily  handicapped  in  competing  with  railroad  transporta- 
tion. Such  swift  water  navigation  would  be,  to  say  the  least, 
very  unsatisfactory,  and  would  hardly  justify  the  large  ex- 
penditure required  for  its  accommodation  at  the  Dalles  and 
Cascades. 

There  is  no  river  in  the  United  States  or  in  the  woidd 
of  which  I have  or  can  obtain  knowledge  with  slopes  any- 
where near  as  great  as  the  slopes  of  the  Upper  Columbia  and 
Snake,  which  is  navigated  in  a satisfactorily  and  commercially 
practicable  way  without  the  aid  of  locks  and  dams.  It  seems 
pertinent  to  compare  these  rivers  with  some  of  the  other  im- 
portant rivers  of  the  country  which  have  been  improved,  or 
for  the  improvement  of  which  projects  have  been  prepared. 

Upper  Columbia  and  Snake  rivers.  From  Celilo  to  Wal- 
lula  the  Columbia  is  114  miles  long;  in  this  distance  the  fall 
is  165  feet  or  an  average  of  one  foot  5.4  inches  per  mile. 
This  is  reduced  from  railroad  surveys. 

From  Lewiston  to  its  mouth  the  Snake  is  130  miles  in 
length,  and  has  a total  fall  of  393  feet  or  average  fall  of  2 
feet  101  inches  per  mile.  In  both  rivers  the  fall  is  not  at  all 
uniform.  There  are  long  stretches  of  comparatively  quiet 
water,  broken  by  rapids  and  swifts,  where  the  main  amount 
of  fall  takes  place. 

The  records  of*  this  office  are  very  incomplete  concern- 
ing the  levels  along  the  rivers.  Most  of  the  surveys  made  in 
former  years  were  simply  to  detennine  the  obstructions  met 
with,  the  depths  of  the  water,  channels,  etc.,  and  no  deter- 
mination of  differences  of  level  and  slopes  were  made. 


1199 


The  following’  is  a list  of  the  principal  rapids  between  Cel- 
lilo  and  Lewiston,  with  such  x)hy steal  data  as  to  fall  and  slopes 
as  are  obtainable  from  the  records  of  this  office.” 

Counsel  for  Complainant.  It  commences  with  the  Columbia 
and  goes  up  to  the  mouth  of  the  Snake  River,  and  then  commences 
at  the  Snake. 

4150  Whereupon  Counsel  for  Complainant  read  the  following 
into  the  record : 


Dis- 

Slope 

Slope 

per  100 

per 

Fall 

tance 

feet 

Mile 

Snake  River  Five  Mile  Rapids 

2.3 

1,000 

.20 

10.56 

Fish  Hook  Rapids 

Long  Crossing  Rapids 

12.5 

0,600 

.189 

10.00 

Pine  Tree  Rapids 

11.5 

5,000 

.23 

12.14 

Monumental  Rapids  

False  Palous'e  Rapids 

1.7 

300 

. 56 

29.88 

Palouse  Rapids  

1.3 

1,700 

.070 

4.00 

Texas  Rapids  

14.4 

0,600 

.218 

11.56 

Little  Goose  Island  Rapids 

Big  Goose  Island  Rapids 

Rapids  below  Penewawa 

Rapids  above  Penewawa 

Atwood  Island  Rapid 

Elmota  Rapid  

2.7 

3,000 

.09 

4.75 

Rapid  above  Almota 

Lower  Log  Cabin  Rapids 

Upper  Log  Cabin  Rapids' 

3.4 

5,000 

.068  . 

3 . 59 

Rapid  above  Granite  Point 

0.1 

2,500 

.244 

12.88 

Steptoe  Rapid  

Rapid  above  White’s  Ferry 

a *5 

2,100 

.15 

7.92 

4152  There  was  also  offered,  read  and  received  in  evidence  from 
the  report  of  the  Chief  of  Engineers  of  the  United  States 
Army,  for  1875,  Part  2,  in  the  part  known  as  GG-2,  headed  ‘Gm- 
})rovement  of  thp  Upper  Columbia  and  Snake  Rivers,  Oregon  and 
the  Territories  of  Washington  and  Idaho,”  found  on  page  772, — 
the  heading  and  introductory  paragraph  being  read  for  location 
purposes,  as  follows: 

‘‘The  sections  of  the  two  rivers  to  which  reference  is  par- 
ticularly intended,  comprise  those  portions  from  above  the 
‘Dalles’  on  the  Columbia,  a succession  of  falls  and  rapids 
througlp  deep  canons  and  extending  over  a distance  of  fif- 
teen miles  up  to  Priest’s  Rapids,  in  Washington  Territory, 
on  the  main  fork  of  the  river;  and  up  its  trilnitary,  the 
Snake,  to  Lewison,  in  Idaho  Territory,  at  junction  with  the 
Clearwater.  These  are  the  principal  tributaries  of  the  Co- 
lumbia, draining  an  immense  extent  of  country,  from  the 
North,  East,  South  and  West.” 


1200  Extract, — Coliimhia  and  Snake  R.  Eng.  Rep.  1875. — Con. 

Also  on  page  773,  under  the  heading,  ‘‘Squally  Hook  Rapids” 
there  was  read  as  follows: 

“The  contract  called  for  the  removal,  above  the  level  of 
the  plane,  six  feet  below  lowest  low  water  mark  of  both  of 
the  two  rocks  designated  in  the  specifications,  and  for  the  de- 
positing of  all  debris  at  such  suitable  places  as  might  be  se- 
lected by  the  engineer  in  charge,  or  his  deputed  agent.  The 
drilling  and  blasting  continued  from  the  3d  to  the  26th  of  De- 
cember, and  the  clearing  off  of  the  loosened  and  broken  up 
rock  by  raking  and  blasting  occupied  a week  longer.  By  the 
removal  of  the  two  rocks  a third,  but  not  very  large  one,  with 
only  three  and  one-half  feet  of  water  upon  it,  appeared  in 
the  middle  of  the  channel  and  had  to  be  blasted  out  and 
brought  down  to  grade.  The  work  having  been  entirely  exe- 
cuted, a final  examination  was  made  and  a depth  everywhere 
found  exceeding  that  required  by  contract.  The  reefs  which 
extend  from  the  south  shore  cause,  perhaps,  a third  of  the  en- 
tire river,  when  at  low  stage,  to  flow  through  this  channel.  The 
velocity  of  the  current  was  obtained  by  several  trials,  and 
was  found  to  be  at  the  rate  of  about  seven  miles  per  hour; 
when  the  water  is  confined,  and  obtains  a considerable  fall, 
it  mav  i)ossiblv  reach  ten  miles.  In  a distance  of  1,800  feet 
the  fall  is  3.2.” 

4153  Also  on  page  774,  under  the  heading,  “Upper  Umatilla 
Rapids,”  there  was  read  as  follows: 

“As  stated  in  the  last  annual  report  and  by  reference  to 
the  map  of  the  locality,  ‘it  will  be  seen  that  what  has  al- 
ways been  known  as  the  “Low  water  channel”  and  which  has 
been  used  up  to  the  present  time  is  a very  long  and  circuitous 
one,  bounded  on  both  sides  by  reefs  and  shoal  water.  Experi- 
enced pilots  can  alone  navigate  it.’  The  one  called  the  ‘high 
water  channel’  which  hitherto  has  only  been  used  during  the 
season  of  high  water,  and  can  now  be  safely  run  during  the 
lowest  stages  of  the  water  in  which  boats  can  pass  over  the 
rapids  between  Wallula,  the  shipping  point  of  Y/alla-Walla, 
35  miles  distant  from  the  river  at  the  head  of  the  Dalles  at 
Celilo,  has  been  made  a direct  and  short  one.  At  the  termina- 
tion of  the  work  of  the  season  of  1873  and  1874,  its  width  at 
the  narrowest  point  was  scarcely  40  feet.  This,  for  several 
reasons,  was  by  no  means  sufficient,  and  it  was  deemed  ad- 
visal)le  that  an  increased  breadth  be  given  to  it  as  soon  as  the 
necessary  funds  became  available  for  the  purpose.  It  was  also 
then  stated  upon  the  authority  of  the  pilots,  that,  ‘notwith- 
standing the  unevenness  of  the  bottom  on  the  outside  of  the 
channels  from  which  the  rocks  had  been  removed,  that  boats 
ascending  with  a draught  of  four  or  even  five  feet  of  water 
would  experience  no  difficulty;  but  that  in  descending;  consid- 


1201 


erable  risk  would  be  encountered  on  account  of  the  swiftness 
of  the  current,  there  being  danger  of  a sudden  sheer-otf  on 
account  of  the  boats  not  being  entirely  manageable.  At  the 
head  of  the  rapid  the  water  has  a velocity  of  twelve  miles 
an  hour.^  ’’ 

***###***# 

^^The  appropriation  for  the  fiscal  year  was,  however,  in- 
adequate for  the  completion  of  the  work.  At  this  rapid,  only 
one  such  rocks  were  selected  for  removal  as  would  most  benefit 
navigation.  Only  a limited  quantity  could  be  displaced  in  or- 
der not  to  exceed  the  amount.  On  account  of  the  small  yearly 
appropriations,  the  work  at  Umatilla  Upper  Rapids  has  al- 
ready extended  over  three  working  seasons.  On  the  2d  of 
March,  as  already  stated,  the  removal  of  the  rocks  was  con- 
tinued at  this  locality  and  progressed  as  well  as  could  be 
expected.  On  the  5th,  the  ice  gorge  above  broke  up,  carrying 
away  lines  and  causing  the  loss  of  anchors.  Loose  pieces  con- 
tinued to  come  down,  but  being  rotten  failed  to  do  much  dam- 
age and  did  not  cause  any  great  delay  in  prosecuting  the 
work.  Occasionally  terrific  wind  interfered  with  its  advance- 
ment, although  the  gauge  read  but  fifteen  inches  below  zero  of 
the  low  water  mark  at  Umatilla ; still  the  necessity  for  its 
quick  completion  was  urgent  before  any  interruption  should 
occur  from  a spring  rise  in  the 'river.  The  water  was  also 
very  clear,  and  consequently  the  drilling  was  easily  effected 
and  operations  very  much  facilitated.  By  the  22nd  of  the 
month,  at  which  date  the  limited  appropriation  became  ex- 
hausted, all  the  rocks  from  the  edge  of  the  reef  on  the  south 
side  at  the  narrowest  part  of  the  channel  had  been  removed; 
there  were  four  large  and  two  small  ones.  The  entire  im- 
provement contemplated,  however,  had  not  yet  been  accom- 
plished. A large  mass  of  rock  on  the  south  side,  at  the  head 
of  the  channel,  where  the  width  already  attained  was  but  75 
feet,  still  required  displacement,  as  well  as  the  four  rocks  on 
the  north  side  previously  estimated  for  as  forming  part  of 
the  yearly  work.  This  portion  of  the  improvem^ent,  for  the 
further  enlargement  of  the  channel,  will  form  part  of  the 
operations  during  the  approaching  working  season  of  the  cur- 
rent fiscal  year,  1875  to  1876.  The  depth  of  water  obtained 
on  the  rocks  after  blasting  was  six  feet  at  the  very  extreme 
low  stage  of  the  river  existing  at  that  time.  The  current  then 
ran  at  the  rate  of  twelve  miles  per  hour  for  150  feet  at  the 
upper  entrance  to  the  rapid.  The  length  of  the  upper  rapid 
is  about  850  feet,  with  a present  width  of  over  75  feet  through- 
out, except  immediately  at  the  head ; the  entire  length  of  the 
rapids — upper,  middle  and  lower — from  the  head  to  Umatilla, 
is  about  six  miles.’’ 


1202  Extract, — Columbia  and  Snake  R.  Eng.  Rep.  1875. — Con. 

Also,  on  page  776,  there  was  read  as  follows: 

‘^Besides  those  works  already  enumerated,  it  is  intended 

4156  to  apply  during  the  current  year  a portion  of  the  appropria- 
tion toward  the  improvement  of  Pine  Tree  Eapid,  on  the 

Snake  River,  about  32  miles  above  its  mouth.  This  is  the 
worst  rapid  at  low  water  on  the  river;  there  is  scarcely  width 
enough  for  a boat  to  pass  through,  and  at  one  time  it  was 
customary  to  warp  around  the  opposite  side  of  the  island 
which  here  divides  the  river  into  two  channels.  If  enlarged, 
each  boat  could  make  from  three  to  four  additional  trips  per 
season  to  Lewiston,  Idaho  Territory,  situated  at  Lie  junction 
with  the  Clearwater.  While  navigation  remains  open  on  the 
Columbia  to  Wallula  during  the  entire  season  of  low  water, 
and  is  only  suspended  on  account  of  the  river  becoming 
gorged  with  ice,  still  it  only  continues  on  the  Snake  for  a 
period  of  about  four  months,  from  the  first  week  in  April  to 
about  the  middle  of  August.” 

Omitting  page  777,  and  continuing  as  follows: 

4157  ''Between  Palouse  Landing  and  Lewiston,  the  present 
head  of  river  steamboat  navigation,  a distance  of  about  62 

miles,  some  dangerous  rapids  exist.  In  a few  thousand  feet 
after  passing  the  mouth  of  the  Palouse,  the  foot  of  the  rapid 
of  the  same  name  is  reached;  this  is  considered  a very  bad 
one.  At  a low  stage  of  water  the  channel  is  lined  on  both 
sides  with  rock;  although  not  so  narrow  as  'Pine  Tree,’  still 
it  is  scarcely  wide  enough  at  different  points  for  boats  to  run 
in  safety,  in  consequence  of  the  strong  currents  and  eddies 
tending  to  throw  them  against  the  rugged  edges  of  the  outline 
of  the  chute.  During  the  high  water  in  the  last  week  of  May, 
while  a personal  reconnaissance  of  the  Snake  was  being 
made,  more  than  an  hour  was  occupied  in  ascendipg  this  rapid 
of  about  four  miles  in  extent,  and  less  than  five  minutes  in 
making  the  descent.” 

Omitting  and  passing  to  page  779,  continuing  as  follows: 

4158  "The  velocity  of  the  current  is  greater  in  the  Snake  than 
in  the  Columbia  River;  in  the  former  the  general  average  is 

very  nearly  four  miles  an  hour,  and  in  the  latter  a little  over 
three.  In  descending  the  Snake  from  Lewdston  to  Alpoway, 
12  miles,  the  Tenino,  with  a very  light  freight,  ran  the  dis- 
tance in  30  minutes;  and  down  the  Columbia,  from  the  junc- 
tion to  Wallula,  11  miles,  in  35  minutes.  The  boats  now  em- 
ployed on  the  Columbia  from  Celilo  to  Wallula,  and  which 
during  the  highest  stage  of  water  in  the  Snake  ascend  to 
Lewiston  are  generally  loaded  to  a depth  to  between  three 
and  a lialf  and  four  feet;  their  capacity  is  from  100  to  150 
tons  of  freight.  The  only  three  boats  now  engaged  in  the 


trado  ai*e  the  Yhikima,  Teiiino  and  Owyhee— named  after 
some  of  the  tributaries  of  the  Columbia.’’ 

There  was  also  read  in  evidence  from  the  annual  report  of  the 
Chief  of  Engineers,  in  1905,  in  Volume  7 of  the  Reports  of  the 
War  Department,  Part  8,  pages  2455  and  2456,  the  Chapter 
headed  UU-9,  on  the  continuation  of  the  work  upon  the  Upper  Co- 
lumbia and  Snake  Rivers,  as  follows: 

4159  ‘Mmprovement  of  Upper  Columbia  and  Snake  Rivers, 
Oregon,  Washington  and  Idaho. 

‘‘During  December  and  until  January  14  the  dredge  Tvat> 
engaged  in  raking  and  dredging  Log  Cabin  and  Offields  Bars, 
these  being  the  shoalest  points  between  Lewiston  and  Ri])aria. 
The  controlling  depths  on  these  bars  before  raking  and  dredg- 
ing were  from  two  and  a half  to  three  feet,  and  were  increased 
to  four  and  a half  feet.  At  Offields  Bar,  some  2,500  cubic 
yards  of  gravel  were  removed  from  the  channel  by  dredging. 
()n  January  14  the  dredge  was  laid  up  at  the  Lewiston  moor- 
ings because  of  threatened  freeze  up  on  the  river,  and  at 
the  close  of  the  fiscal  year  still  is  out  of  commission  because 
of  high  water.  No  work  has  been  done  on  the  river  above 
l^ewiston  during  the  year. 

Regular  boats  have  operated  throughout  the  year  between 
Riparia  and  Lewiston  and  intermittently  above  Lewiston  as 
far  as  Imnalia  during  moderate  river  stages.  In  June  of  the 
i)i*esent  year,  on  the  occasion  of  the  opening  of  the  State 
Portage  Railway — ” 

C’ouNSiiL  FOR  COMPLAINANT.  By  the  Way,  Mr.  Reeves,  perhaps 
you  can  tell  us  about  the  State  Portage  Railway.  Was  that  the 
railway  around  the  falls! 

C’ouNSEL  FOR  COMPLAINANT.  That  is  as  I understand  it. 

“In  June  of  the  present  year,  on  the  occasion  of  the  open- 

4160  ing  of  the  State  Portage  Railway,  between  the  Dalles  and 
Celilo,  the  steamer  Mountain  Gem  made  the  run  over  the 

Snake  and  Columbia  Rivers  from  Lewiston  to  Celilo  and  re- 
turn, with  the  river  at  about  a 9-foot  stage.  This  was  the 
first  continuous  navigation  by  steamer  over  this  stretch  for 
some  23  years  and  was  made  without  interruption. 

The  River  and  Harbor  Act  of  March  3,  1905,  appropriated 
$25,000  for  this  improvement,  and  the  project  for  expendi- 
ture of  the  sums  provides  for  their  use  in  operating  the 
dredge  between  Lewiston  and  Imnaha,  making  repairs  to  ex- 
isting dams,  in  blasting  out  rocks  from  the  channel,  and  in 
making  surveys  between  Eureka  and  Pittsburgh  Landing, 
which  had  been  delayed  on  account  of  a lack  of  funds. 


1204 


At  the  close  of  the  fiscal  year  the  June  high  water  in  the 
Snake  Eiver  is  receding  and  it  is  expected  to  begin  operations 
with  the  dredge  early  in  Jnly.’’ 

Counsel  foe  Defendant.  That  was  running  during  the  year 
from  Eiparia  to  Lewiston? 

Counsel  foe  Complainant.  Yes. 

Counsel  foe  Defendant.  That  is  about  70  miles,  is  it  not? 
Counsel  foe  Complainant.  I think  it  is,  Mr.  Scott. 

Lyman  E.  Cooley, 

recalled  as  a witness  for  the  complainant,  testified  as  follows: 

Direct  Examination. 

4161  On  page  1,196  of  the  abstract,  I said,  think  I would  ap- 
prove, possibly,  of  the  specification  which  the  company  has 
already  made  in  regard  to  the  short  piece  of  dam  between  the 
power  station  and  the  tow-path  bank,  with  the  top  of  it  doubled 
or  trebled  in  width,  provided,”  etc. 

Exhibit  F,  the  specifications  of  the  contract  between  the  defend- 
ant and  the  contractor,  Heyworth,  is  the  specification  to  which  I 
referred,  which  said  document,  marked  ‘‘Cooley  Exhibit  1,  June 
3,  1908,”  was  received  in  evidence,  as  was  also  said  blue  print, 
marked  G1556,  referred  to  therein,  said  “Cooley  Exhibit  1,  June 
3,  1908,”  reading  as  follows: 

“Exhibit  F.” 

SPECIFICATIONS 
for  the 

Eaethen  Dam  and  Eoadway. 

4168  1.  Extent  of  Conteact:  These  specifications  include 

the  construction  and  completion  of  the  earthen  dam  and 
roadway  for  the  proposed  Morris  Hydro-Electric  Plant  of 
The  Economy  Light  and  Power  Company,  and  in  accordance 
with  the  following  specifications  and  detail  plans,  numbered 
G1556,  which  are  hereby  made  a part  hereof. 

The  work  shall  include: 

A.  All  earth  filling  required  for  said  dam  and  roadway. 


1205 


B.  All  surface  excavating,  clearing  and  grul)bing  re- 
quired in  the  construction  of  said  dam  and  roadway. 

C.  All  paving  required  for  the  protection  of  the  slopes. 

D.  All  macadam  surfacing  needed  for  the  roadway. 

E.  Following  are  the  approximate  quantities  of  work 
and  material  included  in  these  specifications: 

Earth  till  7,500  cubic  yards 

Stone  paving  1,000  square  yards 

Macadam  surface 370  square  yards 

2.  Location  and  Description  : The  earthen  dam  included 

in  these  specifications  shall  occupy  the  space  between  the  tow- 
path  and  the  Power  Station,  and  shall  have  the  location  as 
shown  on  the  drawings.  The  roadway  shall  extend  along  the 
north  side  of  the  power  house,  as  shown  on  the  drawings.  The 
dam  and  roadway  shall  be  constructed  of  earth  or  other  suit- 
able filling,  in  the  manner  described  in  the  following  specifi- 
cations. 

3.  Foundations:  All  trees,  brush,  bushes,  stumps,  de_bris 

and  all  other  perishable  materials  shall  be  removed  from  the 
area  to  be  filled.  All  materials  cleared  and  grubbed  shall  be 
piled  and  burned,  or  shall  be  removed  from  the  site.  The 
foundation  for  the  dam  and  roadway  shall  be  then  excavated 
to  a depth  sufficient  to  remove  all  loose  or  undesirable  ma- 
terial, and  to  such  a depth  as  the  engineer  may  determine. 
Upon  the  foundation  thus  prepared  shall  be  constructed  the 
dam  and  roadway,  as  hereafter  specified. 

4.  Coffer-dam  and  Pumping:  The  contractor  shall  fur- 

nish all  coffer-dams  and  do  all  pumping  necessary  to  protect 
and  keep  the  work  in  proper  condition  for  the  satisfactory 
performance  of  the  work  to  be  done.  Said  coffer-dams  shall 
be  built  in  a substantial  manner,  and  in  accordance  with  the 
specifications  for  this  work  as  contained  in  ‘‘Exhibit  D.’’ 

5.  Embankment:  (a)  Description:  The  embankments  for 
the  dam  and  roadway  shall  be  constructed  to  he  width  and 
slope  as  shown  on  the  drawing,  or  such  other  slope  and  cross- 
section  as  the  engineer  may  determine. 

The  embankment  shall  be  built  by  dumping  the  material  in 
uniform  layers,  and  to  the  full  width  thereof.  The  material 
so  deposited  shall  be  spread  out  in  uniform  layers  not  over 
eight  (8)  inches  in  thickness,  and  thoroughly  rolled  with  a 
roller  of  approved  'Weight  and  dimensions.  The  slopes  of 
the  embankments  shall  be  carefully  and  evenly  dressed  to  the 
lines  given ; all  to  the  satisfaction  of  the  Engineer. 

(b)  Quality  of  Material:  All  material  for  the  embank- 
ments shall  be  gravel,  clay  or  earth,  free  from  all  organic 
matter,  and  be  such  as  the  engineer  will  approve.  Any  ma- 


1206  Specifications  for  Dam, — Continued, 

terial  used  in  said  embankment  and  not  so  approved;  shall 
be  removed  by  the  contractor  at  his  own  cost  and  expense, 
and  shall  in  no  case  be  estimated  or  paid  for. 

(c)  Boeuow  Pits:  The  contractor  shall  make  all  neces- 
sary arrangements  to  secure  the  material  for  the  embank- 
ment, and  no  material  is  to  be  taken  from  the  site  of  pro- 
posed work  without  the  consent  and  approval  of  the  Engineer, 
except  such  material  as  may  be  removed  during  the  excava- 
tion at  the  site  of  the  power  house. 

(d)  Measukements  : The  measurement  of  all  material 

used  in  the  embankment  shall  be  made  in  the  embankment. 

6.  Boadway:  (a)  Macadam  Surface:  After  the  em- 

bankment is  constructed  to  the  height  directed  by  the  Engi- 
neer and  when  the  embankment  is  finished,  and  the  rolling  is 
completed,  there  shall  be  deposited  on  the  top  a layer  of 
broken  limestone  which  will  be  six  (6)  inches  in  thickness  after 
being  completed.  This  stone  shall  be  solid,  compact  stone, 
of  a quality  approved  by  the  engineer.  The  stone  shall  be 
graded  from  the  base  to  the  top;  the  low^er  four  (4)  inches  of 
the  macadam  surface  shall  be  composed  of  stone  which  will 
pass  a two  and  one-half  inch  ring,  and  the  remaining  thickness 
shall  be  composed  of  stone  which  will  pass  a one  (1)  inch 
ring. 

After  being  spread  over  the  embankment,  each  layer  of 
stone  shall  be  thoroughly  rolled  to  the  satisfaction  of  the 
engineer,  after  which  there  shall  be  spread  over  the  surface  a 
one  (1)  inch  layer  of  fine  limestone  screenings  to  act  as  a 
surface  and  binder  course.  This  surface  layer  shall  be 
sprinkled,  if  necessary,  and  shall  be  rolled  until  it  is  thor- 
oughly compacted.  The  improved  surface  shall  be  of  the 
dimensions,  as  shown  on  the  plans. 

(b)  Stone  Paving:  After  the  slopes  of  the  embanlonents 
have  been  carefully  and  evenly  dressed  to  the  lines  given, 
they  shall  be  protected  from  washing  by  paving  with  stone; 
said  stone  shall  be  a hard  and  durable  quality  of  limestone, 
approved  by  the  engineer,  at  least  four  (4)  inches  in  thick- 
ness, and  of  such  surface  dimensions  as  will  admit  of  laying 
securely  and  evenly  in  the  work.  After  being  laid,  the  stone 
shall  be  tamped  with  a wooden  tamper  until  brought  to  a 
solid  bearing  in  the  embankment.  The  spaces  between  the 
stones  shall  be  filled  with  spauls,  gravel  and  sand,  to  the  sat- 
isfaction of  the  engineer. 

7.  Price  and  Measurement:  (a)  Earth  Embankment: 

All  earth  fill  to  be  used  in  the  dam  and  roadway  shall  be 
measured  in  the  embankment  and  shall  be  paid  for  by  the 
cubic  yard  at  the  price  named  by  the  contractor  in  the  pro- 
posal ; said  price  shall  include  the  cost  of  all  material  and  the 
cost  of  depositing  same  in  the  manner  heretofore  specified. 


1207 


Said  ])rice  shall  also  include  the  cost  of  all  clearing  and  grub- 
})ing,  and  the  cost  of  all  labor  necessary  to  prepare  the 
foundations  heretofore  specified.  Any  materials  measured 
and  pafd  for  in  excavation,  and  afterwards  placed  in  the  em- 
bankment will  not  be  paid  for  in  the  embankment. 

(b)  Stone  Paving  and  Macadam  Surface:  All  stone  pav- 

ing and  all  macadam  surface  called  for  in  these  specifications 
shall  be  paid  for  by  the  square  yard,  at  the  price  named  in 
the  proposal;  said  price  shall  include  the  cost  of  all  materials 
and  the  cost  of  placing  the  same  as  described  in  the  foregoing- 
specifications.” 

4173  Q.  Mr.  Cooley,  are  there  other  reports  than  the  one  that 
you  furnished  in  compliance  with  the  suggestion  of  counsel, 

for  the  defense,  as  to  the  navigability  of  the  Desplaines  River, 
in  which  there  is  inherently  the  element  of  navigation  in  what 
is  made  in  the  reports? 

(Objection ; . sustained ; exception.) 

Counsel  for  Complainant.  I now  offer  to  prove,  your  Honor, 
that  there  are  not  less  than  from  eight  to  ten  official  surveys  of 
the  Desplaines  River,  in  which,  by  the  reports  of  the  engineers 
making  these  surveys,  the  engineers  make  their  statement  and 
their  report  upon  the  basis  that  the  river  is  and  was  navigable. 

(Objection;  sustained;  exception.) 

Counsel  for  Complainant.  Making  it  more  specific  still, 

4174  those  documents  include  the  iMcComb  report  of  1874-5;  Beny- 
aurd  report  of  1883-4;  report  of  the  Comstock  Board  of 

1886-7;  the  report  of  Cooley  to  the  Illinois  Legislature  in  1892-4; 
the  report  of  the  Ernst  Board  in  1904-5,  House  Document  263,  re- 
port of  Long  in  1816-7 ; and  the  report  of  the  Illinois  Internal 
Improvement  Commission,  1907;  and  the  Cooley  report  to  the 
Sanitary  District,  of  1890. 

(Objection;  sustained:  exception.) 

There  was  also  introduced  and  reecived  in  evidence  ^‘Cooley 
Exhibit  2 of  June  3,  1908,”  which  said  exhibit  is  as  follows: 

4175  ” Number  of  days  at  which  the  Riverside  Gauge  stood  at  or 
above  certain  elevations,  in  nineteen  full  years, — 1887  to  1907 
inclusive. 

(a)  Elevation  18  ft.  corresponding  to  the  Crest  of  Spill- 
way at  Elevation  16.25  ft.  and  a volume  of  4500  second-feet. 

(b)  Elevation  13.8  ft.  corresponding  to  Crest  of  Ogden 
dam  at  Elevation  11.73  ft.  and  a volume  of  1052  second-feet. 


1208 


Cooley — Exhibit  2, — Continued. 


(c)  Elevation  13  ft.  corresponding  to  original  Chicago 
Divide  at  Elevation  10.5  ft.  at  Summit,  and  volume  600  second- 
feet. 

(d)  Elevation  12.4  ft.  corresponding  to  Elevation  9.6  ft. 
at  Summit  at  Twelve-mile  Level,  and  volume  305  second-feet. 


(a) 

18.0 

(b) 

13.8 

(c) 

13.0 

(d) 

12.4 

Precipitat 
at  Chicag 

1887 

5 

75 

89 

172 

29.13 

1888 

— 

42 

90 

90 

30.86 

1889 

— 

35 

61 

106 

34.95 

1892 

7 

60 

67 

73 

36.56 

1893 

5 

54 

80 

105 

27.47 

1894 

3 

29 

64 

103 

27.46 

1895 

1 

15 

21 

34 

32.38 

1896 

— 

12 

33 

119 

33.14 

1897 

9 

77 

99 

134 

25.85 

1898 

6 

46 

56 

93 

33.77 

1899 

— 

30 

42 

81 

26.49 

1900 

— 

37 

49 

90 

28.65 

1901 

5 

25 

31 

38 

24.52 

1902 

— 

64 

117 

170 

37.57 

1903 

6 

65 

94 

151 

28.09 

1904 

11 

45 

61 

74 

26.14 

1905 

5 

37 

57 

105 

35.36 

1906 

2 

46 

78 

108 

30.87 

1907 

8 

85 

150 

182 

35.10 

Total 

19 

73 

879 

1339 

2028 

Average 

— 

46.2 

70.4 

106.7 

30.75 

The  data  for  1905,  1906  and  1907  from  Sanitary  District 
Tabulation  of  flow  through  Desplaines  River. 

Note:  The  average  rainfall  for  the  37  years,  1871  to  1907 
is  33.40. 

The  average  rainfall  for  the  28  years,  1843  to  1870  is  34.66. 
The  average  rainfall  for  the  65  years,  1843  to  1907  is  33.9. 

There  was  also  introduced  and  received  in  evidence  ^‘Cooley 
4178  Exhibit  3 of  June  3,  1908,  which  said  exhibit  is  as  follows : 


1209 


Animal  Precipitation  at  Chicago, 
1843  to  1897,  inclusive. 

Eecord  furnished  by  Prof.  Henry  J.  Cox, 
U.  S.  Weather  Bureau. 


Unofficial. 

1843.  . . .35.50 

1844.  . . .33.12 

1845.  . . .32.30 

1846.  ..  .40.00 

1847.  ..  .32.80 

1848.. ..  44.40 
1849.  . . .34.20 

1850.. ..  30.40 
1851.  . . .38.60 

1852.. ..  38.80 
1853.  . . .36.40 

1854.. .. 24.60 

1855.  . . .36.30 

1856.  . . .29.04 

1857.. ..  39.83 
1858.  . . .47.10 

1859.. ..  29.30 

1860.  . . .36.40 
1861 39.30 

1862.. ..  40.42 

1863.  . . .33.60 

1864.  . . .28.40 

1865.. ..  40.20 

1866.. ..36.30 

1867.  . . .22.41 

1868.  . . .36.48 

1869.. ..  31.57 

1870.. ..  22.92 


Mn’s. . .34.66 


U.  S.  Official. 
1871 35.61 

1872.. ..  29.07 

1873.  . . .36.41 

1874.  . . .28.63 

1875.. ..  38.06 

1876.  . . .36.48 

1877.  . . .41.01 

1878.  . . .41.95 

1879.  . . .30.71 

1880.  . . .37.32 

1881.  . . .44.18 

1882.  . . .41.34 

1883.. ..  45.86 
1884.  . . .34.61 

1885.. ..  44.37 

1886.  . . .26.77 

1887.  . . .29.13 

1888.  . . .30.86 

1889.  . . .34.95 

1890.. ..  32.69 

1891.  . . .26.54 

1892.  . . .36.56 

1893.  . . .27.47 

1894.  . . .27.46 

1895.  . . .32.38 

1896.. ..  33.14 

1897.  . . .25.85 

1898.  . . .33.77 

1899.  . . .26.49 

1900.  . . .28.65 

1901.  . . .24.52 

1902.  ..  .37.57 

1903.  . . .28.09 

1904.  . . .26.14 

1905.  . . .35.36 

1906.  . . .30.87 

1907.. ..  35.10 


Min 


33.40 


1210 


4179  There  was  also  introduced  and  received  in  evidence  Cooler' 
Exhibit  4 of  June  3,  1908,  which  said  exhibit  is  as  follows: 
‘‘U.  S.  Department  of  Agriculture 
Weather  Bureau. 

Chicago  Forecast  District 
Fourteenth  Floor,  Federal  Building. 

Chicago,  III.,  May  J,  1908. 

Mr.  Lyman  E.  Cooley, 

21  Quincy  St., 

Chicago,  111. 

Dear  Sir: — 

Keplying  to  your  request  of  the  30th  ult.,  I beg  to  enclose 
herewith  a copy  of  our  Annual  Meteorological  Summary  giv- 
ing the  annual  precipitation  in  Chicago  from  1871  to*  1907, 
inclusive.  Unofficial  records  in  the  possession  of  this  office 
give  the  yearly  rainfall  from  1843  to  1870,  inclusive.  This 
record  is  as  follows: 


1843  35.50 

1844  33.12 

1845  32.30 

1846  40.00 

1847  32.80 

1848  44.40 


JHA-BXC 


1849  34.20 

1850  30.40 

1851  38.60 

1852  38.80 

1853  36.40 

1854  24.60 


1855  36.30 

1856  29.04 

1857  39.83 

1858  47.10 

1859  29.30 

1860  36.40 


1861  39.30 

1862  40.42 

1863  33.60 

1864  28.40 

1865  40.20 

1866  36.30 


1867  22.41 

1868  36.48 

1869  31.57 

1870  22.92 


Very  truly  yours. 

Signed  H.  J.  Cox, 
Professor  of  Meteorology.^^ 


4180  Annual  Meteorological  Summary,  referred  to  in  the  above 
letter,  being  Cooley  Exhibit  5 of  June  3,  1908. 

4181  There  was  offered  in  evidence  on  the  part  of  the  defendant 
a letter  from  Lieutenant  Colonel  Bixby,  in  charge  of  the  U.  S. 

Engineers  Office  iii  Chicago,  addressed  to  Brigadier  Gen.  A.  Mac- 
kenzie, Chief  of  Engineers  of  the  U.  S.  Army,  Washington,  D.  C., 
in  reply  to  department  letter  No.  E.  D.  58726,  of  ]March  16,  1906, 
which  said  letter  is  as  follows: 

‘‘1.  In  reply  to  department  letter  (E.  D.  58726),  dated 
]\Iarch  16,  1906,  as  to  the  proposed  plans  of  a water  power 
C^onq)any  for  a dam  across  the  Desplaines  Eiver,  111.,  just 
above  its  mouth,  which  have  been  verbally  and  informally  pre- 
sented to  your  office  by  the  Hon.  H.  ]\[.  Snapp,  and  the  water 
])ower  re])resentatives,  I have  herewith  to  submit  report  as  fol- 
lows:” 

***** 

‘‘The  agents  of  the  water  Power  Company  in  question,  infor- 
mally claim  to  have  secured  possession  of  all  the  land  on  each 


1211 


bank  of  the  river  necessary  to  allow  for  construction  of  the 
dam,  and  of  its  accessories,  and  to  protect  themselves  from 
all  future  claims  for  overflowage  created  thereby,  so  far  as 
any  existing  known  rights  are  concerned.  And  they  likewise 
claim  that  there  is  no  existing  State  law,  or  United  States  law, 
which  prohibits  their  legally  going  ahead  with  their  proposed 
construction  and  that  no  special  law  is  needed  therefor.  They 
admit,  however,  that  in  some  minor  matters  they  still  lack 
necessary  authority  from  the  local  Board  of  Supervisors  to 
condemn  certain  properties  which  they  still  wish  to  acquire  in 
order  to  facilitate  or  simplify  their  future  work  (such  permis- 
sion, however,  not  being  absolutely  essential  to  such  work)  and 
they  state  that  the  Board  of  Supervisors  are  willing  to  grant 
such  authority,  as  soon  as  it  is  evident  that  the  purposed 
power  dam  construction  will  not  interfere  with  the  future 
development  of  the  river  for  navigation  purposes. 

The  Water  Power  Company  agents  likewise  state  that  their 
object  In  bringing  the  matter  up  before  the  War  Department 
at  present,  is  to  make  evident  that  the  proposed  dam  con- 
struction not  only  does  not  conflict  with  any  existing  IT.  S 
law,  but  also  will  assist,  rather  than  injure,  the  possible  fu- 
ture navigation  of  the  Desplaines  and  Illinois  Rivers’’ 

To  the  introduction  of  which  letter  the  complainant  by  its  solicitors 
objected,  and  the  court  reserved  its  ruling  until  a later  time. 

Thereupon  counsel  for  the  defendant  offered  and  read 

4189  in  evidence  the  deposition  of  James  Boyne,  a witness  for 
the  defendant. 

(For  rulings  on  same  see  abstract  of  depositions  supra,  p. 
r345.) 

Thereupon  counsel  for  defendant  offered  and  read  in  evidence 
the  deposition  of  Louis  K.  Stevens,  a witness  for  the  defendant. 

(For  rulings  on  same  see  abstract  of  depositions  supra,  p. 
547.) 

Thereupon  counsel  for  the  defendant  offered  and  read  in  evi- 
dence the  deposition  of  Jacob  Adler,  a witness  for  the  defendant. 

(For  rulings  on  same  see  abstract  of  depositions  supra,  p. 
561.) 

4190  Counsel  for  Defendant.  The  question  was  up  yester- 
day as  to  whether  this  language  There  is  no  river  in  the 

United  States  or  in  the  world  of  which  I have  or  can  obtain  knowl- 
edge with  slopes  anywhere  near  as  great  as  the  slopes  of  the 


1212 


Upper  Columbia  and  Snake,  which  is  navigated  in  a satisfactory 
and  commercially  practicable  way  without  the  aid  of  locks  and 
dams.^’  Your  honor  will  remember  there  was  a misunderstanding 
as  to  whether  that  meant  no  other  river  or  not,  and  therefore 
I ask  counsel  to  read  the  connection. 

Whereupon  there  was  read  from  the  report  of  the  Chief  of 
Engineers  of  1891,  Part  5,  page  3211,  with  the  heading,  ‘^Ee- 
sults  obtained  to  June  30,  1890.’^  as  follows: 

‘‘Major  W.  A.  Jones,  in  his  annual  report  for  the  fiscal 
year  ending  June  30,  1889,  says: 

Snake  Eiver  between  Lewiston  and  the  mouth  has  ordin- 
ary widths  of  1,000  feet,  a slope  of  2.48  feet  per  mile,  and 
a discharge  of  26,000  cubic  feet  per  second.  All  the  bars 
have  been  removed  to  the  extent  of  being  no  longer  danger- 
ous to  competent  navigators  who  are  acquainted  with  them, 
and,  with  the  exception  of  Long  Crossing  Bar  on  the  Snake, 
the  required  depth  below  the  datum  assumed  at  the  time 
our  project  was  adopted  has  been  obtained.  This  datum, 
however,  has  been  lowered  about  IJ  feet,  so  that  the  ruling 
low-water  depth  on  Snake  Eiver  outside  of  Long  Crossing 
Bar  is  now  3 feet.  This  depth  I consider  sufficient  for  pres- 
ent purposes.” 

Also  on  page  3212,  there  was  read  as  follows: 

4193  “No  amount  of  work  on  the  upper  rivers  or  improve- 
ment in  their  condition  will  relieve  the  interior  of  the  thrall- 
dom  of  the  railroads  until  means  are  found  of  carrying 
the  products  borne,  or  which  may  be  borne,  on  the  upper 
rivers  past  these  great  obstructions. 

During  the  past  year  a great  deal  of  attention  has  been 
given  to  the  subject  by  the  legislatures  of  Oregon  and  Wash- 
ington, by  the  press,  and  citizens  generally. 

Efforts  were  made  by  thq  Legislature  of  the  two  States 
to  bring  about  some  co-operative  action  whereby  the  two 
States  could  join  in  building  portage  railroads  at  The  Dalles 
and  Cascades,  but  constitutional  objections  rendered  this  im- 
possible. The  Legislature  of  Oregon  then  appropriated  $60,- 
000  for  building  a portage  railroad  at  the  Cascades  in  order 
to  give  immediate  relief  to  the  country  centering  at  The 
Dalles  City.  This  is  now  in  process  of  construction. 

Several  waterway  conventions  were  held  by  people  inter- 
ested in  opening  the  river,  which  finally  culminated  in  one 
held  in  Portland,  April  8 and  9,  1891.  This  convention  re- 
solved on  the  formation  of  a company,  with  a capital  of  $2,- 
000,000,  to  build  and  operate  portage  railways  at  The  Dalles 
and  Cascades  and  build  and  run  steamboats  on  the  rivers. 


1213 


This  company  lias  not  yet  perfected  its  organization,  or  raised 
its  capital. 

Everything  indicates  a general  and  widespread  belief  that 
with  the  obstructions  at  The  Dalles  and  Cascades  removed 
there  would  be  nothing  of  a serious  nature  standing  in  the 
way  of  cheap  water  transportation  for  the  products  of  the 
great  interior  regions. 

So  important  and  so  vital  to  the  whole  scheme  of  utiliz- 
ing these  rivers  is  the  removal  of  the  obstructions  at  The 
Dalles  and  Cascades,  and  so  utterly  useless  is  any  improve- 
ment of  an  extensive  character  to  the  upper  rivers  until  they 
are  removed,  that  I am  constrained  to  recommend  that  no 
work  of  any  consequence  be  done  upon  these  upi3er  rivers 
until  the  great  obstructions  named  are  overcome  either  by 
the  construction  of  a canal  and  locks,  a boat  railway  or  a 
portage  railway  at  The  Dalles  and  the  completion  of  the 
canal  at  the  Cascades. 

A little  work  upon  that  portion  of  the  Snake  between 
Riparia  and  Lewiston  now  navigated  will  be  advisable  from 
time  to  time  to  remove  rocks  and  boulders  brought  into  the 
channel  by  ice  and  freshets,  but  all  other  efforts  should  be 
concentrated  upon  the  Dalles  and  Cascades  if  the  rivers  are 
to  be  opened  and  any  general  benefit  derived  from  them. 

In  connection  with  the  proposed  possible  opening  of  the 
Columbia  and  Snake  Rivers,  there  are  several  considerations 
which  it  seems  proper  I should  lay  before  you. 

It  is  generally  supposed  that  the  Columbia  and  Snake 
above  Celilo  can  be  navigated  in  a commercially  successful 
way  in  about  their  present  conditions,  bettered  by  such  in- 
complete improvements  as  rock  removal,  bar  scraping,  etc., 
as  contemplated  under  the  present  project. 

The  Board  of  Engineers  having  under  consideration  the  ob- 
structions to  navigation  of  the  Columbia  at  The  Dalles  and 
Celilo  Falls,  under  date  of  December  18,  1888,  state  that  the 
character  of  the  future  navigation  of  the  river  above  Celilo 
is  an  element  upon  which  details  either  of  a boat  railway  or 
of  a canal  and  locks  depend;  that  no  complete  project  for 
the  river  improvement  has  been  made,  and  none  could  be 
made  without  a proper  survey;  that  a survey  is  indispen- 
sable to  determine  the  possibilities  of  navigation  of  the  upper 
river,  and  that  the  estimated  cost  of  this  survey  is  $40,000, 
which  ought  to  be  given  in  one  sum.” 

Counsel,  eor  Complainant.  That  is  the  omitted  passage. 

Counsel  eor  Defendant.  Following  that  is  the  one  that  we 
had  our  controversy  about  yesterday. 

Counsel  for  Complainant.  Now  comes  the  list.  Following  the 


12U 


Extract, — Columbia  and  Snake  R. — Continued. 


►statement  of  the  rapids  in  the  Snake,  is  a list  of  rivers  ocenpying 
a little  over  two  pages.  (Reading)  : 

4196  '‘Ohio  River. — The  Ohio  River  from  Pittsburg  to  Cairo  is 
967  miles  in  length,  and  has  a total  fall  of  426  feet,  of  which 
26  feet  are  overcome  by  locks  at  Louisville.  Leaving  this 
26  feet  out  of  consideration,  the  average  fall  of  the  Ohio 
from  Pittsburg  to  Cairo  is  5 inches  per  mile.  Even  with  this 
fall,  which  is  so  small  in  comparison  with  that  of  the  Colum- 
bia and  Snake,  the  project  for  the  improvement  of  the  Ohio 
to  secure  a minimum  depth  of  6 feet  contemplates  the  con- 
struction of  68  locks  and  dams,  at  an  estimated  cost  of  over 
$38,000,000.  One  of  these  locks  and  dams  at  Davis  Island 
was  begun  in  1878  and  opened  to  navigation  in  1885.  Its 
cost  was  $910,000. 

Great  Kanaivha  River. — The  Great  Kanawha  River,  in 
West  Virginia,  from  Kanawha  Palls  to  the  Ohio  is  942  miles 
long,  and  in  this  distance  has  a fall  of  107.92  feet,  an  average 
fall  of  1 foot  and  1.7  inches  per  mile.  The  project  for  the 
improvement  of  this  river  contemplates  the  Jbuilding  of  12 
locks  and  dams,  at  an  estimated  cost  of  over  $4,000,fe0. 

Cumberland  River. — The  Cumberland  River  from  Nash- 
ville to  the  Ohio  is  298  miles  long,  and  has  a total  fall  of 
122.3  feet,  an  average  fall  of  5 inches  per  mile. 

Colonel  Barlow’s  project  for  the  improvement  of  this 
stretch  of  river  consists  in  building  7 locks  and  dams  and 
some  channel  improvements,  at  an  estimated  cost  of  about 
$2,000,000. 

Colonel  Barlow,  in  his  report,  after  mentioning  some  of  the 
rapids  and  shoals  on  the  river^  says: 

‘Efforts  have  hitherto  .been  made  to  reduce  the  fall  over 
these  shoals  and  thus  lengthen  the  season  of  navigation  by 
the  usual  method  of  wing  dams  and  channel  excavation.  This 
class  of  work  has  been  carried  as  far  as  seems  expedient  to 
continue  it,  and  the  results,  although  valuable,  do  not  satisfy 
the  interests  of  navigation;  a more  radical  improvement,  in 
keeping  with  that  in  progress  on  the  river  above  Nashville 
being  demanded.’ 

Kentucky  River. — The  Kentucky  River  from  the  Middle 
Fork  to  the  Ohio  is  258  miles  long.  In  this  distance  the  fall 
is  228  feet,  an  average  fall  per  mile  of  101  inches. 

The  lower  95  miles  was  improved  years  ago  by  the  State 
of  Kentucky  by  the  construction  of  5 locks,  with  a total  lift 
of  78  feet. 

It  was  estimated  in  1879  that  12  more  locks  would  be  re- 
quired to  reach  the  Middle  Fork,  the  estimated  cost  of  which 
was  over  $1,000,000. 

The  above  examples  serve  to  show  that  rivers  having  far 
less  slope  than  the  Columbia  and  Snake  can  not  furnish  ade- 


1215 


quate  and  satisfactory  navigation  without  the  intervention 
of  locks  and  dams.  The  experience  on  these  rivers  cited  is 
an  additional  reason  for  the  survey  and  preparation  of  a 
complete  and  consistent  plan  for  the  improvement  of  the  Co- 
lumbia and  Snake  Eivers,  in  order  that  all  work  may  be 
done  in  accordance  with  the  plan,  and  that  money  may  not 
be  injudiciously  and  unwisely  expended^ 

As  a means  of  comparison  the  slopes  of  a number  of  other 
rivers  which  have  been  largely  navigated  are  given. 

Mississippi  River. — From  Cairo  to  the  Gulf  of  Mexico  the 
Mississippi  Eiver  is  1,061.3  miles  long;  the  fall  is  280  feet; 
average  fall  3.2  inches  per  mile. 

Missouri  River. — From  its  mouth  to  Sioux  City  the  Mis- 
souri Eiver  is  803  miles  long;  the  fall  is  706  feet;  average 
fall,  10.5  per  mile. 

From  Cow  Island  to  Bismark  the  average  fall  is  9.3  inches 
per  mile,  and  from  Fort  Benton  to  Coav  Island  the  average 
fall  is  2.07  feet  per  mile. 

Sacremento  River. — From  Eed  Bluffs  (head  of  navigable 
water),  to  Suisun  Bay  the  Sacramento  is  275  miles  long; 
the  fall  is  245  feet;  average  fall  10.6  inches  per  mile. 

Arkansas  River. — From  its  mouth  to  Little  Eock  the  Ar- 
kansas is  176.4  miles  long;  the  fall  is  115.7  feet;  an  average 
fall  of  7.9  inches  per  mile. 

From  Little  Eock  to  the  mouth  of  the  Canadian  Eiver  the 
distance  is  249  miles,  and  the  average  fall  is  10  inches  per 
mile. 

Alabama  River. — From  Molhle  to  AYetumka  the  Alabama 
Eiver  is  367  rniles  long;  the  fall  is  117  feet;  an  average  fall 
of  3.8  inches  per  mile. 

European  Rivers. — The  rivers  of  Eussia  which  have  played 
a great  part  in  the  transportation  systems  of  the  country  are 
characterized  by  a gentle  average  slope  and  current. 

The  Volga,  from  the  Upper  I)am  to  Astrakhan,  is  2,184 
miles  long,  and  its  average  slope  is  4J  inches  per  mile. 

The  Don  for  394  miles  has  an  average  slope  of  4J  inches 
per  mile.  The  Oka  from  its  mouth  to  Kolomna  is  537  miles 
long,  with  an  average  slope  of^3f  inches  per  mile. 

The  Muskova,  from  Moscow  to  Kolomna,  1104  miles  long, 
has  an  average  slope  of  5|  inches  per  mile. 

From  Moscow  to  the  Caspian  Sea  the  combined  waterway 
of  the  Moskva,  Oka,  and  Volga,  2,122  miles  long,  has  the  re- 
markable low  average  slope  of  2f  inches  per  mile. 

The  Vistula,  655  miles  long,  has  a mean  slope  of  1.10  feet 
per  mile. 

The  Danube,  from  Danausechingen  to  its  mouth,  is  1,710 
miles  long,  and  its  average  slope  is  16  inches  per  mile. 

The  Seine  for  the  3484  miles  of  its  navigable  course  has 
an  average  fall  of  8 inches  per  mile. 


1216  Extract, — Columbia  and  Snake  R.— Continued, 

The  Elime,  from  Lake  Constance  to  its  mouth  is  435  miles 
long  and  has  an  average  slope  of  2 feet  11  inches  per  mile. 

The  Ehone,  from  Lake  Geneva  to  its  month  is  327-J  miles 
long,  and  has  an  average  slope  of  3 feet  94  inches  per  mile. 

In  both  of  these  latter  rivers  the  greater  portion  of  the 
fall  is  in  their  upper  courses. 

Some  five  to  six  million  dollars  have  been  expended  in 
regularizing  the  Ehone,  with  very  unsatisfactory  results. 

The  existing  project  for  improving  the  Upper  Columbia 
and  Snake,  made  in  1877,  contemplates  the  removal  of  rocky 
reefs  and  rock  boulders,  and  scraping  gravel  bars,  to  secure 
a low-water  channel  depth  of  54  feet  in  the  Columbia  and 
44  feet  in  the  Snake  as  far  as  Lewiston.  It  is  questionable 
whether  the  proposed  channel  can  be  secured  at  every  point 
by  the  means  adopted.  Past  experience  indicates  that  it 
can  not. 

From  Celilo  to  Wallula  the  river  is  navigable  all  the  year 
around,  as  far  as  depth  of  water  is  concerned,  for  boats  draw- 
ing 31  to  4 feet. 

From  Eiparia  to  Lewiston  the  Snake  is  navigable  all  the 
year,  as  far  as  depth  of  water  is  concerned,  for  boats  draw- 
ing 2 feet.  There  is  much  time  when  boats  drawing  more 
than  2 feet  would  have  great  difficulty  in  getting  up  over  the 
bars,  although  they  could  come  down  drawing  somewhat 
more. 

The  intermediate  stretch  from  Wallula  to  the  mouth  of 
the  Snake  and  up  the  Snake  to  Eiparia  is  the  worst  part  of 
the  river.  Over  this  stretch  boats  drawing  2 feet  can  only 
pass,  as  a general  thing,  about  four  months  of  the  year,  from 
April  1 to  August  1. 

During  the  remainder  of  the  year  the  stretch  of  river  is 
practically  unnavigable  for  boats  drawing  2 feet.  During 
periods  of  high  water  much  greater  draft  can  be  carried  over 
all  portion  of  the  rivers. 

It  is  unfortunate,  however,  that  the  periods  of  high  water 
occur  in  the  spring  and  summer,  when  the  crops  are  growing, 
and  the  periods  of  low  water  in  the  fall  and  winter,  after  the 
crops  are  harvested  and  their  moving  to  market  is  re- 
quired. 

The  result  of  the  work  which  has  been  done  on  the  river 
combined  with  other  causes,  has  been  during  the  past  10  or 
12  years  to  lower  the  river  at  governing  points  about  14  feet. 
There  is  just  about  the  same  depth  of  water  at  low  water 
over  many  rapids,  etc.,  as  there  was  10  to  12  years  ago,  but 
the  surface  is  lowered  about  14  feet  on  the  gauges  used  by 
the  steamboat  men.  This  is  due  to  the  natural  wearing 
away  of  the  bottom  of  the  river,  io  the  work  done  by  the  gov- 
ernment, and  perhaps  to  other  causes.” 


1217 


4202  Thereupon  counsel  for  the  defendant  offered  and  read  in 
evidence  the  deposition  of  William  S.  Burt,  a witness  for  the 

defendant. 

(For  rulings  on  same  see  abstract  of  depositions  supra,  p. 
569.) 

Thereupon  counsel  for  the  defendant,  offered  and  read  in  evi- 
dence the  deposition  of  David  Layton,  a witness  for  the  defend- 
ant. 

(For  rulings  on  same  see  abstracts  of  deposition  supra,  p. 
575.) 

Isaac  N.  Mason, 

a witness  for  the  defendant,  testified  as  follows : 

Direct  Examination. 

4203  My  name  is  Isaac  N.  Mason.  I am  in  my  78th  year.  My 
home  is  in  St.  Louis,  Missouri,  where  I have  lived  going  on 

forty-six  years.  My  occupation  is  that  of  steamboating,  which  I 
began  on  the  Monongahela  Eiver  in  1846.  I commenced  as  sec- 
ond clerk  on  the  steamer  Consul,  and  then  was  first  clerk  up 

4204  to  1850  and  in  1850  I took  charge  of  a boat  running  from 
Pittsburg  to  Cincinnati  and  Louisville  and  then  I com- 
menced boating  from  Pittsburg  to  St.  Louis,  run  in  the  Pittsburg 
and  St.  Louis  trade  for  several  years,  then  I steamboated  from 
St.  Louis  to  St.  Paul  several  years,  one  year  on  the  Missouri 
Elver.  Then  I was  freight  agent  for  the  Northern  Line  to  St. 
Paul  for  seven  years,  then  I got  into  politics  as  Marshal,  Sheriff, 
and  City  Auditor  at  St.  Louis.  After  12  years  I went  back  to  the 
river  and  was  President  of  the  Anchor  Line  running  from  St. 
Louis  to  New  Orleans  for  over  ten  years.  That  was  a line  com- 
posed of  nine  large  steamers.  In  the  last  employment  I did  not 
have  to  have  captain’s  papers,  but  had  them  before  that  time.  I 
never  held  a pilot’s  license,  but  have  piloted.  I have  navigated 
the  falls  in  the  Ohio  Elver,  the  Des  Moines  and  Eock  Island 

Eapids  on  the  Mississippi,  and  the  Missouri  Eiver  from  St. 

4205  Louis  to  Council  Bluffs.  Since  I ceased  to  run  actively  on 
the  river  I have  kept  in  touch  with  river  conditions,  and 

have  been  interested  in  the  problem  of  deep  water  communica- 
tion on  the  rivers  for  forty  odd  years.  For  the  last  five  years 
I have  been  one  of  the  vice-presidents  of  the  Upper  Mississippi 


1218 


Maso  n, — D i red  E xa  m. — C o n tinued. 


Association,  an  association  interested  in  that  matter,  and  have 
givn  time  and  study  to  the  problem  of  deep  waterway  navigation 
on  the  river.  In  1892  I was  president  of  the  Merchants’  Ex- 
change and  held  an  official  position  on  the  Board  of  Trade  of 
St.  Louis. 

1206  I have  seen  the  Desplaines  Eiver,  I went  down  it  five 
weeks  ago  and  I was  down  to-day  (June  4,  1908),  from  Joliet 
to  the  mouth  of  the  river, — where  the  coffer-dam  is  being  built. 
Seeing  the  river  at  its  stage  on  both  visits,  I discovered  here 
and  there  there  were  pools  of  water,  the  water  was  slack  and 
then  between  the  pools  there  was  rapid  current,  indicating  that 
the  bottom  of  the  river  was  rockv,  uneven;  the  current  of  the 
water  always  shows  the  condition  to  a certain  extent,  of  the  bot- 
tom of  the  river. 

4207  Q.  Will  you  state  from  your  observation  whether  or  not 
in  your  opinion  the  Desplaines  Hiver  from  Joliet  to  its 

mouth,  is  a navigable  stream? 

Counsel  for  Complainant.  I object. 

The  Court.  Overruled.  (Exception.) 

A.  The  Desplaines  Kiver  is  not  navigable  and  could  not  be 
made  navigable  unless  it  was  slack  watered  with  locks  and  dams. 
It  would  not  be  navigable  for  any  character  of  boat  used  in  com- 
merce that  I have  ever  been  acquainted  with  in  river  navigation 
unless  it  was  improved  with  locks  and  dams. 

C ross-Examination. 

4208  I came  up  from  St.  Louis  on  the  Chicago  & Alton  road, 
got  off  at  Joliet  this  morning,  drove  in  a buggy  to  the  site 

of  the  dam,  and  back  six  or  seven  miles  to  Minooka,  where  I 
took  a train  for  Chicago.  We  drove  25  or  30  miles.  I had  a 
good  view  of  the  Desplaines  practically  all  the  way  down,  except 
that  here  and  there  were  forest  trees  that  hid  the  view.  We 
went  through  a little  village,  I do  not  know  whether  it  was  Chaii- 
nahon  or  not,  and  did  not  cross  the  river  until  we  came 
4213  back.  When  we  landed  at  the  moutli  of  the  river  we  were 
on  the  right  hand  side  of  the  cotfer-dam,  that  is,  on  the 
same  side  of  the  Desplaines  Eiver  as  that  portion  of  the  coffer- 


1219 


dam  that  is  being  built, — next  to  the  canal.  In  coming  down  we 
drove  along  the  towpath  of  the  canal  for  several  miles,  and 
forded  a river  just  before  we  took  that  towpath,  but  I do  not 
know  what  river  it  was. 

The  first  four  years  of  my  experience  on  rivers  was  running 
from  Pittsburg  to  Brownsville,  sixty  miles  up  the  Monongahela 
River.  I was  first  and  second  clerk,  and  had  nothing  to  do 
4214  with  navigating  the  boat.  After  that  I was  second  clerk, 
clerk,  and  captain  on  the  Ohio  River  from  Pittsburg  to 
Nashville,  Tennessee.  The  service  which  I rendered  then  was 
not  the  navigating  part  of  the  boat,  but  the  business  part.  I 
used  to  pilot  once  in  a while,  sometimes  for  two  or  three  hours, 
for  exercise,  but  have  never  had  a pilot’s  license. 

4216  After  that,  I was  general  freight  agent  of  the  Northern 
Line,  running  from  St.  Louis  to  St.  Paul.  I had  an  office 
on  a wharf  boat,  but  had  nothing  to  do  with  the  navigation  of 
the  boats.  That  service  lasted  over  nine  years.  After  that  I 
way  city  auditor,  sheriff,  and  city  and  county  marshal  at  St. 
Louis.  In  1885  I ^ent  back  to  the  river  and  was  president  of  the 
Anchor  Line  for  over  ten  years.  I had  charge  of  the  business 
end  of  the  work,  did  nothing  with  the  actual  navigation.  I have 
had  experience  as  a master, — during  the  war  my  boat  was  in  the 
Government  service  with  General  Grant  at  Vicksburg,  and  while 
there  they  took  my  boat  and  loaded  her  with  ordnance  and  let 
my  pilots  go,  and  when  I was  released  I could  only  get  one  pilot 
and  stood  watch  from  Youngs  Point  to  Cincinnati.  I consider 
myself  a thoroughly  practical  steamboat  man. 

The  falls  in  the  Ohio  River  have  a drop  of  about  thirty 
4220  feet  in  low  water,  in  a distance  of  less  than  two  miles.  When 
I was  in  the  St.  Louis  and  St.  Paul  trade  in  1857,  1858,  1859 
and  1860,  I was  commanding  the  boat.  I had  two  pilots,  and 
4224  my  business  was  the  business  end  of  the  matter.  My  boat 
ran  up  and  down  the  rapids  between  Rock  Island  and  Mo- 
line. At  the  Rock  Island  Rapids,  the  fall  is  about  18  feet  in  about 
18  miles,  so  I have  been  toTB.  I only  know  from  hearsay.  The 
current  in  the  Rock  Island  Rapids  varies.  It  varies  very  much 
in  18  miles;  part  of  it  is  ten  or  eleven  miles  an  hour  and  some 


1220 


Mason, — Cross-Exam. — Continued. 


of  it  is  probably  only  two  or  three  miles.  It  is  in  pools,  the 

4225  rapids  is  in  pools.  My  boats  passed  right  up  and  down 
through  that.  The  greatest  slope  I have  ever  passed  over 

in  a boat  is  the  falls,  at  Louisville,  Kentucky,  in  the  Ohio  Kiver, 
where  there  was  a fall  of  about  30  feet  in  two  miles.  The  boats 
passed  up  and  down  there  only  in  high  water,  the  current  in  high 
water  would  average  from  six  to  eight  miles  an  hour.  At  high 
water  the  falls  is  covered  so  you  couldn’t  observe  the  falls  at 
all.  I do  not  know  what  the  slope  in  the  Desplaines  River  is, 
nor  the  speed  of  the  current,  but  should  guess  it  about  7 to 

4226  10  miles  an  hour.  There  is  places  in  the  Desplaines  River 
where  the  current  is  more  rapid  than  it  is  on  the  Mississippi 

River,  only  for  a short  distance.  I only  judge  from  experience 
in  looking  at  the  Desplaines  this  morning.  It  is  43  years  since 
I quit  running  boats  over  these  rajiids  in  the  Mississippi,  but  I 
have  been  over  the  rapids  since  that  time,  and  have  studied  the 
matter  somewhat  in  regard  to  improving  the  channel  of  the 

4228  Upper  Mississippi,  especially  on  the  rapids, — the  Rock 
Island  Rapids.  My  especial  interest  was  to  have  the  Upper 

Mississippi  improved,  the  rapids  in  low  water  are  very  dangerous 
to  navigate,  and  the  Government  has  improved  them  in  such  a 
way  they  have  lessened  the  danger  over  100  per  cent.  The  thing 
which  the  association  with  which  I have  been  identified  has  been 
asking,  is  to  make  deeper  water  in  the  upper  Mississippi,  and 
what  the  Government  has  been  doing  is  to  build  wing  dams  up 
along  Lake  Petin,  and  away  up  towards  St.  Paul,  and  narrow 
and  deepen  the  stream. 

4229  There  are  no  locks  and  dams  in  the  Cumberland,  the 
Tennesee  or  the  Allegheny.  I have  not  been  on  the  Cum- 
berland River  since  1863,  I never  went  up  the  Tennessee.  The 
only  concern  I have  had  in  those  rivers  is  to  assist  the  men  who 

are  steamboating  there  to  get  improvements.  They  build 
4231  wing  dams  there  to  narrow  and  deepen  the  channel.  There 
are  no  locks  and  dams  on  the  Allegheny.  I never  was  up  that 
river,  only  to  cross  it  at  Pittsburg  about  40  years  ago. 

Re-direct  Examination. 

4233  I got  to  Joliet  this  morning  about  half  past  five.  When 
I went  down  the  Desplaines  River  the  first  time,  we  crossed 


1221 


four  bridges.  In  high  water  in  tlie  Ohio  River,  the  fall  is  ol)^ 
literated,  so  you  can  not  see  any  fall  in  the  river.  The  slope 
varies  with  the  variation  of  the  amount  of  water.  When  I speak 
of  the  slope  in  a river,  I mean  when  there  is  a boating  stage 
4234  stage  of  water,  as  in  the  Rock  Island  falls,  when  there  is 
6 or  7 feet  in  the  channel.  The  ability  to  navigate  slopes 
depends  upon  the  depth  of  the  slopes.  A captain  of  a steam- 
boat has  full  charge  of  all  the  business  connected  with  his  boat — I 
considered  myself  that  I understood  the  duties  of  a master  of  a 
steamboat  thoroughly — when  I was  master  of  a boat,  the  pilots 
were  under  my  direction  and  command  as  captain.  My  guesses 
as  to  the  rapidity  of  the  Desplaines  are  my  estimates  of  the  rap- 
idity. 


Re-cross  Excunination. 

4240  The  pilot  is  under  the  captain’s  control.  If  the  captain 
said  to  go  a certain  way,  the  pilot  would  be  expected  to  go 
the  way  the  captain  told  him,,  although  that  might  not  be  the 
channel. 

Thereupon  counsel  for  the  defendant  offered  and  read  in  evi- 
dence the  deposition  of  Adam  Comstock,  a witness  for  the  de- 
fendant. 

(For  rulings  on  same  see  abstracts  of  depositions  supra,  p. 
586.) 

Thereupon  counsel  for  the  defendant  offered  and  read  in  evi- 
dence the  deposition  of  James  G.  Keen,  a witness  for  the  de- 
fendant. 

(For  rulings  on  same  see  abstracts  of  depositions  supra,  p. 
593.) 

Thereupon  counsel  for  the  defendant  offered  and  read  in  evi- 
dence the  deposition  of  Enos  Field,  a witness  for  the  defendant. 

(For  rulings  on  same  see  abstracts  of  depositions  supra,  p. 
598.) 

Thereupon  counsel  for  the  defendant  offered  and  read  in  evi- 
dence the  deposition  of  Urias  Bowers,  a witness  for  the  defend- 
ant. 


1222 


(For  rulings  on  same  see  abstracts  of  depositions  supra,  p. 

601.) 

Thereupon  counsellor  the  defendant  offered  and  read  in  evi- 
dence the  deposition  of  Oliver  S.  Chamberlain,  a witness  for  the 
defendant. 

(For  rulings  on  same  see  abstracts  of  depositions  supra,  p. 

606.) 

Thereupon  counsel  for  the  defendant  offered  and  read  in  evi- 
dence the  deposition  of  Seneca  Hammond,  a witness  for  the  de- 
fendant. 

(For  rulings  on  same  see  abstracts  of  depositions  supra,  p. 

607.) 

Thereupon  counsel  for  the  defendant  offered  and  read  in  evi- 
dence the  deposition  of  Peter  O’Brien,  a witness  for  the  de- 
fendant. 

(For  rulings  on  same  see  abstracts  of  depositions  supra,  p 

610.) 

Thereupon  counsel  for  the  defendant  offered  and  read  in  evi- 
dence the  deposition  of  Franklin  Collins,  a mtness  for  the  de- 
fendant. 

(For  rulings  on  same  see  abstracts  of  depositions  supra,  p. 

613.) 

Thereupon  counsel  for  the  defendant  offered  and  read  in  evi- 
dence the  deposition  of  John  McCowan,  a witness  for  the  de- 
fendant. 

(For  rulings  on  same  see  abstracts  of  depositions  supra,  p. 

617.) 

Thereupon  counsel  for  the  defendant  offered  and  read  in  evi- 
dence the  deposition  of  E.  W.  Kilmar,  a witness  for  the  de- 
fendant. 

(For  rulings  on  same  see  abstracts  of  depositions  supra,  p. 

625.) 

Thereupon  counsel  for  the  defendant  offered  and  read  in  evi- 
dence the  deposition  of  William  Whigam,  a witness  for  the  de- 
fendant. 


(For  rulings  on  same  see  abstracts  of  depositions  supra,  p. 

:ni.) 

4242  Counsel  for  Defendant.  Here  is  another  deposition  of 
John  McGowan.  This  deposition  was  taken  to  rehut  tlie 
testimony  of  Mr.  Stevens  that  Mr.  Jessup  told  him  that  lie  had 
brought  lumber  around  from  the  Kankakee  River  to  build  a house. 
This  man  testifies  where  the  lumber  came  from.  Of  course  if 
your  Honor  rules  out  the  other,  this  is  not  competent  here. 

The  Court.  I have  got  through  this  hatch  that  you  have  marked, 
and  I have  ruled  on  this  basis  (for  said  rulings  referred  to  see  ab- 
stracts of  depositions) ; that  where  the  witness  purports  to  give 
the  general  reputation  of  events  in  the  neighhorhoodj  that  is  ad- 
mitted; where  he  purports  to  give  specific  conversations  of  specific 
events,  it  is  not  admitted.  In  some  instances  the  question  is  all 
right  and  asks  him  as  to  the  current  reputation  in  the  neighbor- 
hood as  to  navigability  and  that  sort  of  thing.  The  answer  in 
some  cases  is  a little  doubtful.  In  other  cases  it  is  clear  that 
he  is  giving  simply  what  some  individual  told  him  about  some 
specific  act  that  happened  to  that  individual,  of  which  he  knew,  or 
he  is  giving  a statement  of  some  individual  which  he  gathered 
that  the  individual  believed  to  be  current  reputation.  Where  that 
is  all  that  he  has  given  I have  cut  that  out.  In  other  words,  where 
he  is  simply  repeating  that  his  father  told  him  that  the  current 
reputation  in  his  father’s  time  was  so  and  so,  I have  struck  that 
out.  Where  he  says  that  he  knows  the  current  reputation  to  be 
so  and  so,  then  I left  it  in.  That  has  been  the  general  basis.  I 
may  have  overlooked  some  instances  where  at  the  end  of  the 
whole  testimony  Mr.  Munroe  said,  move  to  strike  out  all  the 
answers  because  they  are  not  of  the  right  kind.”  It  is  possible 
that  something  of  that  kind  has  been  overlooked. 

Ruling  of  Court  on  Defendant's  Motion  to  Strike  Out  Evidence. 

Whereupon  the  court  ruled  on  the  objections  to  certain  parts  of 
certain  depositions  as  follows: 

In  the  deposition  of  Harlow  H.  Spoor,  the  objection  to  the  wit- 
ness’ general  statement  of  reputation  in  the  neighborhood  over- 
ruled and  statement  left  in. 


1224  Biding  on  Deft.’s  Motion  to  Strike  out  Evid. — Continued. 

(For  this  statement  see  Vol.  1,  Complainant’s  Depositions,  p. 
49;  Trans.,  p.  918;  Abst.,  p.  418.) 

4244  In  the  same  deposition  the  statement,  ‘At  was  the  current 
report  by  men  I believed  to  be  truthful,  and  had  no  interest 

in  it,”  was  left  in.  (See  page  51,  Vol.  1,  Complainant’s  Deposi- 
tions, Trans.,  p.  919;  Abst.,  p.  419.) 

In  the  deposition  of  Urias  Bowers  the  following  was  stricken 
out : 

“Q.  Do  you  remember  where  they  came  from!  A.  Well, 
we  heard  that  they  came  from  Chicago. 

Q.  Do  you  remember  where  they  were  going  to!  A. 
Going  to  California. 

Q.  Going  down  to  New  Orleans  and  then  to  California! 
A.  That  is  what  the  report  was.  A lot  of  us  boys  followed 
them  down  to  the  dam  when  they  went  over,  for  curiosity.” 

The  Court.  “He  states  clearly  that  it  was  simply  the  report 
that  they  were  going;  that  they  came  from  Chicago  and  were 
going  to  California.” 

(Said  matter  stricken  out  is  on  page  63,  Vol.  1,  Complainant’s 
Depositions,  Trans.,  p.  931;  Abst.,  p.  421.) 

And  also  in  the  same  deposition  the  following: 

4245  “Q.  Did  you  ever  know  or  hear  what  the  men  were  do- 
ing that  were  down  near  the  aqueduct  at  the  time  the  boat 
capsized  and  drowned  some!” 

The  Court.  This  is  cross-examination,  and  as  the  original 
was  in,  why,  the  cross  is  to  that,  and  it  stands. 

(Said  statement  occurs  on  page  65,  Vol.  1,  Complainant’s  Dep- 
ositions, Trans.,  p.  933;  Abst.,  p.  422.) 

In  the  deposition  of  Wightman  the  following  was  stricken  out: 

“Q.  I will  ask  you  to  state  whether  you  are  acquainted 
with  the  current  report  and  local  reputation  as  to  the  use 
of  the  river  in  the  early  days  for  the  rafting  of  timber  down 
the  river  from  Lockport!  A.  I heard  my  mother  tell  sev- 
eral times  about  the  rafts  of  logs  going  down  the  river  in  the 
early  days.  That  was  before  I was  old  enough  to  remember 
anything,  and  the  men  having  little  shacks  for  houses  on  the 
raft,  and  they  done  the  cooking  in  the  house,  and  they  stopped, 
I think,  a day  or  two  right  there  at  my  grandfather’s  place; 
I don’t  know  how  long.” 

The  Court.  There  is  no  objection. 


1225 


4245  Whereupon,  after  colloquy  of  counsel  as  to  the  right  of 
tlie  defendant  to  raise  an  objection  as  to  the  substance  at 
the  time  of  reading  the  deposition  where  there  had  been  no  ob- 
jection at  the  time  of  taking  the  deposition,  the  court  overruled 
the  objection  of  complainant,  allowed  the  objection  of  the 

4248  defendant,  and  struck  out  the  testimony  aboye  referred  to. 

(Said  passage  referred  to  occurs  on  page  88,  Vol.  1,  Com- 
plainant’s Depositions,  Trans.,  p.  954;  Abst.,  p.  426.) 

In  the  deposition  of  George  AY.  Raymond  the  following  testi- 
mony was  stricken  out: 

‘‘Q.  Did  you  eyer  conyerse  with  him  about  the  local  rep- 
utation of  the  state  of  the  water  in  the  riyer?  A.  Y^es, 
sir. 

Q.  Did  you  eyer  haye  him  compare  the  local  reputation  of 
former  high  waters  known  to  him  with  that  of  1857!  A. 
Yes,  sir. 

Q.  What  did  he  say  about  it!  A.  AYlien  I went  oyer  to 
McMillan’s  after  my  horses  and  wagon,  and  so  forth,  I told 
Shabbona  by  motions  and  talk  that  I wanted  to  get  crossed 

4249  oyer.  He  called  a couple  of  squaws,  and  they  motioned  to 
me,  and  went  went  up  the  riyer  a ways,  and  they  had  what 
we  call  a canoe,  and  I seated  myself  nicely  down  in  the  bottom 
and  they  paddled  me  across,  and  I gaye  them  a quarter  of  a 
dollar.  I used  to  be  yery  friendly  with  the  old  chief,  and  I 
gaye  him  a part  of  a sack  of  that  flour  that  I got  oyer  ou 
the  scow.” 

The  Court.  Then  begins  the  objectionable  part: 

‘Wnd  I asked  him  in  regard  to  the  water  at  that  time, 
and  he  made  motion,  and  he  showed  me — he  put  his  cane  up 
this  way  (indicating)  ^So;  there,  so,  up.’  In  the  Indian 
way.  He  would  understand  yery  well  what  you  said  to  him, 
and  he  possessed  that  peculiar  Indian  way,  a good  deal  of 
sign  language  as  well  as  words. 

Q.  And  how  did  the  height  that  he  indicated  compare  with 
the  leyel  of  1857!  A.  Yluch  higher. 

Q.  How  much  higher  in  feet  would  you  say!  A.  AYell,  I 
should  say  four  feet. 

Q.  Go  on.  Did  he  eyer  talk  with  you  about  the  local  rep- 
utation of  the  use  of  the  stream  in  the  early  days  by  the  set- 
tlers and  explorers!  A.  He  told  me  one  time — motioning 
that  he  was  a small  boy,  so  (indicating),  about  so.” 

The  Court.  That  will  all  go  out.  It  is  simply  a recital  of  a 
conyersation. 


1226  Riding  on  Deftds  Motion  to  Strike  out  Evid.— Continued. 


(Said  passage  referred  to  occurs  on  page  133  of  said  deposition, 
Trans.,  pp.  998-9;  Abst.,  p.  434.) 

And  also  in  the  cross-examination  of  the  same  witness  the  fol- 
lowing passage  was  stricken  out  on  the  ground  that  it  was  cross- 
examination  of  the  excluded  part : 

‘‘Q.  In  your  conversation  with  this  old  Indian  did  you 
gather  from  his  statements  to  you  that  the  white  man  never 
went  north  of  your  farm,  up  the  river?  A.  Never  went  up 
stream.” 

(Said  passage  occurs  on  page  135  of  said  deposition,  Trans.,  p. 
999;  Abst.,  pp.  434-5.) 

4250  In  the  deposition  of  Obediah  Hicks  the  following  state- 
ment was  allowed  to  stand: 

‘H  asked  you  if  you  are  acquainted  with  its  local  reputa- 
tion, from  what  you  have  been  informed  by  others.” 

(Said  passage  occurs  on  page  140  of  said  deposition,  Trans.,  p. 
1005 ; Abst.,  p.  436.) 

In  the  same  deposition  the  following  passage  was  excluded,  be- 
ginning on  page  142,  as  follows: 

‘‘Did  you  ever  hear  of  anybody  taking  any  grain  or  mer- 
chandise from  Joliet  to  Chicago  by  way  of  the  Desplaines 
River?  A.  No,  no,  not  till  recently.  I haven’t  heard  of  it. 

Q.  Who  did  you  ever  hear  it  from  recently?  A.  The  pa- 
pers, and  some  fellows  that  had  been  talking  about  the  evi- 
dence they  were  going  to  give  and  so  on. 

Q.  Who  ever  told  you  that  they  knew  of  grain  being  taken 
from  Joliet  to  Chicago  by  way  of  the  Desplaines  River?  A. 
I could  not  say  that,  but  I understood  there  was  a cargo 
loaded  in  Kankakee  and  brought  down  to  Treat’s  Island,  a 
cargo  of  grain  and  they  wrecked  the  boat  there  and  lost  the 
grain.” — 

and  so  on  to  the  bottom  of  page  143.  (Trans.,  pp.  1007-8;  Abst.,  p. 
437.) 

Also  in  the  same  deposition  the  following  statement: 

“I  have  heard  that  trappers  used  to  be  up  around  here. 
I have  heard  others  state  that  a good  many  years  ago.” 
was  allowed  to  stand. 

(Said  passage  occurs  in  said  deposition  at  page  144,  Trans.,  ]). 
1009;  Abst.,  p.  438.) 


1227 


4251  And  also  in  the  re-direct  examination  of  the  same  wit- 
ness the  following  was  allowed  to  stand: 

‘‘The  local  reputation  as  you  heard  it,  and  you  were  told 
about  these  trappers  with  the  batteaux  was  that  they  were 
sent  out  by  the  American  Fur  Company/’ 

(Said  passage  occurs  in  said  deposition,  page  148,  Trans.,  p. 
1013 ; Abst.,  p.  439.) 

In  the  deposition  of  Francis  Belz  the  following: 

“Did  you  know  of  some  large  boats  coming  down  into 
the  lower  basin  at  Joliet  and  being  unloaded  and  the  goods 
hauled  down  below  the  dams  by  wagons  and  then  being  put 
onto  the  boats  again?  iV.  No,  but  Mr.  Lappin  was  an  old 
fisherman  and  he  used  to  fish  down  along  there,  and  his  boy 
and  I was  great  friends,  and  he  told  me—” 

The  Court.  What  he  told  him  then  goes  out  down  to  the  end 
of  the  page  and  down  to  the  last  question,  “AVhere  is  Mr.  Lap- 
pin  now?  A.  He  is  dead.” 

(Said  passage  occurs  on  page  156  of  said  deposition,  Trans.,  p. 
1021-2;  Abst.,  p.  441.) 

4352  In  the  deposition  of  George  A.  Parrent  the  affidavit  of 
said  witness,  which  was  sworn  to  prior  to  the  trial,  and  the 
cross-examination  relating  to  the  same  was  allowed  to  stand. 

(Said  passages  referred  to  occur  in  said  deposition  on  pages 
225-6-7-8,  Trans,  pp.  1090-4;  Abst.,  pp.  452-4.) 

4256  In  the  deposition  of  Edward  D.  Brockway  the  following 
passage  was  excluded: 

“Q.  Did  your  father  ever  tell  you  about  using  the  river 
himself  before  you  were  born?  A.  Oh,  jes. 

Q.  What  did  your  father  tell  you  about  his  making  use  of 
the  river  before  you  were  born.” 

The  Court.  From  there  on  down  through  the  next  page  the 
whole  thing  goes  out. 

(Said  passage  occurs  in  said  deposition  on  pages  251-2, 
Trans.,  p.  1117;  Abst.,  p.  458.) 

And  in  the  same  deposition  the  following: 

“Q.  What  was  the  condition  of  the  water  at  the  edge 
there,  was  it  shallow  or  deep,  did  it  go  oft  sudden?  A. 
Well,  it  was  quite  deep  there;  made  a-purpose. 


1228  Biding  on  Deft/s  Motion  to  Strike  out  Evid. — Continued. 

Q.  Made  a-purpose  for  what!  A.  For  unloading  stuff. 

4257  Q.  Onto  the  boats  from  the  road!  A.  Yes. 

Said  passage  was  allowed  to  stand. 

(Said  passage  occurs  on  page  254  of  said  deposition,  Trans., 
p.  1119;  Abst.,  p.  459.) 

And  also  in  the  cross-examination  of  the  same  witness  the  fol- 
lowing passage : 

They  had  the  road  there  for  to  load  the  stuff  on, 
to  freight  it  down  to  the  quarry.  That  is  what  the  road  is 
for. 

Q.  To  freight  it  to  the  quarry  out  to  Miller’s;  that  is  on 
Lake  Joliet,  is  it!  A.  Yes,  sir. 

Q.  And  the  road  leads  down  to  the  water’s  edge  at  Lake 
Joliet,  and  Miller’s  is  from  Lake  Joliet,  two  or  three  miles 
down,  north  of  it,  in  that  wide  portion  of  the  river,  and  they 
used  a scow  boat  to  convey  quarry  stone  from  Miller’s!  A. 
No,  they  freighted  material  down  to  that  quarry  on  the  end 
of  Mt.  Flathead,  right  where  the  Rock  Run  empties  into  the 
river.”  And  also  the  following  passage : 

4258  ‘‘Q.  Did  you  ever  see  any  boat  on  the  Desplaines  River 
carrying  any  merchandise  or  freight!  A.  No. 

Q.  You  never  saw  it  yourself,  nor  never  heard  of  any- 
body doing  it,  did  you!  A.  Nothing  only  this  freighting 
this  stuff  down  to  the  quarry. 

Q.  How  do  you  know  that!  A.  From  what  I heard.  My 
folks  about  sending  the  stuff  down. 

Q.  Did  he  do  it  more  than  one  season!  A.  No,  only  one 
year. 

Q.  Only  one  year,  and  to  get  his  supplies  in  to  open  up 
his  quarry;  is  that  right!  A.  Yes,  that’s  it. 

Q.  And  after  he  got  his  supplies  in,  that  was  the  end  of 
taking  any  material  down!  A.  Yes. 

Q.  I suppose  he  took  an  engine  or  a boiler,  did  he!  A. 
No,  he  just  freighted  derricks  and  such  things  down  there  to 
save  hauling  them. 

Q.  And  after  he  got  the  stuff  in  there,  that  ended  any- 
thing you  ever  knew  of  any  use  of  any  portion  of  the  Des- 
plaines River,  that  is  all!  A.  That’s  all.” 

Counsel  for  Defendant.  That  is  all  so  mixed  up  with  the 
other,  in  view  of  the  fact  that  we  had  a witness  on  that  point,  I 
think  it  would  be  dangerous  to  strike  it  out,  because  it  is  all 
m'xed  up. 

The  Court.  Very  well,  it  stands,  then. 

(Said  passage  occurs  on  page  256,  8 of  said  deposition,  Trans., 
]>p.  1121-2-3;  Abst.,  p.  459.) 


1229 


In  the  deposition  of  Eliza  Jones,  beginning  on  page  269,  the 
following  passage: 

4259  ‘‘Q.  I will  ask  you  to  state,  Mrs.  Jones,  whether  you  have 
heard  from  your  father  and  others  the  current  reputation 
of  the  history  of  the  early  days  on  the  Desplaines  River,  in 
Jie  matter  of  shipping  or  travelling  upon  itr^ 

The  Court.  The  question  was  all  right,  but  that  is  an  instance 
where  the  answer  is  not  as  good  as  the  question. 

“Well,  I have  heard  my  father  say  many  times  that  sup- 
plies were  brought  up  from  the  south  up  as  far  as  Lockport, 
or  up  to  here.  When  my  father  came — 

Q.  How!  A.  Up  the  river.  I donT  know  what  they  were 
brought  on.  When  my  father  came  here  there  was  no  canal. 
There  was  no  railroad. 

Q.  Yes.  And  what  have  you  heard  similarly,  as  to  the 
history  of  provisions  or  merchandise  of  any  kind  being 
brought  down  the  river  from  Chicago!  A.  Well,  there  is 
only  one  thing  that  I remember  x^auticularlv  of  his  speaking 
of  often,  and  that  was  that  some  man  cornered  coarse  salt  in 
Chicago. 

Q.  Yes!  A.  And  that  all  the  way  they  were  able  to  get 
it  was  down  the  river,  and  it  cost  them  ten  dollars  a barrel. 
I have  heard  him  say  that  many  times. 

Q.  Bringing  it  down  the  river!  A.  That  is  the  way  I 
understood  him.  There  was  no  other  way  to  get  it  unless 
they  went  by  wagons. 

4260  Q.  This  was  long  before  the  time  when  you  went  fishing 
in  1859  or  1860!  A.  Sure. 

Q.  That  your  father  used  to  tell  you  this!  A.  Yes.  And 
then  afterwards,  my  father  and  another  old  neighbor,  Mr. 
Frederick  Collins,  whom  Mr.  Stevens,  if  he  is  here,  remem- 
bers, they  lived  across  the  street;  and  the  two  old  gentle- 
men had  nothing  particularly  to  do,  and  they  used  to  sit  and 
talk  old  times ; and  these  things  1 have  heard  over  and  over 
again. 

Q.  Hid  he  mention  the  name  of  the  man  who  cornered  the 
salt  market  in  Chicago!  A.  Well,  if  he  did  I do  not  recol- 
lect it. 

Q.  You  do  not  remember  who  it  was!  A.  No,  sir. 

Q.  And  you  say  they  brought  the  salt  down  from  Chicago 
in  barrels!  A.  Why,  I suppose  so;  because  he  said  it  was 
ten  dollars  a barrel.  The  neighbors  had  to  divide  up  a barrel, 
it  was  so  expensive.’’ 

The  Court.  I think  that  is  hearsay  and  it  goes  out,  even  if 
Mr.  Fred  Collins  told  her  father,  and  it  goes  out.  The  cross- 
examination  on  the  next  page,  271,  goes  out  with  it,  beginning: 


1230  Ruling  on  Deft/s  Motion  to  Strike  out  Evid. — Continued. 

he  tell  you  that  he  ever  brought  any  salt  down  the  Des- 
plaines  Elver  to  Chicago,”  down  to  the  end  of  that  page  and 
the  first  answer  on  the  next  page: — ^‘He  said  it  came  down  the 
river.  There  was  no  other  way.” 

4261  When  Mr.  Starr  asked  you  how  the  supplies  got  to 
Joliet  from  the  south,  you  answered  there  was  no  other  way 
than  the  river,  didn’t  you!  A.  Why,  no  other  way  except 
teams. 

Q.  Do  you  know  anybody  that  brought  supplies  from  the 
south  by  river!  A.  Only  what  I heard  my  father  say.  Of 
course,  I don’t  know  it.” 

The  Court.  That  may  go  out,  all  that  I have  read,  down  to 
the  end  of  page  274  and  down  to  the  end  of  the  cross-examina- 
tion. 

(Said  passages  stricken  out  occur  on  pages  269-274  of  said  dep- 
osition, Trans.,  pp.  1134-40;  Abst.,  pp.  462-3.) 

In  the  deposition  of  Samuel  W.  Jones  the  following  was 
stricken  out: 

I will  ask  you  to  state,  Mr.  Jones,  if  you  ever  heard 
the  current  reputation  as  to  the  history  of  the  early  years 
of  the  river,  from  Mr.  Paddock,  and  other  old  settlers!  A. 
Yes,  sir,  I have  heard  some  things  said,  by  him  and  by  a 
neighbor  that  lived  across  the, way  from  him;  an  early 
settler. 

Q.  Just  tell  the  substance  of  what  it  was  you  heard  them 
say,  as  to  the  history  of  the  early  use  of  the  river.” 

The  Court.  Counsel  objects  to  the  suggestion,  and  the  wit- 
ness then  goes  on  to  tell  what  he  heard  them  say.  That  may 
go  out,  also  pages  278  and  279,  down  to  the  end  of  the 

4262  examination,  through  the  marked  passage,  ‘A¥hat  did  Mr. 
Paddock  tell  you!” 

(Said  matter  stricken  out  appears  on  pages  277,  278  and  279 
of  said  deposition,  Trans.,  pp.  1142-3-4;  Abst.,  p.  463.) 

In  the  deposition  of  Mr.  King,  the  following  passage: 

I wonder,  Mr.  King,  whether  you  ever  have  heard 
from  the  early  settlers  the  current  reputation  as  it  was 
when  you  were  a boy  and  very  young  man,  as  to  the  history 
of  the  early  use  of  the  river ; back  in  the  period  before  there 
was  a canal.  Have  you  ever  heard  them  talk  about  that!” 

down  to — know  them  by  sight” — was  allowed  to  stand. 

(Said  passage  appears  in  said  deposition,  page  290,  Trans.,  p. 
1155;  Abst.,  p.  465.) 


1231 


In  the  deposition  of  John  W.  Taylor  the  part  beginning  with 
the  expression^ — 

^‘Do  you  know  of  the  general  talk  or  reputation  about  nav- 
igability/’ etc. — 

was  allowed  to  stand. 

(Said  passage  occurs  in  said  deposition,  page  129,  Trans.,  p. 
1246;  Abst.,  pp.  488-9.) 

And  also  in  the  cross-examination  the  following  was  allowed  to 
stand : 

‘^When  the  people  treated  or  discussed  the  river  as  a nav- 
igable river,  do  you  know  whether  or  not  they  had  in  mind 
that  Act  of  the  Legislature  which  declared  the  river  navi- 
gable!”' 

(Said  passage  occurs  in  said  deposition  at  ])age  434,  Trans.,  p. 
1251;  Abst.,  p.  490.) 

4263  In  the  deposition  of  George  W.  Eeed  the  following 
passage  was  stricken  out. 

‘‘Q.  Do  you  know  anything  about  some  wheat  that  was 
being  carried  to  market  on  the  Desplaines  Kiver  getting  wet 
as  it  was  being  carried  up  the  river  on  a boat  there  below 
Joliet  at  any  time  while  you  were  living  at  Reed’s  Grove! 

(Objected  to,  because  the  information  sought  is  not 
within  the  witness’s  own  knowledge.) 

A.  I remember  one  time  when  I was  living  there.” 

Also  on  the  same  page  the  following  x)assage: 

^‘That  boat  was  taking  wheat  u|:>  the  river,  was  it!” 
was  stricken  out. 

(Said  x)assages  occur  in  said  dex)osition  on  page  13,  Trans.,  p. 
225;  Abst.,  }).  158.) 

4264  In  the  same  deposition,  on  the  cross-examination,  the  fol- 
lowing passage: 

Now,  this  boat  that  contained  the  grain  that  you 
speak  of,  what  happened  to  that  boat  that  caused  the  grain 
to  get  wet!  A.  I did  not  learn.  The  only  thing  I learned 
about  it  was  that  it  got  wet,  and  that  the  man  who  had  it  was 
selling  it  out  because  he  could  not  take  it  to  the  market.” — 

down  to  the  answer,  ^‘I  don’t  know  that  I did,” — was  stricken  out, 
as  to  how  it  got  wet,  but  that  it  did  get  wet  may  stand,  because 
witness  said  in  his  direct  that  he  saw  the  wet  wdieat. 


1232  Ruling  on  Deft.’s  Motion  to  Strike  out  Evict. — Continued. 


(Said  passage  occurs  in  said  deposition  on  page  15,  Trans., 
p.  227 ; Abst.,  p.  159.) 

And  also  in  the  same  deposition  the  passage : 

Whereabouts  was  this  boat  that  contained  the  wet 
wheat  that  was  sold  with  reference  to  that  point — was  it 
above  or  below?  A.  I could  not  tell  you.  I did  not  see  the 
boat,  it  was  down  on  the  river  some  place  where  the  wheat 
got  wet.” 

was  stricken  out. 

(Said  passage  occurs  in  said  deposition  on  page  17,  Trans., 
p.  230;  Abst.,  p.  159.) 

4265  Whereupon  counsel  for  complainant  called  attention  of 
the  court  to  the  fact  that  the  defendant  at  the  trial  of  said 
cause  had  omitted  to  read  the  cross-examination  and  the  fact 
that  the  witness  learned  about  this  wheat  getting  wet  from  his 
brother  was  brought  out  on  cross-examination,  and  that  therefore 
the  direct  examination  should  stand. 


4266  (Thereupon  the  court  overruled  the  objection  of  counsel 
for  complainant.) 

In  the  deposition  of  Heydecker,  the  specific  part  relating  to 
his  brothers-in-law  was  stricken  out,  on  page  9 and  on  page  30, 
beginning  with  the  question — 

4267  ^^I  think  you  testified  that  you  heard  about  somebody  that 
had  said  that  they  came  up  the  river  in  a canoe;  who  was 
that?”— 

down  to  the  question — 

‘^Are  you  aware  of  the  fact  that  the  Desplaines  River  be- 
low Lockport  was  at  that  time  full  of  dams,  seven  or  eight 
dams  in  it?” 


That  stands.  The  answer  was : 

I don’t  know  anything  about  it  at  that  time;  T was 
never  down  there  at  that  time. 

Q.  Did  you  hear  him  say  how  he  got  through  the  dams? 
A.  There  wasn’t  any  dams  tliere  when  he  came  up,  that  is, 
I never  heard  him  tell  of  coming  over.  I have  heard  trap- 
pers tell  of  going  through  the  dams.” 

The  above  answers  were  stricken  out  as  not  responsive. 


(Said  passages  occur  in  said  deposition  on  page  9 and  x)age 
30,  Trans.,  pp.  371,  395  and  397;  Abst.,  ]q>.  206  and  215-16.) 


1233 


And' also  in  the  same  deposition  the  following  passage: 

^‘Did  you  ever  hear  him  say  anything  about  the  rapids 
in  the  river  being  such  that  they  couldn’t  go  up?  A.  I have 

4268  heard  him  say  it  was  difficult  to  go  up  through  part  of  it  on 
account  of  the  rocks,”  &c. — 

down  to  the  end  of  the  cross-examination  on  page  33,  was  stricken 
out. 

(Said  passage  occurs  in  said  deposition  on  pages  32,  33,  Trans., 
pp.  397-8;  Abst.,  pp.  216.) 

And  also  in  the  re-direct  examination  the  following  passage  was 
stricken  out: 

^‘Did  you  understand  from  this  description  that  these  dif- 
ferent families,  that  that  was  tlie  method  by  which  they  jour- 
neyed into  the  country  for  their  permanent  establishment 
here?  A.  These  two  did,  and  went  back  down  the  river  trap- 
ping several  seasons  after  that;  came  down  in  the  fall  and 
went  back  in  the  spring. 

Q.  Those  three  families  you  have  spoken  of,  according 
to  the  descriptions  which  you  received,  were  not  on  any 
pleasure  or  trapping  expedition ; they  were  coming  here  to 
locate?  A.  Those  three  families  I speak  of  came  here  to 
locate  and  did  locate. 

Q.  And  brought  all  their  liousehold  property,  did  they? 
A.  Well,  I don’t  think  Emory  did;  I think  Emory  came 
through,  he  came  out  here,  he  was  an  uncle  of  mine,  came 

4269  out  here  first  and  stayed  one  summer  and  then  he  came 
back  to  York  State,  where  he  came  from,  where  his  family 
lived,  and  his  wife,  and  they  came  through  on  a prairie 
schooner,  I think  they  came  through  in  a prairie  schooner.” 

(Said  passage  occurs  in  said  deposition  on  page  33,  Trans., 
pp.  398-9;  Abst.,  p.  216.) 

The  re-cross  examination  of  said  witness  on  page  34,  Trans., 
pp.  399-400;  Abst.,  p.  217,  was  also  stricken  out. 

In  the  deposition  of  Frank  Paddock  the  following  passage: 

‘‘Q.  I will  ask  you  to  state  wdiether  you  ever  heard  from 
your  father  and  others  the  current  reputation  and  common 
talk  of  the  history  of  the  early  days  as  to  the  use  of  the  Des- 
plaines  Eiver  and  the  travel  upon  it,  and  using  it  for  ship- 
ping. ’ ’ — 

and  so  on,  being  the  whole  of  page  314  and  the  first  line  on  page 
315,  was  stricken  out. 

(Trans.,  p.  1179;  Abst.,  469.) 


1234  Rilling  on  Deft/s  Motion  to  Strike  out  Evid. — Continued. 

4270  In  the  cross-examination  of  the  same  witness  the  follow- 
ing passage: 

‘‘And  when  your  father  told  yon  about  getting  supplies 
in  here  from  the  south  and  from  Chicago  by  boat  in  the  early 
days,  did  he  not  refer  to  getting  those  supplies  in  on  the  Illi- 
nois and  Michigan  canal  from  the  south  and  from  above — 

down  to  the  end  of  what  his  father  told  him,  was  stricken  out. 

(Said  passage  occurs  in  said  deposition  on  pages  316-318, 
Trans.,  pp.  1181-4;  Abst.,  pp.  469.) 

4271  In  the  deposition  of  W.  W.  Stevens  the  following  passage 
was  allowed  to  stand: 

“Q.  Are  you  acquainted,  Mr.  Stevens,  with  the  current 
reputation  and  common  report  as  to  the  early  history  of  the 
use  of  the  Desplaines  Eiver,  by  the  early  settlers  and  ex- 
plorers, as  it  existed  when  you  came  here;  I mean  as  that 
reputation  existed!  A.  Yes,  sir,  I think  so.  I inquired  a 
great  deal;  was  on  the  river  a great  deal  and  talked  with  a 
great  many  of  the  early  settlers  in  regard  to  the  use  that 
was  made  of  the  river  before  the  opening  of  the  canal.’’ 

(Said  passage  occurs  in  said  deposition  on  page  338,  Trans., 

p.  875;  Ahst.,  pp.  407.) 

In  the  same  deposition  in  reference  to  the  following  passage: 

“The  current  reputation  was,  up  to  the  time  of  the 

4272  opening  of  the  Illinois  and  Michigan  Canal,  that  it  was  used 
more  or  less  for  transportation ; certain  portions  of  it. 

Q.  Go  on  and  state  the  nature  and  kind  of  that  use,  as  you 
learned  it  from  these  sources!  A.  Well,  of  course  I know 
nothing  except  what  I heard  from  others,  you  know. 

Q.  I understand.  A.  I heard  of  the  lower  part  of  the 
river  being  used  for  carrying  lumber.  Parties  themselves 
told  me  that  they  brought  lumber  up — brought  it  down  the 
Kankakee  and  up  to  the  Desplaines  to  the  mouth  of  the  Du- 
Page,  and  then  up  the  DuPage  to  near  their  place  there  at 
Channahon.”— 

The  court  ruled  that  it  might  stand,  but  the  specific  instance 
on  page  340  about  what  Jessup  told  him  about  bringing 

4273  lumber  down  should  go  out. 

(Said  passage  occurs  on  page  340,  Trans.,  p.  877;  Ahst., 

p.  408.) 

Pages  341  and  342,  Trans.,  pp.  378-9;  Ahst.,  pp.  408,  were  also 

ruled  out. 


1235 


Also  on  page  343,  the  passage : 

^‘Was  there  a grist  mill  at  Wilmington  at  that  time?  A. 
Yes,  sir,  so  I was  informed  by  history,  that  is,  that  is  the 
only  mill  there  is  anywhere  around  there. 

Q.  You  may  state  whether  or  not  these  gentlemen  who 
narrated  the  bringing  of  the  lumber  down,  said  anything 
in  regard  to  hauling  grain  to  the  mill.” 

The  Court.  That  answer  down  to  the  bottom,  that  is  all  what 

Jessups  told  him.  That  is  all  out. 

down  to  the  question — 

‘‘Where  is  Mr.  Edward  H.  Jessup  now?  A.  They  are  both 
dead.” — 

was  all  stricken  out. 

(Trans.,  pp.  880-1;  Abst.,  pp.  409.) 

Also  on  page  344  the  passage: 

“Did  you  ever  hear  him  talk  about  the  subject  of  using 
the  river?  A.  Yes,  sir.” 

was  stricken  out. 

(Trans.,  p.  881;  Abst.,  p.  409.) 

4274  Pages  345,  346  and  first  answer  on  page  347  were  also 
stricken  out. 

(Trans.,  pp.  882-3-4;  Abst.,  pp.  409-10.) 

In  the  same  deposition  the  following  passage: 

“What  was  the  current  reputation  as  to  the  early  use  of 
that?  A.  That  it  had  been  used  to  haul  stone  from  Swalm’s 
quarry  down  to  the  river  there,  and  load  it  onto  boats. 

Q.  Loaded  onto  what?  A.  Loaded  onto  boats. 

Q.  For  what?  A.  That  I don’t  know.  I may  have  heard 
at  that  time,  but  I don’t  recollect  now.  That  it  was  loaded 
onto  boats  and  taken  down  the  river,  and  that  is  all  I know 
about  it.” — 

was  allowed  to  stand. 

(Said  passage  occurs  in  said  deposition  on  page  348,  Trans., 

p.  885;  Abst.,  p.  410.) 

In  the  same  deposition  the  passage : 

“When  did  Mr.  Edward  Jessup  have  a conversation  with 
you  in  regard  to  bringing  lumber  from  Wilmington  to  Chan- 
nahon?” 

was  stricken  out. 

(Said  passage  occurs  in  said  deposition,  page  360,  Trans.,  p. 

897 ; Abst.,  p.  414.) 


1236  Ruling  on  Deft/s  Motion  to  Strike  out  Evid. — Continued. 

In  the  same  deposition  the  following  passage: 

4275  The  testimony  you  gave  this  morning  was  as  you 
recollect  it  the  substance  of  what  Mr.  Jessup  told  you  in  the 
fall  or  winter  of  1856?  A.  The  two  Jessups,  and  I recollect 
of  one  or  two  other  parties  there  going  with  them  and  carry- 
ing grain  to  get  ground,  and  they  would  help  navigate  the 
boat  to  pay  their  passage.” 

was  stricken  out. 

(Said  passage  occurs  in  said  deposition  on  page  361,  Trans., 

p.  898;  Abst.,  p.  415.) 

And  on  page  362  of  said  deposition  the  following  passage: 

‘^Did  you  on  that  occasion  state  that  that  was  the  only  time 
that  Mr.  Jessup  told  you  that  he  had  ever  used  the  Kankakee 
or  Desplaines  Kiver?  A.  No,  sir,  because  there  was  two 
Jessups,  and  I recollect  of  staying  at  Mr.  John  S.  Jessup’s 
house  several  years  afterwards,  and  in  the  evening  he  told 
the  story  of  his  early  life  there  in  Channahon  and  how  he 
spent  his  time,  and  about  liis  bringing  lumber  from  Wilming- 
ton down  the  Kankakee.  That  is  John  S.  Jessup.  Edward 
Jessup  was  a younger  brother. 

Q.  What  did  he  say  about  bringing  lumber  from  Wilming- 
ton to  Channahon?  Not  what  you  understand  but  what  did 
he  say?  A.  Oh,  I don’t  recollect.  It  is  a good  many  years 

4276  ago,  and  I don’t  recollect  exactly  what  he  said.  His  father’s 
name  was  Isaac  Jessup,  and  after  he  came  there  with  his 
father  they  hadn’t  much  of  anything  else  to  do,  as  I remem- 
ber it,  and  they  built  a small  flat  boat  and  used  it  for  that 
purpose.” 

was  stricken  out. 

(Trans.,  p.  899;  Abst.,  p.  415.) 

On  objection  by  counsel  for  complainant  the  residue  of  pages 

361  and  362  was  also  stricken  out. 

(Trans.,  pp.  898-9;  Abst.,  pp.  415.) 

4277  In  the  same  deposition,  on  page  363,  the  following  passage 
was  stricken  out  : 

‘AVhat  date  do  you  say  it  was  that  Mr.  Jessup  went  to 
Wilmington?  A.  ’34  and  ’35. 

Q.  What  was  the  reason  for  their  going  to  Wilmington, 
to  get  their  corn  ground  and  get  lumber?  A.  They  didn’t 
get  any  corn  ground,  as  I understood,  except  when  they  car- 
ried it  for  other  parties.  I don’t  know;  they  might  have 
carried  some  for  themselves,  but  other  parties  would  go  with 
them  and  they  would  help  navigate  the  boat  and  they  would 
bring  their  grain. 


1237 


Q.  Who  went  with  them?  A.  I recollect  Mr.  Isaac  Scher- 
merhorn;  I boarded  with  him.  He  told  me  about  going  to 
Wilmington  and  going  through  the  cut-off.” 

(Trans.,  p.  900;  Abst.,  p.  415.) 

On  page  364  the  following  passage : 

^‘They  never  told  you  they  brought  their  boat  down  the 
Kankakee  Eiver  and  up  the  Hesplaines  Eiver?  A.  Oh,  yes, 
when  the  water  was  low  in  the  cut-off. 

Q.  They  told  you  that,  did  they?  A.  Oh,  yes. 

Q.  You  said  in  your  examination  this  morning  that  the 
reason  they  went  to  Wilmington  to  get  their  grain  and  their 
lumber  was  there  was  no  other  mill  anywheres  near  there? 

4278  A.  Yes. 

Q.  Is  it  not  a fact  that  in  1834  a saw  mill  and  grist  mill 
was  built  at  Treat’s  Island,  within  two  miles  of  those  peo- 
ple’s houses?  A.  No,  sir.  The  saw  mill  was  commenced,  I 
think,  in  1836,  and  finished  in  1837.” 

was  all  stricken  out,  including  the  first  answer  on  page  365,  on  the 
ground  that  the  direct  examination  in  reference  to  the  same  mat- 
ter had  been  stricken  out. 

(Trans.,  p.  901;  Ahst.,  p.  416.) 

In  the  same  deposition,  page  366,  in  reference  to  the  following 
passage: 

4279  ^AYho  was  it  brought  the  whiskey  down  the  Hesplaines* 
Eiver?  And  have  people  told  you  that  they  would  come  from 
Chicago  at  any  time  of  the  year?  A.  When  the  water  was 
high. 

Q.  Who  told  you  that?  A.  Oh,  I couldn’t  remember 
now. 

Q.  Can  you  remember  any  one  person?  A.  Oh,  no,  I 
know  it  was  a general  conversation,  that  there  were  several 
months  in  each  year  it  was  impossible  to  go  from  here  to  Chi- 
cago with  a team.” 

The  CouET.  I think  that  is  general  reputation.  I have  marked 
it  out,  and  that  part  may  stand,  not  as  to  what  Fish  told  him 
about  whiskey,  but  the  balance  of  it. 

(Trans.,  pp.  903-4;  Ahst.,  p.  416.) 

Also  the  following  passage: 

^‘All  you  want  to  be  understood  as  saying  in  regard  to 
Air.  Fish  is  that  on  one  occasion  he  got  some  whiskey  down 
there?  A.  I did  not  say  any  such  thing;  on  one  occasion  I 
asked  him  how  he  got  his  whiskey  down  there  when  the  roads 
were  bad,  and  he  said  they  brought  it  down  on  boats.” 


1238  Ruling  on  Deft/s  Motion  to  Strike  out  Evid. — Continued, 

The  Court.  That  goes  out,  and  the  continuation  of  that 

4280  at  the  top  of  page  368,  all  about  Fish  goes  out  down  to  the 
question  beginning:  ‘^Did  you  ever  see  the  manuscript  of 

Mr.  Woodruff’s  before  it  was  printed!” 

(Trans.,  pp.  904-5;  Abst.,  p.  416.) 

In  the  same  deposition  the  following  passage  was  allowed  to 
stand : 

stated  it  as  a fact,  and  I should  have  stated  it  as  in- 
formation and  belief. 

Q.  You  stated  under  oath  at  that  time  that:  ‘Affiant 

further  says  that  he  knows  of  his  personal  knowledge,’  etc.” 

(Said  passage  occurs  in  said  deposition  at  page  373,  Trans., 
p.  910;  Abst.,  p.  417.) 

Thereupon  the  following  passage  was  stricken  out: 

“Who  described  to  you  the  size  of  the  boats  that  plied 
on  this  river  at  any  time;  if  you  were  describing  boats  be- 
tween 35  and  55!  A.  Mackinac  boat,  I have  seen  a great 
many  of  them. 

Q.  I asked  you  who  ever  described  to  you  the  size!  A. 
I don’t  recollect.  Mr.  Fish  might  have  told  me  the  size  of 
them.  He  told  me  they  brought  down  three  to  four  barrels 
of  whiskey — 

Q.  He  said  it  was  brought  down!  A.  Was  brought  down 
for  him. 

Q.  Who  brought  it  down!  A.  I don’t  know,  I didn’t  care 
about  that. 

Q.  But  you  were  interested  in  knowing  how  they  got  it 
down!  A.  I was  interested  in  knowing  how  they  got  so  much 
whiskey  down  there.” 

(Said  passage  occurs  in  said  deposition  on  page  373,  Trans., 
pp.  910-11;  Abst.,  p.  417.) 

4281  The  court  held  that  Heward’s  narrative  should  stand  for 
what  it  was  worth. 

4286  Thereupon  counsel  for  complainant  offered  and  read  in 
evidence  the  deposition  of  William  Found,  a witness  for  com- 
plainant. 

(For  rulings  on  same  see  abstract  of  depositions,  supra,  p. 
461). 

Thereupon  counsel  for  defendant  offered  and  read  in  evidence 
the  deposition  of  John  K.  McGowan,  a witness  for  defendant. 


1239 


(For  rulings  on  same  see  abstract  of  depositions,  supra,  p. 
491.) 

L.  L.  Wheeler, 

a witness  for  the  defendant,  testified  as  follows : 

B i rect  Examina tion . 

My  name  is  L.  L.  Wheeler.  I am  57  years  of  age,  and 

4287  reside  at  Sterling,  Illinois.  I graduated  from  the  University 
of  Michigan  in  1874,  and  have  been  following  the  j)rofession 

of  civil  engineer  ever  since.  I was  connected  with  the  survey  for 
the  northern  and  northwestern  lakes,  under  General  C.  D.  Com- 
stock, for  seven  years.  I was  also  employed  by  the  Mississippi 
River  Commission  in  the  office  at  St.  Louis,  Missouri,  for  six 
years,  during  which  time  my  duties  were  mainly  those  of  conduct- 
ing general  surveys  and  preparing  data  for  publication.  The 

4288  Mississippi  River  Commission  was  a commission  ordered  by 
Congress,  consisting  of  three  officers  of  the  Corps  of  Engi- 
neers, one  officer  of  the  United  States  Coast  and  Geodetic  Sur- 
vey, and  three  civilian  members,  having  in  view  the  improvement 
of  the  navigation  of  the  Mississippi  River  from  the  mouth  of  the 
Ohio  to  the  Gulf.  I had  charge  of  the  computing  division  in  the 
office  for  a number  of  years,  and  prepared  the  data  for  the  infor- 
mation of  the  Commission  and  also  for  publication.  I was  not 
directly  connected  with  any  of  the  field  construction  of  the  Com- 
mission; I mean  by  that,  with  the  construction  of  levees,  bank  re- 
vetment, grading  of  banks,  and  so  on.  After  leaving  the 

4289  Commission,  I came  to  Chicago  to  take  charge  of  the  sur- 
vey for  a waterway  from  the  lakes  to  the  Illinois  River  at 

LaSalle,  and  during  the  fall  of  1888,  and  to  the  fall  of  1890,  I was 
engaged  upon  that  work.  I made  surveys  of  the  country  from 
Bridgeport  to  Joliet  with  some  special  surveys  along  the  Chicago 
River;  made  also  detached  surveys  in  the  vicinity  of  Treat’s  Island, 
Sugar  Island,  Marseilles,  Ottawa  and  other  points  along  the  Illi- 
nois River.  The  result  of  my  work  was  published  in  a report  and 
the  maps  were  also  printed,  as  a volume.  That  survey  was  made 
under  the  Engineering  Department  of  the  United  States  Army, 
pursuant  to  authority  of  Congress.  Major  W.  L.  Marshall  was 
the  engineer  in  charge  of  this  district  at  that  time.  I am  the  L.  L. 
Wheeler  referred  to  in  Major  Marshall’s  report  of  that  survey,  I 


1240  Wheeler,— Direct  Exam. — Continued. 

was  engaged  in  the  work  approximately  two  years.  I was  assistant 
engineer,  had  charge  of  the  field  work,  and  had  occasion  dur- 

4290  ing  that  survey  to  make  surveys  of  different  parts  of  the 
Desplaines  Eiver.  After  finishing  that  work,  in  the  latter 

part  of  1890,  I was  put  in  charge  of  the  location  and  construction 
of  the  Illinois  and  Mississippi  Canal,  known  locally  as  the  Henne- 
pin Canal,  by  Major  Mb  L.  Marshall,  who  was  then  in  charge  of 
the  Engineering  District,  and  that  canal  is  in  the  Engineer- 

4291  ing  District  of  the  canal.  I have  been  engaged  in  that- work 
ever  since,  nearly  eighteen  years.  I am  still  connected  with 

the  Hennepin  Canal,  having  in  charge  the  care  and  operation  of  the 
whole  canal,  under,  of  course,  the  officer  of  the  Engineer  Corps  of 
the  United  States  Army. 

The  Hennepin  Canal  leaves  the  Illinois  Eiver  near  Bureau  Junc- 
tion and  runs  nearly  due  west  to  the  Mississippi  Eiver  at  the 
mouth  of  Eock  Eiver,  perhaps  three  miles  below  the  City  of  Eock 
Island.  It  is  supplied  with  water  by  a feeder  which  leaves  Eock 
Island  at  Sterling,  Illinois.  The  entire  length  of  the  canal  is  75 
miles,  the  feeder  is  a little  more  than  29  miles.  The  width  of  the 
canal  prism  is  approximately  eighty  feet  at  the  water  line,  and 
the  depth  seven  feet. 

4292  There  have  been  built  a great  many  miles  of  earthen  em- 
bankment in  that  canal.  Quite  a good  many  miles  are  exposed 

to  the  action  of  water  on  the  outside  and  others  are  exposed  to 
water  action  on  the  inside.  The  first  section  that  I built  was  at 
the  lower  rapids  of  Eock  Eiver,  near  Milan,  about  opposite  Milan, 
Illinois.  At  that  embankment,  when  the  north  embankment  has 
high  water,  Eock  Eiver  comes  against  it  throughout  its  length, 
four  and  a half  miles  practically.  For  4,500  feet,  however,  of  that 
distance,  the  canal  was  built  by  parallel  embankments  in  the  bed 
of  the  river  itself,  in  which  the  river  was  against  one  embankment 
on  the  north  side  and  a large  creek.  Mill  Creek,  against  the  south 
side  at  the  south  embankment.  Those  embankments  were  built 
in  1893  and  1894,  and  are  still  standing.  There  are  other  places 
along  the  canal  where  the  high  water  from  the  rivers  or  streams 
comes  up  against  the  outside  of  the  embankment.  The  main 

4293  body  of  the  embankment  consists  of  earth  which  was  brought 
out  in  cars  and  dumped.  The  outside  and  inside  slopes  are 


1241 


rip-rapped  with  broken  stone,  stone  as  it  came  from  the  (|uarry. 
The  width'  at  the  top  of  the  bank  was,  I believe,  twelve  feet.  The 
slope  of  all  the  banks  in  the  earlier  construction  was  one  and  one- 
half  horizontal  to  one  vertical,  but  down  in  the  cross-section — 1 
have  a typical  cross-section,  and  the  outer  slope  of  the  north  em- 
bankment is  not  over  two  to  one  horizontal.  I could  not  say  to  my 
recollection  whether  or  not  that  is  two  horizontal  to  one  vertical. 
It  could  not  be  steeper  than  one  to  one-half.  The  cross-section, 
marked  ‘^Wheeler  Exhibit  One”  (xVtlas,  page  3977 ; Trans.,  p.  6628; 
Abst.,  p.  1934)  and  now  introduced  in  evidence,  and  which  purports 
to  be  a cross-section  of  the  Hennepin  Canal  below  the  mouth  of 
Mill  Creek,  opposite  Milan,  Illinois,  a point  where  the  canal  is  built 
in  the  bed  of  the  river,  with  the  embankment  on  either  side, 
4294  correctl}^  represents  the  situation  at  that  point. 

4297  Said  map  was  received  in  evidence. 

(Objection.) 

The  letters  and  figures  ‘‘H.  AV.  135”  on  the  mound  on  the  left 
on  said  map  means  the  elevation  of  the  high  water  in  Hock  Kiver 
in  reference  to  Hennepin  datum, — 135.  The  line  below  that,  marked 
W.  126”  represents  ordinary  low  water  in  Eock  Eiver  re- 
ferred to  the  same  datum.  The  water  shown  at  the  left  of  the  left 
embankment,  which  appears  at  the  left  of -the  exhibit,  is  the  water 
of  Eock  Eiver;  the  water  between  the  two  embankments  repre- 
sents the  water  surface  here  carrying  the  exact  level  in  that  level 
of  the  canal.  The  ‘AC.  S.  131”  marked  on  the  top  line  is  the  base 
of  the  slope  surface.  The  other  elevation  there  shown  is  the  bot- 
tom elevation,  the  elevation  at  the  lock  in  the  bed  of  the 

4298  stream.  The  letters  S.”  mean  water  surface. 

The  right  half  of  the  exhibit  “H.  AC.”  represents  high 
water  in  Mill  Creek,  and  “L.  AC.”  represents  low  water  on  that 
side.  I would  like  to  qualify  my  testimony  in  regard  to  those 
two  elevations  at  that  point  by  saying  that  the  slope  of  the  creek 
is  quite  steep,  and  according  as  you  move  up  or  down  stream,  usu- 
ally the  low  and  high  water  elevations  will  vary.  That  is  typical 
of  that  vicinity,  however. 

The  high  water  line  of  the  Eock  Eiver  comes  within  three  feet 
of  the  top  of  the  embanlanent,  and  the  high  water  line  of  Mill 


1242 


Wheeler, — Direct  Exam. — Continued. 


Creek,  on  the  right  of  the  exhibit,  is  shown  as  two  feet  from 

4299  the  top.  Mill  Creek  is  a stream  whose  greatest  area  lies 
mainly  in  a country  of  deep  slopes.  At  low  water  it  is  prac- 
tically dry,  and  at  times  of  heavy  rains,  it  comes  out  with  tor- 
rential force.  The  measurements  that  we  made  while  engaged 
upon  that  work  show  that  the  maximum  flood  might  be  expected 
of  ten  thousand  cubic  feet  a second,  and-  the  slopes  are  so  steep 
in  the  drainage  area  that  floods  of  that  volume  might  be  expected 
in  from  perhaps  five  to  eight  hours  after  the  rainfall. 

Counsel  foe  Defendant.  How  wide  is  that  creek  between  banks  t 

Counsel  for  Complainant.  I object  to  it,  your  Honor,  as  being 
irrelevant  and  unimportant. 

The  Court.  He  may  answer. 

A.  The  width  would  vary.  Some  places  it  is  quite  narrow,  but  I' 
would  say  generally  from  fifty  to  one  hundred  feet.  In  places  it 
overspreads  the  adjacent  country. 

Counsel  for  Defendant.  What  is  the  size  of  Eock  Eiver  at  that 
point,  its  width  and  depth! 

4300  (Objected  to  as  incompetent;  overruled.) 

A.  It  is  a large  stream  at  this  particular  point.  It  is 
divided  into  two  channels,  by  islands.  The  channel  on  the  south  side 
at  that  point  represented  by  the  cross-section,  would  be  perhaps  800 
of  900  feet  wide,  and  the  channel  on  the  other  side  perhaps  400 
to  500  feet. 

Counsel  for  Defendant.  What  is  the  usual  depth  of  water  in 
that  river  at  that  point! 

(Objection;  overruled.) 

A.  That  is  situated  on  rapids,  and  at  times  the  rapids  are  en- 
tirely backed  out  by  high  water  from  the  Mississippi  so  that  there  is 
a considerable  depth  of  water  there.  In  times  of  flood  there  is  con- 
siderable depth,  but  in  ordinary  stages  the  water  is  quite  shoal, 
perhaps  from  one  to  two  feet  in  that  vicinity.  In  times  of 

4301  high  water,  there  is  perhaps  nine  or  ten  feet  of  water  against 
the  bank  there.  The  maximum  flood  in  the  Eock  Elver  at 

that  point  I have  estimated  as  65,000  cubic  feet  per  second.  I sup- 
pose the  maximum  discharge  of  the  Desplaines  Eiver  at  Joliet 
is  approximately  13,000  to  15,000  cubic  feet  per  second. 


1243 


The  two  earthen  embankments  which  were  constructed  at  this 
point,  opposite  Milan,  Illinois,  were  constructed  of  earth  excavated 
immediately  above  on  the  south  shore  of  Eock  Eiver  and  the  earth 
consisted  of  black  sticky  prairie  soil,  underlaid  by  yellowish  clay, 
and  underneath  that  some  gravel  and  boulders  lying  on  top  of 
limestock  rock.  The  earth  was  loaded  on  cars  and  the  embank- 
ment built  with  it,  the  stone  used  to  riprap  the  outside  of  the  em- 
bankment, and  the  embankment  generally  on  that  section  of  the 
canal.  The  stone,  I think,  came  from  the  quarry,  and  was  dumped 
from  cars  on  the  slope;  it  was  not  placed  by  hand  at  all,  either 
on  the  outside  and  inside  slope,  on  each  side  of  the  embank- 

4302  ment. 

Counsel  eok  Defendant.  How  does  the  material  of  which 
these  embankments  of  the  Hennepin  canal  are  constructed  compare 
as  to  durability  and  impermeability  with  the  material  of  which 
the  towpath  bank  is  constructed  at  Dresden  Heights! 

(Objection  overruled.) 

I should  say  that  the  material  of  which  the  towpath  of  the  Illi- 
nois and  Michigan  Canal  is  constructed,  for  three  or  four 

4303  miles  above  the  works  at  Dresden  Heights,  is  of  better  ma- 
terial for  a water  tight  embankment  than  the  material  used 

in  this  embankment  in  the  river  at  Milan.  I have  inspected  the 
material  in  the  towpath  bank  at  Dresden  Heights.'  I know  there 
has  been  no  impairment  of  those  embankments.  They  stand  to- 
day as  they  were  left  fourteen  years  ago.  I saw  them  last  Satur- 
day, Muskrats  or  other  vermin  have  not  committed  any  depre- 
ciations so  as  to  impair  them. 

4304  The  rip-rapping  done  upon  these  embankments  in  the  Hen- 
nepin Canal  near  Milan  was  loose  stone  dumped  on  the  slope. 

In  my  opinion  riprapping  which  consists  of  stones  of  various 
sizes  dumped  on  an  embankment,  furnishes  a much  better  protec- 
tion against  the  wave  wash  and  other  action  of  water,  than  of 
stone  of  comparative!}’  uniform  size  laid  by  hand,  in  a way  that 
is  commonly  termed  ‘‘sloped  paving.”  In  case  there  is  any  wash- 
ing away  of  the  material  underneath,  the  loose  stones  settle  down 
at  once  and  remedy  the  trouble,  and  in  “slope  paving”  it  often 
happens  that  the  waves  will  run  up  the  slope  by  the  winds,  go 


1244  Wheeler, — Direct  Exam. — Continued. 

through  the  interstices  and,  coming  back  through  the  material  un- 
derneath, bring  it  out  at  the  foot  of  the  slope.  At  Lincoln  Park  the 
slope  paving  is  one  example  of  that.  I have  had  several  examples 
of  that  on  my  own  work  where  slopes  in  front  of  bridge  abut- 
ments were  paved  in  that  way  and  difficulty  has  developed;  but 
where  the  slopes  have  been  protected  with  loose  stones,  dumped 
hai3hazard  upon  the  bank,  very  little  trouble  is  experienced.  On 
the  feeder  of  the  canal,  22  miles  on  one  side  and  19  miles  on  the 
other  have  been  protected  by  rip-rapping  in  that  way.  Of  the  four 
and  a half  miles  of  canal  at  Milan  the  outer  river  slope  and  the 
outer  slope  adjacent  to  the  creek,  and  a large  part  of  the 
4306  inner  slope  of  the  canal  were  protected  in  that  way  and  the 
protection  has  stood  there  13  or  14  years  without  any  damage. 
It  is  on  what  I have  actually  observed  that  I base  my  opinion  that 
the  loose!}"  dumped  stone,  rip-rapped,  forms  a better  protection 
against  the  action  of  the  water  than  the  so-called  slope  paving.’’ 

I have  been  at  Dresden  Heights  since  the  proposed  dam  of 
the  Economy  Light  & Power  Company  was  commenced,  was  there 
in  April  this  year.  I somewhat  examined  the  towpath  bank  of 
the  canal  above  the  dam,  drove  along  it  from  Channahon  down 
to  near  the  site  of  the  works  and  walked  the  remaining  distance 
along  the  towpath.  In  quite  a number  of  places  I examined  the 
inside  slope  of  the  bank,  in  the  canal.  I observed  the  work  that 
had  been  started  by  the  Economy  Light  & Power  Company.  I 
noticed  a berm  on  the  inside  slope  of  the  bank.  I judged  from 
its  appearance  it  was  formed  partly  by  the  action  of  water  wash- 
ing tlie  bank  away,  and  partly  by  the  bumping  of  rip-rapping  and 
stone  which  was  below  the  water  surface  at  the  time  I was  there. 
The  rip-rapping  below  the  water  line  I could  not  see,  but  I used 
a stick  and  found  stone  beneath  the  surface  of  the  water.  There 
was  work  there  recently  dumped  on  that  berm  for  a considerable 
distance  above  the  power  station.  I had  no  means  of  telling 
whether  it  encroached  below  the  water  surface,  but  this  line  at 
the  water  surface  would  indicate  that  it  did  not  encroach  upon 
the  prism.  At  one  place  they  had  encroached  to  a little  extent 
to  obtain  the  foundation  or  support  for  a hoisting  engine.  I 
suppose  it  was  temporary,  I should  say  it  went  out  5 or  6 feet 
into  the  water  line,  perhaps  15  or  20  feet  long. 


1245 


Q.  I show  you  two  blue  prints,  one  that  has  been  marked 
''Cooley  Exhibit  28,”  one  that  is  marked  "Plan  of  Dam  May  20, 
1908,”  purporting  to  represent  some  construction  work  here, — have 
you  examined  that!  A.  I have  seen  both  these  plans  and  was  fur- 
nished with  a copy  of  this  one  marked  "Cooley  Exhibit  No.  28.” 

Q.  If  a pool  of  water  should  be  formed  by  the  construction  of 
the  dam  and  works — in  the  Desplaines  Diver,  shown  upon  these 
^ two  blue  prints,  in  the  manner  here  shown,  at  the  point  where  you 
have  seen  the  commencement  of  work  at  llresden  Heights,  what 
effect,  if  any,  in  your  judgment,  would  that  pool  have  upon  the 
towpath  bank  against  which  it  would  flow?  A.  One  effect 

4312  of  raising  a pool  of  water  against  the  outside  of  the  em- 
bankment would  be  to  reduce  the  hydrostatic  head  upon  that 

embankment  by  the  amount  of  the  water  raised  up  against  the 
bank  of  the  embankment.  Another  effect  would  be  that  the  action 
of  the  waves  might,  and  probably  would,  in  time,  eat  into  the  em- 
bankment a certain  distance.  One  of  these  changes  would  be  to 
make  the  bank  more  safe,  and  one  would  be  to  make  it  more  un- 
safe. 

The  term  "hydrostatic  head”  is  used  to  express  the  pressure 
of  water  in  a quiescent  state,  and  the  measure  of  that  pressure 
would  be  the  difference  in  level  between  the  water  on  two  sides 
of  any  partition.  At  present  at  low  water  the  tow  of  that  em- 

4313  bankment  generally  is  dry  and  the  effective  pressure  is  that 
due  to  the  difference  between  the  level  of  the  ground  at  that 

place  and  the  water  level  in  the  canal.  If  the  water  on  the  out- 
side was  brought  up  to  the  level  of  the  water  on  the  inside,  then 
there  would  be  no  pressure  upon  the  canal  embankment,  tending 
to  displace  or  destroy  it. 

I believe  that  it  would  be  entirely  feasible  and  practicable  within 
a moderate  limit  of  cost  to  protect  that  embankment  from  any 
injury  which  might  result  from  the  formation  of  such  a pool,  by 
simply  rip-rapping  stone  upon  the  opposite  slope,  at  such  time  and 
places  as  time  showed  as  necessary. 

Part  of  that  bank  is  already  rip-rapped  on  the  outside  in  places, 
probably  that  rip-rapping  would  be  sufficient.  Where  the  embank- 
ment is  immediately  adjacent  to  the  river  bed  rip-rapping  would 


1246  Wheeler, — Direct  Exam. — Continued. 

be  needed  sooner  than  in  the  upper  portions  where  it  is  not  ini' 
mediately  adjacent.  The  outerbank  is  quite  well  protected  by  treer 
and  brush  now.  In  my  judgment  the  proper  thing  to  do  would 
be  to  let  time  tell  how  far  up  it  would  be  necessary  to  continue 
the  rip-rapping.  The  wave  action  on  that  emhanlonent  I feel  sat- 
isfied would  be  very  slow. 

4315  I noticed  there  were  quite  a number  of  animals  digging 
holes  into  it  and  bringing  material  out.  I suppose  they  were 

woodchucks.  I don’t  remember  seeing  any  crawfish,  I presume 
they  were  there;  I don’t  remember  seeing  any  muskrats,  or  indi- 
cations. The  formation  of  the  pool  would  prevent  the  depreda- 
tions of  woodchucks  below  the  pool  level.  I suppose  that  musk- 
rats would  endeavor  to  burrow  along  if  they  found  a suitable 
place.  Eip-rapping  is  a pretty  thorough  protection  against  rats. 
It  would  be  feasible  and  practicable  to  maintain  the  bank,  after 
rip-rapping,  against  muskrats.  The  bank  would  he  saturated 

4316  of  course,  below  the  pool  level.  The  saturation  line  that 
would  be  dangerous  to  an  embankment,  would  be  that  from 

a higher  head  of  water.  Experiments  have  shown  that  there  is  a 
saturation  line  in  embankments  descending  from  the  water  level 
down  through  the  embankment,  and  it  is  considered  that  the  dimen- 
sions of  embankments  should  be  such  that  it  always  covers 
the  saturation  line.  In  that  particular  case,  it  would  be 
the  saturation  line  from  the  inside,  which  would  be  an  element 
of  danger,  and  that  would  not  be  changed  as  I can  see  by  the 
raising  of  the  pool  on  the  outside.  In  my  opinion,  the  formation 
of  the  pool  at  this  point  by  the  work  shown  upon  these  different 
blue  prints  would  not  cause  saturation  which  would  give  any 
more  element  of  danger,  if  it  were  rip-rapped  in  the  manner  in 
which  I have  described,  than  that  cause. 

4317  I remember  the  Adams  Dam  in  Joliet.  It  was  in  existence 
when  I was  making  the  survey  in  1888  to  1890.  I am  some- 
what familiar  with  the  conditions  which  existed  at  the  point  where 
that  dam  was,  and  the  condition  of  the  river  and  the  canal  bank. 

Counsel  eok  Defendant.  Will  you  state  briefly  what  were  the 
conditions  there  with  reference  to  the  embankment  being  flowed  on 


1247 


one  side  by  the  river  and  on  the  other  side  by  the  canal,  if  you 
know ! 

(Objection.) 

A.  I recollect  the  Adams  Dam,  and  the  way  it  came  over  towards 
the  canal  bank;  I have  no  recollection,  if  I ever  knew,  and  I do 
not  just  remember  how  the  Adams  Dam  connected  over  on  that 
side.  I was  under  the  impression  that  there  was  some  structure 
in  there. 

Counsel  for  Defendant.  Assume,  colonel,  that  this  map  which 
I show  you,  and  which  I will  mark  Woerman  Exhibit,  June  8th 
(Atlas  3978),  shows  a correct  representation  of  the  cross-section 
of  the  embankment  at  the  point  where  the  Adams  Dam  was; 
and  assume,  also,  that  the  other  cross-section  at  the  point  where 
the  proposed  dam  is  being  constructed  is  correctly  represented; 
and  state  whether  or  not  in  your  judgment  there  is  any  greater 
danger  to  the  canal  bank  at  the  point  where  the  Adams  dam  was 
by  reason  of  the  water  in  the  river  flowing  up  against  the  bank 
than  there  would  be  to  the  towpath  bank  near  Dresden  Heights 
if  this  pool  should  be  formed  by  the  construction  of  the  Adams 
Dam. 

Counsel  for  Complainant.  I object,  because  the  exhibit  and 
the  assumptions  to  which  his  attention  are  directed  start  with 
that  proof;  and,  secondly,  if  proved  are  silent  on  the  points  of 
difficulty  and  do  not  convey  the  information  as  to  the  controlling 
condition. 

The  Court.  He  may  answer. 

4320  A.  I should  say  that  there  is  no  material  difference  in  the 
danger  from  the  river  itself  on  that  side.  The  embankment 
as  proposed  at  the  site  of  the  proposed  work  has  a wider  base 
than  the  other,  which  would  be  an  element  of  safety;  but  from 
the  action  of  the  river  itself  I could  not  say  that  there  would  be 
any  particular  difference  between  the  two.  I don’t  recollect  that 
I noticed  whether  the  bank  at  the  point  where  the  Adams  Dam 
was  had  been  impaired  in  any  way  by  the  action  of  the  water 
in  the^  river  at  the  time  that  I saw  it.  I do  not  remember  that  the 
embankment  had  a vertical  wall  on  the  canal  side. 

I am  familiar,  to  a limited  extent  only,  with  the  high  water 


1248  Wheeler, — Direct  Exam. — Continued. 

conditions  of  the  Desplaines  Eiver, — not  since  the  waters  of  the 
Sanitary  District  have  been  turned  down  the  channel.  Prior  to 
that,  and  during  my  surveys,  I made  investigations  in  regard  to 
that  matter.  In  my  opinion,  the  pool  formed  by  the  construction 
of  this  dam  could  be  adequately  controlled  by  the  gate  shown 
upon  the  blue  print  which  I have  examined,  and  by  the  spillway 
and  general  construction  there,  so  that  the  canal  bank  would  not 
be  overflowed,  and,  in  my  opinion,  the  plans  there  provide  for  a 
sufficient  control  of  any  maximum  flood  likely  to  occur  in  that 
river. 

4321  Counsel  foe  Defendant.  In  your  judgment,  would  there 
be  any  necessity  for  the  adequate  protection  of  the  canal 

bank  to  pave  the  top  of  the  towpath  bank  or  pave  the  inside  of 
the  bank? 

(Objected  to  as  leading  and  suggestive.  Overruled  as  di- 
rectly and  specifically  rebuttal.) 

A.  I do  not  believe  it  would  be  necessary  to  pave  the  towpath  on 
the  upper  surface;  the  only  reason  for  paving  it  would  be  to 
care  for  the  travel  over  it  of  teams  and  vehicles,  and  the  mate- 
rial of  which  it  is  composed  is  already  firm,  good,  solid  mate- 
rial, and  make  a fair  roadbed  surface  now. 

I am  familiar  with  the  old  Kankakee  feeder  that  crossed  the 
river  above  the  point  where  this  dam  is  to  be  constructed, 

4322  I have  been  there  and  been  a short  distance  up  the  feeder, 
perhaps  a mile  and  a half,  or  such  a matter.  I have  made 

an  approximate  estimate  of  the  cost  of  the  reconstruction  of 
that  feeder  as  a navigable  feeder,  and  the  connection  with  a re- 
construction of  the  aqueduct  across  the  river,  entering  the  canal, 
also  an  approximate  estimate  of  the  cost  of  reconstructing  the 
feeder,  with  a connection  between  the  south  side  of  the  river 
and  the  canal  by  an  inverted  siphon  and  guard  locks  for  navi- 
gation across  the  pool  of  water  that  would  be  formed  by  the 
construction  of  this  dam. 

Counsel  foe  Defendant.  How  do  these  estimates  compare? 

(Objected  to  as  irrelevant,  incompetent  and  immaterial, 
and  because  there  is  no  foundation  for  it  in  the  testimony 
of  this  witness;  overruled.) 


1249 


4323  A.  I estimate  that  for  the  purpose  of  carrying  naviga- 
tion across  the  river  on  the  level  of  the  present  feeder,  the 

building  of  the  aqueduct,  including  new  concrete  piers,  steel  trusses 
and  floor  system,  and  reinforced  concrete  sides  and  bottom,  would 
cost  approximately  $65,000.  The  cost  of  the  necessary  guard 
locks  on  the  north  side  of  the  river  will  cost  $10,000,  making  a 
total  cost  of  $75,000.  Under  the  alternate  project  of  carrying 
navigation  across  the  river  and  supplying  the  canal  with  water 
through  an  inverted  siphon  under  the  river,  the  cost^would  he  as 
follows:  Pipe,  6 feet  in  diameter,  752  feet  long,  would  cost  $4,- 
904;  excavation  for  placing  this  pipe,  1,800  cubic  yards  at  $2.00 
per  cubic  yard,  $3,600;  coffer-dam  and  necessary  pumping,  I esti- 
mate would  cost  $10,000;  two  locks,  one  on  each  side  of  the  river 
at  $20,000  each,  $40,000;  making  a total  cost  of  that  project  of 
$58,504.  I have  had  occasion  to  construct  inverted  siphons 

4324  and  guard  locks  in  my  work,  and  am  sufficiently  familiar 
with  all  kinds  of  work  in  those  estimates  to  say  that  they  are 

approximately  correct.  I do  not  believe  there  would  be  any  diffi- 
culty in  feeding  the  Illinois  and  IMichigan  Canal  through  an  in- 
verted siphon  from  the  Kankakee  Eiver,  by  an  inverted  siphon 
placed  under  this  pool  of  water  which  would  be  formed  by  the 
dam  at  Dresden  Heights.  Both  at  the  present  time,  and  after 
the  construction  of  the  proposed  dam  it  would  be  safer  construc- 
tion to  carry  the  water  through  in  a pipe  and  have  two  locks  on 
the  shores.  I am  sure  there  is  depth  of  water  enough  in  the  river 
now  for  that,  for  the  depth  of  navigation  carriecT  in  the  Illinois 
and  Michigan  canal.  That  would  be  the  safer  construction  and 
probably  cheaper.  If,  however,  the  pool  had  to  be  raised,  it  would 
be  very  much  preferred. 

Counsel  for  Compk\inant.  It  is  understood,  your  Honor,  that 
this  entire  proposed  project  for  fitting  up  a new — is  objected  to. 

The  Court.  Yes. 

Counsel  for  Complainant.  It  won’t  be  necessary  for  me  to 
repeat  it. 

The  Court.  No. 

4325  A.  I do  not  believe  it  would  be  possible  to  build  an  aqueduct 
across  the  river  there  at  the  present  time  before  the  forma- 
tion of  this  pool  without  interfering  with  navigation  on  the 


1250  Wheeler, — Direct  Exam. — Continued. 

river,  except  for  boats  low  enough  to  pass  under  it.  1 do  not  be- 
lieve it  would  be  possible  for  any  boat  to  pass  under  the  aque- 
duct, the  aqueduct  reconstructed  across  there  as  it  was  before 
it  was  abandoned  during  high  water  stages  of  the  river. 

Q.  How  familiar  did  you  become  with  the  river,  the  Desplaines 
Eiver,  during  the  two  years  which  you  wqre  engaged  in  the  mak- 
ing of  ihe  surveys  under  Captain  Marshall!  A.  In  that  portion 
of  the  river  above  Joliet,  up  to  Summit,  I have  been  along  that 
many  times,  camped  along  there  while  surveys  were  in  prog- 

4326  ress.  Below  Joliet  I went  down  a number  of  times,  went 
through  the  river  in  a skiff,  and  have  also  been  down  the 

canal  in  a boat, — that  was  in  Ihe  fall  of  1888  and  during  the 
summer  of  1889.  During  the  fall  of  1888  the  river  was  very  low 
and  my  men  and  myself  crossed  the  river  back  and  forth  below 
Sag  Bridge,  a short  distance  below.  Above  that  point  there  was 
considerable  of  a pool  and  we  had  to  either  cross  on  the  bridges 
or  use  boats.  In  the  spring  of  the  following  year  there  was  a 
considerable  flood  in  the  river.  I do  not  remember  that  I was 
below  Sag  Bridge  during  that  period.  Below  Sag  Bridge,  we 
crossed  a number  of  places  by  simply  going  from  stone  to  stone, 
without  having  gotten  in  the  water  to  get  our  feet  wet. 

Q.  How  long  a stretch  of  the  river  was  it  that  you  did  that 
in!  A.  I think  that  we  had  shoal  places  here  and  there,  ripples, 
that  we  went  across  on.  One  place  was  near  the  present  site 
of  the  controlling  works  of  the  Sanitary  District.  The  river  was 
very  shoal  there,  very  little  water  flowing  that  fall  in  the  Des- 
plaines Eiver.  I saw  other  portions  of  that  region  in  flood 

4327  the  following  spring.  I had  parties  in  the  field,  but  I do 
not  remember  that  I ever  saw  the  portion  in  the  vicinity 

of  Lockport  in  flood.  I was  down  the  Desplaines  from  Joliet  to 
the  mouth  a number  of  times  during  the  years  1888  to  1890  in- 
clusive. I passed  through  the  river  in  a skitf.  I purchased  a 
skiff  in  Joliet  and  took  it  down  below  the  Adams  Dam,  went  in 
the  canal,  then  hauled  over  the  canal  embankment  into  the  river 
and  passed  down  the  river  as  far  as  LaSalle.  There  were  with 
me  two  men  and  a small  boy, — besides  myself.  In  some  places 
part  of  the  crew  were  put  ashore  to  let  the  skiff  over  the  rapids. 
We  had  to  drag  thee  skiff  to  get  over  the  rapids.  There  was  one 


1251 


place  soon  after  we  went  into  the  river  that  we  were  aground, 
and  we  fooled  around  and  managed  to  get  out  at  the  head  of 
Treat’s  Island.  We  ran  on  to  boulders  and  partly  capsized,  and 
found  other  places  with  pretty  swift  water;  pretty  swift  water 
in  the  vicinity  of  the  present  works  at  Dresden  Heights. 

4328  I did  not  observe  the  rapids  at  a place  called  Smith’s 
Bridge.  The  river  was  rapid  at  the  mouth,  hut  I do  not 

remember  of  having  seen  boulders  at  that  place.  At  Brandon’s 
Bridge  there  seemed  to  be  several  channels  and  gravel  bars, 
the  bed  of  the  stream  apparently  composed  of  gravel  and  bould- 
ers, and  we  worked  our  boat  through  those  until  we  got  down  to 
Lake  Joliet.  That  trip  was  made  some  time  in  the  month  of 
July;  I could  not  fix  the  exact  date.  The  Bridgeport  Pumping 
Works  were  in  operation  at  that  time,  but  I do  not  know  how 
much  water  they  were  discharging  into  the  Desplaines  Biver 

4329  at  that  time.  There  were  rapids  for  a little  distance  below 
the  mouth  of  the  Desplaines  River,  I don’t  remember  any 

difficulty  in  navigating  them  in  my  skiff, — we  camped  on  the 
south  shore  when  we  had  reached  the  foot  of  the  rapids.  I went 
down  there  in  that  vicinity  several  times,  at  other  seasons  during 
those  two  years.  I have  had  some  experience  in  connection  with 
my  engineering  work  in  the  navigation  of  boats,  on  the  Rock 
River,  also  some  on  the  Mississippi  River  and  some  on  the  Illi- 
nois River. 

Q.  State  whether,  in  your  opinion,  the  Desplaines  River  was 
capable  at  the  time  you  saw  it,  or  during  the  two  years  in  which 
you  became  familiar  with  it — was  capable  at  any  season  of  the 
year  of  being  used  for  useful  purposes  of  commerce. 

Counsel  foe  Complainant.  I object.  It  calls  for  irrelevant,  in- 
competent and  immaterial  matters,  for  which  no  foundation  has 
been  laid. 

The  CouET.  He  may  answer. 

4330  A.  I should  say  that  it  was  not  navigable  for  commerce 
carried  in  boats.  It  might  have  been  used  in  times  of  higher 

stages  for  floating  logs  or  timbers  down  stream;  nothing  very 
well  could  come  up  stream.  I am  not  very  familiar  with  the  Des- 
plaines since  the  draining  flow  has  been  turned  in.  I have  crossed 
it  at  Joliet  and  been  down  to  Dresden  Heights.  I think  the  river 


1252 


Wheeler, — Direct  Exam. — Continued. 


would  not  be  capable  of  practical  navigation  as  it  was  during 
the  two  years  I saw  it  in  1888  and  1890  for  two  reasons,  first, 
on  account  of  the  low,  small  volume  of  the  discharge,  and  sec- 
ond, on  account  of  the  steep  slopes  at  places.  The  high  water 
season  or  set  season  in  this  river,  from  my  knowledge  of  it,  is 
very  short,  that  is  that  the  maximum  at  the  high  stage  would  not 
last  more  than  a couple  of  days,  something  like  that.  The 
4331  course  -of  the  stream  between  Joliet  and  the  mouth  was 
quite  crooked  in -places.  I do  not  recollect  that  it  would  have 
been  so  crooked  as  to  interfere  with  navigation. 

The  maps  that  were  made  of  the  Desplaines  Eiver  that  were 
published  in  connection  with  the  Marshall  report,  were  made 
under  my  direction  in  my  office. 

Q.  Colonel  IVheeler,  state  whether  or  not  in  your  opinion  the 
Desplaines  River  was  capable  of  navigation  for  useful  purposes  of 
commerce,  or  would  have  been  capable  of  such  navigation  even 
if  dams  had  not  been  in  the  river? 

(Counsel  for  complainant  objected  on  account  of  lack  of 
qualification  on  the  part  of  the  witness,  and  irrelevant,  in- 
competent and  immaterial.) 

The  CouET.  He  may  answer. 

A.  In  my  opinion  it  would  not  have  been  navigable  on  ac- 
count of  the  steep  slope. 

I have  some  familiarity  with  the  effect  of  wave  wash  on  em- 
bankments. 

Q.  State  whether  or  not  if  this  canal  bank  above  the  site  of 
the  proposed  dam  were  riprapped,  properly  riprappeR — state 
whether  or  not  the  wave  wash  caused  by  the  wind  on  the 
4334  pool  to  be  formed  by  the  construction  of  this  dam,  or  caused 
by  the  action  of  boats  in  navigating  that  pool,  would  have 
any  injurious  effect  upon  the  bank?  A.  My  understanding  of 
that  question  is  that  if  the  bank  is  properly  riprapped,  will  there 
be  harmful  action  due  to  wave  wash  or  wash  from  steamers? 

Q.  Yes.  A.  I should  say  not. 

Counsel  foe  Defendant.  That  is  all. 


1253 


Cross-Examination. 

4335  As  to  whether  I was  the  man  in  immediate  charge  of  the 
construction  of  the  Illinois  and  Mississippi  Canal,  ordinarily 

called  the  Hennepin  Canal,  I have  been  in  charge  of  the  construc- 
tion of  a large  part  of  it,  been  at  work  on  that  from  the  time  it 
began,  now  am  in  charge  of  the  operation  and  care  of  the  whole 
canal.  Yesterday,  I said  where  its  termini  were,  and  where  the 
feeder  started  from  in  the  Kock  River.  The  canal  leaves  the 
Illinois  River  near  the  station  at  Bureau  Junction  on  the  Rock 
Island  road  and  extends  nearly  westward  to  the  Mississippi 

4336  River,  at  the  mouth  of  Rock  River,  a distance  of  75  miles. 
The  summit  level  of  that  canal  is  north  of  Sheffield  and  the 

summit  level  is  supplied  with  water  from  the  Rock  River  at  Ster- 
ling by  means  of  a navigable  feeder  29  miles  long.  The  feeder 
and  the  main  line  of  the  canal  are  of  the  same  dimensions,  80  feet 
wide  on  the  water  line  with  7 feet  depth  of  water.  The  locks 
have  chambers  35  feet  wide,  and  170  long.  I commenced  the  lo- 
cation for  the  construction  in  November,  1890,  at  Milan,  but  on 
account  of  some  legal  difficulties  the  actual  construction  was 
not  commenced  until  in  1892.  There  is  some  work  to  do  on  it  to 
finish  it.  It  was  so  far  finished  that  it  was  opened  for  naviga- 
tion last  fall,  October,  1907. 

Q.  Do  you  remember  a report  made  to  Congress  about  1895 
in  which  the  engineers  stated  that  at  the  rate  of  progress  which 
was  being  made  on  that  work  the  first  half  would  have  gone 
to  decay  before  the  last  half  would  have  been  completed  and  the 
work  opened  for  use!  A.  I cannot  say  that  I remember  such 
a statement  in  the  report,  but  I have  known  of  such  a statement 
being  made. 

4337  The  banks  are  imperishable  material.  That  was  dam- 
aged due  to  storms  and  rains,  and  was  not  for  any  exces- 
sive amount.  At  that  time,  however,  the  rate  of  progress  upon 
the  canal  was  very  slow  on  account  of  the  failure  of  Congress  to 

appropriate  the  money  for  its  construction, 

4340  As  to  whether  it  is  not  a fact  that  the  canal  banks  of  the 
Hennepin  Canal  did  suffer  from  attacks  of  vermin  very 
greatly  during  the  construction  of  the  canal.  A great  many 


1254 


Wheeler^— Cross-Exam. — C ontinued. 


burrowing  animals  made  their  home  along  the  right  of  way 
and  no  systematic  effort  was  made  to  drive  them  out  until  last 
year,  when  we  approached  the  time  when  we  were  ready  to  turn 
water  in  the  canal.  Then  a very  systematic  campaign  was  waged 
against  them  during  the  last  year,  and  they  were  killed  in  large 
numbers.  A considerable  sum  of  money  was.  expended  in  exter- 
minating them  and  taking  their  holes  out,  but  it  did  not  delay 
the  opening  of  the  canal  in  any  way.  I mean  that  I got  at  the 
work  of  restoring  the  banks  long  enough  before  the  time  for 

4341  opening  so  that  I had  the  restoration  done  by  the  time  for 
opening  arrived.  I had  several  serious  difficulties,  but  that 

was  a iDrecaution  which  we  found  it  necessary  and  advisable 
to  take,  to  examine  the  banks  throughout  the  whole  length,  and 
wherever  burrowing  animals  were  found  in  them,  to  kill 

4342  them  and  take  the  holes  out.  It  is  a fact  that  the  muskrats 
in  their  depredations  work  in  the  immediate  vicinity  just 

above  and  below  the  water  line  where  the  water  attacks  a bank. 
I would  not  say  that  is  also  true  of  crawfish.  I never  saw  craw- 
fish holes  of  from  two  to  two  and  a half  and  even  four  and  five 
inches  in  diameter,  and  sometimes  from  two  to  four  feet  long 
into  an  earthen  embankment,  so  that  those  holes  will  be  partly 
below  and  partly  above  the  water  line.  I think  I have  seen  a 
crawfish  hole  two  inches  in  diameter.  I doubt  if  I have  seen 

4343  one  three  inches  in  diameter.  As  to  a crawfish  hole  two  feet 
long,  I have  no  doubt  that  many  of  them  are  even  deeper 

than  that.  I would  not  say  four  feet  long,  but  I do  know  that 
they  go  down  in  the  ground  quite  a distance.  I haven’t  much 
doubt  that  they  frequently  make  holes  four  feet  long.  Well,  the 
crawfish  holes  that  I have  seen  are  vertical.  The  object  of  the  ani- 
mal is  to  go  from  the  surface  of  the  ground  down  to  where  he 
finds  water.  I suppose  he  will  keep  on  going  until  he  gets  it.  As 
to  it  being  a place  of  lodgment  for  them  to  run,  and  that  they  go  by 
a slanting  line  with  a minimum  depth,  I don’t  know  that.  The 

4344  dimensions  I would  give  for  the  crawfish  inoimds  that  I am 
personally  familiar  with  would  be  about,  perhaps,  six  or 

seven  inches  high,  and  two  inches  in  thickness  surrounding  the 
holes,  and  possibly  more  than  that. 

The  line  of  the  Hennepin  Canal  lies  in  the  bed  of  the  l\ock 


1255 


River,  opposite  Milan,  about  4,500  feet.  It  goes  into  Big  Island 
and  then  goes  down  throngli  Big  Island  to  the  month  of  Rock 
River.  Rock  River  just  at  Milan  divides  into  two  main  branches 
which  form  two  sides  of  a large  triangular  island,  of  which  the 
Mississippi  forms  the  third  side,  and  that  island,  of  some 

4345  several  thousand  acres  of  land,  is  called  Big  Island.  There 

4346  are  three  or  four  other  small  islands,  I would  not  say  at  the 
head  of  this  island,  but  they  lie  over  north  of  the  upper  end 

of  Big  Island,  and  extend  np  stream  perhaps  two  miles,  or  nearly 
that,  a mile  and  a half. 

Black  Hawk’s  watch  tower  overshadows  as  we  go  down  on  the 
north  side  of  the  river  just  opposite  this  4,500  feet.  Black  Hawk 
Tower  is  on  the  north  shore  bluff,  and  from  that  this  work  can 
be  seen  in  the  river-bed.  Black  Hawk’s  watch  tower,  I don’t 
recollect  the  height,  I haven’t  measured  it,  I should  .say  is  per- 
haps 125  feet  above  the  water.  For  a short  distance  up  stream, 
the  bluffs  recede  from  the  shore  line  of  the  river  and  the  bluffs 
terminate  a very  short  distance  below  Black  Hawk  Tower. 

There  are  immediately  adjacent  to  the  river  for  perhaps  three- 
quarters  of  a mile,  lofty  bluffs,  and  tlien  further  back  with 

4347  farms  lying  between  the  foot  of  the  bluffs  and  the  river. 
From  the  river  when  you  get  up  as  far  as  the  Moline 

bridge,  they  are  much  more  than  80  rods,  and  on  the  south  side 
of  the  river,  the  bluffs  are  from  half  a mile  to  a mile  away  from 
the  river,  with  a broad  bottom  land  on  the  south  side  of  Rock 
River  between  the  river  and  the  bluffs.  At  the  vicinity  of  this 
work,  for  several  miles  along  there.  Mill  Creek  comes  down 
through  and  floods  the  broad  bottom  lands  over  a mile  wide  on 
the  south  side  of  the  river.  It  comes  in  from  the  south  side,  but 
not  through  marsh  lands,  and  it  is  not  a small  creek.  It 

4348  comes  through  about  a mile  of  bottom  land,  which,  however, 
is  not  level.  There  is  a fall  of  about  20  feet  in  that  mile, 

that  is  from  the  bluff  road  that  skirts  the  edge  of  the  bluff  on  the 
south  side  of  the  bottom  lands.  There  is  a broad  space  of  bot- 
tom land  on  the  south  side.  Immediately  abreast  of  that  on  the 
north  side,  is  where  the  bluffs  terminate,  and  adjacent — that  is 
where  they  terminate  as  to  the  shore  of  Rock  River,  and  the 
river  flows  straight  west  from  the  east  to  a bed  of  solid  rock, 


1256 


Wheeler, — Cross-Exam. — Continued. 


and  the  river  divides  out  between  Milan  and  Searstown;  so  that, 
while  it  has  got  these  two  main  branches,  it  also  has  several  minor 
channels  which  enclose  Vandruff’s  Island  and  the  other 

4349  small  islands,  and  there  is  no  water  power  dam  at  Milan  at 
the  present  time.  There  was  one  before  I began  work,  which 

had  been  built  by  the  Eock  Eiver  Water  Power  & Navigation 
Company,  and  which  had  been  washed  out.  I could  not  fix  the 
year  it  was  destroyed.  I believe  it  was  nearly  destroyed  at  the 
time  I made  the  survey.  I think  when  I. first  went  there,  they 
were  still  using  some  power  from  it,  and  by  the  year  1894  it  had 
been  entirely  washed  out.  Perhaps  I should  correct  that ; I would 
not  say  entirely  washed  out,  but  washed  out  enough  so  that  it 
did  not  yield  any  power. 

The  Rock  River  Water  Power  & Navigation  Company  had 
constructed  a small  canal  on  the  Searstown  side  of  the  river  long 
before  I began  work  as  a part  of  that  water  power  and  naviga- 
tion work.  I did  not  interfere  with  that  in  any  way.  The 

4350  location  was  on  the  south  side  of  the  river,  and  the  river 
runs  straight  west  from  the  east,  for  a distance  of  some 

five  miles  there.  These  two  dikes  referred  to  were  built  length- 
wise in  the  Rock  River  near  the  south  side  of  Rock  River  running 
parallel  with  the  bank  of  the  river  and  with  the  current  of  the 
stream,  and  there  was  no  dam  at  their  foot  that  had  to  be  cal- 
culated for  in  the  construction  of  these  dikes.  There  is  none  now, 
and  they  run  down  into  Big  Island  and  the  canal  is  extended 
right  straight  down  through  Big  Island  to  the  Mississippi  River. 
I was  last  at  Dresden  Heights  some  time  in  April  of  this 
year.  I was  there  one  day  only.  I started  from  Chicago  to 

4351  go  that  morning  to  Dresden  Heights.  I went  to  Minooka  by 
rail.  I think  we  left  the  depot  here  about  seven  o’clock,  or 

shortly  after,  and  arrived  there  shortly  after  eight.  I may  be 
mistaken  in  that,  but  it  was  in  the  morning  between  eight  and 
nine  o’clock.  Then  I took  a carriage  from  Minooka.  We  drove 
to  Channahon  and  then  on  to  the  canal  towpath  and  thence  down 
to  the  house  just  above  this  work  in  progress.  The  length  of 
time  it  took  to  drive  over  there  was,  I should  say,  somewhere  near 
an  hour  and  a half.  We  stopped  at  quite  a number  of  points 

4352  along  the  canal  embankment.  I came  back  the  same  day  by 
the  same  method,  got  home  to  supper  in  Chicago,  between  six 


1257 


and  seven  o’clock.  We  were  at  and  around  Dresden  Heights  a 
portion  of  the  day,  taking  so  much  as  was  necessary  of  the  fore- 
noon to  get  down  there  and  so  much  as  was  necessary  of  the  after- 
noon to  get  back.  Mr.  J.  W.  Woerman  and  Mr.  T.  D.  Johnson 
were  with  me,  nobody  else.  I have  not  been  there  since.  I had 
been  there  before.  I had  been  down  to  Dresden  Heights  in  1888 
and  1889  when  I was  making  this  survey. 

4353  I had  not  been  there  between  those  times.  Then  my  knowl- 
edge of  the  situation  down  there  so  far  as  it  is  derived  from 

personal  observation  was  derived  in  this  portion  of  the  day  in 
April  when  I made  this  trip,  together  with  my  observations  that 
I made  there  in  1888  and  1889.  My  knowledge  of  any  recent 
work  was  derived  from  my  observation  on  that  one  day,  and  a 
study  of  the  plans  together.  I had  access  to  the  plans,  and  made 
some  study  of  them  in  connection  with  my  observations. 

Q.  In  your  answer  about  this  work,  you  have  taken  into  ac- 
count what  you  learned  from  that  examination  and  from  youi^ 
study  of  the  plans  as  well  as  what  you  learned  from  your 

4354  personal  observations  on  that  day?  A.  Yes,  sir. 

Counsel  for  Defendant.  I understood  the  form  of  that 
question — the  objection  was  sustained  to  the  form,  the  court  say- 
ing that  he  could  ask  the  witness  what  his  answers  were  based 
upon. 

The  Court.  No,  he  don’t  have  to  ask  him  directly.  He  may 
ask  him  indirectly  on  cross-examination. 

Counsel  for  Complainant.  Q.  You  say,  Mr.  Wheeler,  that 
you  poked  around  with  a stick  down  there? 

The  Witness.  Eeferring  to  the  picture  that  was  shown  me  in 
the  direct,  Woerman  Exhibit,  June  8th,  I think  I said  I could 
not  see  what  was  under  the  water.  I don’t  think  I said  that  I 
could  not  say  what  was  under  the  water,  because  I was  positive 
that  it  was  stone.  As  far  as  I could  poke  with  a stick  in 

4355  places,  the  water  was  not  transparent.  I poked  around  with 
a stick  here  and  there  at  points  where  I was  walking  along 

and  the  berm  offered  an  opportunity  for  me  to  step  down;  some 
places  there  were  stones  that  I could  step  on.  There  was  no  ef- 
fort made  to  examine  the  whole  length  from  Channahon  down, 


1258  Wheeler, — Cross-Exam. — Continued. 

but  only  at  occasional  points.  We  got  out  of  the  carriage  several 
times  going  down  there,  and  then  we  left  the  carriage  at  that 
locktender’s  house  and  walked  from  there  to  the  site  of 

4356  the  work.  We  got  out  several  times,  more  particularly  to 
examine  the  top  of  the  bank,  when  we  were  in  the  carriage. 

When  I speak  of  the  top  of  the  bank,  I mean  the  side  towards  the 
river.  Before  I got  down  to  the  locktender’s  house,  I don’t  re- 
member for  sure  whether  I made  that  kind  of  an  examination  at 
times  when  1 got  out  from  the  carriage.  I know  that  I did  sev- 
eral places  afterwards.  I did  at  several  points,  after  I left  the 
towpath  walker’s  house,  poke  with  my  stick  down  into  the  canal 
water  and  feel  the  stones.  I would  not  say  twenty  times,  very 
considerably  less  than  that.  Perhaps  half  a dozen  times  where 
the  berm  afforded  a footing  for  me  to  go  down  on  it  and 

4357  make  that  exploration.  The  berm  on  that  day  mas  mainly 
out  of  water.  It  was  a nearly  horizontal  shelf.  In  some 

places  where  this  recent  work  had  been  in  progress  it  was  cov- 
ered with  stone  slanting  upward  to  the  top.  I did  not  make  an 
examination  at  those  points.  My  examination  was  made  where 
there  had  not  been  any  stone  filled  in  on  the  berm.  Whether  that 
berm  was  one  which  had  been  constructed  as  a part  of  the  or- 
iginal construction  of  the  canal,  or' had  been  formed  by  the  opera- 
tion of  nature  upon  the  banks  after  it  was  left  from  the  differ- 
ent natural  forces,  waves,  wave  wash,  frosts,  rains,  weather,  I 
could  not  say  positively,  but  I judged  from  the  appearance  that 
it  had  been  formed  through  the  action  of  the  elements.  I will 
qualify  that.  Its  width  might  have  been  increa^sed  by  stone 

4358  dumped  on  the  inside  below  that  level,  but  the  appearance 
was  what  we  call  a natural  berm  as  distinguished  from  an 

artificial  herm,  meaning  by  natural  berm,  one  that  has  been  made 
in  the  process  of  time.  With  a bank  which  is  not  furnished  with 
artificial  berms  in  the  construction  to  start  with,  or  with  artificial 
protection  to  prevent  berms,  there  will  form  a berm  by  natural 
operation  of  the  water  in  the  banks  of  the  canal,  and  the  berm 
would  take  the  form  of  the  berm  that  you’  found  down  there, 
and  that  you  would  find  here  on  this  lYoerman  Exhibit  of  June 
8th,  if  that  pink  paint  on  the  canal  side  and  the  stone  that  is  rep- 
resented by  it  were  not  there. 


1259 


4359  There  would  be  a liorizontal  shelf  there  nearly  at  the 
water  line  edge,  and  the  material  which  had  been  formed 

in  the  slope  out  of  the  operation  of  the  waves  and  other  natural 
causes  would  have  gradually  slid  down  the  bank  to  the  bottom  of 
the  canal.  I would  not  say  necessarily  that  it  would  slide  down 
to  the  bottom,  but  slide  down  part  way.  It  would  be  stretched 
along  down  the  slope  below  the  water,  and  in  process  of  time  would 
make  an  indentation  in  the  bank  at  the  point  where  the  berm 
is  and  the  tilling  in  there  below  that  point.  That  is  the  natural 
operation  of  the  water  on  any  such  bank,  and  that  would  be  the 
tendency  of  this  bank.  And  that  would  go  on  until  the  berm  had 
gone  in  deep  enough  and  the  slope  below  had  become  low  enough 
so  that  the  material  would  then  cease  to  slide.  It  would  reach  a 
position  of  equilibrium,  probably  in  time,  and  I found  some  places 
along  that  canal  wdiere  this  berm  projected  out  between  five  and 
six  feet. 

4360  The  dimensions  of  the  Illinois  and  Michigan  Canal  at  that 
point  are  60  feet  water  line  and  6 feet  deep.  It  may  be  silted 

up  very  much  for  all  that  I know,  but  that  is  the  standard  dimen- 
sions fixed  for  that  work.  I think  6 feet  deep  is  the  depth  on  the 
miter  sills,  indicated  to  us  now.  I don’t  know  how  deep  it  was 
there.  For  any  given  depth  of  water  I can  tell  you  what  the 
dydrostatic  pressure  is,  but  it  does  not  depend  upon  the  width 

4361  of  the  stream.  It  makes  a difference  whether  you  ask  at  the 
top  of  the  slope  or  at  the  bottom  of  the  slope.  If  you  were 

at  the  water  line  there  would  be  no  pressure,  and  as  you  went 
down  and  the  depth  increased  the  pressure  would  increase  624 
jiounds  per  square  foot — 62^,  more  nearly, — at  a slope  of  two  feet 
to  one,  that  is  two  feet  on  the  horizontal  and  one  foot  down  ver- 
tically. The  pressure  would  be  62^  pounds  per  square  foot  in 
every  direction.  The  slope  would  form  the  hypothenuse  of 

4362  a right  angle  triangle  there.  On  the  diagonal,  the  pressure 
would  be  62f  pounds  to  the  foot  at  a point  one  foot  below 

the  surface.  One  foot  on  the  diagonal  or  one  foot  vertically,  it 
would  not  make  any  difference  in  which  direction  it  takes  that 
plane  there  at  that  point,  the  pressure  is  equal  in  all  directions, 
the  hydrostatic  pressure.  The  pressure  at  a point  two  feet  down 
that  slope,  a square  foot  down  there,  extending  from  a point  two 


1260  Wheeler  j — Cross-Exam. — Continued. 

feet  down  to  a point  three  feet  down  on  the  diagonal,  would  have 
to  be  computed.  It  can  be  computed.  The  pressure  will  vary 
from  point  to  point  as  you  go  down,  but  at  a foot  from  the  surface 
it  would  be  62J  pounds,  and  at  two  feet  from  the  surface  it  would 
be  twice  that.  At  three  feet  it  would  be  three  times  that,  but  it  is 
varying  and  if  you  ask  for  the  pressure  on  a foot  that  extends, 
say  from  two  feet  down  to  three  feet,  then  it  would  have  to  be 

4363  computed  as  an  average  between  those  two.  It  would  be 
just  the  same  whether  the  direction  were  given  diagonally 

or  vertically  so  long  as  the  ed^i:es  were  that  distance  from  the 
surface.  The  pressure  at  that  point  would  be  the  same  as  if  you 
would  measure  that  diagonally  and  take  the  pressure  at  that 
point,  provided  you  get  the  same  distance  below  the  surface 

4364  on  a vertical  line.  A common  graphical  representation  of 
that  pressure  is  a triangle  with  the  apex  at  the  surface  of 

the  water  and  the  vertical  side  of  the  triangle  represents  the  depth 
and  the  horizontal  distances  in  that  triangle  represent  the  pressure 
at  any  given  depth.  Now,  if  we  should  take  a certain  area  at  a 
certain  depth  it  would  be  represented,  the  total  pressure  on  that, 
by  the  area  of  the  triangle  between  two  lines,  horizontal  lines, 
drawn  from  the  vertical  line  at  the  given  depth.  If  this  is  a 

4365  foot,  the  pressure  on  the  upper  edge  is  represented  by  this 
line  (indicating),  and  on  the  lower  edge  by  that  line  (indi- 
cating). Now,  the  ratio  of  those  two  sides  at  this  latitude  is  ap- 
proximately 62J  pounds.  The  hydrostatic  pressure  at  the  depth  of 
four  and  one-half  feet  would  be  approximately  280  pounds  per 
square  foot.  For  four  and  a half  feet  in  depth  with  a slope  of 
two  horizontal  to  one  vertical,  the  hypothenuse  would  be  approxi- 
mately ten  feet.  The  total  pressure  upon  that  inclined  slope  per 
lineal  foot  of  slope  would  be  represented  by  one-half  of  the  pres- 
sure at  a foot  multiplied  by  the  area  of  one  foot  of  slope  or  the 
product  of  ten  multiplied  by  one-half,  multiplied  by  280,  equals 
1,400  pounds.  If  the  elevation  of  the  water  in  the  river  were  such 
that  the  top  of  the  water  in  the  river  pool  were  on  a level  with  or 

below  the  bottom  of  the  water  in  the  canal,  the  presence  of 

4366  that  pool  of  water  in  the  river  would  relieve  this  bank  by 
whatever  pressure  there  was  on  the  embankment  due  to  the 

fact  that  the  water  percolates  or  seeps  through  the  embankment, 
and  partly  saturates  it.  Experiments  have  shown  that  there  is 


1261 


a saturation  line  in  the  embankment  that  has  water  against  it  on 
one  side  and  the  hack  of  the  bank  is  exposed  to  that  hydrostatic 
pressure  as  well  as  the  front.  Now,  in  figuring  the  pressure  on  a 
bank  of  that  kind,  I would  not  take  the  depth  on  the  front  angle, 
but  I would  figure  that  depth  to  toe  of  the  slope  on  the  outside, 
there  will  be  saturation  and  percolation  of  water  running 

4367  from  the  canal  and  seeping  through  all  the  way  down  to  the 
toe  on  the  opposite  side.  It  may  not  go  to  the  toe  of  the 

bank;  sometimes  it  does  go  down  and  lays  there,  and  the  pres- 
ence of  a pool  on  the  other  side,  although  it  don’t  come  up  as 
high  as  the  bottom  of  the  water  in  the  canal,  still  would  operate 
as  a relief  and  support  to  the  bank.  There  would  be  a saturation 
from  the  river  side  up  to  that  level.  The  force  of  saturation 
would  operate  from  the  river  pool  in  the  same  way  proportionately 
to  the  amount  of  water  within  that  it  operated  from  the  canal 
bank  proportionate  to  the  amount  of  water  there,  but  it  would 
be  an  element  of  danger  if  the  water  surface  on  the  outside  of 
it  was  higher  than  the  water  surface  on  the  inside. 

Q.  Wouldn’t  it  be  so  if  the  water  reached  the  level  of  the 
bottom  of  the  water  in  the  canal*?  A.  I do  not  consider  it  so. 

Q.  You  think  that  it  certainly  would  when  it  reached  the  same 
level  on  both  sides?  A.  No,  I would  say  then  that  the 

4368  embankment  was  in  a condition  of  absolute  safety,  by  reason 
of  the  fact  that  the  pressures  were  alike  on  the  two  sides. 

The  pressure  not  necessarily  operates  by  means  of  saturation.  It 
might  be  an  impermeable  bank,  it  might  be  a masonry  bank,  as 
far  as  that  is  concerned.  It  would  depend  on  the  saturation  line, 
some  kind  of  earth  would  have  a different  saturation  from  others, 
but  with  the  water  level  on — at  the  same  elevation  on  the  two 
sides  a bank  of  any  material  would  be  safe  as  far  as  pressure 
is  concerned. 

It  is  not  true.  Colonel,  that  whatever  danger  there  might  be 
from  saturation  when  it  reached  the  danger  point  would  be  in- 
creased when  you  put  saturation  on  both  sides. 

Q.  The  court  asked  you.  Colonel,  whether  the  pressure  would 
be  the  same  on  the  bank  where  it  was  substantially  vertical,  as 
in  the  picture,  the  upper  picture,  Woerman  Exhibit  of  June  8th, 
that  it  is  on  a slanting  bank  which  is  shown  in  the  lower  picture. 


1-62  Wheeler, — C ross-Exam. — Continued. 

What  was  your  answer  to  that  question?  A.  That  per  square 
foot  of  area  the  pressure  is  the  same  at  the  same  depth.  If 
the  court  means,  however,  by  his  question,  tending  to  move 

4369  that  bank  horizontally,  then  I would  say  that  the  pressure 
is  exactly  the  same  at  whatever  angle  that  slope  lies. 

Q.  Then  the  pressure  being  exactly  the  same,  the  pressure 
would  be  the  same  in  the  two  banks,  per  square  foot?  A.  At  the 
same  depth  in  a horizontal  direction. 

Q.  Then  if  the  bank  was  made  vertical,  as  it  is  in  the  upper 
picture,  the  number  of  square  feet  to  which  that  pressure  would 
be  applied  would  be  considerably  less  than  where  the  bank  is  on 
a diagonal  of  two  to  one,  would  it?  A.  Well,  there  are  more 
square  feet  on  the  inclined  slope  but  the  pressure  is  reduced  hori- 
zontally to  exactly  compensate  for  that  slope. 

Q.  Then  the  statement  that  it  has  the  same  per  square  foot 
is  a mistake?  A.  No. 

Q.  You  said  a moment  ago  that  the  pressure  would  be  the 
same  per  square  foot?  A.  At  right  angles  to  the  surface. 

Q.  No  matter  at 'what  angle  to  the  bank.  Now,  you  say  that 
if  the  bank  is  made  slanting  the  pressure  per  square  foot  will  be 
reduced  exactly  enough  to  compensate  for  the  increased  number 
of  square  feet?  A.  No,  you  confuse  my  answer. 

Q.  Put  it  straight.  A.  I say  that  the  pressure  horizontally 
will  be  reduced  in  exactly  the  same  proportion  that  the  area  is 
increased,  by  that  slope,  so  that  the  total  horizontal  pres- 

4370  sure  will  remain  the  same  whether  the  water  presses  against 
the  inclined  slope  or  a vertical  one — 

Q.  But  not  the  same  per  square  foot  because  the  number  of 
square  feet  had  been  greatly  increased,  had  they  not?  A.  There 
is  a difference  between  the  unit  of  pressure  and  the  resultant 
pressure  horizontally.  Now,  you  are  confusing  the  two. 

4371  Q.  No,  I am  not  confusing  anything.  Colonel,  I want  to 
get  your  views,  that  is  what  I am  after.  I want  you  to  tell 

us — 

Counsel  for  Defendant.  His  view  is  that  you  are  confusing  it. 
Counsel  for  Complainant.  Have  your  fun. 


1263 


Counsel  for  Defendant.  I would  like  to  have  the  Colonel  elab- 
orate on  that  view  a little. 

Counsel  for  Complainant.  Go  on,  Colonel. 

A.  I have  finished. 

Q.  Now,  then,  do  you  still  say  that  the  pressure  would  be  the 
same  per  square  foot  no  matter  what  the  angle  of  the  bank?  A. 
At  right  angle  to  the  surface  pressed  upon,  yes,  the  same  per 
square  foot. 

Q.  The  water  does  not  press  at  right  angles  to  the  surface  on 
a slanting  bank,  does  it?  A.  Oh,  yes. 

Q.  It  does?  A.  Yes,  sir. 

Q.  It  presses  at  right  angles  to  the  surface  on  a vertical  bank 
also?  A.  Yes,  sir. 

Q.  And  the  vertical  bank  has  fewer  square  feet  than  the  slant- 
ing bank?  A.  Yes,  sir. 

Q.  Then  the  pressure  on  a vertical  bank  is  less  than  the  pres- 
sure on  a slanting  bank?  A.  It  is  but  the  directions  are  not  the 
same,  and  I qualified  my  answer  by  stating  that  the  horizontal 
pressure  tending  to  move  the  bank  horizontally  would  be  the  same 
in  every  case. 

4372  Q.  Then  it  would  be  a different  quantity  per  square  foot 
in  order  to  give  the  same  results,  would  it  not?  A.  No. 

Q.  If  you  had  a large  number  of  square  feet,  you  will  have 
to  change  the  amount  per  foot  in  order  to  produce  constant  result, 
won’t  you?  A.  No,  I say  the  direction  in  the  pressure — 

Counsel  for  Complainant.  May  I ask  one  question  there : 
Didn’t  you  say,  Mr.  Wheeler,  that  in  hydraulics  the  pressure  is 
equal  in  all  directions  diagonally,  laterally  and  every  other  way? 
A.  At  a given  point  below  the  surface,  in  a liquid  the  pressures 
are  in  equilibrium,  equal  in  all  directions. 

As  to  bad  breaks  on  that  feeder  that  comes  down  from  Sterling 
into  Hennepin  Canal,  I never  heard  of  any.  I have  crossed  the 
Desplaines  Eiver  quite  a good  many  years  ago,  but  my  first 

4373  knowledge  of  it  to  any  great  extent  was  obtained  in  the  fall 
of  1888.  I was  under  order  to  make  surveys  and  estimates 

for  a 14-foot  waterway,  connecting  the  lake  at  or  near  Chicago 


1264 


Wheeler, — Cross-Exam. — Continued. 


with  the  Illinois  Eiver  at  LaSalle,  and  I was  placed  in  charge 
of  that  work.  The  first  thing  that  I did  was  that  I went  into  the 
held  with  a party  that  camped  at  Lockport,  and  commenced  work 
on  that  survey.  The  work  of  survey  extended  for  the  remainder 
of  that  year,  and  practically  all  of  the  next  year  and  included  a 
small  triangulation,  a system  of  levels,  the  topography  and  exam- 
ination of  the  strata  of  rock  below  the  surface  of  the  ground. 
lYell,  I established  a camp,  tent  and  a cooking  outht  and  sheltered 
and  fed  the  men  at  Lockport.  I lived  in  camp  with  the  men. 

4374  As  the  work  progressed  the  camp  was  moved  along  from 
place  to  place  and  when  the  held  work  was  done  I came 

into  the  city  and  had  an  office  here.  I think  that  during 
the  month  of  November  we  broke  up  camp.  I have  no  means  of 
hxing  that  date  now.  I went  to  work  in  September  and  quit 
work  in  November.  That  is,  quit  living  in  camp. 

We  simply  changed  the  manner  of  our  work.  The  actual  meas- 
urements with  the  survey  of  the  stream  were  largely  done  at  that 
time,  and  our  men  subsequent  to  that  time  boarded  where  they 
could. 

4375  While  I had  an  office  and  an  office  force  engaged  in  re- 
ducing and  platting  the  notes,  yet  I went  from  the  office  into 

the  held  back  and  forth  to  the  parties  who  were  doing  work  there 
l)ut  I did  not  live  in  camp  any  more  after  that  fall.  During  the 
two  months  that  I was  in  camp  with  the  men,  I was  engaged,  was 
working  continually.'  I saw  that  the  men  went  to  work  in  due 
season  in  the  morning,  went  with  them,  laid  out  a svstem  of  tri- 
angulation;  was  continually  in  the  held  in  looking  after  the  work 
in  the  daytime.  Frequently  days  I would  be  in  the  camp  attending 
to  correspondence  and  the  hnances  of  the  survey,  but  I was  busy 
all  the  time. 

As  to  taking  personally  any  of  the  measurements,  I could  not 
say  whether  I did.  I did  not  many  of  them.  I did  not  carry 

4376  the  chain.  I might  have  handled  the  level.  I remember 
that  I made  the  observations  for  determining  the  azimuth 

largely  myself.  That  is  the  determination  of  the  position  of  the 
true  north  and  south  line.  That  was  when  I began  and  at  inter- 
vals throughout  the  work.  None  of  that  survey  was  done  by  the 
needle,  it  was  all  azimuth  work.  The  particular  function  of  this 


12()5 


work  that  I did  from  time  to  time  determining  tlie  azimutli.  I 
determined  the  direction  of  the  true  meridian  by  observations  upon 
the  stars,  and  that  was  used  in  the  survey,  so  tliat  all  their  lines 
would  be  run  to  the  true  meridian.  I did  that  by  astronomical  ob- 
servations. I gave  the  delineation  of  those  lines,  or  this  true 
meridian  to  the  subordinates  after  I had  made  the  obser- 

4377  vation.  That  was  always  made  in  a way  that  it  could  be 
connected  in  with  the  survey.  I did  that  not  more  than  half 

a dozen  times  in  the  course  of  the  work. 

As  to  the  principal  use  of  instruments  that  I personally  made 
in  the  field  on  this  work,  I don’t  recollect  just  how  much  I did  do. 
1 know  that  the  little  triangulation  that  was  done,  I looked  after 
that,  the  setting  of  these  stations.  There  was  not  very  much  of 
that  in  that  survey,  but  I will  say  that  generally  the  chief  of  the 
party  does  not  do  much  of  the  actual  measurement  himself. 

This  map  which  is  marked  ‘^Duplicate  of  Zarley’s  Exhibit/’ 
and  wdiicli  was  sheet  13  in  Major  Marshall’s  report,  also  marked 
^‘Cooley  25”  (Atlas,  p.  3969;  Trans.,  p.  6608;  Abst.,  p.  1931),  it  is 
so  long  since  I have  seen  that  map  that  I hardly  recognize  it  as 
one  of  my  own  production  and  it  says  so  in  the  title  that  it  is. 

4378  I could  not  say  wdiether  that  is  actually  a whole  one  of  the 
waterway  maps,  or  whether  it  is  a reprint  of  part  of  it.  I 

could  not  find  on  that  map  any  specific  point  that  I indubitably 
remember  as  mine,  by  which  I identify  my  work  on  that  map.  It 
might  be  an  imitation.  I do  not  vouch  for  its  authenticity  at  all. 

So  far  as  the  work  that  was  done  by  me  in  connection  with 
that  map  is  concerned,  or  the  wmrk  that  purports  to  be  repre- 
sented by  it,  there  is  no  measurement  that  I personally  took  that 
is  recorded  there  in  a way  that  I identify  as  mine,  and  that  would 
probably  be  true  of  all  the  other  maps,  that  azimuth  line  indicating 
my  true  meridian.  I don’t  see  it  here.  Nothing  by  which  I can 
identify  it. 

My  recollections  of  the  Desplaines  Eiver  itself,  are  recollec- 
tions of  work  that  was  finished  some  eighteen  or  nineteen  years 
ago ; recollections  as  it  was  at  the  time  I was  doing  that  work.  I 
had  had  no  occasion  to  refresh  my  memory  about  that.  I have 

4379  not  made  any  effort  to  do  so. 

Q.  You  speak  in  the  report  signed  by  you,  which  was 


1266 


Wheeler,— Cross-Exam. — Continued. 


published  in  House  Document  264,  of  the  House  of  Kepresenta- 
tives,  51st  Congress,  first  session  of  the  Ogden  Dam,  and  you 
made  the  statement:  ‘^At  low  water  the  entire  flow  passes  in 

part  through  the  Ogden  Dam,  but  the  greater  portion  into  the 
canal  through  the  permeable  soil  separating  themC’  Do  you 
remember  the  Ogden  Dam,  Colonel  Wheeler!  A.  I remember 
something  of  it;  yes,  sir. 

Q.  Eeferring  to  Hillebrand  exhibit  labeled  ‘‘Sanitary  Dis- 
trict Chicago  Map  and  Profile,”  you  referred  to  this  Ogden  Dam, 
which  separated  the  DesPlaines  Eiver  from  the  Ogden  ditch,  which 
connected  it  with  the  south  branch  of  the  Chicago  Eiver,  by  that 
statement!  A.  Yes,  sir. 

Q.  And  in  this  statement,  that:  “At  low  water  the  entire 

flow  passes  in  part  through  the  Ogden  Dam,”  you  mean  that 
it  passes  in  part  out  of  the  Desplaines  Eiver  through  the  Ogden 
Dam  into  the  Ogden  ditch  and  so  out  into  the  south  branch  of 
the  Chicago  Eiver!  A.  I suppose  I did  if  I made  that  state- 
ment. 

Q.  Well,  just  glance  at  the  statement,  the  last  sentence  on  the 
bottom  of  page  40  of  the  document.  (Showing  witness  book.) 
You  will  find  your  signature  to  the  report  over  here  a page  or 
two  further  on.  That  is  correct,  is  it  not!  Now,  you  have 
4380  examined  the  statement,  is  that  correct!  A.  I suppose  it 
to  be,  yes,  sir. 

Q.  Now,  the  other,  the  remainder  of  the  sentence  is:  “But  the 
greater  portion  into  the  canal  through  the  permeable  soil  sepa- 
rating them.”  By  which  you  mean  that  the  water  of  the — the 
greater  portion  of  the  water  of  the  Desplaines  Eiver  at  times  of 
low  water  soaked  through  the  permeable  soil  into  the  Illinois  and 
Michigan  Canal,  which  was  close  by  it! 

(Thereupon  counsel  for  defendant  objected  to  the  question, 
and  then  after  some  colloquy  of  counsel  on  the  ground  that 
the  witness  did  not  have  the  book  in  his  hands,  the  witness 
answered:) 

4383  “I  think  I understand  this  question;  and  I believe  that  the 
statement  there  in  regard  to  the  low  water  flow  of  the  Des- 
plaines Eiver  is  correct  as  applied  to  that  time.” 

Counsel  for  complainant  then  asked: 

“Now,  in  order  that  you  may  be  clear,  I will  read  again 


1267 


the  statement  that:  ‘At  low  water  the  entire  flow  passes  in 
part  through  the  Ogden  Dam,  but  the  greater  portion  into 
the  canal  through  the  permeable  soil  separating  them.’  Is 
it  correct,  Colonel,  that  you  meant  to  say  that  these  two 
causes  operating  together,  the  flow  of  water  into  the  dam 
into  the  Ogden  ditch  and  so  into  the  Chicago  Eiver  for  one, 
and  the  soaking  through  the  permeable  soil  into  the  Illinois 
and  Michigan  Canal  as  the  other,  those  two  causes  could 
absorb  and  take  up  the  entire  flow  of  the  Desplaines  Eiver 
in  times  of  low  water?”  To  which  the  witness  replied,  “Yes, 
sir.” 

And  that  as  between  those  two  causes,  the  cause  of  seepage 
and  soaking  of  water  of  the  Desplaines  Eiver  into  the  canal 

4384  was  the  greater  of  the  two.  It  appears  I so  considered  it 
at  that  time^  There  was  more  water  that  got  away  from  the 

Desplaines  Eiver  by  soaking  into  the  canal  that  there  did  by 
running  through  the  Ogden  ditch  into  the  Chicago  Eiver,  appears 
from  that  statement. 

I had  no  experience  in  canal  construction  or  operation  prior  to 
the  Hennepin  Canal.  I had  observed  quite  a good  many  canals 
before  my  work  along  that.  The  portion  of  the  Hennepin  Canal 
built  at  Milan  went  into  operation  in  the  spring  of  1895,  and  has 
been  continuously  in  operation  ever  since.  That  is  four  and  a 
half  miles  of  canal  proper  and  eight  miles  of  river.  I treated  the 
Eock  Eiver  itself  as  a part  of  the  canal  for  those  eight  miles. 

4385  The  old  plan  called  for  the  entering  the  Eock  Eiver  at  Mere- 
dosia,  but  the  plans  as  actually  constructed,  the  canal  enters 

the  Eock  Eiver  at  the  mouth  of  Green  Eiver.  At  any  rate,  this 
eight  miles  would  be  the  point  where  these  banks  are,  and  the 
Eock  Eiver  is  the  canal,  and  the  canal  is  the  Eock  Elver  for  those 
eight  miles.  I think  there  are  three  rock  reefs  in  that  distance, 
the  remaining  distance  it  is  a sand  bottom. 

4386  I have  never  made  any  test  borings  or  explorations,  but 
others  have,  and  they  report  that  it  is  material  that  can  be 

dredged  down  to  the  required  depth,  except  in  those  rock  reefs. 
The  practice  with  reference  to  paving  towpaths  on  the  Erie  Canal 
I ought  to  know.  I carried  a level  the  whole  length  of  it.  It  was 
not  paved  on  the  towpath.  I don’t  remember  any  point  at  that 
time  that  was  paved  on  the  top  of  the  towpath,  but  it  was  paved 


1268  Wheeler, — Cross-Exam. — Continued. 

on  the  slope  next  to  the  water,  in  1875.  There  were  a good 

4387  many  steamboats  on  the  canal  at  that  time.  The  greater 
proportion  of  the  navigation  was  by  means  of  barges  hauled 

by  horses  and  mules.  A great  change  may  have  taken  place  in 
the  ’70  ^s  in  the  use  of  the  Erie  Canal  in  that  particular,  but  it 
had  not  taken  place  at  the  time  I was  there,  because  the  major 
portion  of  the  transportation  was  done  in  those  barges  hauled  by 
horses  and  mules. 

4388  I did  not  make  any  approximate  estimate  of  cost  of  the 
amount  of  work  necessary  to  protect  this  towpath  bank  of 

the  canal  against  the  operation  of  this  pool,  never  made  any  figures 
on  that  at  all.  Well,  I know  only  in  a general  way  what  it  costs 
to  do  that  kind  of  work,  but  I have,  made  no  measurements  of 
quantity  there,  or  no  estimate  of  cost.  I gave  some  figures  on  the 
cost  of  restoring  the  aqueduct,  called  that  $75,000,  and  gave  some 
figures  on  the  putting  in  of  a syphon  pipe  to  feed  the  canal,  and 
also  the  erection  of  a couple  of  locks.  Those  I figured  to  amount 
to  $58,504.  The  maintenance  of  two  such  locks  and  the 

4389  maintenance  of  the  syphon  would  entail  costs  for  mainte- 
ance.  I would  say  that  in  all  probability  the  cost  of  main- 
taining the  aqueduct  there  with  one  lock  would  exceed  the 
cost  of  maintaining  two  locks  and  a syphon  pipe  in  the  end. 
I would  not  consider  it  very  safe  construction  to  maintain  the 
aqueduct  without  any  lock.  The  cost  of  maintaining  a double 
system  of  locks  together  with  a syphon  pipe  feeder  might  and 
might  not  exceed  the  cost  of  the  open  aqueduct  without  a lock. 
That  aqueduct  is  in  a position  where  it  is  exposed  to  great  danger 
and  it  is  so  that  a single  accident  to  the  aqueduct  would  exceed 

the  maintenance  of  two  locks  for  a long  period  of  time. 

4390  I made  no  allowance  in  my  figures  of  any  capitalization  of  the 
cost  of  maintenance.  I did  not  make  any  allowance  for  the 

cost  of  operation.  As  to  the  cost  of  operation  from  this  double 
set  of  locks  on  each  side  of  a mill  dam  built  of  this  kind,  being 
very  much  greater  than  the  cost  of  operation  of  an  open  aque- 
duct, I did  not  estimate  on  a double  set  of  locks  on  each  side  of 
that  river.  Your  question  is  erroneous  in  that;  a single  lock  on 
each  side  of  the  river.  The  cost  of  maintenance  of  an  aqueduct 
there  is  a very  uncertain  quantity.  I have  never  maintained  an 


12G9 


aqueduct  on  piers  in  that  way.  I have  had  to  do  with  that  sort 
of  work.  Unfortunately,  I have  nine  of  them  to  look  after  now, 
much  to  my  regret.  I would  rather  have  them  siphon  pipes, 

4391  but  it  could  not  have  been  done  in  the  situation  where  these 
were  located.  I figured  here  on  a pipe  752  feet  long.  They 

extended  from  the  upper  end  of  one  lock  past  the  lock  and  past 
the  entrance  for  a boat  to  enter  within  the  shore  before  locking, 
and  the  width  of  the  river,  past  the  lock  on  the  other  side.  If 
you  had  a siphon  pipe  for  supplying  feed  water,  and  if  you  had 
a lock  system  for  getting  l)oats  across,  and  you  were  trying  to 
use  them  both  at  once,  you  would  not  need  two  sets  of  water. 
The  water  is  feeding  down  and  it  would  be  necessary  to  supply 
whatever  water  was  used  in  the  actual  lockage,  but  otherwise  the 
water  would  feed  through  the  siphon  pipe  and  go  into  that  level 
of  the  canal.  I understand  that  this  Kankakee  feeder  brings 
water  from  the  Kankakee  Kiver  across  the  country  and  across 
the  top  of  the  river  at  an  elevation  of  some  76  across  the  river  on 
piers  into  the  canal. 

4392  I am  proposing  to  attach  my  siphon  pipe  to  this  Kanka- 
kee feeder  some  six  dr  seven  hundred  feet  to  the  left  of 

the  place  where  it  crosses  the  river  and  take  the  water  out  of 
the  feeder  and  carry  it  down  into  the  river  and  then  up  to  the 
canal  by  means  of  that  pipe.  I did  not  say  700  feet  from  the 
river,  but  the  total  length  of  the  pipe  is  that.  At  any  time  you 
wanted  to  use  the  lock  for  locking  a boat  down  in  the  river  by 
means  of  this  water,  you  would  not  have  to  stop  using  the  syphon 
while  you  did  it.  There  would  be  a lock  full  of  water  locked  into 
the  river.  I would  not  say  that  even  it  would  be  double  the 

4393  amount  of  the  lock  full.  The  flow  through  the  pipe  would 
be  continuous,  whatever  was  demanded  to  supply  that  level 

of  the  canal  or  any  demand  upon  it.  Whenever  a boat  passed 
across  they  would  abstract  a lock  full  of  water  on  each  side  of  the 
river  from  that  supply.  The  current  would  be  running  through 
the  syphon  all  the  time.  As  to  there  being  this  lock  full  along- 
side of  it  in  addition  to  what  you  took  out  of  the  main  current, 
there  would  be  that  much  water  that  you  would  use  from  the 
supply  brought  down  by  the  feeder. 

As  to  making  a computation  on  the  supply  of  water  which  the 


1270 


Wheeler, — Cross-Exam. — Continued. 


Kankakee  Dam  would  afford,  in  this  way  I did.  I assumed  that 
the  supply  would  perhaps  he  from  80  to  100  cubic  feet  per  second 
in  that  feeder.  I assumed  that  the  Kankakee  River  can  supply 
much  more  than  that  if  necessary.  The  date  upon  which  I 

4394  made  that  assumption — one  thing  was  the  reported  com- 
putation of  the  measurements  made  from  the  early  survey 

of  the  actual  flow  in  that  river.  I did  not  hunt  it  up  myself,  hut 
it  was  reported  to  me  by  the  person  who  did  it,  Mr.  J.  W.  Woer- 
man;  he  told  me  of  a measurement  which  he  found,  an  actual 
measurement.  That  amounted  to  something  over  80  feet  per  sec- 
ond. My  statement  as  to  the  adequacy  of  this  system  is  not  based 
on  that. 

As  to  knowing  what  current  of  water  was  required  in  the  Kan- 
kakee feeder  as  it  originally  existed  to  make  a discharge  of  100 
feet  per  second,  I have  not  computed  it  at  all.  I saw  the  feeder 
and  know  its  dimensions  approximately.  I did  not  think  there 
would  be  any  difficulty  in  bringing  down  as  much  water  as  that 
through  that  feeder  and  raise  the  water  high  enough  at  the 

4395  head  to  bring  it  through.  I haven’t  made  any  investigation 
as  to  what  the  conditions  of  the  water  supply  were  with 

reference  to  this  feeder  at  all.  I did  observe  what  the  level  of 
the  floor  of  the  aqueduct  was.  What  it  was  in  actual  feet,  well, 
I could  not  to  my  knowledge  say,  because  there  wasn’t  any  meas- 
urement made  when  I was  there,  but  I know  approximately  where 
it  is.  Its  relation  to  the  crest  of  this  dam  is  only  a short  distance, 
I believe,  above  the  crest  of  the  dam,  probably  the  pool,  also. 
The  bottom  of  the  aqueduct  is  above  the  top  of  the  dam  a slight 
amount. 

Q.  Well,  what  you  know  about  that  is  something  that  you 
learned  in  the  course  of  your  conversation  with  these  gentlemen 
who  were  with  you!  A.  And  information  that  they  furnished 
me.  I believe  I have  that  data  in  my  pocket,  if  you  will  allow 
me  to  refresh  my  memory. 

Q.  They  gave  you  some  figures  on  it,  did  they?  A.  Yes,  from 
the  actual  levels. 

Q.  Well,  if  you  have  got  in  your  pocket  the  figures  of  the  actual 
level  of  the  bottom  of  the  aqueducts  as  compared  with  the  crest 


1271 


of  the  dam  and  you  want  to  refresh  your  memeory  about 
- 4396  it,  I would  be  glad  to  have  you,  I will  be  very  glad  to  have 
you  give  it  to  us.  A.  The  figures  that  I have  show  that  the 
recess  in  the  pier  is  below  the  level  of  that  dam,  but  that  the 
bottom  grade  of  the  feeder  is  at  the  elevation  of  the  crest  of  the 
dam. 

Those  figures  were  given  to  me  by  Mr.  Woerman.  The  eleva- 
tion of  the  pool  level  is  given  as  grade  77.  The  elevation  in  the 
recess  of  the  piers  of  the  acqueduct  on  which  the  aqiieduct  trusses 
rested  is  73.6.  The  bottom  grade  of  the  feeder  is  given  as  77.0. 
I have  after  that  the  note  Sanitary  District.  It  is  possible  that 
they  may  refer  to  the  level  of  the  Sanitary  District  instead  of  to 
the  same  datum  that  these  others  referred  to. 

I personally  visited  the  Bridgeport  pumps  from  time  to  time 
from  1881  to  1890.  I have  not  done  so  since  that  time. 

Q.  Do  you  remember.  Colonel,  that  during  the  period 
4397  that  this  survey  was  going  on  there  were  from  time  to  time 
time  when  the  pumps  were  stopped  in  their  operation?  A. 
I do  not  remember  that  they  were. 

Q.  Let  me  refresh  your  recollection.  Don’t  you  remember  it 
was  one  of  the  things  that  you  looked  into  that  you  had  them  at 
one  time — that  arrangements  were  made  that  the  pumps  were 
stopped  for  about  a week  so  that  you  could  make  observation 
when  the  pumps  were  not  in  operation?  A.  I don’t  recollect 
such  a thing. 

Q.  Isn’t  that  the  fact?  A.  I do  not  recollect  it,  I say. 

Q.  And  then  again  you  had  observation  of  their  maximum  ca- 
pacity? A.  I have  no  recollection  of  any  such  circumstance. 

Q.  And  then  again  observations  of  their  ordinary  state  of 
operation?  A.  No,  sir,  I have  no  recollection  of  that  either. 

Q.  Don’t  you  remember  that  there  was  considerable  complaint 
made  from  the  people  down  the  valley  about  the  stopping  of  the 
pumps?  A.  No,  sir. 

Q.  And  the  reduction  of  the  volume  of  water  that  was  coming 
down?  A.  No,  sir;  I don’t  recollect  any  such  thing  as  that. 

The  size  of  the  boats  that  I use  in  the  Hennepin  canal  is  less  than 


1272 


Wheeler, — Cross-Exam. — Continued. 


35  feet  in  width,  less  than  155  feet  in  length,  and  drawing 

4398  not  to  exceed  seven  feet.  How  mnch  of  a fleet  of  boats 
I maintain  on  the  canal,  I do  not  know.  Under  the 

control  of  the  canal  officers  at  present  there  is  one  steamboat, 
a stern  wheel  towboat  and  one  towing  launch,  gasoline,  one 
boat  termed  an  office  boat.  And  I am  bnilding  12  barges  for 
freight  of  which  nine  are  now-  complete  and  one  launch — one 
flat  boat  has  been  converted  into  a quarter  boat  for  the  men. 
We  have  borrowed,  I think,  five  office  boats  from  another  district. 
Those  are  boats  directly  under  my  control  on  the  canal  aside  from 
small  boats.  The  tow  boat  to  which  I have  referred  is  a launch 
about  40  feet  in  length;  the  beam  I do  not  know,  probably  not  far 
from  seven  feet.  And  it  has  a two-cylinder  gasoline  engine  sixteen 
horse  power  connected  with  a wheel,  a towing  wheel  about  three 
feet  in  diameter;  its  ordinary  draft  when  in  operation  I suppose 
is  about  three  feet.  It  wdil  tow  these  towing  barges  to  which 

4399  I have  referred.  I am  using  it  all  the  time  for  that  purpose. 
Well,  we  use  those  exclusively  for  the  purposes  of  the  canal. 

We  are  delivering  lumber  and  hardware  for  houses  and  stone  for 
riprapping,  and  things  of  that  kind,  but  we  do  not  carry  freight  for 
commercial  purposes.  There  are  freight  boats  on  the  canal  owned 
by  private  parties.  The  canal  then,  admits  of  freight  boats  by  any- 
body that  wants  to  come  on  it;  entirely  free  to  all  persons,  of 
course  complying  with  my  regulations.  There  are  a number  of 
freight  boats  owned  by  private  parties  that  are  now  operating  upon 
the  canal. 

4400  I have  no  military  title. 

A transportation  company  has  been  organized  and  they  are 
getting  together  a fleet  of  steamboats  and  barges.  They  have  con- 
structed one  barge  24  feet  in  width,  120  feet  long,  and  9 feet  depth 
of  hold,  for  the  purpose  of  carrying  grain.  I think  they  esti- 
mated the  capacity  at  20,000  bushels.  Of  course  it  cannot  be 

4401  loaded  to  the  full  depth  of  the  hold  carrying  grain.  But  a 
vessel  may  be  deeper  in  its  depth  of  hold  than  the  depth  of 

water  it  operates  in — always  is.  So  that  the  fact  that  a boat  was 
recorded  as  nine  feet  depth  would  not  mean  that  it  needed  nine 
feet  of  water  to  run  in. 

They  have  purchased  and  fitted  up  one  steam  barge,  the  City 


1273 


of  Henry,  which  is  a barge  about  100  feet  long  and  18  feet  wide, 
adapted  to  carrying  grain  or  coal  in  its  hold.  They  have  pur- 
chased a small  stern  wheel  steamboat,  the  Beder,  from  the  Mis- 
sissippi Kiver,  and  equipped  her  for  towing.  TTiey  have 

4402  built  or  rebuilt  one  pleasure  barge  for  excursion  imrposes, 
which  I suppose  is  about  100  feet  by  20  with  a carrying  ca- 
pacity, as  they  state,  of  200  persons.  They  have  another  barge 
on  the  way  of  somewhat  smaller  dimensions,  and  I do  not  know 
the  purpose  for  which  fhat  is  to  be  used.  There  is  another  steam- 
boat there  that  has  come  in  for  carrying  excursions  which  is  about 
50  feet  long,  by  perhaps  16  feet  wide,  more  of  a lake  model,  not 
a flat  bottom  boat.  All  along  the  canal  they  are  getting  in  a large 
number  of  gasoline  pleasure  boats,  launches. 

Q.  Have  you  given  the  figures  on  the  smallest  size  of  freighter 
or  would  the  launch  that  you  describe  as  the  property  of  the  United 
States  perhaps  be  about  the  smallest  of  the  freighters?  A.  That 
launch  I am  using  to  tow  barges  which  I am  building,  through  the 
feeder  on  the  main  line.  A small  boat  can  handle  them. 

Q.  Would  that  be  perhaps  a type  of  the  smallest  form  of 
freighter  or  perhaps  you  have  some  still  smaller  in  mind?  A.  No, 
I would  hardly  call  that  boat  a freighter.  She  does  do  towing,  but 
she  was  built  for  pleasure  purposes  originally. 

Q.  But  you  are  in  fact  using  her  for  freight  purposes?  A.  Yes, 
sir,  towing  purposes. 

Q.  What  I asked  you  was  whether  you  had  in  mind  a freighter 
of  still  smaller  dimensions? 

4403  Counsel  for  Defendant.  One  moment  now,  he  does  not 
say  it  is  a freighter.  He  said  for  towing  purposes.  Towing 

is  not  freighting. 

Counsel  for  Complainant.  The  captain  and  I will  get  along 
all  right. 

Counsel  for  Defendant.  Yes,  I haven’t  any  doubt  of  it. 

CouuNSEL  FOR  COMPLAINANT.  I will  get  aloug  witli  the  captain. 

The  Court.  That  hardly  disposes  of  the  objection,  though. 

Counsel  for  Complainant.  The  objection  is  to  a comment  by 
counsel  a criticism  on  language  that  has  passed. 


1274 


Wheeler, — Cross-Exa  m . — Con  t inu  ed. 


Counsel  fok  Defendant.  Yes,  really  only  the  second  objection 
I have  made  this  morning,  and  I will  withdraw  that. 

The  Witness.  I wonld  not  call  that  launch  a freighter.  We 
do  not  load  freight  into  her  to  any  extent,  but  she  does  do  tow- 
ing; also  does  miscellaneous  errands  and  traveling  on  the  canal. 
She  is  not  a type  that  would  be  built  for  freight  purposes  on  the 
canal  or  upon  any  other  waters. 

Q.  Now,  you  may  tell  us  whether  you  have  in  mind  any  smaller 
freighter  than  the  dimensions  of  this  towing  launch  to  which  you 
have  referred? 

Counsel  for  Defendant.  I object  to  the  question. 

The  Court.  He  may  answer  that. 

A.  I haven’t  any  boat  in  mind. 

4404  I would  not  say  that  this  was  the  ,first  fleet  I have  had 
charge  of.  I have  had  other  fleets.  Oh,  I would  hardly  call 

it  a fleet.  I had  a steamboat  and  a dredge  and  some  dumping 
scows  doing  dredging  at  one  time,  and  traveled  a little  on  the 
Mississippi  Eiver  with  the  boats  under  my  control.  I mean  to 
say  that  at  one  time  I had  charge  of  a dredging  fleet  in  connection 
with  this  same  canal,  the  Hennepin  Canal  at  its  western  entrance. 
That  is  what  I would  call  a construction  fleet.  I also  had  some 
work  in  connection  in  the  earlier  years  down  on  the  Mississippi 
Eiver.  I have  described  it  as  having  charge  of  large  sur- 

4405  veys.  I say  I had  charge  of  large  surveys  in  the  field,  and 
had  occasion  to  use  steamboats  and  other  boats,  lived  on 

quarter  boats  during  this  operation,  during  the  progress  of  the 
surveys,  and  had  some  difficulties  in  navigation  which  I remem- 
ber quite  distinctly,  at  several  places  on  the  Mississippi,  one  place 
a short ' distance  above  Natchez,  for  instance.  I went  ashore 
amongst  snags  and  floundered  about  the  drift  there  for  twelve 
hours  and  looked  to  be  in  a pretty  bad  case.  I had  two  boats  and 
a steam  launch,  and  they  went  ashore  together.  The  launch  ex- 
tricated itself,  but  the  boats  were  fast,  and  in  the  night  I suc- 
ceeded in  getting  assistance  from  Natchez  to  pull  the  boats 

4406  out.  That  was  in  the  spring  of  1883.  IVell,  it  is  like  other 
boats  that  go  ashore.  They  usually  do  not  go  from  desire 

of  those  navigating  them,  but  because  they  cannot  help  them- 


1275 


selves.  It  was  one  of  the  inherent  difficulties  of  the  situation  there. 
One  of  the  difficulties  was  that  I had  not  sufficient  motive  power 
to  control  the  boat  which  I had  there  in  the  high  wind  which  set 
up  after  I got  loose  from  the  shore  above.  The  wind  would  drive 
us  on  the  bank.  Well,  I ran  ashore  on  sand  bars  several  times, 
against  snags,  and  to  the  shore  several  times  when  I did  not  want 
to  go  there;  nothing  else.  That  is,  the  encountering  of  sand  bars 
and  snags  and  obstacles  lying  in  the  river,  or  being  driven  upon 
obstacles  on  the  bank,  and  by  storms  on  the  water  also.  Those 
were  the  principal  difficulties. 

4408  Thereupon  counsel  for  defendant  at  request  of  counsel  for 
complainant  pursuant  to  stipulation  heretofore  agreed  upon, 
read  in  evidence  from  page  40  of  the  report  of  1890  in  connection 
with  the  passage  and  read  by  counsel  for  defendant  from  said  book 
and  page: 

4410  ‘^Starting  from  Bridgeport,  the  Illinois  and  Michigan 
Canal  was  constructed  in  a straight  line  to  the  Desplaines 
Valley  at  Summit.  As  originally  constructed,  the  canal  had 
a summit  level,  a lock  having  been  built  at  Bridgeport  and 
one  at  one-half  mile  south  of  Borneo,  this  summit  level  being 
supplied  originally  by  the  Calumet  feeder. 

The  drainage  area  of  the  Chicago  River  is  about  270  miles, 
and  the  natural  dry  weather  flow  practically  nothing.  The 
sewage  of  the  city  is  discharged  mainly  to  the  river  and  it 
early  became  necessary  to  provide  some  means  of  getting  rid 
of  it  other  than  permitting  it  to  escape  to  the  lake  when  the 
flow  was  sufficient  to  carry  it  there.  For  a while  pumps  were 
operated  at  Bridgeport  which  pumped  the  water  and  sewage 
into  the  summit  level  of  the  canal.  Subsequently  the  city 
deepened  the  canal  to  six  feet  below  low  water  of  1847  in  Lake 
Michigan  which  is  Chicago  City  datum.  This  gave  only  tem- 
porary -relief.  The  low  water  surface  of  the  Desplaines  River 
at  Summit  is  eight  feet  above  Chicago  datum,  and  high  water 
rises  seven  feet  higher.  The  canal  does  not  enter  the  bed  of 
the  river,  except  at  one  place  where  the  river  was  diverted 

4411  for  the  purpose,  but  run  along  the  eastern  bank  of  the  river, 
the  water  of  the  river  being  prevented  from  coming  into  the 
canal  by  the  spoil  banks. 

The  material  in  which  the  canal  was  excavated  varies  from 
clay  at  Bridgeport  to  gravel  and  boulders  at  Willow  Springs. 
The  surface  of  the  ground  varies  from  eight  to  fourteen  feet 
above  Chicago  datum.  In  many  places  under  the  headwater 
in  the  river  and  the  drainage  of  the  adjacent  lands,  the  nar- 
row deep  cut  was  unable  to  maintain  the  slope  of  its  sides. 


1276 


U.  S.  Eng.  Rep.  1890^  p.  40, — Continued. 


which  ‘are  said  to  have  been  cut  at  the  slope  of  one  to  one, 
and  soon  the  canal  became  obstructed  by  the  falling  of  its 
banks,  and  the  flow  was  insufficient  to  carry  oft  and  properly 
dilute  the  sewage.  The  flow  from  the  lake  was  also  dimin- 
ished by  the  water  which  came  from  the  river  through  the 
permeable  soil,  and  by  the  natural  drainage  on  the  east  side 
of  the  canal. 

Pumping  works  and  a lock  were  then  constructed  at 
Bridgeport,  and  wmter  pumped  from  the  river  into  the  canal. 
The  lift  of  the  rocks  vary  from  one  to  three  feet.  The  ca- 
pacity of  these  pumps  is  said  to  be  1,000  cubic  feet  per  sec- 
ond and  the  amount  pumped  is  from  about  one-half  to  three- 
fourths  that  quantity.  This  produces  a feeble  current  up 
the  south  branch  from  the  north  branch,  and  the  lake  when 

4412  the  natural  flow  and  sewage  combined  does  not  exceed  the 
capacity  of  the  pumps.  The  south  fork,  however,  is  left  in 
an  indescribable  condition  of  filth  and  offensiveness.  The 
west  fork  originally  did  not  extend  beyond  Kedzie  avenue, 
but  by  that  construction  of  ditches  and  other  causes  it  may 
now  be  said  to  have  its  source  in  the  Desplaines  River  near 
Summit.  The  upper  part  of  its  course  is  known  as  the 
Ogden  ditch.  The  ground  along  the  west  fork  is  generally 
lower  than  along  the  canal,  the  low  ground  along  part  of  its 
course  being  known  as  Mud  Lake  Valley.  The  Mud  Lake 
Valley  was  originally  separated  from  the  Desplaines  River 
by  a low  bank  raised  probably  bv  the  river  itself.  This  bank 
was  cut  and  the  city  has  since  been  engaged  in  an  effort  to 
prevent  the  water  of  the  Desplaines  River  coming  down  the 
west  fork  and  carrying  the  sewage  into  the  lake. 

A dam,  known  as  the  Ogden  Dam.  has  been  built  near 
Summit  across  the  Ogden  ditch,  where  it  leaves  the  Des- 
plaines River,  the  crest  being  about  11  feet  above  city  datum. 
The  floods  come  over  the  dam,  and  over  the  adjacent  banks, 
and  flow  out  to  the  lake  through  the  Chicago  River,  carry- 
ing with  it  accumulated  sewage  which  the  feeble  current 
created  by  the  pumps  have  not  been  able  to  remove.  The 
canal  drains  the  country  south  and  east  of  it,  and  when  the 
amount  of  storm  water  is  large,  it  overtops  the  lock  gates 
at  Bridgeport,  which  are  then  opened  and  the  flood  flows 

4413  out  to  the  lake  through  the  river.  The  Cit}"  of  Chicago 
takes  its  water  supply  from  Lake  Michigan  near  the  mouth 
of  the  Chicago  River,  and  the  purity  of  the  water  supply  is 
threatened  by  the  sewage  carried  into  the  lake.  The  city  is 
now  proposing  to  dig  a large  drainage  canal  along  the  Chi- 
cago route  for  the  purpose  of  carrying  its  sewage  down  the 
Desplaines  and  Illinois  rivers. 

The  pro]:)osed  waterway  between  Bridgeport  and  Summit 
could  follow  the  line  of  the  present  canal,  the  west  fork  and 
Ogden  ditch,  or  a line  intermediate  between  the  two,  but  it 


1277 


is  necessary  to. take  into  account  the  local  conditions  and  to 
provide  for  preventing  the  waters  of  Desplaines  liiver  going 
to  Lake  Michigan  through  the  Chicago  or  Calumet  Livers 
carrying  with  them  the  sewage  of  the  City  of  Chicago. 

From'  Summit  to  Sag  bridge  the  j)roposed  route  follows 
the  valley  of  the  Desplaines  Liver,  which  is  from  one-half 
to  three-fourths  mile  wide,  entering  the  bed  of  the  river 
about  three  miles  below  Summit.  The  river  from  Summit  to 
below  Sag  bridge  varies  greatly  in  width  and  depth.  This 
portion  of  the  river  is  known  as  the  12-mile  level.  The  low 
water  flow  of  the  river  above  Summit  is  very  small,  and 
the  maximum  measured  high  water  discharge  about  10,000 
cubic  feet  per  second.  At  low  water  the  entire  flow  passes 
in  part  through  the  Ogden  ditch,  but  the  greater  ]:>ortion  into 
the  canal  through  the  ])ermeable  soil  separating  them.” 


4414  Adam  Comstock, 

a witness  for  defendant,  testified  as  follows: 

Direct  Examination, 

My  name  is  Adam  Comstock.  I am  the  same  Adam  Comstock 
who  has  already  given  a deposition  in  this  case. 

Q.  Mr.  Comstock,  in  this  case  certain  witnesses  have  testi- 
fied that  there  was  a road  in  1858  or  1855  which  branched  off 

4415  from  the  Brandon’s  road  and  ran  to  the  water’s  edge,  and 
that  this  road  was  deeply  rutted.  Do  you  know  about  that 

roadi  A.  Yes,  sir;  there, is  a little  island  marked  on  the  plat 
there. 

Counsel  for  Defendant.  The  witness  refers  to  "VYoerman’s 
Exhibit  4. 

A.  It  is  opposite  a point  that  is  marked  118  feet  wide  there^ 
there  is  a little  island  there,  where  counsel  for  complainant  has 
just  placed  a cross. 

Well,  the  earliest  days  there  was  a ford  just  below  that  little 
island  and  a road.  There  was  a public  road  for  many  years 
until  the  bridge  was  built;  when  the  bridge  was  built  that  point 
was  abandoned.  There  was  not  ever  any  landing  place  at  that 
point. 

Counsel  for  Defendant.  Where  was  your  farm  with  reference 
to  the  position  of  that  road?  A.  That  what? 


1278 


Comstock, — Direct  Exam. — Continued. 


Q.  Where  was  your  farm  with  reference  to  the  position  of 
that  road!  A.  I don’t  just  get  that. 

Q.  Where  was  your  farm  on  which  you  lived — A.  Oh,  the 

4416  farm!  We  lived  five  miles  down  the  river  from  Joliet. 

This  road  is  about  a mile  and  a half  south  from  Joliet,  it 
run  from  the  Brandon  bridge  down  to  the  ford  just  below  the  island. 
We  lived  on  the  farm  there  from  1837  to  1841,  and  then  in  Joliet 
after  that.  My  father  owned  land  along  the  river  other  than  that 
on  which  we  lived.  In  1845  he  bought  a piece  of  about  forty 
acres  of  land  where  the  Adler  slaughter  house  is.  It  is  right 
within  a quarter  of  a mile  of  this  road.  He  owned  that  land  up 
to  1860,  some  time  in  the  ’60 ’s.  When  we  moved  to  Joliet  we 
got  our  fire  wood  off  from  the  farm,  so  that  we  were  going  back- 
wards and  forwards  frequently,  and  we  got  our  hay  otf  from  the 
farm  up  to  1845.  Then  we  bought  this  40  acres  at  the  head 

4417  of  the  lake  and  we  got  our  hay  otf  from  that  after  that.  In 
going  backward  and  forward  between  the  farm  and  Joliet 

we  passed  this  road.  The  road  branched  otf  at  Brandon’s  bridge. 
The  road  to  the  farm  run  for  about  three  miles  and  a half  right 
in  sight  of  the  river. 

Counsel  fok  Defendant.  Mr.  Starr,  at  one  stage  in  the  case 
certain  plats  purporting  to  show  town  sites  were  referred  to  and 
my  recollection  is  we  made  some  objection  on  the  ground  that 
there  never  had  been  any  town,  and  my  recollection  is  that  we 
were  to  iiiake  some  selection  from  them  and  take  the  matter  up 
afterwards. 

Thereupon  follows  an  extended  colloquy  between  counsel  as 
to  whether  said  plats  had  been  admitted. 

4422  The  Coukt.  You  may  assume  that  they  are  in. 

Said  plats  offered  and  introduced  in  connection  with  the 
deposition  of  Eobert  E.  Orr  and  marked  respectively  Complain- 
ant’s Exhibit  A-1  to  A-12  were  thereupon  received  in  evidence  and 
are  set  out  in  the  Atlas  of  Maps,  Plats  and  Charts  of  this  Certifi- 
cate of  Evidence  as  follows : 

Complainant’s  Exhibit  A-1  (Atlas,  p.  3929;  Trans.,  p.  6527; 
Abst.,  p.  1920). 


1279 


Complainant’s  Exhibit  A-2  (Atlas,  p.  3930;  Trans.,  p.  6529; 
Abst.,  p.  1920). 

Complainant’s  Exhibit  A-3  (Atlas,  p.  3931;  Trans.,  p.  6531; 
Abst.,  p.  1920). 

Complainant’s  Exhibit  A-4  (Atlas,  p.  3932;  Trans.,  p.  6533; 
Abst.,  p.  1920). 

Complainant’s  Exhibit  A-5  (Atlas,  p.  3933;  Trans.,  p.  6535; 
Abst.,  p.  1921). 

Complainant’s  Exhibit  A-6  (Atlas,  p.  3934;  Trans.,  p.  6537; 
Abst.,  p.  1921). 

Complainant’s  Exhibit  A-7  (Atlas,  p.  3935;  Trans.,  p.  6539; 
Abst.,  p.  1921). 

Complainant’s  Exhibit  A-8  (Atlas,  p.  3936;  Trans.,  p.  6541; 
Abst.,  p.  1921). 

Complainant’s  Exhibit  A-9  (Atlas,  p.  3937;  Trans.,  p.  6543; 
Abst.,  p.  1921). 

Complainant’s  Exhibit  A-10  (Atlas,  p.  3938;  Trans.,  p.  6545; 
Abst.,  p.  1921). 

Complainant’s  Exhibit  A-11  (Atlas,  p.  3939;  Trans.,  p.  6547; 
Abst.,  p.  1922). 

Complainant’s  Exhibit  A-12  (Atlas,  p.  3940;  Trans.,  p.  6549; 
Abst.,  1922). 

4423  Counsel  foe  Defendant.  Then  I move  to  strike  them 
out  as  being  immaterial.  I think  that  is  a motion  that  could 

be  made  at  any  time,  even  though  the  court  has  admitted  evi- 
dence, if  it  becomes  clear  to  the  court  that  the  evidence  of  it 
ought  not  be  admitted,  it  should  be  stricken  out.  • 

Counsel  foe  Complainant.  I am  willing  the  court  should  pass 
on  them. 

The  CouET.  I will  let  them  stay  in,  on  the  theory  that  the  par- 
ties may  have  thought  that  there  was  a possibility  of  putting 
some  towns  up  there,  for  whatever  they  may  have  been  worth. 
I confess  they  may  not  be  worth  very  much,  but  it  is  a subject 
for  argument. 

4424  Thereupon  counsel  for  defendant  called  attention  espe- 
cially to  Complainant’s  Exhibit  A-1,  which  was  a certified 


1280 


Comstock, — Direct  Exam.— Continued. 


copy  of  the  map  of  Beard’s  part,  and  a part  of  Handy’s  part, 
in  the  Town  of  Kankakee,  laid  out  between  the  mouth  of  the 
Kankakee  and  the  0 ’Plain  Eivers,  on  Section  36,  Township  34, 
North,  Eange  8,  East. 

4425  Counsel  for  complainant  admitted  that  the  town  never 
was  built. 

4426  Thereupon  the  witness,  Mr.  Comstock,  further  testified: 

My  business  is  that  of  a surveyor,  and  I have  followed 
that  business  right  along  since  about  1849  and  am  still  following 
that  profession.  I will  be  eighty  years  old  next  September.  There 
was  never  anything  done  as  to  the  building  of  the  Town  of  Buffalo 
on  the  northwest  quarter  of  Section  2,  in  Township  34,  North  of 
Eange  9,  East,  in  Will  County.  I know  the  place. 

4427  Eeferring  to  Exhibit  A-7,  the  plat  of  Vienna,  recorded  Sep- 
tember 19,  1835,  there  never  was  any  town  built  known  as 

Vienna;  there  never  was  any  house  there  at  all. 

4428  Cross-Examination. 

I know  A¥.  W.  Stevens  of  Joliet.  I remember  having  a con- 
versation with  him  at  his  office  last  fall  or  winter. 

Q.  Bo  you  remember  his  remarking  to  you,  ‘‘Adams,  I don’t 
understand  how  they  ever  got  those  large  boats  up  over  the 
rapids  at  Treat’s  Island?”  A.  Yes,  I know  w^e  used  to  talk  about 
that. 

Q.  Did  you  reply  to  him  on  that  occasion,  ‘ ‘ They  warped  them 
up?”  A.  No,  I said  that  they,  that,  that  the  matter  was  simply 
adopted  to  get  up  rapids  or  down  them  as  they  call  it,  run  out 
a long  rope  and  hitch  it  to  a tree  and  then  stand  on  the  boat  and 
pull  on  the  rope.  That  is  called  cordelling. 

4430  The  residue  of  witness’  testimony  was  all  stricken  out, 
not  being  responsive  to  question. 


1281 


4432  D.  W.  Mead, 

a witness  for  defendant,  further  testified  as  follows : 

Direct  Examination, 

Q.  You  are  the  same  Mr.  Mead  who  has  heretofore  testified  in 
this  case?  A.  I am. 

Q.  Mr.  Mead,  some  reference  has  been  made  to  the  earthen 
dam  connecting  the  towpath  bank  with  the  proposed  concrete 
portion  of  the  work  of  the  Economy  Light  & Power  Company 
near  Dresden  Heights,  as  to  the  specifications  for  the  dimensions 
of  that  bank  as  compared  to  the  dimensions  of  the  towpath  bank. 
Will  you  state  whether  the  necessary  dimensions  of  the  towpath 
bank  to  maintain  the  pool  to  be  raised  by  this  work  bear  any  rela- 
tion to  the  dimensions  of  the  earthen  bank  at  this  place? 

(To  which  counsel  for  complainant  objected  on  the  ground 
that  the  evidence  was  incompetent,  irrelevant  and  immate- 
rial.) 

4434  The  Court.  You  may  answer. 

A.  None  whatever. 

4435  Counsel  for  Defendant.  Why? 

A.  The  bank  connecting  the  power  house,  proposed  power 
house  with  the  towpath  embankment  is  designed  to  meet  the  con- 
ditions at  that  place,  which  are  very  different  from  those  obtaining 
in  the  case  of  the  towpath  embankment.  The  embankment  between 
the  power  house  and  the  towpath  is  a part  of  the  main  dam.  It  is 
or  was  designed  with  several  matters  in  view,  the  one  of  them  was 
the  quality  and  quantity  of  earth  available.  Another,  the  use  to 
which  the  bank  was  to  be  put,  as  a roadway,  and  yardway,  or 
yard  for  the  power  plant;  and,  third,  the  condition  of  the  waters 
in  relation  to  the  bank.  In  the  first  place,  the  embankment  was 
built  from  the  strippings  over  the  site  of  the  tail  race,  of  which 
there  was  a considerable  amount  and  we  had  to  waste  this  material, 
consequently  the  embankment  was  made  ample  in  dimensions 

4436  and  more  than  would  have  probably  been  utilized  if  an  in- 
sufficient amount  of  material  had  been  readily  available.  I 

mean  insufficient  to  make  a bank  of  that  dimensions.  The  bank 


1282  Mead, — Direct  Exam. — Continued. 

connecting  the  towpatli  with  the  embankment  is  to  be  used  to 
transfer  the  machinery  which  will  be  placed  in  the  power  house 
from  the  boats  in  which  they  are  expected  to  reach  the  irnmediate 
site  to  the  power  house.  It  is  about  the  only  space  that  we  have 
available  to  place  the  material  that  is  to  be  used  in  the  power 
house,  and  for  which  we  are  not  immediately  ready.  The  embank- 
ment close  to  the  power  house  was  made  24  feet  in  width,  parallel 
with  or  perpendicular  to  the  power  house  in  order  to  give  room 
for  the  turning  of  the  teams  as  well  as  the  storing  of  supplies 
temporarily,  which  is  the  reason  of  the  width  given  to  the  top 
of  the  embankment.  The  contingencies  of  the  condition  are  these : 
that  during  low  water  and  high  head  there  will  be  a difference  of 
elevation  on  the  two  sides  of  the  embankment,  of  16  feet  or  more, 
according  to  the  conditions  of  operation.  This,  during  high  water 
periods,  will  be  considerably  less,  but  the  result  of  any  injury  to 
this  embankment  would  be  very  much  more  serious  to  the  opera- 
tion of  the  plant  than  would  any  accident  to  the  canal  embank- 
ment. On  account  of  the  difference  in  head  under  most  condi- 
tions, the  development  of  a weakness  in  this  main  embank- 

4437  ment  would  mean  the  concentration  of  flow  in  this  immediate 

V 

vicinity  and  the  entire  destruction  of  the  embankment.  Not 
only  that,  but  if  the  river  should  cut  through  at  this  point,  the 
velocity  of  the  waters  and  the  old  pond  of  water  back  of  it,  giving 
both  velocity  and  quantity,  would  be  apt  to  very  seriously  affect 
the  canal  embankment  at  that  point.  For  these  reasons  we  make 
the  embankment  adequate  without  question  to  withstand  the  con- 
ditions as  we  will  find  them  during  operations. 

The  old  bank  is  much  more  stable  than  the  new  bank,  if  I may 
answer,  stable  and  compact,  less  liable  to  contingencies.  It  gets 
old  and  tough. 

4438  As  to  what  provision  I have  made  for  the  support  of  the 
pool  on  its  other  side? 

Counsel  eok  Complainant.  Pardon  me.  What  is  that? 

(Question  read  by  the  reporter.) 

Counsel  for  Complainant.  You  mean  across  the  river? 

Counsel  for  Defendant.  Yes. 

Counsel  for  Complainant.  On  the  opposite  side  of  the  canal? 


1283 


Counsel  for  Defendant,  Yes,  sir. 

Counsel  for  Complainant.  Across  tlie  river. 

Counsel  for  Defendant,  Yes,  sir. 

Counsel  for  Complainant.  I don’t  think  I care  anything  about 

that. 

Counsel  for  Defendant.  I think  I care.  They  are  showing 
what  this  engineer  would  have  done  by  what  he  did  with  the 
earthen  part  of  the  main  dam.  You  have  got  the  same  condi- 
tion on  the  other  side,  and  I want  to  show  what  he  did  there. 

Counsel  for  Complainant.  As  the  other  side  is  not  involved 
in  any  way  in  this  strip — 

(Question  read  by  the  reporter.) 

Counsel  for  Defendant.  On  the  other  side  of  the  river.  If 
these  gentlemen  will  agree  that  they  do  not  intend  to  draw  any 
inference  as  to  what  this  engineer  thought  was  necessary  to  sup- 
port that  pool  from  the  dimensions  that  he  gave  to  the  earthen 
bank  connecting  the  bank,  very  well ; but  we  are  out  of  the 

4439  realm  of  inferences  if  we  show  that  he  had  the  same  situa- 
tion to  treat  on  the  other  side  and  made  the  same  pro- 
visions. 

4440  The  Witness.  The  levee  is  to  be  constructed  just  north 
of  Eiley  Creek,  following  the  southern  bank  of  the  river 

to  the  south  end  of  the  proposed  dam.  It  will  run  about  two 
miles.  It  will  sustain  the  pool  partially  at  its  lower  end  during 
low  water  conditions,  and  for  its  full  length  during  high  water 
conditions.  The  proposed  levee  is  10  feet  in  breadth  on  top, 
with  a slope  of  2 to  I on  each  side.  Well,  it  varies  in  height,  ac- 
cording to  the  condition  of  the  ground  over  which  it  is  built.  The 
top  is  on  a level  with  the  proposed  elevation  of  the  tow-path. 
The  bottom  conforms  to  the  surface  of  the  ground  over  which  it  is 
built.  I do  not  just  recall  the  variations  in  height,  although 

4441  that  can  be  seen  very  readily  from  the  map.  About  16  feet 
is  the  maximum,  and  it  varies  from  that  to  almost  nothing 

at  certain  points,  certain  high  points  in  the  line  of  the  level.  The 
width,  however,  is  uniform,  and  the  height  is  at  the  proposed 
height  of  the  tow.-path  on  the  other  side  of  the  stream.  There  are 
several  smaller  levees  further  up  stream. 


1284  Mead, — Direct  Exam. — Continued. 

Counsel  fok  Complainant.  The  witness  is  referring  to  another 
plat. 

The  Court.  Well,  he  is  referring  to  them  simply  for  the  pur- 
pose of  refreshing  his  recollection.  Of  course,  if  they  are  orig- 
inal plans,  or  blue  prints,  you  may  look  at  them  for  the  purpose 
of  cros^-examination. 

The  Witness.  I don’t  know  that  I could  say  that  this  one  I 
refer  to  is  the  most  important  one,  hut  this  one,  there  is 

4442  one  in  the  neighborhood  of  the  highway,  north  of  Smith’s 
bridge,  part  of  which  sustains  the  roadway,  and  the  balance 

of  which  protects  certain  farm  properties. 

The  length  of  that  levee  is  about  a mile  and  a half,  and  its 
dimensions  otherwise — the  levee  for  the  protection  of  the  prop- 
erty is  6 feet  on  top  with  a slope  of  2 to  1.  That  for  the  road- 
way is  18  on  top  and  slope  of  2 to  1.  The  roadway  is  on  that  levee. 
These  two  levees  that  I refer  to  are  on  the  other  side  of  the  river. 
I think  I will  have  to  correct  that.  The  levees  last  referred  to, 
north  of  Smith’s  bridge,  would,  of  course,  he  on  the  canal  side, 
hut  considerable  above  and  away  from  the  canal.  The  material 
it  is  designed  to  he  composed  of  is  the  material  that  will  he 

4443  excavated  on  the  adjacent  side,  of  the  land  adjacent  to  the 
site.  There  is  a good  deal  of  gravel,  sand  and  some  clay,  but 

not  as  much  as  I would  like.  The  quality  of  that  material  for  such 
use  compared  with  that  of  which  the  towpath  bank  is  tilled  is  very 
much  inferior.  In  the  remaining  two  levees  that  I have  testified 
to,  to  he  built,  there  is  more  or  less  sand  and  gravel,  hut  more 
clay  on  those  north  of  the  Desplaines  than  those  south.  A better 
class  of  material  than  the  main  levee  on  the  south  side  of  the 
Desplaines  Eiver.  It  is  designed  to  riprap  those  levees  in  places 
only.  There  is  no  rip-rap  shown  on  the  plans,  only  it  is  expected 
that  wherever  it  is  necessary  they  will  he  riprapped.  It  is  not 
expected  that  they  will  he  paved. 

Cross-Examination. 

Q.  That  portion  of  the  dam  that  was  built  of  earth  and  about 
which  you  have  spoken.  Professor,  how  was  that  constructed? 
To  direct  your  mind  into  the  channel  I want  it  to  go,  as  to  the 


point  I want,  did  you  construct  it  in  layers?  A.  Yes,  sir;  so  far 
as  we  were  able  to. 

4444  I don’t  think  there  was  any  rolling  done  there.  I think 
the  teams  were  operated  so  that  they  would  compact  the 

ground  as  far  as  possible.  I don’t  recall  that  we  placed  a roller 
on  the  embankment,  although  that  may  have  been  done.  I would 
not  be  positive  of  that.  The  specification  called  for  it  to  be  rolled 
or  compacted.  The  driving  of  team's  and  wagons  had  that  effect 
of  rolling  if  properly  done. 

Q.  You  think  it  did!  A.  I think  the  bank  was  made. 

Q.  Did  you  wet  them  and  make  them  settle  and  become  com- 
pacted! A.  That  was  all  that  was  needed  in  the  material  that 
was  brought  on  there.  Eather  more  moist  than  we  cared  to 
have  it.  I don’t  think  any  artificial  water  was  used  there.  It 
was  not  necessary  anyway. 

As  to  rip-rapping  this  part  of  the  bank,  there  might  have  been 
some  stones  placed  there.  I think  there  has  been.  In  fact  I 
know  there  has  been  no  attempt  to  finish  the  embankment.  It 
is  contemplated  to  finish  the  embankment;  yes,  sir.  We  expect 
to  rip-rap  a portion  of  it. 

4445  I am  not  referring  to  the  long  bank,  up  and  down  the 
river,  I mean  this  little  part  of  the  dam.  I intend  to  rip- 
rap that  part  of  it.  As  to  the  plans  and  specifications  calling  for 
rip-rapping  for  all  of  it  on  both  sides,  up  and  down,  I would 
not  be  positive  in  regard  to  rip-rapping  the  upper  portion  on  the 
lower  side.  I know  the  lower  portion  of  the  lower  side,  and  all 
of  the  upper  side  is  intended  to  be  rip-rapped.  In  speaking  of  the 
lower  portion  of  the  lower  side,  I have  in  mind  the  portion  of  the 
embankment  that  would  be  under  moderately  high  water.  That 
would  feel  the  effect  of  wave  wash  or  high  water,  hardly  half  of 
it;  I would  say  the  lower  third,  as  I recall  it.  I am  not  clear  at 
this  moment,  without  having  the  specifications  before  me,  as  to 

whether  they  call  for  rip-rapping  the  entire  lower  side  of  it 

4446  or  not.  I do  not  keep  all  of  those  details  in  mind.  As  to 
whether  the  specifications  call  for  the  upper  part  of  this 

portion  of  the  dam  to  be  paved,  my  recollection  is  that  we  propose 
to  put  a course  of  rubble,  or  instead  of  throwing  the  stone  loosely, 
to  place  it  into  a rough  pavement;  I believe  that  is  shown  in 


1286 


M ead, — Direct  Exam,— Continued. 


that  way  on  the  drawing.  The  bank  immediately  joining  the 
river  on  both  sides  of  the  river  at  least  closely  joining  the  dam  is 
quite  low  and  flat,  and  I think  the  water  rises  and  overflows  both 
at  about  the  same  time.  I think  there  are  places  adjoining 

4447  the  towpath  where  the  bank  is  more  abrupt  in  some  places. 
The  towpath  slopes  down  at  a considerable  angle  and  then 

strikes  the  ground,  and  gradually  slopes  to  the  water.  On  the 
other  side  the  level  will  be  placed  some  distance  back  from  the 
river’s  edge,  and  in  places  there  will  be  practically  no  water  at 
all  on  it  during  ordinary  stages.  There  are  other  places  where 
we  will  have  from  7 to  9 feet  during  ordinary  stages  of  water, 
and  5 feet  additional  during  high  stages  of  water.  I don’t  know 
any  place  where  there  is  any  23  feet  of  water  on  the  canal  side. 
I know  a place  where  it  is  18  feet.  The  crest  of  the  dam  is  18 
feet.  I think  there  are  places  where  there  are  18  feet  from  the 
toe  of  the  slope  on  the  canal  bank  to  the  top  of  the  bank, 

4448  but  then  there  is  not  that  quantity  of  water  against  it.  In 
flood  time,  large  flood  time,  which  occurs  practically  every 

spring,  the  water  would  run  over  the  top  of  this  dam  that  we  are 
building,  4,  5 or  6 feet.  I mean  the  earth  dam.  It  will  go  over 
in  extreme  floods  as  high  as  7 feet.  It  would  give  us  25  feet  over 
the  foundation  of  the  dam.  The  17  or  18  feet  that  I mention 
is  the  height  of  the  dam,  and  the  7 feet  above  it,  which  would 
make  about  25  feet,  is  the  height  of  the  water  during  times  of 
flood  over  the  bottom  of  the  dam  itself.  When  you  go  over  where 
the  embankment  is,  the  bottom  of  the  embankment  is  not 

4449  down  to  the  bed  of  the  river  by  any  means.  It  is  up  on  the 
bank  of  the  river,  and  it  is  considerably  above  the  ordinary 

stage  of  water  in  the  river.  I should  think  in  the  maximum  place, 
there  might  be  as  high  as  16  feet  of  water  that  may  be  said  to 
be  against  the  outer  slope  of  the  canal  bank. 

Q.  On  the  other  you  gave  over  very  little,  if  any,  part  of  the 
same  places,  and  some  other  places,  some  9 to  how  many  feet 
did  you  say.  Professor!  A.  Nine  to  about — 

Counsel  for  Complainant.  I think  you  said  5 feet  farther, 
14. 

A.  AVell,  13  to  14,  about  that. 

The  Court.  When  you  say  16,  you  mean  in  flood  times! 


1287 


A.  Yes,  sir;  in  extreme  flood  time. 

Q.  How  high  is  that  tow-path  when  it  is  improved,  18!  A. 
Well,  it  would  he  al)ont  2 feet  above  extreme  flood. 

4450  Counsel  for  Complainant.  Gentlemen,  will  yon  kindly 
let  the  Professor  take  them!  And  tell  ns.  Professor,  whether 

or  not  the  specifications  call  for  riprapping  on  both  sides  of  this 
part  of  the  dam,  and  on  the  upper  side — well,  I think  yon  have  said 
what  yon  memory  is  on  the  ii])per  side. 

A.  The  specifications  state  that  the  slo]ies  are  to  he  ]iaved. 

Q.  Both  sides,  njD  and  down,  or  jnst  the  upper  side!  A.  It 
simply  says  the  slopes  of  the  embankment,  hut  T think  the  plans 
will  probably  show  that  more  clearly  than  the  specifications. 

4451  On  top  of  it,  there  is  to  he  a roadway  made.  Macadam  sur- 
face, I think,  covers  this.  There  shall  he  a top  layer  of 

broken  limestone,  which  shall  he  6 inches  in  thickness  after  being 
completed.  The  macadam  roadway  to  be  built  from  the  tow-path, 
over  the  towpath  out  to  tlie  plant.  This  hank  that  1 put  in 
constitutes  this  earthen  part  of  the  dam,  provided  in  the  speci- 
fications, being  paved  as  it  is  provided  to  he  done,  and  the  size 
that  I have  made  it,  is  not  a very  much  stronger  hank  than  the 
towpath  hank  of  the  canal;  I do  not  consider  that  it  is.  Xot 

4452  whemyou  consider  the  contingencies  of  the  location.  There 
is  more  dirt  in  it.  I don’t  know  that  it  is  stronger,  or 

weaker,  except  in  connection  with  what  it  is  intended  to  stand. 
At  least,  I may  not  get  the  drift  of  your  question.  There  are 
elements  that  are  stronger,  and  there  are  elements  that  are  weaker 
in  it. 

The  Court.  Take  it  this  way:  if  they  were  both  subjected 
to  the  same  conditions,  the  question  is  whether  the  one  that  forms 
part  of  your  hank  would  sustain  more  than  the  one  which  is  a 
part  of  the  towpath  bank  would  stand. 

4453  Counsel  for  Complainant.  Please  answer  that  question. 
A.  As  I understand  it,  I think  it  would.  It  is  16  feet  on  top 

against  12  feet  on  the  towpath.  Part  of  the  way,  it  was  24  feet, 
adjacent  to  the  power  house,  that  is,  crossways  of  the  bank. 

This  dam,  as  I have  provided  it  here,  in  the  dimensions  I have 
provided  it,  is  larger  and  bigger,  hut  not  stronger,  than  the 


1288 


Mead, — Cross-Exam. — Continued. 


towpath  bank.  It  might  stand  greater  pressure  without 

4454  giving  way  than  the  old  hank.  I think  I would  rather  risk 
the  older  bank.  I doubt  if  that  would,  if  there  would  be  any 

difference.  The  bank  is  thicker,  and  wider,  heavier  at  the  bottom, 
but  it  is  new,  which  is  very  much  against  it,  and  I think  the  old- 
ness of  the  one  case  would  at  least  off-set  the  newness  of  the 
other.  I understand  the  old  bank  is  rip-rapped  at  present.  I have 
started  to  say  that  the  towpath  bank  was  intended  to  have 

4455  it  riprapped  as  altered  on  the  side  next  to  the  pool  we  are 
forming.  I don’t  think  the  rip-rapping  holds  it  in  place.  1 

thing  the  rip-rap  is  placed  there  simply  to  protect  it  against, 
abrasions  from  water,  and  drift  from  wave  wash. 

The  strength  of  the  dam  is  partially  in  its  weight,  when  you  have 
it  rip-rapped  to  hold  it  in  place.  It  must  be  practically  impervious, 
that  is  the  main  feature.  It  must  be  heavy  enough  to  resist  pres- 
sure, and  must  be  practically  impervious,  or  if  not  impervious,  it 
must  be  to  such  an  extent  that  the  passage  of  water  through  it 
will  not  injure  it.  I said  the  other  day,  I think,  that  there  is  nothing 
impervious  to  water,  in  point  of  fact.  I said  that  I was  building 
this  day  out  of  clay  and  stuff  that  was  taken  up  there;  that  I re- 
garded that  as  very  excellent  material.  Its  bulk  when  you 

4456  protect  it,  to  keep  its  place  by  the  rip-rapping,  is  one  of  the 
very  important  elements. 

The  question  of  the  method  of  construction,  and  the  question 
of  the  foundation,  and  the  question  of  the  immediate  condition  sur- 
rounding the  construction,  the  attachment  on  the  one  hand  on  the 
towpath  embankment,  and  the  other  one  the  concrete,  those 

4457  are  the  places  of  weakness  we  have  to  look  after  more  care- 
fully. 

The  foundation  comparatively  few  feet  below  the  natural  ground 
is  rock.  It  is  covered  with  more  or  less  gravel.  The  line 
of  contact  between  the  rock  and  the  gravel  is  apt  to  be  a point 
where  seepage  will  take  place  unless  great  care  is  taken  in  the 
construction.  So  that  that  is  one  point  that  we  have  to  take  into 
consideration,  and  cut  off  the  water  so  that  it  will  not  pass  along 
between  the  gravel  and  rock,  or  through  the  gravel  itself.  AVe  do 
put  something  in  there  other  than  the  body  of  the  bank  to  pre- 
vent that  seeping  in  this  construction.  AYe  put  concrete  in.  I 


1289 


believe  I mentioned  the  line  of  contact  of  the  embankment 

4458  with  both  the  canal  embankment  on  the  one  side  and  other. 
Those  are  points  that  unless  they  are  properly  handled  to 

prevent  the  flow  along  through  it — 

We  took  the  paving  away  frona  the  surface  so  as  to  allow  the 
breakage  of  the  surface,  and  saw  that  the  new  bank  knit  into  the 
material  of  the  old  bank  properly.  The  same  thing  was  done  in 
connection  with  the  natural  surface  of  the  ground.  All  of  the 
organic  material,  bushes  or  trees,  or  the  roots  of  trees  were  very 
carefully  taken  out.  Any  sod,  or  organic  matter  of  any  kind 
was  removed.  The  whole  surface  was  broken  up  so  as  to  avoid  a 
leakage  plane  at  that  point.  In  other  words,  to  knit  the  embank- 
ment itself  to  the  natural  soil.  All  of  those  things  are  features 
that  must  be  taken  into  account  in  the  strength  of  an  embankment, 
and  have  considerable  to  do  with  the  design  of  that  em- 
bankment. 

4459  I didn’t  know  that  I had  mentioned  the  inside  of  the  canal 
to-day.  I think  I said  before  that  it  was  rip-rapped,  when 

I was  on  the  stand  a week  ago  or  so,  on  the  outside. 

The  inside  of  that  embankment  of  the  towpath  is  rip-rapped,  I 
don’t  know  how  far  along.  I have  examined  it  in  a good  many 
places  along  there,  for  a thousand  feet  or  so,  and  it  is  riprapped 
up  to  about  the  water  side  of  the  surface. 

Q.  Isn’t  this  the  truth  about  it;  that  it  is  not  riprapped  at 
all,  except  where  there  was  a break,  or  signs  of  a break,  and  in 
the  maintenance  of  the  canal,  they  rip-rapped  a few  feet,  or  so; 
isn’t  that  so?  A.  I couldn’t  say. 

4460  Thereupon  counsel  for  complainant  handed  to  witness  plat 
marked  1556,”  which  was  a part  of  the  specifications 

for  building  the  dam,  and  asked  him  to  give  the  actual  dimen- 
sions. 

The  earthen  dam,  between  the  proposed  power  house  and 
the  tow-path  embankment  is  16  feet  on  top  and  has  a slope  of  2^ 
to  1 on  the  up  stream  surface,  three  to  1 on  the  upper  por- 

4461  tion  of  the  lower  side,  then  the  tow  of  the  slope  is  carried 
out  on  4 to  1 slope  on  lower  side.  Its  maximum  height  is 

about  24  feet.  It  slopes  from  that  to  considerable  less  at  the  canal 


1290 


Mead, — Cross-Exam. — Continued. 


bank.  It  was  intended  to  carry  it  clear  down  to  the  rock  bottom, 
but  we  found  the  rock  somewhat  lower  than  is  shown  on  the  plans, 
and  so  had  to  go  a little  deeper  to  get  it.  The  embankment  rested 
there,  but  the  concrete  wall  that  I have  mentioned  was  brought 
from  the  wall  up  to  that  point.  Tlie  concrete  core  is  not  in  the 
earthen  embankment  proper.  It  is  below  that.  It  is  from  the 
rock  up  to  the  natural  earth  surface,  or  a little  above.  I think 
would  come  up  about  a foot  into  the  embanlnnent.  The  height 
of  that  concrete  core  from  its  bottom,  I would  have  to  give  very 
approximately.  I saw  it  but  made  no  personal  measurement.  I 
should  say  in  places  it  was  six,  or  possibly  eight  feet,  from 

4462  18  inches,  to  2 feet,  24  inches  thick.  That  goes  the  entire 
length  of  the  earthen  bank.  I thing  the  concrete  is  perhaps 

175  feet  long,  or  thereabouts. 

Q.  Now,  Professor,  if  you  will  answer  me  one  more  question, 
I think  I am  through.  Will  you  now  make  comparison  and  tell  us 
the  comparative  size  of  a lineal  foot  of  this  earthen  embank- 
ment in  its  length  with  a lineal  foot  of  the  tow-path,  say 

4463  1,000  feet  above  this  dam!  A.  I could  not  calcuate  it  in  a 
moment,  not  to  say.  I would  have  to  run  over  it. 

Q.  How  long  would  it  take  you!  iV.  Ten  or  fifteen  minutes, 
perhaps. 

Q.  I don’t  ask  the  court  to  take  the  time,  but  in  the  meantime 
will  you  make  your  answer,  and  then  put  it  in  afterwards!  A 
Yes,  sir. 

Re-direct  Examination . 

4464  This  1,000  feet  I examined  in  perhaps  a half  dozen  places, 
a thousand  feet,  I should  say,  above  the  site.  There  was  rip- 
rapping in  all  of  the  points  which  I examined. 

4465  Re-cross  Examination. 

I could  not  see  the  rip-rapping,  I could  feel  it  with  a pole,  saw 
it  in  places,  in  all  the  half  dozen  places  I examined  it.  I don’t 
know  that  I could  say  that  I saw  it,  but  I am  satisfied  it  was  there 
from  my  examination.  You  can  see  possibly,  I think,  six  inches, 
or  to  a foot,  but  I don’t  think  you  can  see  two  feet  anywhere  in 
there,  that  I have  seen.  I didn’t  see  the  stone  at  all  the  places. 


1291 


where  I found  the  stone  to  he.  In  some  places  I was  endeavor- 
ing to  find  out  how  far  down  the  stone  went  and  made  this 

4466  examination  down  below  the  surface  of  the  riprap.  I was 
trying  to  find  out  how  far  down  they  went,  down  into  the 

water  I mean,  down  from  the  edge  of  the  little  berm  that  lies 
inside  of  the  canal  next  to  the  tow-path,  and  the  bottom  of  the 
canal.  I was  examining  particularly  in  regard  to  that  berm,  its 
extent  and  where  the  stone  lay,  and  how  far  down  it  ran.  I saw 
the  stone  on  top  in  a great  many  places.  I would  not  say  that  I 
could  not — I would  not  say  that  I found  it  in  all  places  on  top. 
I presume  I could,  hut  I do  not  recall.  It  is  my  recollection  that 
in  all  places  that  I examined  I saw  the  stone  on  top^  but  I would 
not  swear  that  is  true.  In  a distance  of  1,000  feet,  or  thereabouts, 
I think  I examined  half  a dozen  places  and  more.  Every  place 
I looked  I could  see  stone,  subject  to  the  modification  that 

4467  I have  already  made  to  that  statement.  There  were  some 
places  that  I made  no  particular  soundings,  and  saw  the 

stones,  but  I don’t  speak  of  as  having  examined,  hut  at  those 
places  it  went  clear  down  to  the  slope  on  the  inside  of  the  canal. 
My  stick  was  long  enough  to  reach  five  or  six  feet  under  the  slope 
and  determine  it. 

Thereupon  counsel  for  defendant  called  up  the  deposition  of 
L.  S.  Conant,  a witness  for  the  complainant. 

(For  rulings  on  same  see  Abstract  of  Depositions,  infra,  p. 
495.) 

4468  Thereupon  counsel  for  defendant  called  attention  to  cer- 
tain alleged  errors  in  the  deposition  of  Mr.  Hey  worth. 

For  rulings  on  same  see  Abstract  of  Deposition,  infra,  p. 
371.) 


4470  JoHX  M.  Snyder^ 

a witness  for  deTendant,  testified  as  follows : 

Direct  Examination. 

My  name  is  John  M.  Snyder.  I am  acting  secretary  and 
chief  clerk  of  the  Illinois  and  Michigan  Canal.  I have  al- 

4471  ready  given  a deposition  in  this  case.  I have  charge  of  the 
books,  records,  and  other  documents  belonging  to  the  Illinois 


1292 


Snyder, — Direct  Exam. — Continued. 


and  Michigan  Canal.  There  is  among  those  books  one  showing  the 
lands  of  the  canal,  npon  which  the  lands  were  deeded  and  sold.  This 
document  that  is  now  handed  me  is  a photograph  of  one  of  the 
pages  of  what  we  call  the  land  sale  hook,  although  it  may  not  he 
designated  on  the  back  of  the  book.  (Atlas,  page  3979;  trans.,  p. 
6632;  Abst.,  p.  1934.) 

Counsel  for  Complainant.  Photograph  of  what? 

Counsel  for  Defendant.  Photograph  of  one  of  the  pages  of 
what  they  call  the  land  sales  hook.  That  is  the  hook  according 
to  which  the  lands  were  sold? 

A.  The  lands  were  sold  originally;  yes,  sir. 

Q.  Do  you  know  whether  that  is  a correct  photograph?  A. 
Yes,  sir. 

Q.  Were  you  there  when  that  was  made?  A.  Yes,  sir. 

Counsel  for  defendant  offered  the  sheet  in  evidence. 

Counsel  for  complainant  objected  to  it  on  the  ground  the  pho- 
tograph is  not  competent  evidence  and  that  it  is  not  shown 
4472  to  he  relevant  or  competent  or  material  in  any  point  of  view, 
if  the  original  were  here. 

Thereupon  counsel  for  defendant  offered  to  have  the  same  plat 
certified  to  and  contended  it  was  admissible  on  the  subject  of 
meander  line. 

4476  The  Court.  The  map  may  go  in  solely  in  reference  to  the 
meander  line. 

Counsel  for  Complainant.  We  object  to  it  from  that  stand- 
point, as  well  as  the  other. 

The  Court.  Overruled. 

Everything  that  appears  on  the  map,  on  the  photograph,  ap- 
pears upon  the  book  from  which  it  was  taken,  all  those  figures 
and  all  that  appear  on  the  original  map,  and  all  the  records. 
That  writing  has  been  there  ever  since  I have  been  connected  with 
it.  I have  been  connected  with  the  office  between  four  and  five 
years. 

Thereupon  objection  was  made  by  counsel  for  complainant  that 
it  was  not  admissible  for  any  purpose. 


1293 


Whereupon  the  said  map  was  admitted  in  evidence  and  marked 
Snyder  Exhibit  A (Atlas,  p.  3979;  Trans.,  p.  6632;  Abst.,  p.  1934.) 

4477  D.  W.  Mead, 

a witness  for  defendant,  further  testified  as  follows,  in  ref- 
erence to  the  figures  he  was  not  able  to  state  on  his  prior  exam- 
ination : 

The  main  embankment  leading  from  the  power  house  to  the 
canal  bank,  at  the  deepest  section,  strikes  ground  surface  at  66. 
At  the  other  end  at  72.  I have  calculated  both  points  so  as  to  give 
you  the  relative  cross  section  at  both  points.  The  maximum  cross 
'section  one  foot  in  width,  a foot  taken  right  through  the  embank- 
ment. One  foot  in  width,  the  deepest  place  would  be  1634  cubic 
feet.  At  the  other  end  where  it  is  72,  it  would  be  914  feet.  It 
varies  between  those  two.  The  canal  embankment,  I took  at  the 
point  where  it  was  18  feet  in  height,  12  feet  in  width,  two  to 
one  on  both  sides,  but  only  carried  it  down  half  way  to  a level 
line  on  the  inside  because  I did  not  know  just  where  the  natural 
surface  could  be  and  I tried  to  allow  for  it  in  that  way.  Figur- 
ing the  cross  section  on  that  basis,  I find  in  that  canal  embank- 

4478  ment,  one  foot  section,  we  have  702  cubic  feet.  The  height 
of  the  canal  bank  is  in  one  case  22  feet,  and  in  the  other  16 

feet. 

Mr.  Snyder  being  recalled  as  a witness,  counsel  for  defendant 
then  offered  the  report  of  the  Canal  Trustees,  title  page:  Com- 

plete list  of  the  lots  and  lands  conveyed  by  the  trustees  of  the  Illi- 
nois and  Michigan  Canal,  showing  size  of  lots,  appraisal  sales, 
from  September,  1848,  to  May,  1849,  names  of  purchasers,  etc., 
compiled  by  our  Board,  February  15,  1850,  Chicago,  printed  at  the 
Democrat  office,  45  La  Salle  street,  steam  presses,  1850.’’ 

And  on  page  5,  Eoman  letters,  if  it  were  paged;  it  is  the  first 
page  after  the  table  of  contents,  down  to  sales  made  by  trustees, 
that  would  be  the  5,  Koman  page,  on  down  to  sales  made  by 
trustees,  on  the  sixth  Eoman  page. 

4479  Thereupon  the  court  heard  argument  upon  the  admissi- 
bility of  the  portion  of  the  book  so  offered. 


1294  Synder, — Direct  Exam. — Continued. 

4480  The  Couet.  It  may  go  in,  reserving  the  right  to  strike 
it  out.  I reserve  the  decision  on  the  motion  to  strike  out. 

This  ruling  will  apply  to  all  that  sort  of  matter. 

Counsel  for  Defendant.  You  have  heard  read  the  first  page 
and  a half,  and  I think  you  have  it  there,  have  you  not,  if  not  you 
can  copy  it  from  the  book  (addressing  the  reporter). 

The  Court.  I confess  I have  not  got  it  myself — I have  not  got 
the  point  of  the  first  two  pages,  unless  it  be  the  amount  of  acreage 
that  is  mentioned. 

Counsel  for  Defendant.  The  first  page  refers  to  sections  of 
the  Act  of  1843,  and  speaks  of  the  conditions  under  which  the 
trustees  are  to  sell  and  convey  the  property.  I also  offer  on 
page  7,  Eoman  figures,  ‘^Chicago,’’  for  the  purpose  of  showing 
that  at  the  date  of  the  publication  of  this  book  there  was  still 
considerable  land  in  odd  sections  remaining  unsold  in  the  City 
of  Chicago. 

Counsel  for  Complainant.  I object  to  that,  your  Honor,  simp- 
ly a sale  of  the  lots  here  in  Chicago,  and  cannot  by  any  possi- 
bility be  competent. 

Counsel  for  Defendant.  I will  state  that  I expect  to  show 
further  that  a considerable  number  of  these  lots,  were  lots  upon 
the  Chicago  Eiver,  and  vicinity  that  were  sold  after  1839,  and 
no  reservation  made,  unless  it  be  in  the  statute  itself,  of  any  part 
of  the  river  bed  itself. 

The  Court.  That  may  go  in  for  that  purpose,  subject  to  the 
same  reservation.  . 

Counsel  for  Complainant.  I object  to  it  as  irrelevant,  incom- 
pentent  and  immaterial. 

Said  portion  of  said  document  was  received  and  read  in  evi- 
dence as  follows: 

4481  ^‘Chicago: 

The  whole  number  of  lots,  and  out-lots  in  Chicago  and  vi- 
cinity, prepared  for  sale  by  the  trustees,  was  1478;  and  the 
valuation  tliereof  $627,528.  Of  these  lots  998  have  been  sold; 
and  there  remain  unsold  579;  of  which  230  are  at  present 
held  from  sale  by  injunction; — embracing  now  all  unsold  in 


1295 


blocks  4 and  7,  original  town,  and  section  1721  and  29  E.  39, 
R.  14,  East. 

In  the  immediate  vicinity  of  the  railroads,  there  is  still  un- 
sold a large  number  of  very  eligible  lots ; and  in  the  lower 
part  of  fractional  section  15,  quite  a quantity  equally  desir- 
able, so  that  it  may  be  seen  that  the  property  in  and  about 
Chicago  hereafter  to  be  sold  is  of  the  most  valuable  and  at- 
tractive character,  whether  it  be  wanted  for  occupation  or 
permanent  investment.” 

Counsel  for  Defendant.  Joliet,  a similar  paragra]3h  on  page 
9,  about  this  town  of  Joliet. 

‘‘Joliet: 

About  this  town,  the  trustees  prepared  456  lots  for  sale, 
which  were  appraised  at  $10,885.  Of  this  number  242  have 
been  sold,  leaving  unsold  214,  all  of  which  are  very  well  sit- 
uated, and  worth  greatly  more  than  the  appraisal.” 

4482  Counsel  for  Complainant.  I object  to  that,  your  Honor, 
there  isn’t  any  evidence  that  any  of  them  bordered  on  this 

river,  and  if  they  did,  it  would  not  be  material. 

The  Court.  As  I understand  it,  that  is  to  be  followed  up  by — 
they  can  put  it  all  in  at  once  at  this  time. 

Counsel  for  Complainant.  The  objection  is  that  it  is  irrele- 
vant, incompetent  and  immaterial. 

The  Court.  Your  objection  may  stand  to  all  of  this  kind  of 
material.  Go  on  with  the  rest  and  move  to  strike  it  all  out. 

Page  12 : 

“Lands. 

The  Canal  Lands,  it  is  well  known,  include  the  odd  num- 
bered sections  embraced  in  a strip  averaging  about  ten  miles 
in  width,  lying  on  both  sides  of  the  canal,  and  extending  from 
the  commencement  of  Lake  Michigan  to  its  termination  on 
the  Illinois  River;  a distance  of  nearly  100  miles.  They  also 
include,  as  far  as  they  continue,  the  rich  valleys  of  the  Des- 
plaines  and  Illinois  Rivers,  and  the  heavy  bodies  of  timbers 

4483  along  their  borders.  In  point  of  location,  health,  fertility 
and  adaptation  to  general  farming  purposes,  these  lands  are 
certainly  unsurpassed  by  any  of  the  west. 

Unlike  most  prairie  districts,  they  are  generally  well  sup- 
plied with  timber  and  water;  and  throughout  the  westerly 
half,  coal  abounds  in  a characteristic  quantity.  Water  power 
is  likewise  abundant,  as  well  as  lime  and  sandstone  of  good 
and  useful  quality.  All  told,  there  are  some  173,000  acres 


1296  Canal  Cofii.  Rep.  of  Lots  Sold — Continued. 

and  in  this  quantity  more  than  30,000  acres  is  very  good  tim- 
ber, which,  for  the  accommodation  of  farmers  will  hereafter 
he  offered  for  sale  in  forties. 

The  land  is  situated  in  Cook,  Will,  Grundy  and  La  Salle 
Counties,  and  occupies  the  central  and  more  valuable  parts. 

Cook  County  contains  much  the  largest  population  of  any 
in  the  State,  and  Will  and  La  Salle  are  among  the  most 
populous  and  wealthy,  while  Grundy,  in  agricultural  re- 
sources, is  inferior  to  none.  Nowhere  in  the  west  has  farm- 
ing industry  been  better  repaid,  or  business  enterprise  of 
every  kind  been  more  amply  rewarded. 

The  Illinois  and  Michigan  Canal,  passing  nearly  through 
the  center  of  this  tract  of  land,  is  one  of  the  largest,  most 
substantial,  .and  splendid  works  of  the  age.  It  completes  and 

4484  furnishes  the  most  important  connecting  link  in  the  great 
circuit  of  the  boundless  inland  commerce  of  our  country.  It 
has  been  in  operation  but  two  seasons,  and  its  effect  upon  the 
value  of  produce  and  property,  and  all  the  leading  branches 
of  trade  within  its  influence,  has  outrun  all  just  expectations. 

Its  future  bearing  upon  these  great  interests  will  only  be 
limited  by  the  horizion  that  marks  the  boundary  of  the  en- 
terprise, improvement  and  prosperity  of  the  west,  our  coun- 
try, and  the  world. 

Looking,  then,  at  this  property,  in  its  true  position,  with 
all  the  numerous  advantages  attending  it,  as  well  as  the  su- 
perior character  of  the  property  itself,  and  the  low  price  at 
which  it  will  be  sold,  it  is  no  assumption  to  assert,  that  no 
part  of  the  country,  at  the  present  time,  offers  greater  in- 
ducement to  the  farmer  or  business  man  of  every  description 
than  does  this  district  of  land;  and  for  the  benefit  of  the 
canal  fund,  and  the  counties  in  which  they  are  situated,  the 
hope  is,  that  they  will  not  long  remain  unsold  and  unoccu- 
pied.’’ 

4485  Thereupon  counsel  for  complainant  again  called  the 
court ’s  attention  to  the  letters  of.  Colonel  Bixby  and  the  As- 
sistant Secretary  of  War,  and  urged  the  admission  in  evidence  of 
said  document  which  had  been  previously  excluded.  Whereupon, 
after  extended  argument,  the  court  ruled  as  follows: 

‘^The  Court.  I will  admit  the  evidence  and  reverse  the  rul- 
ing. ’ ’ 

Said  documents  were  received  and  read  in  evidence  as  fol- 
lows : 


1297 


‘^United  States  Engineeeing  Office, 

508  Federal  Building, 

Cliicago,  111.,  March  27,  1906. 

Brig.  Gen.  A.  Mackenzie, 

Chief  of  Engineers,  U.  S.  Army, 

Washington,  1).  C. 

General : 

1.  . In  reply  to  Department  letter  (E.  D.  58726)  dated 

4486  March  16,  1906,  as  to  the  proposed  plans  of  a water  power 
company  for  a dam  across  the  Desplaines  Biver,  111.,  just 
above  its  mouth,  which  have  been  verbally  and  informally 
presented  to  your  office  by  the  Hon.  H.  M.  Snapp  and  the 
water-power  representatives,  I have  herewith  to  submit  re- 
port as  follows : — 

2.  The  dam  in  question  is  that  proposed  by  Chas.  A. 

, Munroe,  of  Chicago,  111.,  as  explained  by  his  letter  to  this  of- 
fice under  date  of  March  20,  1906,  with  inclosures  (copies 
herewith — 2 letters,  3 blue  prints).  (5  incls.) 

3.  The  Desplaines  Eiver,  so  far  as  now  known  to  this 

^ office,  has  never  yet  been  considered  a navigable  stream  of 

the  United  States.  It  is  therefore  apparently  as  yet  subject 
to  such  jurisdiction  as  applies  to  all  other  unnavigable  streams 
and  not  subject  to  the  provisions  of  Section  9-13,  Act  of  March 
3,  1899,  or  to  other  similar  U.  S.  legislation. 

4.  The  agents  of  the  water  power  company  in  question, 
informally  claim  to  have  secured  possession  of  all  the  land 
on  each  bank  of  the  river  necessary  to  allow  for  construc- 
tion of  the  dam  and  of  its  accessories,  and  to  protect  them- 
selves frorn  all  future  claims  for  over-flowage  created  thereby, 
so  far  as  any  existing  known  rights  are  concerned;  and  they 
likewise  claim  that  there  is  no  existing  State  law,  or  United 
States  law  which  prohibits  their  legally  going  ahead  with 
their  proposed  construction  and  that  no  special  law  is  needed 

4487  therefor.  They  adnfit,  however,  that  in  some  minor  mat- 
ters, they  still  lack  necessary  authority  from  the  local  Board 
of  Supervisors,  to  condemn  certain  properties  which  they 
still  wish  to  acquire  in  order  to  facilitate  or  simplify  their 
future  work  (such  permission,  however,  not  being  absolutely 
essential  to  such  work)  and  Ihey  state  that  the  Board  of 
Supervisors  are  willing  to  grant  such  authority  as  soon  as  it 
is  evident  that  the  proposed  power  dam  construction  will  not 
interfere  with  the  future  development  of  the  river  for  naviga- 
tion purposes. 

5.  The  water  power  company  agents  likewise  state  that 
their  object  in  bringing  the  matter  up  before  the  War  De- 
partment at  present,  is  to  make  evident  that  the  proposed 
dam  construction  not  only  does  not  conflict  with  any  existing 
U.  S.  law  but  also  will  assist  rather  than  injure  the  possible 
future  navigation  of  the  Desplaines  and  Illinois  Kivers,  should 


1298 


Letter — Col.  Bixhy. — Continued. 


the  improvement  of  such  rivers  ever  be  authorized  by  Con- 
gress in  the  manner  proposed  by  the  last  Board  Report  of  Au- 
gust 26,  1905,  upon  the  feasibility  and  cost  of  a navigable 
waterway  from  Lockport,  111.,  to  St.  Louis,  Mo.,  via  the  Des- 
plaines,  Illinois,  and  Mississippi  Rivers,  (House  Document 
No.  263,  59th  Congress,  1st  Session) ; and  they  desire  to  se- 
cure from  the  A¥ar  Department  some  expression  of  opinion, 
informal  or  otherwise,  so  far  as  it  can  properly  be  given,  that 
will  allow  them  to  assure  all  inquirers  that  the  l¥ar  Depart- 

4488  ment  so  understands  the  situation,  and  is  making  no  ob- 
jection to  sucli  prompt  progress  of  the  work  as  is  necessary 
to  a business  enterprise  of  its  magnitude  and  importance. 

6.  Paragraph  17  of  the  Board  Report  of  August  26,  1905, 
above  referred  to,  specially  stated  that  the  plan  submitted 
by  the  Board  was  ^not  designed  to  develop  water  power,  but 
there  will  probably  be  no  difficulty  in  modifying  it,  so  as  fo 
confirm  to  such  development  if  those  who  are  to  benefit  there- 
by will  co-operate  with  the  Government.  They  should  pay  the 
cost  of  the  dams,  and  the  damage  from  flowage,  which  is  no 
more  than  tliey  would  be  compelled  to  do  if  the  Government 
made  no  improvement.’  The  plans  herewith  submitted  by 
Mr.  Munroe  show  plainly  a proposed  co-operation  such  as  that 
described  in  the  above  Board  report,  offered  in  such  manner 
as  not  only  to  pay  the  cost  of  this  power  dam,  and  to  pro- 
tect the  United  States  against  flowage  damage,  but  also  to 
lessen  by  one  the  number  of  locks  and  dams  necessary  for 
future  navigation  and  to  otherwise  save  both  time  and  money 
($142,385  in  first  cost,  and  $4,000  annually  thereafter  for 
maintenance  and  operation)  to  the  United  States,  in  case 
Congress  should  finally  decide  to  undertake  the  improvement 
covered  by  the  August  26,  1905,  Board  report,  or  to  otherwise 
make  this  river  navigable  in  this  neighborhood.  All  informa- 
tion, so  far  received  by  this  office,  appears  to  substantiate 
the  statements  of  Mr.  Munroe,  as  described  above;  and  I 

4489  consider  that  his  proposition  should  be  encouraged  and  that 
he  should  receive  from  the  War  Department  whatever  ex- 
pression of  favorable  consideration  may  be  proper  and  allow- 
able under  such  circumstances. 

7.  I have  carefully  considered  the  question  of  this  power 
dam  project  and  have  talked  it  over  at  intervals  with  Mr. 
Woerman,  while  he  was  Assistant  Engineer  in  local  charge 
of  the  Illinois  River  survey  under  this  office  before  he  had 
been  employed  by  Mr.  Munroe,  as  well  as  since  that  time, 
and  have  discussed  the  matter  also  with  Mr.  Munroe;  and  I 
believe  that  the  provisos  of  the  next  paragraph  below  are 
fair  and  advantageous  to  both  sides,  and  will  leave  to  the 
future  only  the  question  of  regulating  pool  levels  so  as  to 
avoid  a conflict  between  depths  of  water  needed  for  naviga- 
tion and  heads  of  water  needed  for  power  purposes,  and  so 


1299 


as  to  divide  up  the  river  water  between  the  two  according 
to  such  rights  as  may  exist  when  the  river  shall  become  a nav- 
igable water  (which  it  appears  not  to  be  at  present),  and 
when  the  United  States  shall  decide  to  give  up  the  use  of 
the  canal  and  to  assume  the  improvement  of  the  river.  Until 
such  time  I do  not  see  how  the  War  Department  can  assume 
any  definite  jurisdiction  of  the  Desplaines  River  or  make 
any  definite  demands  upon  any  water-power  company  al- 
ready organized  for  the  use  of  this  river.  It  is  my  present 
understanding  that  these  provisos  will  be  accepted  by  Mr. 
Munroe. 

4490  8.  I have  therefore  to  recommend  that  the  Hon.  H.  M. 
Snapp  and  Mr.  Charles  A.  Munroe  be  informed  that  the  War 
Department  will  waive  any  and  all  objections  which  it  may 
have  to  the  progress  of  such  water-power  dam  construction 
as  proposed  by  Mr.  Munroe ’s  letter  of  March  20,  1906,  and  its 
inclosures,  provided  that  he,  on  the  part  of  the  power  dam 
owners,  agrees. 

(a)  that  he  will  construct  and  maintain  in  good  repair, 
just  above  the  mouth  of  the  Desplaines  River,  in  location  as 
approximately  shown  on  the  blue  nrints,  a dam  and  spill- 
way sufficient  to  hold  the  water  surface  of  its  upper  pool  at 
a height  equal  to  the  present  mean  level  of  Lake  Joliet  (taken 
at  512.0  feet,  Memphis  datum) ; and  later  whenever  Congress 
shall  have  ordered  the  improvement  of  the  Desplaines  River 
for  navigation  purposes,  will  raise  this  dam  3.0  feet  higher 
(giving  pool  level  of  515.0  feet,  Memphis  datum)  if  the  War- 
Department  shall  so  order;  and  will  grant  the  United  States 
the  use  of  such  pool  so  far  as  needed  for  navigation ; 

(b)  that  he  will  assume  the  cost  of,  and  protect  the  United 
States  from,  claims  for  all  flowage  damages  caused  by  this 
dam  between  its  site  and  the  north  line  of  Section  11,  Town- 
ship 34,  Range  9 East,  which  line  is  about  1.5  miles  by  river 
above  the  next  higher  lock  and  dam  proposed  by  the  Board 
report  (i.  e.,  Lock  No.  4 and  Dam  No.  2,  at  the  foot  of  Treat’s 
Islands) ; 

4491  (c)  that  he  will  grant  to  the  United  States  a strip  of 
land  at  least  150  feet  wide  across  the  north  end  of  this 

dam,  to  be  so  located  between  it  and  the  tow-path  of  the 
present  Illinois  and  Michigan  Canal,  as  to  connect  the  pres- 
ent mid  river  above,  to  the  same  below,  in  the  manner  ap- 
proximately indicated  on  the  accompanying  blue  prints ; such 
strip  to  be  used  by  the  United  States  for  the  construction  and 
maintenance  of  a boat  lock,  its  necessary  approaches,  and 
other  purposes  of  navigation; 

(d)  that  he  will  do  all  the  above,  free  of  cost  to  the  United 
States ; 

Provided,  that  the  War  Department  will  waive  any  and  all 


1300 


objections  wliicli  it  may  have  to  the  progress  of  such  water 
power  dam  construction. 

Very  respectfully, 

W.  H.  Bixby, 

Lt.  Col.  Corps  of  Engineers.^ ^ 

4492  ^‘Wak  Department. 

Washington,  June  7,  1906. 

Sir — • 

In  reply  to  your  letter  of  June  5,  1906,  addressed  to  the 
War  Department,  in  the  matter  of  the  construction  by  your- 
self and  associates  of  a dam  and  spillway  across  the  Desplaines 
Eiver  near  its  mouth,  at  the  location  and  as  shown  on  maps 
submitted,  with  your  letter  of  March  20,  1906,  addressed  to 
Lieutenant  Colonel  AY.  H.  Bixby,  Corps  of  Engineers,  U.  S. 
Army,  I have  the  honor  to  advise  you  as  follows: 

It  is  understood  that  yourself  and  associates  are  willing  to 
comply  with  the  following  conditions,  viz: 

First.  That  the  details  of  construction  shall  be  such  as  to 
insure  permanency  and  of  sufficient  capacity  to  hold  the  water 
surface  of  its  upper  pool  at  a height  equal  to  the  present  mean 
. level  of  Lake  Joliet  (taken  at  512.0  feet  Memphis  datum); 
and  later  whenever  Congress  shall  have  ordered  the  improve- 
ment of  the  Desplaines  River  for  navigation  purposes,  the 
dam  shall  be  raised  by  you  and  your  associates  3.0  feet  higher 
(giving  pool  level  of  515.0  feet,  Memphis  datum),  if  the  AAmr 
Department  shall  so  order;  the  United  States  and  the  public 
to  have  the  free  use  of  such  pool  so  fas  as  needed  for  navi- 
gation purposes,  and  the  use  of  water  for  power  purposes 
shall  be  so  limited  that  the  level  of  the  pool  shall  at  no 

4493  time  be  reduced  below  that  adopted  for  navigation  in  the 
plans  of  the  LTnited  States  for  the  slack-water  improvement 

of  the  river. 

Second.  That  the  United  States  shall  be  protected  from 
claims  for  all  flowage  damage  caused  by  the  dam  between 
its  site  and  the  north  line  of  section  11,  township  34,  range 
9 east,  which  line  is  about  1.5  miles  by  river  above  the 
next  higher  lock  and  dam  proposed  by  the  Board  of  En- 
gineers’ report  {i.  e.,  Lock  No.  4 and  Dam  No.  2 at  the  foot 
of  Treat’s  Island). 

Third.  That  there  shall  be  conveyed  to  the  United  States 
free  of  cost  a strip  of  land  at  least  150  feet  wide  across  the 
north  end  of  this  dam,  to  be  so  located,  between  it  and  the 
tow-path  of  the  present  Illinois  and  Michigan  Canal,  as  to 
connect  the  present  midriver  above  the  same  below  in  the 
same  manner  approximately  indicated  on  the  accompanying 
blue  prints;  the  right  of  the  United  States  to  enter  upon 
and  use  such  strip  of  land  for  the  construction  and  main- 
tenance of  a boat  lock,  its  necessary  approaches,  and  for 


1301 


other  purposes  of  navigation,  if  it  so  desires,  without  liabil- 
ity for  damages  resulting  in  any  way  from  its  operation 
in  connection  with  construction  or  maintenance  of  said  lock 
and  appurtenant  works  to  be  duly  guaranteed. 

If  these  conditions  are  com]:)lied  with,  in  the  opinion  of 
the  Chief  of  Engineers,  IT.  S.  Army,  concurred  in  by  this  de- 
, partment,  the  work  proposed  is  in  general  harmony *with  the 

4494  work  of  improvement  recommended  b}"  the  Board  of  Engi- 
neers appointed  under  authority  of  the  Biver  and  Har- 
bor Act  of  June  13,  1902  (32  Stat.  L.,  331,  304),  in  its  report 
dated  August  20,  1905,  printed  as  House  Document  No.  203, 
59th  Congress,  first  session. 

Inasmuch,  however,  as  Congress  has  not  as  yet  authorized 
the  improvement  of  this  river,  this  department  does  not  deem 
it  expedient  to  take  further  and  definite  action  in  the  matter 
of  approving  the  plans. 

Very  respectfully, 

Robert  Shaw  Oliver, 
Assistant  Secretary  of  War. 

Mr.  Charles  A.  Monroe, 

The  Rookery,  Chicago,  Illinois.^’ 

4495  Thereupon  counsel  for  defendant  read  in  evidence  the  deed 
from  Thomas  Ford,  Governor  of  the  State  of  Illinois,  to  the 

trustees,  the  trustees  at  that  time  being  William  H.  Swift,  David 
Leavitt  and  Jacob  Fry,  trustees  of  the  Illinois  and  Michigan 
Canal. 

Counsel  for  complainant  objecting  on  the  ground  that  the  same 
was  incompetent,  irrelevant  and  immaterial. 

Said  deed  was  thereupon  marked  Snyder  Exhibit  1,  and  is  as 
follows : 

4496  To  all  to  whom  these  presents  shall  come,  /,  Thomas  Ford, 

Governor  of  the  State  of  Illinois,  send  Greeting: 

Whereas,  the  General  Assembly  of  the  State  of  Illinois 
passed  an  act  approved  the  twenty-first  day  of  February, 
in  the  year  of  our  Lord  one  thousand  eight  hundred  and  forty- 
three,  entitled  ^Wn  Act  to  provide  for  the  completion  of  the 
Illinois  and  Michigan  Canal  and  for  the  payment  of  the  Canal 
debt  ‘Which  said  act,  is  in  substance  and  effect  as  follows, 
viz : 

Whereas,  It  has  been  represented,  that  certain  holders  of 
the  bonds  of  this  state  are  willing  to  advance  the  necessary 
funds  for  the  completion  of  the  Illinois  and  Michigan  Canal, 
upon  being  secured  the  payment  of  their  said  advances,  and 
of  their  said  bonds,  by  a vested  lien  upon  the  said  Canal, 
lands  and  revenues;  for  the  purpose,  therefore,  of  accom- 


1302  Deed, — Governor  Ford  to  Canal  Trustees. — Continued. 

plishing  an  object  so  desirable  and  beneficial  to  the  said 
bond  holders  and  the  State: 

Section  1.  Be  it  enacted  by  the  people  of  the  State  of  Illi- 
nois represented  in  the  General  xissembly.  That,  for  the 
purpose  of  raising  a fund  for  the  completion  of  the  Illinois 
and  Michigan  Canal  the  Governor  of  this  State  be,  and  here- 
by is  fully  authorized  and  empowered  to  negotiate  a loan 
solely  on  the  credit  and  pledge  of  the  said  Canal,  its  tolls, 
revenues  and  lands,  to  be  granted  to  trustees,  as  hereinafter 

4497  provided  of  one  million  six  hundred  thousand  dollars,  for  a 
term  not  exceeding  six  years;  and  at  a rate  of  interest  not 
exceeding  six  per  cent,  per  annum,  payable  out  of  the  first 
moneys  to  be  realized  from  the  said  canal,  its  lands,  tolls 
and  revenues ; the  payment  of  interest  and  reimbursement 
of  principal  to  be  at  such  place,  within,  or  without  the  United 
States,  and  payable  in  such  currency  as  may  be  agreed  on. 

Section  2.  The  holders  of  Canal  bonds  and  other  evidences 
of  indebtedness  of  this  State,  issued  for  the  purpose  of  aid- 
ing in  construction  of  the  Illinois  and  Michigan  Canal,  or 
hereafter  to  be  issued  for  work  done,  percentage,  scaleage,  or 
damages,  shall  be  first  entitled  to  subscribe  in  proportion  to 
the  amount  of  bonds,  or  other  indebtedness  held  by  them,  and 
take  the  whole  of  the  said  loan;  but  if  within  a reasonable 
time,  to  be  determined  by  the  Governor,  any  of  the  said  hold- 
ers of  Canal  bonds,  or  indebtedness,  shall  neglect  or  refuse  to 
subscribe  as  aforesaid,  the  whole  of  the  said  loan  may  be 
subscribed  for,  and  taken  by  other  holders  of  canal  bonds,  or 
indebtedness ; but  if  within  a reasonable  time,  to  be  deter- 
mined upon  by  the  Governor,  the  holders  of  the  said  canal 
bonds  or  other  evidences  of  indebtedness,  aforesaid  shall  not 
subscribe  for,  and  take  the  whole  of  the  said  loan,  then,  and  in 
that  case,  any  other  person  or  persons,  body  politic  or  cor- 
porate, shall  be  entitled  to  subscribe  for,  and  take  so  much  of 

4498  the  said  loan  as  may  remain  unsubscribed  for,  by  the  said 
holders  of  bonds  or  other  evidences  of  debt  aforesaid. 

Section  3.  After  the  said  loan  shall  be  subscribed  for, 
as  aforesaid,  there  shall  be  appointed  three  discreet  persons 
to  constitute  a Board,  to  be  known  by  the  style  and  description 
of  the  ^ Board  of  Trustees  of  the  Illinois  and  Michigan  Canal,’ 
one  of  the  said  trustees  shall  be  ajipointed  by  the  Governor 
of  this  State,  and  the  other  two  shall  be  elected  or  appointed 
by  the  subscribers  to  the  said  loan,  or  the  holders  of  the  cer- 
tificates authorized  by  this  Act,  in  manner  and  form  as  here- 
inafter mentioned.  Whenever  any  vacancy  shall  occur  in  the 
said  Board  of  Trustees,  either  by  death  or  resignatiou,  or  from 
any  other  cause,  said  vacancy  shall  be  filled  by  the  Governor, 
or  holders  of  said  certificates,  to  whom  belonged  the  appoint- 
ment of  the  Trustees  whose  seat  shall  have  become  vacant, 
as  the  case  may  be. 


1303 


Section  4.  The  first  election  of  Trustees  by  the  subscrib- 
ers to  said  loan,  under  this  act,  shall  be  held  at  the  Canal 
office,  at  Lockport,  at  such  time  as  the  Governor  of  this  State 
shall  appoint,  under  the  direction  of  one  of  the  Judges  of 
the  Supreme  Court  of  this  State,  who  is  hereby  appointed  in- 
spector of  the  first  election,  and  the  two  persons  then  elected 
as  Trustees  by  the  said  subscribers,  and  the  person  appointed 
trustee  by  the  Governor  shall  hold  their  offices  for  two  years 

4499  from  the  time  of  their  said  election  or  appointment,  and  un- 
til others  are  elected. 

Section  5.  Subsequent  elections  shall  be  held  every  two 
years,  at  such  time  and  place,  and  under  the  directions  of 
such  persons  as  a majority  of  the  Trustees,  for  the  time  being 
shall,  by  resolution  to  be  entered  on  their  minutes,  appoint, 
and  shall  hold  their  offices  for  two  years,  and  until  others  are 
elected  in  their  stead. 

Section  6.  At  the  election  of  Trustees  under  this  act,  each 
stockholder  shall  be  entitled  to  one  vote  for  each  and  every 
one  thousand  dollars  of  stock  held  by  him;  and  in  all  elec- 
tions, votes  may  be  given  in  person  or  by  proxy. 

Section  7.  All  elections  shall  be  ballot,  and  the  two  who 
shall  have  the  ^createst  number  of  votes  shall  De  trie  two 
Trustees  duly  elected  by  the  said  subscribers  or  holders  of 
said  certificates.  At  all  such  elections,  the  said  subscribers 
or  holders  of  said  certificates,  shall  designate  upon  their  bal- 
lots one  of  the  persons  voted  for  as  President;  and  the  per- 
son having  the  greatest  number  of  votes  as  Trustee  and  pres- 
ident, shall  be  one  of  the  said  Trustees  and  President  of  said 
Board. 

Section  8.  The  said  Board  of  Trustees  of  the  Illinois  and 
Michigan  Canal,  when  duly  appointed  and  elected,  as  afore- 
said, shall  apportion  their  respective  duties  among  themselves, 
and  so  far  as  is  not  incompatible  with  this  act,  shall  possess 

4500  all  the  powers,  and  perform  all  the  duties  conferred  upon 
the  Board  of  Commissioners  of  the  Illinois  and  Michigan 
Canal,  by  the  act  entitled  ^An  Act  for  the  construction  of  the 
Illinois  and  Michigan  Canal,  ^ approved  January  ninth,  eighteen 
hundred  and  thirty-six,  and  the  acts  supplementary  and 
amendatory  thereto ; and  shall  take  an  oath  or  affirmation,  and 
give  bonds,  with  security,  for  the  faithful  discharge  of  the 
duties  imposed  upon  them  b}^  this  act. 

Section  9.  If  the  holders  of  any  of  the  said  canal  bonds, 
or  other  evidences  of  indebtedness  issued  for  the  purpose  of 
aiding  in  the  construction  of  the  Illinois  and  Michigan  Canal, 
shall  become  subscribers  for  the  said  loan,  or  any  part  there- 
of, they  shall,  at  the  time  of  subscribing,  file  or  cause  to 
be  filed  with  the  Governor,  a brief  description  of  said  bonds 
or  other  evidences  of  indebtedness,  aforesaid,  owned  by 
them;  which  description  shall  be  deposited  by  the  Governor 


1304  Deed^—Govenior  Ford  to  Canal  Trustees. — Continued. 

in  the  office  of  Auditor  of  Public  Accounts,  in  order  that  the 
evidences  may  be  preserved  to  discriminate  the  holders  who 
subscribed  for  the  said  loan,  and  to  identify  the  said  bonds, 
or  other  evidences  of  indebtedness,  aforesaid,  that  may  in 
consequence  be  entitled  to  a priority  of  payment  out  of  prop- 
erty and  assets  granted  to  the  Board  of  Trustees  as  herein- 
after provided. 

Section  10.  For  the  purpose  of  placing  in  the  hands  of 
Trustees  full  and  ample  security  for  the  payment  of  said 

4501  loan,  authorized  by  this  act,  and  the  interest  thereon,  as  well 
as  for  securing  a preference  in  the  payment  of  such  of  the 
canal  bonds  and  other  evidences  of  indebtedness  issued  by 
this  State,  for  the  purpose  of  aiding  in  the  construction  of  the 
Illinois  and  Michigan  Canal,  as  may  be  owned  by  the  sub- 
scribers to  the  said  loan,  the  State  does  hereby  irrevocably 
grant  to  the  said  Board  of  Trustees  of  the  Illinois  and  Mich- 
igan Canal,  the  bed  of  the  said  Illinois  and  Michigan  Canal, 
and  the  land  over  which  the  same  passes,  including  its  banks, 
margins,  tow-paths,  feeders,  basins,  right  of  way,  locks,  dams, 
water  power,  structures,  stone  excavated,  and  stone  and  ma- 
terials quarried,  purchased,  procured  or  collected  for  its  con- 
struction, and  all  the  property,  right,  title  and  interest,  of 
the  State,  of,  in  and  to,  the  said  Canal,  with  all  the  heredita- 
ments and  appurtenances  thereunto  belonging  or  in  any  wise 
appertaining;  and  also  all  the  remaining  lands  and  lots  be- 
longing to  the  canal  fund,  or  which  hereafter  may  be  given, 
granted,  or  donated  by  the  General  Government  to  the  State, 
to  aid  in  the  construction  of  the  said  canal,  and  the  build- 
ings and  erections  belonging  to  the  State  thereon  situated. 
The  said  Board  of  Trustees  to  have,  hold,  nossess,  and  enjoy 
the  same  as  fully  and  as  absolutely,  in  all  respects  as  the  state 
now  can,  or  hereafter  could  do,  for  the  uses,  purposes,  and 
trusts  hereinafter  mentioned;  but  it  is  to  be  understood  that 

4502  all  canal  lands  and  lots  heretofore  sold  by  the  Board  of 
Commissioners  upon  which  moneys  are  now  due,  or  may 
hereafter  become  due,  whether  the  said  lands  and  lots  be  now 
forfeited  or  relinquished,  or  hereafter  become  forfeited  or 
relinquished  shall  be  exempt  from  the  aforesaid  provisions  of 
this  act;  and  the  trustee  herein  provided  to  be  appointed  by 
the  Governor,  or  any  other  officer,  or  officers  ^ having  the 
management  of  the  affairs  of  the  canl,  until  said  Trustee  be 
appointed  on  the  part  of  the  State,  is  hereby  authorized  and 
required  to  settle  all  accounts  due  to  contractors  and  others 
(except  for  such  damages  as  are  hereinafter  provided  for) 
by  issuing  certificates  of  indebtedness,  which  together  with 
the  certificates  of  Indebtedness  Scrip  and  acceptances  here- 
tofore issued  by  the  said  Canal  Commissioners  shall  be  re- 
ceived by  said  trustee,  or  other  officer  or  officers  aforesaid 
in  payment  for  said  lots  and  lands  whenever  they  may  be 


1305 


presented  for  that  purpose,  the  said  lands  and  lots  hereby 
reserved  shall,  within  three  months  after  the  passage  of  this 
act,  be  appraised,  as  is  provided  in  the  thirteenth  section  of 
this  act,  and  sold  in  accordance  with  the  laws  of  this  State 
negotiating  the  sale  of  Canal  lands. 

Section  11.  The  subscribers  to'  the  said  loan  shall  execute 
an  agreement  to,  and  with,  the  Governor  of  this  State,  to 
pay  the  amount  by  them  respectively  subscribed,  to  the  said 
Board  of  Trustees,  at  such  times  and  in  such  proportions 

4503  as  said  Trustees  shall  direct;  and  said  agreement  shall 
specify  the  manner  in  which  said  Trustees  shall  give  notice  to 
the  said  subscribers  of  every  call  for  payment;  provided, 
That  in  case  any  subscribers  under  the  provisions  of  this  act, 
shall  fail,  neglect,  or  refuse  to  pay  any  instalment  at  the  time 
called  for  by  said  Trustees,  he  shall  forfeit  all  payments  pre- 
viously made,  and  all  benefits  and  advantages  arising  under 
the  provisions  of  this  act;  provided,  however,  That  the  said 
trustees  shall  be  bound  to  make  a call  for  at  least  one  hun- 
dred thousand  dollars  per  quarter,  for  the  first  year  after 
their  appointment. 

Section  12.  Whenever  and  as  often  as  the  said  subscribers 
to  the  said  loan  shall  make  a payment  of  any  portion  of  their 
subscriptions,  in  pursuance  of  a call  of  the  said  Trustees,  the 
said  Board  of  Trustees,  by  their  President  and  Secretary, 
under  the  seal  of  said  Board,  shall  execute  a certificate  to  each 
of  the  said  subscribers  for  the  amount  paid  by  them  or  their 
respective  subscriptions,  with  one  year’s  interest  at  the  rate 
of  six  per  cent.,  added  to  the  principal,  stipulating  for  the 
pa>unent  of  the  same  within  six  years,  with  interest  at  the 
rate  of  six  per  cent,  per  annum,  to  be  computed  after  one  year 
from  the  date  of  said  certificate,  and  to  be  paid  semi-annually 
thereafter;  the  said  principal  and  interest  to  be  paid  by  the 
said  Trustees  out  of  tlie  first  moneys  to  be  realized  by  them 

4504  from  the  Illinois  and  Michigan  Canal,  its  assets,  revenues, 
tolls,  and  lands  granted  to  the  said  trustees  by  this  act ; which 
said  certificate  shall  also  be  countersigned  by  the  Governor, 
and  the  impress  of  the  great  seal  of  the  State  shall  be  affixed 
thereon  by  the  Secretary  of  State. 

Section  13.  The  said  Board  of  Trustees  when  appointed 
are  hereby  authorized  to  take  possession  of  the  said  canal, 
lands,  property  and  assets,  granted  them  by  this  act,  and 
proceed  to  complete  the  same.  They  are  hereby  authorized 
to  make  such  changes  and  alterations  of  the  original  plan 
of  said  canal,  as  they  may  deem  advisable  without  reducing 
its  present  capacity,  or  materially  changing  its  location,  hav- 
ing due  regard  to  economy,  permanency  of  the  work,  and  an 
adequate  supply  of  water  at  all  seasons.  None  of  the  lots, 
lands,  or  water  powers  so  granted  to  the  said  Trustees,  shall 
be  sold  until  three  months  after  the  completion  of  the  said 


1306  Deed, — Governor  Ford  to  Canal  Trustees, — Continued, 

canal;  the  said  lots,  lands  and  water  -powers  shall  then  be  of- 
fered for  sale  by  the  said  Trustees  at  public  auctions,  in  lots 
and  legal  subdivisions,  once  or  oftener  in  each  year,  for 
the  four  succeeding  years;  said  sales  to  be  made  for  cash, 
or  on  credit,  in  the  manner  prescribed  in  the  act  of  ninth  of 
January,  eighteen  hundred  and  thirty-six.  The  said  land,  lots, 
and  water  powers  before  they  are  offered  for  sale  as  afore- 
said shall  be  appraised  by  three  disinterested  persons  to  be 
appointed  by  the  Judge  of  the  Circuit  in  which  said  lands,  lots 

4505  and  water  power  are  situated,  who  shall  talie  an  oath  faith- 
fully and  impartially  to  discharge  the  duty  of  appraisers; 
said  lands,  lots,  and  water  power,  when  so  appraised,  shall 
not  be  sold  for  less  than  the  appraisement.  After  the  expira- 
tion of  said  four  years,  the  said  Trustees  shall  expose  the  res- 
idue of  said  lands,  which  may  remain  on  hand,  to  sale  at  such 
times,  and  in  such  manner,  as  they  may  deem  proper.  The 
said  Board  of  Trustees  are  authorized  to  convey  lands  and 
water  powers  sold  by  them  as  aforesaid,  after  the  purchase 
for  the  same  be  fully  paid,  but  not  before,  and  the  said  land 
and  lots  shall  be  exempt  from  taxation  of  every  description, 
by  and  under  the  authority  of  any  law  of  this  State,  until 
after  the  same  shall  have  been  sold  and  conveyed  by  the  said 
Trusts'es,  as  aforesaid;  Provided,  also,  that  in  the  construc- 
tion of  the  said  canal,  no  change  shall  be  made  in  its  location, 
so  as  to  divert  the  water  power  from  canal  lands.  Provided, 
That  in  all  cases  where  improvements  were  made  upon  the 
said  canal  lands  or  lots,  previous  to  the  first  day  of  February, 
eighteen  hundred  and  forty-three,  the  owner  of  such  im- 
provements shall  be  entitled  to  purchase  the  said  lands  or  lots, 
on  which  said  improvements  are  situated,  at  an  appraisement 
to  be  made  as  aforesaid,  without  reference  to  said  improve- 
ments. 

Section  14.  The  said  Trustees  shall  proceed  to  the  coin- 

4506  pletion  of  the  said  canal,  in  a good  substantial  and  workman- 
like manner,  so  that  the  same  shall,  if  practicable,  be  ready 
for  use  and  navigation  within  two  years  and  six  months  from 
the  time  this  act  goes  into  operation.  The  said  Trustees  shall 
keep  a just,  full  and  accurate  account  of  all  the  costs  and 
expenditures  of  completing  and  superintending  the  said  canal, 
and  of  the  rents,  issues,  revenues,  and  profits  received  by 
them  from  the  said  canal  and  from  the  property  granted  to 
them  by  this  act ; and  of  the  amounts  received  by  them  under 
the  said  loans,  and  shall  annually  make  a report  to  the  Gov- 
ernor in  manner  and  form  specified  in  the  forty-third  sec- 
tion of  the  said  act  of  January  ninth,  eighteen  hundred  and 
thirty-six;  Provided,  That  in  case  the  subscribers  under  the 
provisions  of  this  act,  shall  fail  or  neglect,  to  complete  the 
said  canal  within  three  years  after  this  act  goes  into  opera- 


1307 


tion,  then  and  in  such  case,  the  lands  and  property  hereby 
granted  to  said  trustees,  shall  revert  to  the  State. 

Section  15.  The  said  Board  of  Trustees  shall  annually 
establish  a tariff  of  tolls  to  be  paid  for  transportation  on 
said  canal,  but  the  legislature  hereby  reserves  the  right  to 
increase  the  tolls  with  a view  to  an  increase  of  revenue,  but 
shall  not  reduce  the  same  without  the  consent  of  the  Trustees, 
and  are  hereby  fully  authorized  and  empowered  to  collect 

4507  the  same,  and  from  time  to  time  make,  ordain  and  establish 
such  reasonable  rules,  by-laws,  and  regulations,  in  relation  to 
the  collection  of  tolls,  the  transportation  upon  the  canal,  the 
conduct  of  boats  and  rafts,  and  the  general  police  of  the  said 
canal,  as  are  usual,  or  may  be  found  necessary,  and  to  enforce 
the  observance  of  the  same;  and  that  said  canal  when  com- 
pleted, shall  in  all  future  time,  be  free  for  the  transportation 
of  the  troops  of  the  United  States,  and  their  munitions  of 
war,  without  the  payment  of  any  toll  whatever. 

Section  16.  After  the  completion  of  the  said  canal,  as 
aforesaid,  the  said  Board  of  Trustees  shall  make  annual  divi- 
dends of  the  moneys  which  shall  come  to  their  hands  from  the 
said  canal,  its  assets,  tolls,  revenues,  and  lands  granted  to 
the  said  Trustees  by  this  act  after  payment  of  incidental  ex- 
penses among  the  holders  of  the  bonds  of  this  State,  in  the 
following  order:  First,  the  said  Board  of  Trustees  shall  an- 
nually make  a pro  rata  dividend  or  payment  of  said  moneys 
on  the  certificates  given  to  the  subscribers  to  the  loan  au- 
thorized by  this  act  until  said  certificates  and  interest  there- 
on are  fully  paid.  Second,  the  said  Trustees  shall  then  make 
annual  dividends  and  payments  of  said  money  upon  the  in- 
terest due  upon  the  bonds  and  other  evidences  of  indebted- 
ness held  by  the  subscribers  to  the  said  loan,  a description 
whereof  shall  have  been  filed  with  the  Governor,  as  provided 

4508  in  the  ninth  section  of  this  act,  until  the  interest  thereon  is 
fully  paid.  Third,  the  said  Trustees  shall  then  make  annual 
dividends  and  payments  of  said  money  upon  the  interest  due 
to  the  non-subscribing  holders  of  bonds  or  other  evidence  of 
canal  indebtedness.  Fourth,  after  paying  all  interest  due 
such  non-subscribing  bond  holders,  the  said  Trustees  shall 
make  annual  dividends  pro  rata  upon  the  principal  of  the 
bonds  and  other  evidences  of  canal  indebtedness  held  by  the 
subscribers  to  said  loan,  as  provided  for  by  the  ninth  sec- 
tion of  this  act,  until  the  same  shall  be  liquidated ; at  which 
time  the  trust  hereby  created  shall  cease,  and  the  canal  shall 
revert  to  the  State,  with  all  the  appurtenances  thereunto  be- 
longing : 

Provided,  That  the  certificates  of  canal  indebtedness,  not 
stipulating,  'on  their  face,  for  the  payment  of  interest,  shall, 
when  registered  by  subscribers  to  said  loan,  as  hereinbefore 
provided,  bear  an  interest  of  six  per  cent,  per  annum,  from 


1308  Deed, — Governor  Ford,  to  Canal  Trustees. — Continued. 

and  after  they  shall  be  so  registered:  Provided,  further,  that 
no  appraisal  shall  be  made  for  any  damages  arising  under 
the  provisions  of  any  contract,  entered  into  in  pursuance  of 
an  act  for  the  construction  of  the  Illinois  and  Michigan  Canal, 
unless  the  contractor  or  contractors  interested  therein  shall 
first  signify  his  or  their  consent  in  writing  (which  writing 
shall  be  deposited  with  the  appraisers,  to  be  filed  in  the  Au- 
ditor’s office),  that  such  appraisal  of  damages  shall  be  made 

4509  without  allowing  any  prospective  damages,  or  any  forfeits 
which  said  contractor  or  contractors_might  have  made,  had 
they  finished  their  jobs,  but  such  contractor  or  contractors 
shall  be  allowed  the  value  of  their  macliinery  upon  the  canal 
at  the  time  the  work  stopped,  and  back  percentage  and  scale- 
age,  which  entire  amount  of  damages  allowed  to  all  con- 
tractors shall  not  exceed  the  sum  of  two  hundred  and  thirty 
thousand  dollars. 

Section  17.  The  Governor  is  hereby  authorized  and  em- 
powered to  appoint  three  discreet  and  skillful  persons  to  go 
onto  the  jobs  and  lettings  upon  the  canal,  and  appraise  the 
actual  damage  which  the  respective  contractors  upon  the  said 
canal,  will  sustain,  in  being  deprived  of  the  same;  said  ap- 
praisal shall  be  final  and  conclusive,  unless  appealed  from. 
That  if  any  person  shall  consider  himself  aggrieved  by  the 
decision  of  said  appriasers,  he  may  appeal  from  the  same, 
at  any  time  within  thirty  days,  to  the  Circuit  Court  of  the 
County  in  which  the  job  so  appraised  is  situated.  If  the  Gov- 
ernor shall  be  satisfied  that  the  appraisal  is  fair  and  honest, 
he  shall  issue  certificates  of  Canal  indebtedness,  bearing  in- 
terest at  six  per  cent.,  to  the  persons  in  whose  favor  the 
appraisal  shall  be  made^  for  the  amount  the  holders  of  which 
certificates  shall  be  entitled  to  all  the  privileges  conferred  by 
this  act  upon  other  holders  of  canal  indebtedness.  And  the 
present  contractors  of  the  Illinois  and  Michigan  Canal  shall 
have  the  right  to  take  the  contract  for  the  jobs  which  they 
now  hold,  at  the  estimate  of  the  engineer  to  be  appointed  by 

4510  said  Trustees,  under  such  regulations  and  provisions  as  the 
said  Trustees  shall  direct. 

Section  18.  This  act  shall  go  into  effect,  and  the  said  canal 
property  and  assets  shall  rest  in  the  said  Trustees,  as  here- 
inbefore granted,  whenever,  and  as  soon  as  the  full  amount 
of  the  said  loan  shall  be  subscribed  for  and  the  Trustees 
elected  as  hereinbefore  provided ; and  when  this  act  goes  into 
effect,  so  much  of  the  acts  heretofore  passed  by  the  legisla- 
ture of  this  state  in  relation  to  the  Illinois  and  Michigan 
Canal,  and  the  canal  lands  and  property  as  conflicts  with  the 
provisions  of  this  act  are  hereby  repealed. 

Section  19.  Whenever  the  trust  created  by  this  act  shall 
have  been  fully  executed  and  performed  by  the  said  Trus- 
tees, the  said  canal  and  the  canal  property  that  may  then  re- 


1309 


main  shall  revert  to  the  State ; and  the  State  hereby  reserves 
the  right  of  paying  oft  the  bonds  and  certificates  to  be  paid 
to  the  said  Trustees,  and  the  incidental  expenses  paid  by  them, 
and  the  interest  thereon;  and  the  said  Trustees  shall  then 
resign  the  said  canal  ancT  the  remaining  canal  property  and 
assets  to  the  State. 

Section  20.  This  act  shall  be  a public  act,  and  shall  be 
liberally  construed  in  all  courts  of  justice,  and  the  State 
hereby  solemnly  pledges  its  faith  to  supply,  by  future  legis- 
lation, all  such  defects  as  may  be  found  necessary  to  enable 
the  said  Trustees  to  carry  into  full  effect  the  fair  and  obvious 

4511  intent  of  this  act. 

Section  21.  If  in  consequence  of  any  defect,  omission,  or 
objection  to  the  foregoing  act,  the  said  bond  holders  or  other 
persons,  shall  neglect  or  refuse  to  subscribe  for  the  said  loan, 
in  that  case  the  Governor  is  hereby  authorized  to  negotiate, 
and  enter  into  a contract  with  the  said  bond  holders,  or  other 
persons  in  pursuance  of  the  general  princijoles  of  this  act: 
Provided,  That  he  shall  make  no  further  pledge  of  the  faith  or 
credit  of  the  state,  for  any  advance  of  money,  but  shall  be 
limited  to  pledging  the  canal  and  canal  property  therefor: 
And,  provided  further.  That  in  any  negotiations  to  be  made 
under  the  provisions  of  this  act,  for  the  purpose  of  carrying 
them  into  effect,  nothing  shall  be  done  which  shall  in  any  wise 
interfere  with  the  rights  now  secured  to  the  holders  of  canal 
bonds.  The  Governor  is  hereby  vested  with  all  such  power 
as  may  be  necessary  to  carry  this  act  into  operation,  or  to 
make  or  cause  to  be  made  such  negotiations. 

Section  22.  The  said  Trustees  shall  employ  a chief  engi- 
neer of  known  and  established  character,  for  experience  and 
integrity,  who  shall  be  subject  to  the  direction  of  the  Trus- 
tees, but  shall  be  required  to  execute  a bond  to  the  Governor, 
in  the  sum  of  ten  thousand  dollars,  to  be  approved  by  him, 
for  the  faithful  performance  of  all  the  duties  of  an  engineer, 
and  shall  be  subject  to  be  removed  by  the  Governor  for  any 

4512  good  reason,  which  he  shall  make  known  to  the  next  Gen-^ 
era!  Assembly.  The  said  engineer,  shall,  in  addition,  be  re- 
quired to  take  an  oath  Ghat  he  shall  faithfully  and  impartially 
perform  all  the  duties  of  his  office  without  respect  to  persons, 
and  that  he  is  neither  interested,  nor  will  be  interested  in  any 
job,  work,  or  contract,  let  or  to  be  let  on  the  canal,  or  con- 
nected therewith’;  which  oath  shall  be  entered  and  subscribed 
on  the  bond  of  said  engineer. 

And  whereas,  The  General  Assembly  of  the  State  of  Illinois, 
at  their  session  begun  on  the  first  Monday  of  December,  in 
the  year  of  our  Lord  one  thousand  eight  hundred  and  forty- 
four,  passed  an  act  entitled  ^An  Act  supplementary  to  an  act 
to  provide  for  the  completion  of  the  Illinois  and  Michigan 


1310  Deed^ — Governor  Ford  to  Canal  Trustees. — Continued. 

Canal,  and  the  payment  of  the  canal  debt,  approved  February 
21st,  1843C  Approved  March  1st,  1845;  which  said  act  is  in 
substance  and  effect  as  follows,  viz: 

Section  1.  Be  it  enacted  by  the  People  of  the  State  of 
Illinois  represented  in  the  General  Assembly,  That  after  the 
contract  for  the  loan  of  one  million  and  six  hundred  thousand 
dollars,  as  contemplated  in  the  Act  entitled  ‘An  Act  to  pro- 
vide for  the  completion  of  the  Illinois  and  Michigan  Canal, 
and  for  the  payment  of  the  canal  debt.’  Approved  February 
twenty-first,  eighteen  hundred  and  forty-three,  shall  be  duly 
executed  in  all  respects  as  is  provided  by  the  terms  of  the 
above  recited  act,  as  modified  by  the  provisions  of  this  act, 
and  the  trustees  are  appointed  as  is  contemplated  in  said 

4513  act,  the  Governor  of  this  State  shall  execute  and  deliver  un- 
der the  seal  of  State,  a deed  of  trust  to  the  said  Trustees 

of  all  the  property  and  effects  mentioned  in  the  tenth  section 
of  said  act,  which  said  conveyance  shall  include  the  lands  and 
lots  remaining  unsold,  donated  by  the  United  States  to  the 
State  of  Illinois  to  aid  in  the  completion  of  the  said  canal,  to 
be  held  in  trust  as  is  in  the  said  act  stipulated,  and  it  is  ex- 
pressly provided  that  the  subscribers  to  said  loan  may  and 
shall  register  their  bonds  or  other  evidences  of  indebtedness 
upon  which  they  may  have  made  or  may  hereafter  make  their 
subscriptions,  within  one  year  after  the  appointment  of  Trus- 
tees, and  the  said  subscribers  shall  be  entitled  to  priority  in 
the  payment  of  the  respective  advances  to  be  made  by  them, 
and  the  interest  thereon;  also  a priority  in  the  payment  of 
the  principal  and  interest  of  the  bonds  or  other  evidences  of 
indebtedness  to  be  registered  by  them  out  of  the  proceeds 
of  the  said  trust  property,  anything  in  the  said  act  above  men- 
tioned to  the  contrary  notwithstanding. 

Section  2.  The  majority  of  the  said  Board  of  Trustees 
shall  have  power  and  authority  to  act  and  decide  in  all  cases, 
and  their  acts  shall  bind  all  parties,  and  in  appointing  the 
said  Trustees  each  subscriber  to  the  said  loan  shall  be  en- 
titled to  one  vote  for  each  sum  of  three  hundred  and  twenty 
dollars  subscribed,  and  such  election  may  be  held  in  the  city 
of  New  York,  under  the  direction  of  the  District  Judge  of 

4514  the  United  States,  for  that  district,  or  such  person  as  he 
for  that  purpose  may  appoint. 

Section  3.  In  case  a sufficient  sum  shall  not  be  subscribed 
or  paid,  to  complete  said  canal,  the  said  subscribers  shall 
have  pari  passu,  with  other  persons,  who  may  subscribe  and 
pay  the  residue  of  the  amount  necessary  to  complete  the 
canal;  provided  That  the  subscribers  to  said  loan  shall  have 
the  right  to  subscribe  and  fill  up  the  amount  necessary  to  fin- 
ish said  canal,  in  the  first  instance,  and  if  they  neglect  so  to 
do,  then,  any  other  person  may  subscribe  such  amount;  And 


1311 


provided  further,  That  such  subscribers  may  register  bonds 
upon  such  subscriptions  as  hereinbefore  provided,  within  one 
year  after  such  subscriptions. 

Section  4.  When  the  amount  due  for  arrears  and  difference 
of  interest  on  the  registered  bonds  and  other  canal  indebted- 
ness shall  be  extinguished,  then  the  principal  of  said  registered 
bonds  and  canal  indebtedness  shall  be  paid,  and  when  the  said 
principal  shall  have  been  paid,  the  said  Trustees  shall  proceed 
to  pay  the  interest  on  the  unregistered  canal  bonds,  and  canal 
indebtedness. 

Section  5.  The  preliminary  expenses  of  the  negotiation  of 
said  contract,  with  the  expenses  of  the  examination  of  the 
canal  property  by  the  agents  appointed  by  the  authority  of 
• the  bondholders,  shall  be  first  paid  by  the  said  Trustees  unless 
some  other  provision  for  their  payment  be  made  by  the  Gen- 

4515  eral  Assembly;  but  no  further  expense  shall  be  incurred  by 
the  State,  by  sending  agents  to  Europe  or  elsewhere,  in  rela- 
tion to  the  matter. 

Section  6.  If  the  said  canal  shall  not  be  completed  within 
three  years,  as  is  contemplated  in  the  fourteenth  section  of 
the  above  recited  act,  the  subscribers  to  said  loan  who  shall 
have  advanced  money  in  pursuance  of  their  subscriptions  shall 
not  forfeit  the  priority  of  payment  secured  to  them  by  this 
act,  but  shall  share  in  the  trust  property  pari  passu,  with  such 
other  persons  as  will  advance  further  sums,  if  such-  would  be 
necessary  to  complete  the  canal. 

And  whereas,  After  the  approval  of  the  aforesaid  actSj 
and  before  the  election  and  appointment  of  the  said  Trustees 
as  hereinafter  mentioned,  the  whole  amount  of  the  said  loan, 
of  one  million  six  hundred  thousand  dollars,  was  subscribed 
for  and  filled  up  in  strict  pursuance  of  the  provisions  of 
the  said  acts  and  the  subscribers  thereto  have  entitled  them- 
selves to  the  privileges  conferred  upon  such  subscribers  by 
the  said  acts. 

And  whereas,  The  said  subscribers  to  said  loan,  have  made 
and  executed  a contract  or  agreement,  to,  and  with  the  Gov- 
• ernor  aforesaid'  in  strict  conformity  to,  and  with  the  provi- 
sions of  the  aforesaid  acts;  and  did,  at  a meeting  duly  and 
legally  summoned  and  called  by  the  said  Governor,  to  be  held 
in  the  city  of  New  York,  on  the  twenty-seventh  day  of  May, 

4516  eighteen  hundred  and  forty-five,  duly  and  legally  elect ‘in 
conformity  with  the  provisions  of  the  said  acts,  William  H. 

Swift,  a Captain  in  the  service  of  the  United  States,  and 
David  Leavitt,  Esquire,  of  the  said  city  of  New  York,  as  trus- 
tees on  the  part  of  the  said  subscribers,  and  him,  the  said 
William  H.  Swift,  President  of  the  said  Board  of  Trustees. 

And  whereas.  The  said  Governor  has  duly  appointed  J acob 
Fry  of  the  County  of  Will  in  the  State  of  Illinois,  to  be  a 


1312  Deed, — Govenior  Ford-  to  Canal  Trustees. — Continued. 

trustee  on  the  part  of  the  said  State,  they  the  said  William 
H.  Swift,  David  Leavitt  and  Jacob  Fry,  now  constituting  the 
‘Board  of  Trustees  of  the  Illinois  and  Michigan  CanaF  duly 
elected  and  appointed  in  pursuance  with  the  provisions  of 
the  above  recited  acts. 

And  whereas,  All  things  which  the  said  acts  require,  or  pro- 
vide for,  as  necessary  to  be  done  before  the  execution  of  a 
deed  of  trust  to  the  said  Trustees  having  been  done  and  com- 
pleted according  to  the  terms  and  requirements  the  said  acts: 

Noiv,  therefore,  he  it  known,  to  all  persons  ivJioni  it  may 
eoncern,  that  I,  Thomas  Ford,  Governor  of  the  State  of  Illi- 
nois, by  virtue  of  the  powers  and  authority  vested  in  me,  as 
aforesaid,  and  in  execution  of  the  provisions  of  the  afore- 
said acts,  as  well  as  in  consideration  of  the  subscriptions  and 
contract  entered  into  by  the  said  subscribers,  and  the  prem- 
ises aforesaid,  do  by  these  presents,  hereby  give,  grant,  sell, 

4517  bargain,  convey,  transfer,  assign,  and  make  over  unto  the 
said  William  H.  Swift,  David  Leavitt  and  Jacob  Fry,  Trus- 
tees of  the  Illinois  and  Michigan  Canal,  as  aforesaid,  and  to 
their  successors  in  the  said  trust,  the  bed  of  the  said  Illinois 
and  Michigan  Canal,  and  the  land  over  which  the  same  passes 
including  its  banks,  margins,  tow-paths,  feeders,  basins,  right 
of  way,  locks,  dams,  water  power  structures  stone  excavated 
and  stone  materials  quarried  purchased,  procured  or  col- 
lected for  its  construction;  and  the  said  canal  with  all  the 
hereditaments  and  appurtenances  thereunto  belonging 
or  in  anywise  appertaining;  and  all  the  remaining 
lands  and  lots  belonging  to  the  canal  fund,  or  which 
may  hereafter  be  given,  granted,  or  donated,  by  the  General 
Government  to  the  State,  to  aid  in  the  construction  of  the 
said  canal;  and  the  buildings  and  erections  belonging  to  the 
State  thereon  situated,  also  the  lands  and  lots  remaining  un- 
sold, donated  by  the  United  States  to  the  State  of  Illinois  to 
aid  ip  the  completion  of  the  said  canal.  To  have,  to  hold, 
possess  and  enjoy  the  premises  aforesaid,  without  hindrance 
or  molestation,  to  them,  the  said  William  H.  Swift,  David 
Leavitt  and  Jacob  Fry,  as  Trustees  of  the  Illinois  and  Mich- 
igan Canal,  as  aforesaid,  and  their  successors,  in  trust,  as  in 
the  said  above  recited  acts  stipulated,  and  to,  and  for,  the 
uses  and  purposes  in  the  said  acts  expressed  and  intended. 

And  so  to  have,  hold  and  enjoy  the  said  property,  with 

4518  the  rights  of  controlliug,  managing,  selling  and  disposing  of 
the  same,  and  subject  to  all  the  duties  and  obligations  as  they 

are  set  forth  and  specified  in  the  said  Acts  of  the  General  As- 
sembly, until  from  the  proceeds  of  the  said  property,  and  the 
revenue  of  the  said  canal  after  it  shall  be  completed,  all  the 
moneys  to  be  paid  and  trusts  performed  by  the  said  Trus- 
tees, as  specified  in  the  said  acts  shall  be  fully  paid,  per- 


1313 


formed,  satisfied  and  extinguished  together  with  all  just  and 
necessary  charges  and  expenditures  incurred  and  to  be  in- 
curred in  carrying  on  the  work  and  business  of  the  said  trust. 
And  the  property  of  the  said  Trustees,  the  rights  of  the 
said  subscribers  to  the  said  loan,  or  any  of  them,  and  the  rights 
of  their  heirs,  executors,  administrators,  or  assigns,  shall  not 
be  in  anywise  affected  or  impaired,  in  case  any  of  the  said 
subscribers  to  the  said  loan,  their  heirs,  executors,  administra- 
tors, or  assigns,  or  the  holders  of  bonds,  or  canal  indebtedness, 
entitled  to  be  paid  by  the  said  Trustees  shall  be  citizens  or 
subjects  of  any  power  at  any  time  at  war  with  the  United 
States  of  America,  or  the  State  of  Illinois. 

In  testimony  of  all  which,  I,  Thomas  Ford,  Governor  of  the 
State  of  Illinois,  in  virtue  of  the  power  and  authority  in  me 
vested,  by  force  of  the  legislative  acts  above  recited,  have 
hereunto  set  my  hand,  and  caused  the  seal  of  State  to  be  af- 
fixed, this  twenty-sixth  day  of  June,  in  the  year  of  our  Lord 
one  thousand  eight  hundred  and  forty-five,  and  of  the  Inde- 
pendence of  the  United  States,  the  sixty-ninth. 

Thomas  Ford. 

Signed  triplicate 

by  the  Governor, 

Thompson  Campbell, 

Secretary  of  State. 

State  of  Illinois,  1 
Will  County.  S 

On  the  1st  day  of  August,  1845,  the  within  deed  was  left 
for  record  and  was  duly  recorded  in  Book  1,  pages  563,  4,  5, 
6,  7,  8,  9,  70,  71,  2,  3,  & 4. 

Eobert  C.  Duncan', 

(5531)  Recorder. 

Filed  August  1st,  1845. 

Fees  $8.82. 


4520  General  Offices  Board  of  Canal  Commissioners,  State  of 

Illinois, 

State  of  Illinois,  ) 

Will  County.  ( 

I,  John  M.  Snyder,  Acting  Secretary  of  the  Board  of  Canal 
Commissioners  of  the  State  of  Illinois,  and  Keeper  of  the 
Eecords  and  Files  belonging  to  said  Board,  do  hereby  cer- 
tify that  the  above  and  foregoing  is  a true  and  correct  copy  of 


1314 


deed  now  on  file  in  this  office  and  in  my  keeping,  as  regards 
the  matter  herein  contained. 

Witness  my  hand  and  the  official  seal  of  the  said  Board  of 
Canal  Commissioners  of  the  State  of  Illinois,  this  11th  day  of 
April,  A.  D.  1908. 

John  M.  Snyder, 

(Seal)  Acting  Secretary  as  aforesaid. 

4521  Counsel  for  defendant  offered  a certified  copy  of  the  final 
report  of  the  trustees  of  the  Illinois  and  Michigan  Canal, 

being  the  27th  report  of  the  Board  of  Trustees,  December  1,  1870, 
to  AngTist,  1871,  and  called  special  attention  at  this  time  to  that 
part  of  the  report  as  follows: 

There  remained  unsold  on  the  1st  May,  1871,  fourteen 
tracts  of  land  varying  in  extent  from  3/4  of  an  acre  to  80 
acres,  amounting  in  the  aggregate  to  263.05  acres.” 

The  report  is  a final  report  of  the  Board  of  Trustees  of  the 
Illinois  and  Michigan  Canal,  dated  October,  1871,  and  will  be 
marked  Snyder  Exhibit  2. 

Said  report  is  in  words  and  figures  following,  to-wit : 

4522  Circular  No.  24. 


The  Illinois  and  Michigan  Canal 


Final  Beport  of  the  Board  of  Trustees. 
October,  187i 


New  YoiA, 

C.  0.  Jones,  Printer  and  Stationer,  76  Cedar  Street, 


1871. 


Circular  No.  24. 

Final  Beport  of  the  Board  of  Trustees  of  the  Illinois  and 

Michigan  Canal. 


Being  for  that  portion  of  the  financial  year  between  De- 
cember 1,  1870,  and  the  16th  August,  1871,  and  corresponding 
with  the  Twenty-seventh  Annual  Beport  of  the  Board  of  Trus- 
tees to  the  Governor  of  Illinois,  under  the  Act  of  February 
21,  1843. 

Illinois  and  Michigan  Canal  Office) 
New  York,  October  20,  1871.  ) 

4523  By  a resolution  of  the  Board  of  Trustees  of  the  Illinois 
and  Michigan  Canal,  the  President  was  requested  to  prepare 


1315 


a Report  of  the  proceedings  of  said  Board  from  the  1st  De- 
cember, 1870,  close  of  the  iast  Annual  Circular,  or  Reioort,  to 
the  16th  August,  1871,  the  day  on  which  the  Trust  created  on 
the  26  June,  1845,  under  the  Act  of  February  21,  1841,  was 
closed  under  the  Act  of  April  22,  1871. 

Since  the  year  1848,  when  the  Canal  was  first  opened  for 
public  use,  these  circulars  or  Reports,  have  been  published 
annually,  for  the  information  of  the  subscribers  to  the  loan 
of  $1,600,000,  and  the  holders  of  Canal  Bonds,  this  circular 
will,  of  course,  close  the  series. 

Receipts  Dec.  1,  1870,  to  August  16,  1871. 


1 Sales  of  Lands  and  lots 275.83 

2 Notes  paid  on  account  of  previous  sales 7,440.73 

3 Water  rents  (Joliet)  446.10 

4 Tolls,  Dec.  1,  to  April  30,  1871 19,982.50 

5 Interest  on  deposits  in  New  York  Life  and  Trust 

Co.,  Dec.  1,  1870,  to  August  16,  1871 2,766.02 


Total  amount  received 30,911.18 

Balance  in  hands  of  treasurer,  Nov.  30,  1870 189,688.89 


Total  to  be  accounted  for 220,600.07 

4524  Expenditures,  December  1,  1870,  to  August  16,  1871. 

1  Principal  Registered  canal  bonds 81,623.33 

2 Premium  on  gold  for  dividend  on  bonds  payable 

in  London 8,561.17 

3 Maintenance  and  repairs  of  canal  feeders,  and 

pumping  engines 24,247.56 

4 Tolls  expenses  of  collection,  superintendence, 

lock-keepers,  etc 2,567.64 

5 Contingent  and  general  expenses 10,982.88 

6 Canal  property,  sales  of  land  and  expenses 500.00 

7 Interest  and  exchange 17.98 


Total  Expenditures 128,500.46 

Receipts  of  1871  and  balance  of  1870  (above) ....  220,600.07 


Balance  in  hands  of  Trustees,  August  16,  1871. . . . 92,099.61 


TreasukerY  Vouchers  for  1870  and  1871. 

The  Committee  designated  in  the  Regulations  of  the  Board 
of  Trustees,  to  examine  the  vouchers  of  the  Treasurer,  con- 
sisting of  the  President,  the  State  Trustee,  and  the  Secretary, 
performed  that  dutv  at  the  Canal  office  in  Lockport,  Mav  16, 
1871. 

The  Committee  examined  the  vouchers  for  the  year  ending 
November  30,  1870,  numbered  10,420  to  10,254,  inclusive^ 
amounting  to  322,029.26,  viz: 


1316  Final  Report, — Canal  Trustees  1871, — Continued. 


4525  For  General  Expenditures  131,035.64 

For  principal  registered  Canal  Bonds 160,102.08 

For  premium  on  gold  for  London  Bonds 30,891.54 


$322,029.26 

All  these  vouchers  having  been  examined  and  verified  by 
the  Auditor  of  Accounts,  Mr.  A.  J.  Mathewson,  as  appears 
by  his  two  reports  of  May  15  and  20,  1870,  the  Committee 
certified  the  amount  and  ordered  the  same  to  be  carried  to 
the  credit  of  the  Treasurer  on  the  books  of  the  Trustees. 

The  same  Committee  then  examined  the  vouchers  of  the 
Treasurer  for  his  expenditures  between  the  1st  December, 
1870,  and  the  30th  April,  1871,  inclusive,  numbered  10,255 


to  10,339  inclusive,  viz: 

For  General  Expenditures 33,408.21 

For  principal  registered  Canal  Bonds 81,623.33 

For  premium  on  gold  for  London  bonds 8,561.17 


$123,592.71 

All  these  vouchers  having  been  examined  and  verified  in 
like  manner  by  the  Auditor  of  Accounts,  Mr.  A.  J.  Mathewson, 
as  appears  by  his  two  reports  of  May  15,  1871,  the  Committee 
certified  the  amount  and  ordered  the  same  to  be  passed  to 
the  credit  of  the  Treasurer  on  the  books  of  the  Trustees. 

4526  Recapitulation. 

Whole  amount  of  moneys  received 

by  the  Board  of  Trustees  from 

June  26,  1845,  to  November  30, 

1870  $10,979,861.18 

From  Dec.  1,  1870,  to  April  30, 

1871  29,646.23 

Whole  amount  vouchers  audited 

from  June  26,  1845,  to  April  30, 

1871  10,913,765.00 

Balance  in  hands  of  Treasurer 

April  30,  1871  95,742.11 

Sale  of  Canal  Lands  and  Lots. 

No  canal  lands  have  been  sold  by  the  Trustees  since  Novem- 

ber 30,  1870. 

Canal  Lots  to  the  amount  of  935,000  dollars  were  sold  prior 
to  April  30,  1871,  upon  which  the  payments  in  cash  amounted 
to  275.83  dollars. 

The  amount  of  notes  remaining  unpaid  on  account  of  lands 
and  lots  previously  sold  was  4,135.00  dollars  on  the  1st  May, 
1871. 

All  these  notes  were  delivered  to  the  Board  of  Canal  Com- 
missioners May  2,  1871,  and  a receipt  therefor  given  by  them 
on  that  day. 


11,009,507.41 


11,009,507.41 


1317 


There  remained  unsold  on  the  1st  May,  1871,  14  tracts 
of  land  varying  in  extent  from  3/4  of  an  acre  to  80  acres, 
amounting  in  the  aggregate  to  263.05  acres. 

4527  There  are  two  cases  in  which  parties  owning  adjoining 
property  have  extended  their  boundaries  beyond  their  own 
proper  limits,  but  the  lands  have  not  been  conveyed  by  the 
Trustees. 

The  first  lies  in  the  city  of  Morris,  Grundy  County,  in  Sec. 
9,  Township  33,  Eange  7.  The  second  is  in  the  city  of  Chi- 
cago, north  of  Kedzie  street.  Sec.  9,  Township  39,  Eange  14. 

Eegistered  Canal  Bonds. 

By  a resolution  dated  November  25,  1870,  the  Board  of 
Trustees  declared  a dividend  of  five  per  cent  on  account  of 
principal  of  registered  Canal  Bonds  applicable  to  the  year 
1870,  and  the  same  was  made  payable  in  New  York,  on  and 
after  first  Monday  in  January,  1871. 

This  dividend  (No.  18)  constituted  the  twelfth  paid  on  ac- 
count of  principal  of  registered  bonds.  Dividends  Nos.  1 to 
6 inclusive,  (January  1,  1854,  to  January  5,  1857)  relate  to 
the  arrears  of  interest  on  registered  Canal  Bonds,  embracing 
the  unpaid  coupons  of  1843,  and  from  thence  forward. 

Dividend  No.  18,  constituted,  with  previous  payments, 
eighty-five  per  cent  of  the  principal  of  registered  bonds  leav- 
ing fifteen  per  cent  unpaid. 

The  whole  amount  paid  on  account  of  this  class  of  bonds 

4528  by  the  Trustees  from  January,  1854,  to  August  16,  1871, 
principal  and  interest,  and  premium  on  gold  is  $4,721,950.47, 


thus : 

Arrears  of  interest $2,155,622.38 

Principal 2,195,463.67 

Premium  on  gold  for  London  Bonds 370,864.42 


$4,721,950.47 

Proceedings  of  the  Board  of  Trustees  Under  the  Act  of 
April  22,  1871,  Closing  the  Trust. 

The  Board  of  Trustees  received  a certified  copy  of  the 
above  named  Act  on  the  1st  May,  and  upon  its  receipt  the 
Secretary  was  instructed  to  give  the  Canal  Commissioners 
free  access  to  all  the  records  and  accounts  of  the  Trustees, 
in  order  that  they  might  have  the  opportunity  and  the  means 
of  making  such  examination  of  said  accounts,  as  requirt^l 
by  the  Act  above  referred  to.  The  Secretary  was  also  di- 
rected to  inform  the  Canal  Commissioners  that  the  Trustees 
would  be  prepared  to  co-operate  with  them  in  their  examina- 
tion, at  such  time  and  in  such  manner  as  would  be  most  con- 
venient to  the  Commissioners. 

For  the  purpose  of  facilitating  the  preliminary  measures, 
a meeting  of  the  Board  of  Trustees  was  agreed  upon  for  the 


1318  Final  Report, — Canal  Trustees  1871. — Continued. 

15th  of  May,  at  the  Canal  office,  Lockport.  On  that  day,  and 
the  two  following  days,  16  and  17,  two  Boards  met  there 

4529  informally,  and  agreed  upon  a course  of  proceedings  which, 
in  the  judgment  of  both  boards,  would  best  effect  the  object 

contemplated  in  the  Act  of  April  22,  1871,  for  closing  the 
trust  in  the  shortest  time,  and  in  the  most  simple  manner. 

To  enable  the  Trustees  to  comply  with  the  provisions  of 
the  Act  of  April  22,  it  was  agreed  by  and  between  the  two 
Boards,  the  Trustees  and  the  Canal  Commissioners,  that  the 
Trustees  should  pay  all  the  bills  for  carrying  on  the  work  of 
the  canal  which  belonged  to  the  month  of  April,  1871,  and  that 
they  should  cease  to  receive  moneys  after  the  30th  day  of 
that  month,  for  tolls,  sales  of  lands,  or  other  sources ; in  other 
words,  that  the  canal  and  its  accessory  works,  machinery, 
buildings,  etc.  and  the  management  thereof,  should  pass  into 
the  hands  of  the  Canal  Commissioners  on  the  1st  of  May, 
1871,  thereby  giving  the  Trustees  a fixed  day  for  closing  the 
general  accounts  of  the  trust,  exhibiting  the  balance  due  to 
the  State  of  Illinois  of  said  30th  of  April,  1871,  and  leaving 
for  a later  period  an  additional  account  to  be  made  covering 
such  expenditures  as  might  become  necessary  after  the  30th 
of  April,  and  before  the  release  deed  contemplated  in  the 
Act  of  April  22,  1871,  should  be  executed  and  delivered  to 
the  Governor  of  Illinois,  by  the  Trustees  this  last  Act  de- 

4530  pending  upon  the  fulfillment  of  the  provisions  of  the  Act  of 
February  21,  1843,  forming  the  basis  of  the  deed  of  trust 

of  June  26,  1845,  viz : the  payment  of  the  Canal  Bonds,  prin- 
cipal and  interest  in  the  manner  stipulated  in  the  said  deed 
of  trust. 

On  the  2nd  of  May  the  following  order  was  adopted  by 
the  Board  of  Canal  Commissioners,  and  communicated  to  the 
Trustees. 

^^The  Canal  having  passed  from  the  hands  of  the  Board  of 
Trustees  and  been  taken  possession  of  by  the  Canal  Com- 
missioners, of  the  State  of  Illinois,  said  Commissioners  at  a 
meeting  held  at  the  Canal  Office,  in  Lockport,  this  2nd  day  of 
May,  1871,  do  hereby 

Resolve,  that  the  President,  Officers  and  Agents  now  em- 
ployed on  said  Canal,  shall  retain  their  present  positions,  at 
the  same  compensations,  and  governed  by  the  same  rules  and 
regulations,  from  the  1st  day  of  May,  until  otherwise  or- 
dered. 

Signed,  Eouert  Milne, 

Secretary. 

On  the  16th  of  May  the  general  account  of  the  Board  of 
Trustees  exhibiting  all  moneys  received  and  expended  by 
them  between  June  26,  1845,  and  April  30,  1871,  was  com- 
pleted, and  certified  by  each  Trustee,  and  the  same  was  deliv- 


1319 


ered  to  the  Board  of  Canal  Commissioners,  in  Lockport,  for 
their  examination  in  the  following  form: 

+ Slightly  modified  by  a subsequent  order. 

4531  The  Boaed  of  Teustees  of  the  Illinois  and  Michigan 
Canal  in  Account  with  the  State  of  Illinois,  Be. 
To  the  following  amounts  received  on  account  of  the  sev- 
eral items  enumerated  below  between  June  26,  1845,  (the 
date  of  the  execution  of  the  Deed  of  Trust)  and  April  30, 
1871,  inclusive: 

1 Loan  of  1,600,000  dollars,  principal  and  inter- 


est   $1,601,891.90 

2 Construction  of  canal  feeders,  etc 2,132.25 

3 Canal  lands,  sales,  protection,  etc 4,706,482.68 

4 Maintenance  and  repairs  of  canal  and  feeders  111,003.97 

5 Tolls,  collections,  inspection  and  salaries 4,405,658.27 

6 General  expenses  and  contingencies  3.00 

7 Premium  on  gold  for  dividends  on  bonds 

payable  in  London  923.27 

8 Interest  and  exchange  181,412.07 

Total .$11,009,507.41 

No.  3.  Includes  interest  on  land  notes 


No.  4.  This  item  is  over  reported  618  dollars  by  report  of 
Committee  on  Accounts  May  11,  1869 
No.  8.  The  amount  received  is  for  interest  on  deposit  of 
the  Trust  fund  1845  to  1871,  inclusive. 

1871  April  30.  To  balance  due  State  of  Illinois,  $95,742.41 
The  Boaed  of  Teustees  of  the  Illinois  and  Michigan  Canal 
IN  Account  with  the  State  of  Illinois,  Ce. 

4532  By  the  following  amounts  expended  between  the  same 


dates,  June  26,  1845,  and  April  30,  1871. 

1 Loan  of  1,600,000  dollars  principal  and  in- 

terest   $ 2,153,771.31 

2 Construction  of  canal  feeders,  etc 1,429,606.21 

3 Canal  bonds,  sales,  protection,  etc 115,523.23 

4 Arrears  of  interest  on  registered  bonds 2,155,622.38 

5 Principal  registered  bonds  2,195,463.67 

6 Maintenance  and  repairs,  canal  and  feeders  1,853,049.61 

7 Tolls,  collections,  inspection  and  salaries 160,462.71 

8 Canal  damages,  flowage,  etc 22,163.32 

9 General  expenses  and  contingencies 421,600.82 

10  Premium  on  gold  for  dividends  on  bonds 

payable  in  London 370,864.42 

11  Interest  and  exchange 21,073.80 

12  Losses  on  wildcat”  currency,  counterfeit 

bills,  broken  Banks,  etc.,  1848  to  1863,  in- 
clusive.   14,563.52 

13  Balance  in  hands  of  Treasurer  of  the  Board 

of  Trustees  April  30,  1871 95,742.41 


$11,009,507.41 


1320  Final  Report,— Canal  Trustees  1871. — Continued. 

No.  6.  This  item  over  reported  618  dollars  by  committee  on 
accounts  May  11,  1869. 

No.  11.  The  amount  expended  under  this  head  is  for  pur- 
chase of  exchange  in  Illinois  for  remittances  in  New  York. 

No.  12.  The  history  of  these  losses  will  be  found  stated 
in  the  annual  reports  for  the  years  1861,  1862  and  1863. 

4533  The  certificate  of  the  Trustees,  appended  to  the  preced- 
ing general  account,  was  in  the  following  words : 

‘‘We  the  subscribers,  constituting  the  Board  of  Trustees 
of  the  Illinois  and  Michigan  Canal,  hereby  certify  that  the 
above  account  of  moneys  received  and  expended  by  said 
Board,  between  June  26,  1845,  (the  date  of  the  execution  of 
the  deed  of  trust  by  the  Governor  of  Illinois)  and  the  30th  day 
of  April,  1871,  is  correct  according  to  our  best  knowledge 
and  belief.’^ 

That  is  to  say,  the  said  Trustees  acknowledge  that  they 
have  received  for  account  of  the  Trust,  and  during  the  period 
above  stated,  the  aggregate  sum  of  eleven  millions  nine  thou- 
sand, five  hundred  and  seven  41/100  dollars,  (11,009,507.41) 
and  they  declare  that  they  have  expended  ten  millions,  nine 
hundred  and  thirteen  thousand  seven  hundred  and  sixty-five 
dollars,  (10,913,765),  during  the  same  period,  leaving  in  their 
hands  unexpended  on  said  30th  April,  1871,  the  sum  of  ninety- 
five  thousand,  seven  hundred  and  forty-two  41/100  dollars 
(95,742.41)  for  which  sum  said  Trustees  are  now  accountable 
to  the  State  of  Illinois,  subject  to  the  payment  of  any  legal 
liability  now  existing  against  the  said  Board  of  Trustees. 

Further,  that  this  balance  in  the  hands  of  the  trustees  is 


deposited  as  follows: 

4534  1 New  York  Life  and  Trust  Ins.  Co $75,498.02 

2 Bank  of  Commerce,  New  York  1,362.90 

3 Bank  of  Geo.  C.  Smith  & Co.,  Chicago  17,982.50 


4 In  hands  of  W.  Gooding,  Sec.  Bd.  Trustees ....  898.99 


$95,742.41 

Signed  W.  H.  Swift 

Signed  Henry  Grinnell 

Signed  R.  Rowett. 

Canal  Office,  Lockport,  May  16,  1871. 

In  addition  to  the  preceding  account  of  moneys  received 
and  expended,  the  Trustees  caused  three  several  schedules 
of  canal  property,  consisting  of . machinery,  took,  buildings, 
boats,  &c.,  to  be  prepared  for  the  Canal  Commissioners,  with 
the  estimated  value  of  each  article  appended,  viz: 


First  division  of  the  Canal 40,935.50 

Second  do  do  14,905.34 

Hydraulic  Works  at  Bridgeport 101,986.85 


Total  valuation $157,809.69 


1321 


These  schedules  were  subsequently  receipted  for  by  the 
Board  of  Canal  Commissioners,  the  articles  having  passed 
into  their  hands  May  1,  1871. 

4535  On  the  17  May  the  following  order  was  adopted  by  the 
Board  of  Trustees: 

Resolved,  That  his  Excellency  the  Grovernor  be  respectfully 
requested  to  cause  the  Board  of  Trustees  of  the  Illinois  and 
Michigan  Canal  to  be  furnished  with  a schedule,  or  descrip- 
tive list  of  such  Illinois  and  Michigan  Canal  Bonds,  as  may 
be  outstanding  or  unpaid,  if  any  there  be  at  this  time,  both 
registered  and  unregistered. 

Canal  Office,  Lockport,  May  17,  1871. 

On  the  17th  May  the  Board  of  Trustees  proceeded  to  Spring- 
field,  to  confer  with  the  Governor  upon  a course  of  measures 
which  they  had  proposed  to  pursue  in  fulfillment  of  the  part 
required  of  them  by  the  Act  of  April  22,  1871,  and  to  ascer- 
tain whether  the  course  proposed  by  them  would  be  accept; 
able  to  the  State. 

On  the  18th  May  the  Board  had  an  interview  with  the 
Governor  and  received  from  him  the  following  commounica- 
tion  in  reply  to  the  request  contained  in  the  Resolution  of  the 
17th  May  relative  to  the  Canal  Bonds. 

State  of  Illinois,  Executive  Department, 

Springfield,  May  18,  1871. 

The  amount  of  Illinois  and  Michigan  Canal  Bonds,  regis- 
tered and  unregistered,  called  in  by  proclamation  January 

4536  9,  1871,  intended  to  include  all  outstanding  Canal  Bonds, 
not  previously  called  in,  and  calculating  85%  to  have  been 

paid  in  the  registered  bonds  by  the  Canal  Trustees,  was  one 
million,  thirty-one  thousand,  five  hundred  and  eighty-eight 
88/100  dollars  ($1,031,588.88). 

The  amount  of  principal  paid  by  the  Treasurer  of  State 
on  said  bonds  surrendered,  is  one  million,  thirty-one  thousand, 
five  hundred  seventy-one  75/100  dollars  ($1,031,571.75). 

(Signed)  Johx  M.  Palmee. 

The  Trustees  then  exhibited  to  the  Governor  the  account 
of  all  moneys  received  and  expended  by  them,  as  contained 
in  the  preceding  pages ; also  the  schedules  of  property,  build- 
ings, machinery,  boats,  &c.,  &c.,  belonging  to  the  canal  which 
had  passed  with  the  canal  into  the  hands  of  the  Board  of 
Canal  Commissioners  and  the  1st  of  May,  1871. 

Finally,  the  Trustees  stated  to  the  Governor  that  a release 
deed  of  the  canal  and  all  the  property  of  every  description 
appertaining  to  it,  had  been  prepared  by  their  counsel,  Isaac 
N.  Arnold,  Esq.,  that  the  same  had  been  laid  before  the  At- 
torney General  of  the  State,  W.  Bushnell,  Esq.,  for  his  ex- 
amination, that  he  had  approved  it  in  all  its  parts,  and  that 
the  same  would  be  executed  by  the  Trustees  and  delivered 


1322  Final  Report, — Canal  Trustees  1871. — Continued. 


together  with  the  unexpended  funds  remaining  in  their  hands, 

4537  whenever  the  Canal  Commissioners  had  satisfied  themselves 
that  the  accounts  rendered  by  the  Trustees,  of  their  receipts 

and  expenditures  between  June  26,  1845,  and  April  30,  1871, 
had  been  correctly  stated,  and  that  the  same  had  been  certi- 
fied by  said  Commissioners,  as  required  by  the  Act  of  April 
22,  1871. 

When  these  proceedings  were  closed,  the  Board  of  Trus- 
tees adjourned  to  await  the  action  of  the  Canal  Commission- 
ers, and  to  receive  from  them  the  accounts  of  the  Trustees, 
certified  in  the  manner  required  by  the  statute  before  referred 
to. 

On  the  lOtii  of  August  the  Canal  Commissioners  certified 
and  returned  the  general  accounts  of  the  Trustees,  dated 
May  16,  1871,  in  the  following  words: — 

^AYe  the  undersigned  Canal  Commissioners,  in  accordance 
with  the  provisions  of  the  first  section  of  Yin  Act  to  settle 
up  and  close  the  Trust  of  the  Board  of  Trustees  of  the  Illi- 
nois and  Michigan  Canal,  approved  April  22,  1871,  do  hereby 
certify,  that  the  above  statement  is  correct.” 

(Signed  Joseph  Utley, 

Signed  Virgil  Hickox, 

Signed  Egbert  Milne. 

Canal  Office,  Lockport,  August  10,  1871. 

On  the  16th  of  August,  1871,  the  Board  of  Trustees  rendered 
a supplementary  account  of  their  receipts  and  expenditures 

4538  between  April  30,  1871,  and  August  16,  1871,  in  the  same 
form  and  certified  by  them  in  the  same  manner  that  the  gen- 
eral account,  dated  May  16,  had  been  rendered,  and  on  the 
23rd  of  August,  1871,  the  Canal  Commissioners  returned  the 
same,  and  certified  the  correctness  of  the  account,  in  the  man- 
ner and  form  in  which  they  had  certified  the  general  account 
of  the  Trustees,  on  the  16th  of  May,  1871. 

The  following  is  a svnopsis  of  the  supplementary  account 
rendered  August  16,  1871. 

The  Board  of  Trustees  of  the  Illinois  and  Michigan 

Canal,  Dr. 

April  30,  1871,  to  balance  due  State  of  Illinois  this 

day ^ .$95,742.41 

August  16,  to  interest  received  from  Xew  Y"ork  Life 
and  Trust  Co.,  between  April  30  and  August  15, 

1871  1,246.95 


$97,007.36 


1323 


The  Board  of  Trustees  of  the  Illinois  and  Michigan 

Canal,  Cr. 

August  16,  1871,  by  amount  expended  for  general 
expenses  and  contingencies  between  April  30, 1871, 
and  August  16,  1871,  final  closing  of  the  Trust. $ 4,889.77 


By  paid  fee  exchange  on  New  York 17.98 

Balance  in  hands  of  the  Trustees  this  day 92,099.61 


$97,007.36 

On  the  9th  of  September,  1871,  the  Secretary  of  the  Board 
of  Trustees  delivered  to  the  Board  of  Canal  Commissioners,  in 
Lockport  the  following  documents  to  be  transmitted  by 

4539  them  to  the  Governor  of  Illinois: — 

1.  The  general  account  of  the  Board  of  Trustees,  from 
June  26,  1845,  to  April  30,  1871,  certified  by  the  Canal  Com- 
missioners. 

2.  The  supplementary  account,  from  April  30,  to  August 
16,  1871,  also  certified  by  the  Comimssioners. 

3.  Letter  of  the  President  of  the  Board  of  Trustees,  to 
the  Governor  of  Illinois,  transmitting  the  Release  Deed  of 

• the  Canal,  and  all  property  appertaining  to  the  same,  dated 
August  19,  1871,  in  accordance  with  the  provisions  of  the  Act 
of  April  22,  1871. 

* Abstract  of  the  Vouchers  for  these  expenditures  will  be 
found  in  the  accompanying  documents.  (A.  1.) 

Finally,  on  the  2nd  October,  1871,  the  Trustees  paid  in  New 
York,  the 'draft  of  Virgil  Hickox,  Esq.,  Treasurer  of  the  Board 
of  Canal  Comissioners,  for  ninety-two  thousand,  five  hundrea 
and  forty-five  79-lOOth  dollars,  (92,545.79)  being  the  amount 
in  the  hands  of  the  Trustees  on  that  day,  belonging  to  the 
State  of  Illinois. 

4540  Deposit  in  Life  and  Trust,  August  16,  1871 ._. . . 91,262.97 

Interest  do  August  16,  to  Sept.  30,  1871  446.18 


Deposit  in  Bank  of  Commerce,  New  York 836.64 

Total 92,545.79 


In  closing  this  their  final  report.  The  Board  of  Trustees  de- 
sire to  place  on  record  their  great  obligations  to  Messrs.  Bar- 
ing Brothers  & Co*.,  and  Messrs.  Mathewson  & Co.,  (formerly 
Messrs.  Magniac,  Jardine  & Co.,)  the  Committee  in  London, 
acting  for  the  European  subscribers  to  the  loan  of  1,600,000 
dollars,  and  holders  of  Canal  Bonds,  for  the  very  import- 
ant services  rendered  to  the  Trust,  for  a long  series  of  years, 
in  paying  the  dividends  on  Bonds  due  and  payable  in  Lon- 
don, and  in  rendering  other  valuable  assistance  there  to  the 
Trustees,  in  various  other  matters  relating  to  the  Trust,  and 
objects  connected  directly  therewith,  all  this  without  pecun- 
iary compensation  of  any  kind. 

The  following  reports  and  statements,  eleven  in  number. 


1324  Final  Report, — Canal  Trustees  1871. — Continued. 

were  transmitted  to  the  Governor  of  Illinois,  with  the  re- 
port of  the  Board  of  Trustees,  dated  October  20,  1871. 

1.  Eeport  of  the  Treasurer  1st  of  December,  1871,  to  Au- 
gust 16,  1871. 

2.  Schedules  of  payments  made  by  the  Treasurer  for  all 
purposes  during  the  same  period.  (Two  Schedules.) 

3.  Eeport  of  the  Secretary  of  the  Board  of  Trustees,  do. 
do. 

4541  4.  Schedule  of  lands  and  lots,  sold,  do.  do. 

5.  Statement  of  all  property  cleared  at  the  several  Col- 
lector's office,  do.  do. 

6.  Amount  of  weekly  and  monthly  receipts  of  tolls,  do.  do. 

7.  Bates  of  toll  established  for  the  year  1871. 

8.  Schedule  of  all  Officers  and  Agents  employed  by  the 
Board  of  Trustees,  with  occupation,  compensation  &c.  do.  do. 

9.  Eeport  of  the  General  Superintendent  for  same  period. 

10.  Abstract  of  all  expenditures  for  maintenance  and  re- 
pairs of  the  Canal  and  its  works,  do,  do. 

By  order  of  the  Board  of  Trustees, 

William  H.  Swift, 

President. 

Illinois  and  Michigan  Canal  Office,  New  York,  October  20, 
1871. 


4542  APPENDIX. 

Boakd  of  Tkustees,  1871. 


William  H.  Swift,  President,  New  York. 

Henry  Grinnell,  Treasurer,  New  York. 

Eichard  Eowett,  State  Trustee,  Carlinville,  111. 

List  of  Officers  and  Agents  employed  by  the  Board  of  Trus- 
tees of  the  Illinois  and  Michigan  Canal  in  1871. 


William  Dooding,  Secretary  of  Board  of  Trustees,  etc. 
William  A.  Gooding,  General  Superintendent, 

A.  J.  Mathewson,  Auditor  of  accounts  and  Clerk  in  Land 
• office 

Artemus  Grow,  Assistant  Superintendent  and  Inspector  1st 
Division, 

William  Thomas,  Assistant  Superintendent  and  Inspector 
2d  Division, 

Stephen  C.  Mason,  Collector  of  Tolls,  Chicago 
W.  T.  Mason,  do.  do.  La  Salle 

Albert  F.  Dow,  do.  do.  Ottawa 

Hale  S.  Mason,  do.  do.  Lockport 

G.  A.  Cozzens,  Inspector  Canal  Boats,  Chicago 

*Wm.  Cook,  do.  do. 

*L.  W.  Rice,  do.  do  La  Salle 

Lewis  Cook,  do.  do.  do. 


per 

$3,000.00  annum 
*3,000.00 


1,200.00 

1,500.00 

1,500.00 

*1,680.00 

*1,440.00 

*1,200.00 

*1,200.00 

900.00 

per 

30.00  month 

30.00 

30.00 


*720  for  Clerk  hire  in  addition. 

*Including  allowance  for  clerk  hire  and  office  rent. 


4543 


*Temporary,  $30  per  month  during  the  season  of  navigation. 


1325 


14.  permanent  Lock-keepers,  at  $300  per  annum  each. 

For  the  year  1870  an  increase  of  $1,360  was  made  to  the 
gross  amount  paid  to  Lockkeepers,  and  distributed  in  propor- 
tion to  the  work  performed  by  each. 

The  Trustees  are  paid  $2,500  per  annum  each. 

4544  The  Act  of  April  22,  1871. 

An  Act  to  settle  up  and  close  the  Trust  of  the  Board  of 
Trustees,  of  the  Illinois  and  Michigan  Canal. 

Whereas,  The  Illinois  and  Michigan  Canal,  and  all  remain- 
ing canal  property,  have  reverted,  or  are  about  to  revert 
to  the  State,  and  it  devolves  upon  the  General  Assembly 
to  take  the  necessary  steps  to  insure  jurisdiction  and  eco- 
nomical management  of  the  same,  therefore. 

Section  1.  Be  it  enacted  by  the  People  of  the  State  of 
Illinois,  represented  in  the  General  Assembly,  that  it  is  hereby 
made  the  duty  of  the  Canal  Commissioners  of  this  State,  upon 
the  termination  of  the  Trust  provided  for  by  an  Act  entitled 
^‘An  Act  to  provide  for  the  completion  of  the  Illinois  and 
Michigan  Canal,”  approved  February  twenty-first,  one  thou- 
sand eight  hundred  and  forty-three,  and  the  Act  amendatory 
thereto,  to  examine  and  audit  the  accounts  of  the  Board  of 
Trustees  of  the  Illinois  and  Michigan  Canal,  and  if  upon 
such  examination  they  shall  find  said  accounts  correct,  they 
shall  state  the  said  accounts  in  full  and  they  together  with 
the  Canal  Trustees  shall  certify  that  they  are  correct,  and 
shall  transmit  copies  thereof  to  the  Governor,  who  shall  re- 
port the  same  to  the  General  Assembly,  at  its  next  meeting. 
Section  2.  That  it  shall  be  the  duty  of  the  Canal  Com- 

4545  missioner  to  take  charge  of  and  exercise  full  control  over 
the  Illinois  and  Michigan  Canal,  from  and  after  the  passage 

of  this  Act,  and  to  receive  from  the  Board  of  Trustees  afore- 
said, all  the  money  on  hand  belonging  to  the  Illinois  and 
Michigan  Canal  fund,  and  pay  the  same  into  the  State  Treas- 
ury, and  also  to  receive  such  property,  books  and  office  build- 
ings, held  by  them  as  such  Trustees,  and  it  shall  be  the  duty 
of  the  said  Board  of  Trustees  to  comply  with  the  provisions 
of  this  Act,  and  pay  over  all  such  money,  and  deliver  all  such 
property  to  said  Commissioners,  promptly  upon  the  passage 
of  this  Act: 

Provided,  That  any  claim  for  which  the  State  Trustee  is 
now  liable,  may  be  prosecuted  against  the  said  Commission- 
ers, and  shall  be  paid  by  them  out  of  the  resources  of  the 
Canal. 

Provided,  That  all  moneys  received  for  rents  and  tolls,  not 
necessary  for  the  expenses  of  the  canal,  and  for  keeping  the 
same  in  repair,  shall  be  paid  quarterly  into  the  State  Treas- 
ury, and  that  the  rate  of  tolls  shall  not  be  increased  without 
the  consent  of  the  General  Assembly. 


1326  Final  Report, — Canal  Trustees  1871. — Continued. 

Section  3.  That  upon  the  termination  of  said  Trust,  accord^ 
ing  to  the  provisions  of  the  Act  above  referred  to  the  said 
Board  of  Trustees  shall  execute  under  their  hands  and  cor- 

4546  porate  seal,  to  the  State  of  Illinois  a release  deed,  of  all 
and  singular  the  remaining  property,  assets  and  effects,  of 

every  name  aud  description  of  said  Trust. 

Section  4.  The  said  Board  of  Commissioners  shall  appraise 
all  islands,  lands,  lots,  or  parcels  of  land,  belonging  to  the 
canal  property,  not  heretofore  sold  and  forfeited,  or  which 
may  hereafter  he  forfeited,  and  report  the  same  to  the  Gov- 
ernor, to  be  by  him  reported  to  the  General  Assembly. 

Section  5.  As  appears  by  the  preamble  an  emergency  hav- 
ing arisen,  this  Act  shall  take  effect  and  be  in  force,  from  and 
after  its  passage. 

Approved,  April  22,  1871. 

4547  Counsel  fok  Complainant.  I take  it  these  are  all  of  the 
same  character,  and  we  make  the  same  objection  to  all  of 

them,  as  incompetent,  irrelevant  and  immaterial. 

The  Court.  Yes. 

Counsel  for  Defendant.  I otfer  a release  deed  dated  August 
19, .1871,  from  the  Board  of  Trustees  of  the  Illinois  and  Michigan 
Canal  to  the  State  of  Illinois  of  all  the  remaining  property,  assets 
and  etfect  of  the  trust,  which  is  signed  by  W.  H.  Swift,  Henry 
Grinnell  and  Kichard  Eowett.  I offer  it  from  the  book,  circular 
24,  of  the  Illinois  and  Michigan  Canal,  bound  with  the  final  report 
of  the  Board  of  Trustees,  October,  1871. 

Said  document  was  thereupon  marked  Snyder  Exhibit  3,”  and 
is  in  words  and  figures  following,  to  wit: 

‘^Kelease  Deed. 

Whereas^  the  State  of  Illinois  by  virtue  of  an  Act  entitled 
C^n  Act  to  provide  for  the  completion  of  the  Illinois  and  Mich- 
igan Canal,’  approved  February  21st,  1843,  and  various  Acts 
of  Legislature,  of  the  State  of  Illinois,  amendatory  thereof, 
and  by  virtue  of  a certain  deed  of  the  Governor  of  this  State, 
dated  twenty-sixth  (26th)  day  of  June,  in  the  year  of  our 
Lord,  one  thousand  eight  hundred  and  forty-five  (1845),  and 
recorded  in  Mull  County,  on  the  first  (1st)  day  of  August, 

4548  A.  D.  1845,  in  Book  M,’  pages  563,  564,  565,  566,  567,  568,  569, 
570,  571,  572,  573  and  574. 

Did  grant,  convey  to,  and  vest  in  the  Board  of  Trustees, 
of  the  Illinois  and  Michigan  Canal,  ‘The  bed  of  said  Illinois 
and  Michigan  Canal,  and  the  lands  over  which  the  same 


1327 


passes,  including  its  banks,  margins,  tow-patlis,  feeders,  basins, 
right  of  way,  locks,  dams,  water  power,  structures,  stone  ex- 
cavated, and  stone  and  material  cpiarried,  purchased,  pro- 
cured or  collected  for  its  construction;  and  all  the  property, 
right,  title  and  interest  of  the  State,  of,  in  and  to  the  said 
canal,  with  all  the  hereditaments  and  appurtenances  there- 
unto belonging,  or  in  any  wise  appertaining,  and  also,  all 
the  remaining  lands  and  lots  belonging  to  the  said  canal  fund, 
or  which  hereafter  may  be  given,  granted  or  donated,  by  the 
General  Government  to  the  State,  to  aid  in  the  construction 
of  the  said  canal  and  the  buildings  and  erections  belonging 
to  the  State  thereon  situated/  (Eeference  being  had  to  said 
deed  for  greater  certainty.) 

And  whereas  the  said  trust  has  l)een  fully  and  completely 
executed  and  performed  by  the  said  Board  of  Trustees,  and 
whereas  by  the  nineteenth  (19th)  section  of  said  xVct  of  Feb- 
ruary 21st,  1843,  it  was  provided  that  ‘whenever  the  trust 
created  by  this  Act  shall  have  been  fully  executed  and  per- 
formed by  the  said  trustees,  the  said  canal  and  canal  prop- 

4549  erty  that  may  then  remain,  shall  revert  to  the  State.’ 

And  whereas  it  has  been  made  the  duty  of  the  said  Board 
of  Trustees  by  an  Act  entitled  'An  Act  to  settle  up  and 
close  the  trust  of  the  Board  of  Trustees,  of  the  Illinois  and 
Michigan  Canal.’  Approved  April  22nd,  1871,  upon  the  ter- 
mination of  said  trust,  according  to  the  provisions  of  the  Act 
above  referred  to — to  execute  under  their  hands  and  corporate 
seal  to  the  State  of  Illinois,  a release  deed  of  all  and  singular, 
the  remaining  property,  assets  and  effects  of  every  name  and 
description  of  said  trust.’  And  whereas  said  trust  is  now 
to  be  finally  closed  and  terminated  in  pursuance  of  the  laws 
above  referred  to.  And  whereas  all  and  singular  the  accounts 
and  transactions  of  said  Board  of  Trustees  have  been  fully 
examined  and  audited,  and  found  to  be  correct,  and  the  said 
trust  fully  and  completely  executed.  Now,  therefore,  this  in- 
denture, made  this  nineteenth  day  of  August,  A.  D.  1871,  be- 
tween the  Board  of  Trustees,  of  the  Illinois  and  Michigan 
Canal,  party  of  the  first  part,  and  the  State  of  Illinois,  party 
of  the  second  part: 

WiTNESSETH : That  the  said  Board  of  Trustees,  in  consid- 

eration of  the  premises  do  lierelvv"  remit,  release,  transfer 
and  quit  claim  to  the  said  State  of  Illinois,  all  and  singular, 
the  Illinois  and  Michigan  Canal,  and  all  its  appurtenances, 
and  all  and  singular  the  remaining  property,  assets  and  effects 
of  every  name  and  descrintion,  of  said  trust,  subject  never- 

4550  theless  to  all  the  legal  liabilities  if  any  now  existing  against 
the  said  Board  of  Canal  Trustees. 

Ix  WITNESS  WHEEEOF,  tile  Said  Board  of  Trustees,  of  the 
Illinois  and  Michigan  Canal,  have  hereunto  set  their  hands 


1328 


and  caused  their  corporate  seal  to  be  herennto  attached,  the 
day  and  year  above  written. 

(Signed)  W.  H.  Swift, 

^ ^ Henky  Gkinnell, 

^ ^ Eichaed  Eowett. 

(Seal  of  the  Board  of  Trustees  of 
the  Illinois  and  Michigan  Canal.) 

Acknowledged  by  each  trustee,  and  delivered  to  the  Gov- 
ernor of  Illinois,  September  11,  1871. 

4551  Counsel  for  defendant  offered  a certified  copy  of  the  cer- 
tificate issued  to  Charles  E.  Boyer,  that  he  purchased  of  the 

board  the  south  fraction  of  the  northwest  and  north  fraction  of 
southeast  quarter  of  Section  Number  25,  Township  34,  Eange  8, 
East  of  the  Third  Principal  Meridian,  containing  87.06  acres,  more 
or  less,  dated  blank,  1856. 

Counsel  for  complainant  objected  to  the  introduction  of  that 
unless  they  produce  the  entire  purchase  of  the  quarter,  because  in 
the  pleading,  it  is  set  forth  that  this  man  purchased  four  frac- 
tional quarters,  two  of  them  lying  in  the  southeast  quarter,  being 
the  land  north  and  south  of  the  river,  and  some  in  this  northwest 
quarter. 

Counsel  foe  Defendant.  Here  is  the  deed  to  them  all.  You 
can  follow  me  on  the  map,  Mr.  Starr. 

Said  certificate  was  thereupon  admitted  in  evidence  and  mark- 
ed ‘‘Snyder  Exhibit  4,”  and  is  in  words  and  figures  following, 
to  wit: 

4552  Snydee  Ex.  4. 

$2766.  Copy 

Ordinary  Certificate  for  Land 
Illinois  and  Michigan  Canal  Office 

Chicago,  , A.  D.  1856. 

This  Ceetifies, 

That  Chas.  E.  Boyer  has  this  day  purchased  of  the  Board 
of  Trustees  of  the  Illinois  and  Michigan  Canal  S fr.  N.  W.  & 
N.  fr.  S.  E.  7i:  of  Section  No.  25,  in  Township  No.  34  of 
Eange  No.  8 East  of  the  third  principal  Meridian,  containing 
87.06  acres,  more  or  less,  at  the  rate  of  Seven  Dollars  and 
cents  per  acre,,  amounting  to  the  sum  of  Six  Hun- 

• dred  and  Nine  dollars  and  forty  two  cents;  that  he  had  paid 
towards  the  same  the  sum  of  One  Hundred  and  fifty-two  dol- 
lars and  thirty-six  cents;  being,  one  quarter  of  said  pur- 
chase money,  and  also  Twenty-Seven  Dollars  and  forty-four 


1329 


cents,  being  one  year’s  interest  in  advance,  on  tlie  residue  of 
said  purchase  money;  the  said  Board  has  also  received  from 
said  purchaser  his  three  several  promissory  notes  for  One 
Hundred  and  Fifty-two  dollars  and  thirty-six  cents,  each, 
due  in  one,  two  and  three  years,  respectively,  for  the  residue 
of  said  purchase  money — Said  notes  bearing  interest  at  six 
per  cent  per  annum,  payable  annually  in  advance.  And  that 
upon  the  full  payment  of  the  said  promissory  notes,  and 
the  interest  thereon,  promptly,  according  to  their  tenor  and 
effect,  the  said  purchaser  will  be  entitled  to  receive  from 

4553  said  Board  a good  and  sufficient  deed  of  conveyance  of  said 
lot  of  Land;  but  in  case  of  a failure  on  the  part  of  said 

purchaser  to  pay  such  interest,  or  the  residue  of  such  prin- 
cipal, within  twenty  days  after  the  same,  or  any  installment 
thereof  becomes  due,  he  shall  forfeit  said  lot  and  all  claim 
thereto  and  all  payments  made  on  account  thereof. 

In  witness  whereof,  the  said  Board  of  Trustees  have  caused 
the  corporate  seal  of  said  Board  to  be  hereunto  affixed,  and 
the  name  of  the  Treasurer  of  said  Board  to  be  hereunto  sub- 
scribed the  day  and  year  first  above  written. 

For  the  Treasurer,  A 

AVm.  Gooding, 

: Sec’ij. 

Eeceived,  Oct.  22,  1860,  from  the  Board  of  Trustees  of  the 
Illinois  and  Michigan  Canal,  a Deed  for  the  property  above 
described. 

Chas.  E.  Boyer, 
pr.  Hendrich. 

Note — When  a Deed  is  required,  the  Receipt  may  be  signed 
by  the  local  owner,  and  this  paper  returned  to  the  Office  of  the 
Secretary  of  the  Board,  in  Lockport,  Illinois.” 

4554  ‘^General  Offices  Board  of  Canal  Commissioners, 

State  of  Illinois. 


State  of  Illinois  ) 

Will  County.  f 

I,  John  M.  Snyder,  Acting  Secretary  of  the  Board  of  Canal 
Commissioners  of  the  State  of  Illinois,  and  Keeper  of  the 
Records  and  Files  belonging  to  said  Board,  do  hereby  cer- 
tify that  the  above  and  foregoing  is  a true  and  correct  copy 
of  certificate  now  on  file  in  this  office  and  in  my  keeping,  as 
regards  the  matter  herein  contained. 

Witness  my  hand  and  the  official  seal  of  the  said  Board  of 
Canal  Commissioners  of  the  State  of  Illinois,  this  11th  day 
of  April,  A.  D.  1908. 

(Signed)  John  M.  Snyder, 

(Seal)  Acting  Secretary  as  aforesaid/^ 


1330 


4555  Counsel  for  defendant  otfered  and  read  the  deed  to  Boyer, 
dated  October  22,  1860. 

Said  deed  was  thereupon  admitted  in  evidence  and  marked 

^‘Snyder  Exhibit  5,’^  and  is  as  follows: 

Snydek  Ex.  5. 

‘^Trus  111  & M.  Canal 
102  Deed 
Charles  E.  Boyer 

Illinois  and  Michigan  Canal 

Know  all  men  by  these  presents,  That  the  Board  of  Trus- 
tees of  the  Illinois  and  Michigan  Canal,  under  the  authority 
vested  in  said  Board  by  the  act  of  the  Legislature  of  the  State 
of  Illinois  of  February  21,  1843,  entitled  ‘An  Act  to  provide 
for  the  Completion  of  the  Illinois  and  Michigan  Canal,  and 
for  the  payment  of  the  Canal  debt,  has  sold  to  Charles  E. 
Boyer  the  following  described  tracts  of  land;  to-wit: 

4556  The  south  fraction  of  the  North  West  quarter  and  North 
• Fraction  of  the  South  East  quarter  and  the  North  Fraction 

of  the  North  M^est  quarter  and  South  Fraction  of  South  East 
quarter  of  Section  Twenty-five  (25)  in  Township  Thirty  four 
(34)  North  of  Eange  Eight  (8)  East  of  the  Third  Principal 
Meridian  excepting  and  reserving  so  much  of  said  Tract  as 
is  occupied  by  the  Canal  and  its  waters  and  a strip  Ninety 
feet  wide  on  either  side  of  said  Canal  containing  One  hun- 
dred and  Ninety-six  and  Sixty  one  One  Hundredths 
(196  61/100)  acres  more  or  less  said  tracts  being  a portion 
of  the  land  granted  by  the  United  States  by  the  Acts  of  March 
21  '1827  the  29th  August  1842  and  the  3rd  August  1854  to 
the  State  of  Illinois  to  aid  said  State  in  opening  a Canal 
to  connect  the  waters  of  the  Illinois  Eiver  with  those  of 
Lake  Michigan  and  by  said  State  granted  to  the  said  Board 
of  Trustees  of  the  Illinois  and  Michigan  Canal  for  the  pur- 
poses set  forth  in  said  Act  of  said  State  of  Feb.  21,  1843. 

Know  Ye  also  That  the  said  Charles  E.  Boyer  paid  to  the 
Treasurer  of  the  said  Board  of  Trustees  the  sum  of  Fifteen 
hundred  and  fifty  six  (1556)  dollars  and  fifty  two  cents  being 
in  full  payment  of  the  purchase  money  for  said  land,  and 
made  according  to  the  conditions  set  forth  in  the  Act  of  Jan- 
uary 9,  1836  entitled  An  Act  for  the  construction  of  the  Illi- 
nois and  Michigan  Canal. 

4557  In  consideration  thereof,  and  the  premises,  the  said  Board 
of  Trustees  of  the  Illinois  and  Michigan  Canal  has  grant- 
ed bargained  and  sold,  and  by  these  presents  do  grant,  bar- 
gain and  sell  unto  the  said  Charles  E.  Boyer  the  said  tracts 
of  land  above  designated  and  described. 


1331 


'‘To  have  and  to  hold  the  same  together  with  all  the  rights, 
privileges,  immunities,  appurtenances  thereunto  belonging  un- 
to the  said  Charles  E.  Boyer  his  heirs  and  assigns  forever. 

In  Witness  Whereof  The  Said  Board  of  Trustees  of  the 
Illinois  and  Michigan  Canal  has  caused  the  corporate  seal 
of  said  Board  to  be  affixed  hereunto  and  the  names  of  the 
President  and  the  Secretary,  of  said  Board  to  be  hereunto 
subscribed  this  Twenty  second  (22)  day  of  October  in  the 
year  of  our  Lord  Eighteen  hundred  and  sixty  (1860). 

W.  H.  Swift, 

(Seal)  President. 

Wm.  Gooding 

Secretary 

A true  copy  of  the  original  as  filed  for  Eecord  January  11, 
1861  at  2 o’clock?.  M. 

John  B.  Davidson 

Recorder 

Book  8 Page  356 

4558  Copy  certified  by  Fred  S.  Johnson,  Becorder  of  Grundy 
County. 

4559  Counsel  for  defendant  offered  a certified  copy,  certified 
by  Mr.  Snyder,  of  part  of  the  record  of  the  Board  of  Trus- 
tees of  the  canal,  recorded  in  Becord  Book  number  5,  dated  May 
14,  1861,  page  64. 

Counsel  for  complainant  objected  on  the  ground  that  that  is  too 
remote  and  too  burdensome  to  go  in  here,  because  it  is  conceded 
all  around  that  the  deed  shows  that  the  trustees  had  sold  this  sec- 
tion of  land  prior  to  this  resolution,  or  prior  to  the  making  up 
of  this  sheet,  and  that  the  Act  of  1839,  if  it  reserved  the  river 
bed  and  that  outside  of  the  meander  line  from  sale,  tjie  Commis- 
sioners did  not  have  it  for  sale;  if  complainant’s  position  is  correct, 
they  did  not  have  it  for  sale;  if  defendant’s  position  is  correct,  they 
had  disposed  of  it,  so  that  he  didn’t  see  how  it  is  possible  for  these 
tables  and  this  resolution  to  bear  upon  it. 

The  CouKT.  I will  let  it  go  in. 

4560  Said  document  was  thereupon  admitted  in  evidence,  marked 
"Snyder  Exhibit  6,”  and  is  as  follows: 

"Snydek  Ex.  6. 

Among  the  proceedings  and  a part  of  the  records  of  the 
Board  of  Trustees  of  the  Illinois  and  Michigan  Canal  as  re- 


1332  Record, — Canal  Trustees  May  14,  1861. — Continued. 

“corded  in  record  book  3 and  dated  May  14,  1861,  page  64, 

the  following  proceedings  were  had : 

* # * * * 

^Resolved,  that  the  Agent  of  Canal  Lands  prepare  a sched- 
ule of  all  the  unsold  lands  and  town  lots  and  that  be  attached 
to  such  tract  the  value  thereof  according  to  his  present  esti- 
mate of  the  same  in  order  to  effect  the  sale  thereof  upon  the 
terms  and  conditions  presented  in  the  law  of  February  21, 
1843. 

Resolved,  that  the  lands  and  lots  above  referred  to  be 
filed  in  the  canal  office  at  Lockport,  and  that  said  lands  and 
lots  be  held  for  sale  there  as  they  may  be  wanted,  upon  the 
terms  and  conditions  prescribed  by  law  as  set  forth  in  the 

Act  of  February  21,  1843.^ 

* * * * ^ 


General  Offices  Board  of  Canal  Commissioners, 
State  of  Illinois. 


State  of  Illinois, 
Will  County. 


I,  John  M.  Snyder,  Acting  Secretary  of  the  Board  of  Canal 

4561  Commissioners  of  the  State  of  Illinois,  and  Keeper  of  the 
Eecords  and  Files  belonging  to  said  Board,  do  hereby  certify 
that  the  above  and  foregoing  is  a true  and  correct  copy  of 
^Kesolutions^  adopted  by  the  Board  of  Trustees,  May  14, 
1861,  recorded  in  Eecord  Book  number  Three  (3),  now’  in  my 
keeping. 

Witness  my  hand  and  the  official  seal  of  the  said  Board  of 
Canal  Commissioners  of  the  State  of  Illinois,  this  11th  day 
of  April,  A.  D.  1908. 

(Signed)  John  M.  Snyder, 

(Seal)  Acting  Secretary  as  aforesaid/' 

4562  Counsel  for  defendant  then  offered  a certified,  copy,  cer- 
tified by  Mr.  Snyder,  of  the  proceedings  and  part  of  the  rec- 
ord of  the  Board  of  Trustees  of  the  Illinois  and  Michigan  Canal, 
as  recorded  in  Eecord  Book  No.  3,  of  date  July  1,  1861,  on  page 
71;  in  connection  with  the  list,  which  is  also  certified  by  Mr. 
Snyder. 

Counsel  for  Complainant.  I object  on  the  same  grounds. 

The  Court.  They  may  go  in. 

Said  documents  were  thereupon  admitted  in  evidence,  marked 
“Snyder  Exhibits  7 and  8,”  respectively,  and  are  in  words  and 
figures  following,  to  wit: 


1333 


Snyder  Ex.  7. 

Among  the  proceedings  and  a part  of  the  record  of  the 
Board  of  Trustees  of  the  Illinois  and  Michigan  Canal  as  re- 
corded in  record  book  number  three  and  dated  July  1,  1861, 

on  page  71,  the  following  proceedings  were  had: 

* * * * * 

The  president  offered  the  following  resolution: 

^The  agent  of  canal  lands  having  completed  the  estimate 
of  the  present  value  of  the  unsold  lands  and  town  lots,  con- 
templated in  the  Resolution  of  the  Board,  of  May  14,  1861, 
therefore. 

Resolved,  that  a schedule  thereof,  with  the  appraised 
value  of  each  tract  of  land  and  each  town  lot,  be  tiled  with  the 

4563  Secretary  of  the  Board  of  Trustees  and  that  the  price  so 
fixed  in  each  parcel  of  land,  or  town  lot,  be  accepted  as  the 
MINIMUM  price  at  which  the  same  may  be  sold  at  the  Canal 
Office  in  Lockport  to  such  persons  as  may  desire  to  purchase 
and  upon  same  terms  and  conditions  as  have  been  estab- 
lished by  the  law  and  such  as  have  governed  in  all  the  sales 
heretofore  made  by  the  Board  of  Trustees,  to  wit:  1/4  cost, 
with  yearly  interest  in  advance  upon  the  balance  unpaid; 
the  residue  in  three  annual  instalments,  under  penalty  of  for- 
feiture of  all  previous  payments  if  default  be  made  in  one. 

Resolved,  that  the  sales  of  lands  and  lots  by  private 
entry  as  authorized  by  the  Resolution  of  May  14,  1861,  be  con- 
ducted by  the  Secretary  of  the  Board  of  Trustees,  with  such 
assistance  from  the  Auditor  and  Clerk  in  the  Land  Office 
as  may  be  necessary  for  the  performance  of  the  duty. 

Resolved,  that  the  Secretary  cause  the  system  of  Land 
Sales  By  private  entry  at  the  Canal  office  to  be  published 
in  not  less  than  three  newspapers,  in  Illinois,  and  setting  forth, 
generally,  that  the  lands  have  been  appraised  and  that  a min- 
imum price  for  each  parcel  has  been  established  which  can 
be  known  by  any  person  desirous  of  purchasing,  either  by 
writing  to  the  Secretary  or  by  calling  at  the  X^anal  office ; 

Resolved,  that  the  1st  day  of  August  next  be  fixed  upon  as 

4564  the  day  upon  which  the  system  of  Land  Sales  by  private 
entry  at  the  Canal  office,  shall  begin:’ 

Signed  by  W.  H.  Swift  in  Boston,  July  1st,  1861. 

W.  H.  Swift. 

Signed  by  Henry  Grinnell  in  New  York  July  2nd,  1861. 

He;j^ry  Grinnell. 

Signed  by  Martin  H.  Capell,  in  Jacksonville,  July  10, 
1861. 


* 


* 


* 


Martin  H.  Capell. 


1334 


Generai^  Offices  Board  of  Canal  Commissioners, 
State  of  Illinois. 


State  of  Illinois, 
Will  County. 


I,  John  M.  Snyder,  Acting  Secretary  of  the  Board  of  Canal 
Commissioners  of  the  State  of  Illinois,  and  Keeper  of  the 
Eecords  and  Files  belonging  to  said  Board,  do  hereby  certify 
that  the  above  and  foregoing  is  a trn6  and  correct  copy  of  the 
Proceedings  of  the  Board  of  Trustees,  July  1,  1861,  recorded 
in  Book  Number  three  (3),  now  in  my  keeping. 

Witness  my  hand  and  the  official  seal  of  the  said  Board 
of  Canal  Commissioners  of  the  State  of  Illinois,  this  11th 
day  of  April,  A.  I).  1908. 

(Signed)  John  M.  Snyder, 

(Seal)  Acting  Secretary  as  aforesaid/^ 

4565  Snyder  Ex.  8” 

A LIST  OF  UNSOLD  ILLINOIS  & MICHIGAN  CANAL  LANDS,  AUG.  1, 
1861,  AND  MINIMUM  PRICE  PER  ACRE  IN  COOK,  WILL,  GRUNDY 


& LASALLE  COUNTIES. 


Description 

Sec, 

. T 

B 

Acres 

Price 

Fr.  W.  1/2  N.  E.  1/4  S.  of  Canal  13 

33 

1 

33.36 

$8 

W.  1/2  S.  E.  1/4 

i i 

i i 

i i 

80 

6 

E.  1/2  S.  E.  1/4 

i i 

i i 

i i 

80 

6 

Fr.  of  E.  1/2  N.  E.  1/4  S.  of  Canal 

[ ‘‘ 

i i 

i i 

46.88 

6 

N.  W.  1/4  of  N.  E.  1/4 

27 

34 

i i 

40 

10 

E.  1/2  S.  E.  1/4 

13 

33 

3 

80 

5 

W.  1/2  S.  E.  1/4  N.  E.  1/4 

11 

33 

4 

20 

7 

W.  1/2  N.  E.  1/4 

25 

i i 

i i 

80 

7 

E.  1/2  N.  W.  1/4 

i i 

i i 

i i 

80 

7 

E.  1/2  S.  E.  1/4 

i i 

i i 

i i 

80 

6 

S.  W.  1/4  S.  E.  1/4 

i i 

i i 

i i 

40 

6 

E.  1/2  S.  W.  1/4 

i i 

C i 

i i 

80 

6 

E.  1/2  S.  E.  1/4 

11 

32 

5 

80 

6 

W.  1/2  N.  W.  1/4 

13 

i i 

i i 

80 

6 

N.  1/2  N.  E.  1/4 

5 

i i 

i i 

79.31 

64 

N.  W.  1/4  S.  E.  1/4 

i i 

i i 

i i 

40 

6 

S.  E.  1/4  N.  E.  1/4 

i i 

i i 

i i 

40 

6 

E.  1/2  S.  W.  1/4 

29 

33 

i i 

80 

7 

W.  1/2  S.  W.  1/4 

i i 

i i 

i i 

80 

7 

W.  1/2  S.  E.  1/4 

i i 

i i 

i 1 

80 

5 

E.  1/2  N.  E.  1/4 

31 

i i 

i i 

80 

6 

W.  1/2  N.  E.  1/4 

i i 

C 1 

i i 

80 

6 

E.  1/2  N.  W.  1/4 

31 

i i 

80 

6 

E.  1/2  S.  E.  1/4 

i i 

i i 

i ( 

80 

8 

E.  1/2  S.  E.  1/4 

i i 

i 1 

1 i 

80 

7 

1335 


N.  E.  1/4  S.  W.  Fr4  1/4 

i i 

( i 

i i 

36.16 

5 

E.  1/2  N.  E.  1/4 

33 

i ( 

i i 

80 

12 

W.  1/2  N.  E.  1/4 

i i 

( ( 

i i 

80 

12 

W.  1/2  N.  W.  1/4 

i i 

i i 

i i 

80 

12 

E.  1/2  S.  E.  1/4 

i i 

i i 

i i 

80 

8 

W.  1/2  S.  E.  1/4 

i i 

i i 

i i 

80 

7 

E.  1/2  S.  W.  1/4 

i i 

i 1 

( i 

80 

7 

W.  1/2  S.  W.  1/4 

i i 

i i 

i i 

80 

6 

W.  1/2  S.  E.  1/4 

35 

i i 

i i 

80 

6 

E.  1/2  N.  W.  1/4 

3 

32 

6 

81 

6 

W.  1/2  N.  W.  1/4 

i i 

i i 

i i 

81 

6 

W.  1/2  N.  E.  1/4 

7 

i i 

i i 

80 

6 

Fr.  W.  1/2  S.  E.  1/4  S.  of  Canal  9 

33 

i i 

2.85 

6 

E.  1/2  N.  W.  1/4 

29 

33 

6 

80 

7 

E.  1/2  S.  E.  qr. 

( i 

i i 

i i 

80 

6 

E.  Ilf.  S.  W.  qr. 

i i 

i i 

i i 

80 

7 

W.  1/2  S.  W.  1/4 

i i 

i i 

i i 

80 

8 

S.  E.  1/4  M.  E.  1/4 

31 

i i 

i i 

40 

6 

W.  fr.  S.  W.  1/4 

i i 

i i 

i i 

40.20 

6 

Fr.  S.  of  River  S.  E.  fr’l  1/4 

3 

i i 

7 

0.91 

5 

W.  1/2  N.  W.  1/4 

15 

i i 

8 

80 

5 

W.  1/2  N.  E.  1/4 

35 

34 

8 

80 

5 

E.  1/2  N.  W.  1/4 

35 

34 

8 

80 

5 

W.  1/2  N.  W.  1/4 

i i 

i i 

i i 

80 

5 

E.  1/2  S.  E.  1/4 

i i 

i i 

i i 

80 

5 

W.  1/2  S.  E.  1/4 

i i 

i i 

i i 

80 

5 

E.  1/2  S.  W.  1/4 

i i 

i i 

i i 

80 

5 

W.  1/2  S.  W.  1/4 

i i 

i c 

i i 

80 

5 

E.  1/2  N.  E.  1/4 

27 

i i 

9 

80 

5 

W.  fr.  N.  E.  1/4 

29 

i i 

i i 

34 

6 

E.  1/2  N.  E.  1/4 

33 

i i 

i i 

80 

8 

W.  1/2  N.  E.  1/4 

i i 

i i 

i c 

80 

6 

E.  1/2  S.  E.  1/4 

1 i 

i c 

i i 

80 

6 

W.  1/2  S.  E.  1/4 

i i 

i i 

i i 

80 

6 

E.  1/2  N.  W.  1/4 

i i 

i i 

i i 

80 

6 

E.  1/2  N.  E.  1/4 

25 

35 

9 

80 

8 

E.  fr.  S.  E.  1/4 

3 

36 

10 

32 

6 

N.  fr.  N.  W.  174  & N.  fr.  N.  E.  1/4  25 

37 

10 

98.80 

4 

Fr.  N.  of  Canal  N.  W.  1/4 

10 

8.70 

2 

E.  1/2  N.  W.  1/4 

29 

37 

10 

80 

10 

W.  1/2  N.  W.  1/4 

29 

10 

80 

10 

Fr.  N.  of  Feeder  W.  1/2  S.  E.  1/4  13 

i i 

11 

7 

7 

S.  W.  1/4  N.  E.  1/4 

19 

i i 

11 

40 

6 

N.  fr.  S.  W.  1/4 

19 

i i 

11 

94.23 

6 

E.  1/2  N.  W.  1/4 

31 

38 

11 

80 

10 

S.  W.  1/4  N.  W.  1/4 

11 

37 

12 

40 

5 

S.  of  Feeder  E.  1/2  N.  E.  1/4 

13 

37 

12 

16.30 

4 

N.  of  road  W.  1/2  K W.  1/4 

3 

38 

12 

31.38 

20 

S.  of  road  W.  1/2  N.  W.  1/4 

i i 

i i 

i i 

51.30 

18 

1336  Unsold  Canal  Lands —Snyder  Exhibit  8. — Continued. 


1/2  S.  W.  1/4 

i ( 

C i 

( i 

80 

18 

W.  1/2  X.  IV.  1/4 

9 

i i 

i i 

80 

20 

Fr.  IV.  of  Canal 

23 

i i 

i i 

103.31 

10 

Fr.  E.  of  Canal  X.  W.  1/4 

23 

38 

12 

36.44 

10 

X.  1/2  X.  E.  1/4 

i L 

i i 

i i 

76.16 

10 

S.  1/2  X.  E.  1/4 

i i 

i i 

80 

10 

E.  1/2  X.  AV.  1/4 

25 

i i 

i i 

80 

12 

W.  1/2  X.  IV.  1/4 

i i 

i i 

i i 

80 

12 

E.  1/2  S.  IV.  1/4 

i i 

i i 

i i 

80 

12 

W.  1/2  S.  W.  1/4 

i i 

i i 

i i 

80 

12 

E.  1/2  S.  E.  1/4 

t i 

i i 

i i 

80 

10 

IV.  1/2  S.  E.  1/4 

( i 

i i 

i c 

80 

10 

Bet’n  C.  & E.  S.  W.  fr’l  1/4 

27 

i c 

i i 

3.62 

5 

BeFn  C.  & E.  X.  E.  1/4 

33 

i i 

i i 

6.66 

5 

W.  1/2  S.  E.  1/4 

27 

39 

i i 

80 

15 

E.  1/2  S.  W.  1/4 

i i 

1 i 

i i 

80 

15 

W.  1/2  S.  W.  1/4 

i i 

i i 

i i 

80 

15 

E.  1/2  X.  E.  1/4 

33 

i i 

( i 

80 

15 

S.  of  canal  E.  1/2  ,.X.  E.  1/4 

3 

38 

13 

72.64 

25 

S.  of  canal  W.  1/2  X.  E.  1/4 

i i 

i i 

i i 

56.91 

25 

X.  of  canal  X.  IV.  1/4 

3 

38 

13 

70.14 

25 

S.  of  canal  X.  W.  1/4 

i i 

( c 

i i 

66.59 

25 

E.  1/2  S.  E.  1/4 

C i 

< i 

i i 

80 

20 

W.  1/2  S.  E.  1/4 

i i 

i c 

i i 

80 

20 

E.  1/2  S.  W.  1/4 

i i 

< i 

i 1 

80 

20 

■\V.  1/2  S.  W.  1/4 

i i 

i i 

i i 

80 

20 

E.  1/2  S.  E.  1/4 

19 

( i 

i i 

80 

15 

IV.  1/2  S.  E.  1/4 

i i 

C i 

i i 

80 

15 

E.  1/2  S.  W.  1/4 

i i 

i i 

i i 

80 

15 

W.  i/2  S.  W.  1/4 

i i 

i i 

i i 

80 

15 

E.  1/2  S.  E.  1/4 

21 

( ( 

i 

80 

12 

W.  1/2  S.  E.  1/4 

i i 

i ( 

i i 

80 

12 

E.  1/2  S.  W.  1/4 

i i 

i i 

i i 

80 

12 

W.  1/2  S.  W.  1/4 

1 i 

i i 

i ( 

80 

12 

E.  1/2  X.  E.  1/4 

29 

i i 

( i 

80 

12 

W.  1/2  X.  E.  1/4 

i i 

( i 

i i 

80 

12 

E.  1/2  X.  W.  1/4 

i 1 

i i 

i i 

80 

12 

W.  1/2  X.  W.  1/4 

i i 

1 i 

i i 

80 

12 

E.  1/2  S.  E.  1/4 

i i 

i i 

i i 

80 

12 

W.  1/2  S.  E.  1/4 

i i 

i i 

i ( 

80 

12 

E.  1/2  S.  W.  1/4 

i c 

i i 

( i 

80 

12 

W.  1/2  S.  W.  1/4 

i c 

< < 

i i 

80 

12 

E.  1/2  X.  E.  f/4 

31 

i i 

( ( 

80 

12 

W.  1/2  X.  E.  1/4 

t c 

i i 

i i 

80 

12 

E.  1/2  X.  W.  1/4 

i i 

( 1 

i i 

80 

12 

W.  1/2  X.  1/4 

i i 

i i 

i i 

80 

12 

E.  1/2  S.  E.  1/4 

i i 

i i 

1 1 

80 

12 

W.  1/2  S.  E.  1/4 

i 1 

i 1 

i i 

80 

12 

E.  1/2  S.  W.  1/4 

i i 

1 1 

i i 

80 

12 

1337 


4568 


W.  1/2  S.  W.  1/4 
E.  1/2  N.  E.  1/4 
W.  1/2  N.  E.  1/4 
E.  1/2  N.  W.  1/4 
W.  1/2  N.  W.  1/4 
E.  1/2  S.  E.  1/4 
W.  1/2  S.  E.  1/4 
E.  1/2  S.  W.  1/4 
W.  1/2  S.  W.  1/4 
N.  of  R.  W.  1/2  S.  W.  1/4 
S.  of  S.  W.  1/4 
S.  E.  1/4  N.  W.  1/4 
W.  1/2  N.  W.  1/4 
E.  1/2  S.  W.  1/4 
W.  1/2  S.  W.  1/4 
N.  E.  1/4  N.  W.  1/4 
N.  E.  1/4  N.  W.  1/4 
W.  1/2  S.  E.  1/4 
N.  1/2  N.  W.  1/4 
S.  E.  1/4  N.  W.  1/4 


i i 

i i 

i i 

80 

12 

33 

i i 

i i 

80 

12 

< i 

i i 

i i 

80 

12 

i i 

i i 

i i 

80 

12 

i i 

i i 

i i 

80 

12 

< i 

i i 

(.  i 

80 

12 

i i 

i i 

i i 

80 

12 

i i 

i i 

i i 

80 

12 

i i 

i i 

i i 

80 

12 

15 

39 

i i 

54.24 

50 

i i 

39.82 

15 

17 

i i 

i i 

40 

20 

17 

39 

12 

80 

20 

i 1 

i ( 

i i 

80 

30 

i 1 

i i 

i i 

80 

25 

i i 

i ( 

i i 

40 

25 

23 

i i 

i i 

40 

150 

29 

i i 

i i 

80 

25 

33 

28 

9 

80 

5 

< i 

i i 

40 

5 

General  Offices  Board  of  Canal  Commissioners, 
State  of  Illinois. 


State  of  Illinois, 
Will  County. 


I,  John  M.  Snyder,  Acting  Secretary  of  the  Board  of  Canal 
Commissioners  of  the  State  of  Illinois,  and  Keeper  of  the  Rec- 
ords and  Files  belonging  to  said  Board,  do  hereby  certify  that 
the  above  and  foregoing  matter  is  a copy  of  a printed  slip  past- 
ed on  the  inside  cover  of  a booh  entitled  Lands,’’  which  book 
is  a register  of  lands  sold  by  the  Canal  Trustees  from  May 
9,  1853,  to  August  12,  1870,  and  also  shows  the  number  of 
each  certificate  issued  and  amount  of  cash  received. 

Witness  my  hand  and  the  official  seal  of  the  said  Board  of 
Canal  Commissioners  of  the  State  of  Illinois,  this  11th  day 
of  April,  A.  D.  1908. 

John  M.  Snyder, 

(seal)  Acting  Secretary  as  aforesaid. 

4575  Counsel  for  defendant  offered  a certified  copy  of  patents 
from  the  United  States  to  Edwin  S.  Kimberly,  dated  1839, 

signed  by  Martin  Van  Buren,  certified  by  the  recorder  of  deeds 
for  Will  County. 

4576  Objection  as  having  no  significance  because  Canal  Commis- 

4577  sioners  had  had  possession  of  property  for  40  years. 


1338 


Snyder, — Direct  Exam. — Continued. 


4578  The  Court.  Let  it  go  in. 

Which  said  document  was  received  in  evidence  and  is  ab- 
stracted in  the  words  and  figures  following,  to-wit: 


4579 


Snyder  Lx.  9. 


The  United  States  To  Edmund  S Kimberly  Esq 
Certificate  Patent. 

No.  1109  The  United  States  of  America 
* * # Whereas,  Edmund  S.  Kimberly  ^ has  de- 

posited a Certificate  whereby  it  appears  that  full  payment  has 
been  made  by  Kimberly  * * * for  The 

East  half  of  the  North  West  Quarter  of  Section  Six  in  Town- 
ship Thirty  three  North  of  Eange  Nine  East  in  the  Dis- 
trict of  lands  subject  to  Sale  at  Chicago  Illinois  containing 
eighty  acres  * * ^ . Now  Know  Ye,  that  the  United  States 
of  America  in  consideration  of  the  premises,  etc.,  * * * 

4580  Have  Given  and  Granted,  and  by  these  presents  Do  Give  and 
Grant  unto  the  said  Edmund  S.  Kimberly  and  to  his  heirs  the 
said  tract  above  described : To  have  and  to  Hold  unto  the  said 
Edmund  S.  Kimberly  and  his  heirs  and  assigns  forever.  * * 

Given  at  Washington  October  1,  1839,  etc. 

By  the  President, 

Martin  Van  Buren. 

( Seal  of  ) By  M.  Van  Buren,  Jr., 

(land  office)  Secy. 

J M Garland  Eecorder  of  the  General  land  Office.  Becorded 
Vol  3 Page  52. 


4581  (Certificate  of  Eecorder  of  Deeds) 

4582  The  witness  further  testified: 

I have  examined  the  records  of  the  Canal  Commissioners 
and  Board  of  Trustees  to  ascertain  whether  any  conveyance  ap- 
pears at  any  time  to  the  Canal  Commissioners  or  to  the  Board  of 
Trustees  of  the  Illinois  and  Alichigan  Canal,  or  to  the  State  of 
Illinois,  or  the  east  half  of  the  northwest  quarter  of  Section  6 in 
Township  33,  north  of  Eange  9 East,  in  the  district  of  land  sub- 
ject to  sale  at  Chicago,  Illinois,  no  such  conveyance  could  be 
found  by  me.  I have  made  an  examination  as  to  the  same  facts 
as  to  the  west  half  of  the  northwest  quarter  of  Section  6,  Township 
33  North  of  Eange  9 East,  in  the  district  of  land  subject  to  sale 
at  Chicago,  there  is  not  any  such  conveyance  that  I could  And.  I 
have  examined  all  the  documents. 


(Objection  overruled.) 


1339 


4583  Said  Exhibit  10  is  in  the  words  and  figures  following,  to- 
wit : 

4584  ^‘Snyder  Ex.  10. 

The  United  States  To  Edmund  S Kimberly 

Patent. 


Certificate 
No.  1115 


j-  United  States  of  America, 


* * * Whereas  Edmund  S Kimberly  * * * has  deposited 
a Certificate  whereby  it  appears  that  full  payment  has  been 
made  by  Kimberly  * * * for  the  West  half  of  the  North 

West  quarter  of  Section  Six,  in  Township  Thirty  three  North 
of  Eange  Nine  East  in  the  District  of  lands  subject  to  sale 
at  Chicago,  Illinois,  Containing  Sixty  Seven  acres  and  four 
hundredths  of  an  acre.  * * * Now  Know  Ye,  that  the  United 
States  of  America,  in  Consideration  of  the  i)remises,  etc., 
* * * Have  given  and  Granted,  and  by  these  presents.  Do 

4585  Give  and  Grant,  unto  the  said  Edmund  S Kimberly  and  to  his 
heirs,  the  said  tract  above  described. 

To  have  and  to  Hold  * * * unto  the  said  Edmund  S.  Kim- 
berly and  to  his  heirs  and  assigns  forever. 

Given  at  Washington  October  1,  1839,  etc. 

By  the  President: 

Maeti^st  Van  Bueen, 

(Seal  of)  By  M AAn.  Buren  Je 

( State  ) Secy. 

J.  M.  Garland 

Becorder  of  the  General  Land  Office. 

Eecorded  Vol.  3,  page  58. 

4586  (Certificate  of  Eecorder  of  Deeds) 

4587  Counsel  for  defendant  offered  in  evidence  the  certified  copy 
of  the  voucher  of  the  State  of  Illinois  to  Henry  S.  Piepin- 

brink,  Sheriff  of  Will  County,  at  Joliet,  Illinois,  covering  payment 
of  the  judgment  in  the  case  against  Slater  and  Druley,  with  the 
Sheriff’s  costs  and  the  costs  in  the  Supreme  Court,  the  total  being 
$956.38,  to  show  by  this  and  other  records  of  the  Illinois  and 
Michigan  Canal  Board  of  Trustees,  that  the  suit,  while  nominally 
a Druley  suit,  in  the  name  of  Druley  and  Slater,  was  actually 
defended  by  the  State  of  Illinois,  and  the  judgment  paid  by  the 
State  of  Illinois. 

(Objection  as  incompetent.) 


1340 


Snyder^— Direct  Exam. — Continued. 


The  CouKT.  Overruled. 

(Which  said  document  marked  Snyder’s  Exhibit  11  was  re- 
ceived in  evidence  and  is  in  the  words  and  figures  following,  to- 
wit :) 

4588  COPY: 

^‘Snyder  Ex.  11.” 

FOR  MAINTAINING  AND  OFERATIN^G  THE  IHLINOIS  AND  MICHIGAN 
CANAL  AND  LOCKS  IN  THE  ILLINOIS  RIVER. 

State  of  Illinois 

To  Henry  F.  Piepenbrink,  Hr. 

No.  311  Address  Sheriff  'Will  County,  Joliet,  111. 

1882  Place  but  one  item  on  each  line  of  the  column. 

Hollars.  Cts. 

May  31  For  amount  of  judgment  rendered  in  Ap- 
pellate Court,  April  6,  1881,  in  case  of 
Win.  Adam  vs  Eobert  S.  Slater  & Wm. 

M.  Hruley  800.00 

For  interest  on  said  judgment  Apr.  6/81 
to  June  10/82,  1 yr — 2 mos.  4 days  at  6%  56.53 

Paid  under  protest  see  Canal  Com- 
missioners Eecord  Book  under 
date  of  June  8,  1882  79.00 

For  costs  in  Appellate  Court  in 
said  case  Less  amount  paid  by 
Canal  Commissioners  Sep  12/8i  9.60  69.40 


30.15 

For  costs  in  Supreme  Court  in 
said  case  Less  amount  paid  by 
Canal  Commissioners  Oct.  14, 

1881  10.00  20.15 


For  Sheriff’s  costs  since  render- 
ing of  judgment  10.30 


Charged  to  Tolls  and  Eents  956.38 

Examined  and  Found  Correct. 

The  above  has  been  received  and  the  work  performed. 
Wm.  Thomas  Supt.  B.  P.  Shaw  Secy. 

4589  Eeceived  from  the  Treasurer  of  the  Board  of  Canal  Com- 
missioners. 

Nine  hundred  fifty  six  and  38/100  Hollars.,  In  full  for  the 
above  account,  and  it  is  hereby  certified  that  the  articles  as 
specified  in  the  above  voucher  have  been  furnished  to  the 
Board  of  Canal  Commissioners  for  the  use  of  the  Illinois  and 
Michigan  Canal,  of  the  Locks  in  the  Illinois  Eiver,  and  that 


1341 


the  prices  charged  are  the  lowest  market  price  for  the  same. 

Henry  F.  Piepenbrink, 

Sheriff. 

Dated  Joliet,  Illinois,  6/15/82. 

Signed  Duplicates,  approved  for  payment, 

1.  0.  Glover, 

President. 


General  Offices  Board  of  Canal  Commissioners, 
State  of  Illinois. 


State  of  Illinois 
Will  County 


I,  John  M.  Snyder,  Acting  Secretary  of  the  Board  of  Canal 
Commissioners  of  the_  State  of  Illinois,  and  Keeper  of  the 
Kecords  and  Files  and  Seal  belonging  to  said  Board,  do  here- 
by certify  that  the  above  and  foregoing  is  a true  and  correct 
copy  of  Voucher  Number  Three  hundred  and  eleven  (311), 
issued  to  Henry  F.  Piepenbrink,  as  Sheritf  of  Will  County 
on  May  31st,  1882,  of  the  Board  of  Trustees  of  the  Illinois 
& Michigan  Canal,  now  in  this  office  and  in  my  keeping,  as 
regards  the  matter  therein  contained. 

Witness  mv  hand  and  the  official  seal  of  the  said  Board  of 
Canal  Commissioners  of  the  State  of  Illinois,  this  Sixth  day 
of  June  A.  D.  1908. 

(Signed)  John  M.  Snyder. 

(seal)  Acting  Secretary  as  aforesaid. 

4590  Counsel  for  defendant  offered  in  evidence  as  Snyder’s 
Exhibit  12  a voucher  to  G.  D.  A.  Parks,  who  will  be  shown 
to  have  been  the  attorney  who  appeared  of  record  for  Slater  and 
Druley  in  the  case  of  Adams  against  Slater  and  Druley,  for  ser- 
vices in  the  case  of  Slater  et  al.,  in  the  suit  of  Adams,  to  $300.00 ; 
for  advance  printer’s  fees  for  brief,  $40.00;  total,  $340.00. 

(Which  said  document  was  received  in  evidence,  and  is  in  the 
words  and  figures  following  to-wit:) 


1342 


Snyde r, — Direct  Exam. — Continued. 

4591  COPY. 

^‘Snyder  Ex.  12.’’ 

FOR  MAINTAINING  AND  OPERATIN^G  THE  ILLINOIS  AND  MICHIGAN 
CANAL  AND  LOCKS  IN  THE  ILLINOIS  RIVER. 

State  of  Illinois, 

T.  G.  D.  A.  Parks,  Dr. 

No.  47  Address  Joliet,  Ills. 

1881  Place  but  one  item  on  each  line  of  this  column. 

Dollars,  cts. 

January  3 To  services  in  case  Slater  et  al.  ads  to  date  300.00 
For  advanced  printer’s  fee  for  brief  40.00 


Charges  to  Tolls  and  Eents  340.00 

Examined  and  Pound  Correct. 

The  above  has  been  received  and  the  work  performed. 
(Signed  Wm.  Thomas  Supt.  B.  F.  Shaw,  Sec. 

Keceived  from  the  Treasurer  of  the  Board  of  Canal  Com- 
missioners, three  hundred  and  forty  No/100  dollars,  in  full 
for  the  above  amount,  and  it  is  hereby  certified  that  the  ar- 
ticles as  specified  in  the  above  voucher  have  been  furnished 
to  the  Board  of  Canal  Commissioners  for  the  use  of  the  Illi- 
nois and  Michigan  Canal,  of  the  Locks  in  the  Illinois  River, 
and  that  the  prices  charged  are  the  lowest  market  prices  for 
the  same. 

G.  D.  A.  Parks. 

Dated  Joliet,  Illinois,  Jan.  13,  1881. 

Signed  in  Duplicates,  Approved  for  payment. 

(Signed)  J.  0.  Glover, 

President. 


4592  General  Office  Board  of  Canal  Commissioners, 

State  of  Illinois. 


State  of  Illinois 
Will  County. 


I,  John  M.  Snyder,  Acting  Secretary  of  the  Board  of  Canal 
Commissioners  of  the  State  of  Illinois,  and  Keeper  of  the 
Records  and  Files  and  Seal  belonging  to  said  Board  do  here- 
by certify  that  the  above  and  foregoing  is  a true  and  correct 
copy  of  voucher  No.  47,  issued  to  G.  D.  A.  Parks,  Joliet,  Illi- 
nios,  January  3rd,  1881,  of  the  Board  of  Trustees  of  the  Illi- 
nois & Michigan  Canal,  now  in  this  office  and  in  my  keeping, 
as  regards  the  matter  therein  contained. 

IVitness  my  hand  and  the  official  seal  of  the  said  Board  of 
Canal  Commissioners  of  the  State  of  Illinois,  this  8th  day 
of  June,  A.  D.  1908. 

(Signed)  John  M.  Snyder, 

(seal)  Assistant  Secretary  as  aforesaid. 


1343 


4593  Counsel  for  defendant  also  offered  in  evidence  a certified 
copy  of  a resolution  of  the  Board  in  regard  to  the  payment 

of  the  judgment  and  costs,  made  May  10,  1882. 

(Objection  that  it  is  incompetent,  irrelevant  and  imma- 
terial.) 

The  Court.  It  may  go  in  for  what  it  is  worth. 

(Which  said  document  was  received  in  evidence  and  is  in  the 
words  and  figures  following,  to-wit:) 

4594  ‘‘Snyder  Ex.  13.” 

COPY  OF  PREAMBLE  AND  RESOLUTION  IN  REGARD  TO  PAYMENT  OF 
JUDGMENT  AND  COSTS  IN  CASE  OF  ADAM  VS.  SLATER  & DRULEY, 

MAY  10th,  1882. 


On  Motion  the  Following  was  Adopted: — 

Whereas,  in  the  case  of  William  Adam  vs.  Robert  P.  Slater 
and  M"m.  M.  Druley  brought  in  the  Circuit  Court  of  Will 

County  at  the  term  W.  D.  1878,  for  the  diversion  of 

the  water  of  the  Desplaines  River  from  the  mill  of  said  plain- 
tiff and  appealed  to  the  Appellate  Court,  in  which  court,  the 
judgment  of  said  court  was  reversed  and  a judgment  ren- 
dered in  favor  of  said  plaintiff  for  $800,  for  damages,  and 
costs  of  suit,  which  judgment  was  afterwards  affirmed  in  the 
Supreme  Court  on  appeal  thereto,  as  will  inore  fully  appear 
by  reference  to  the  report  thereof  in  the  101st.  vol.  of  the 
reports  of  said  Supreme  Court  and 

Whereas  the  alleged  diversion  for  which  said  recovery 
was  had  was  of  water  supplied  to  said  Slater  and  Druley 
under  a lease  to  them  executed  by  this  Board  dated  July  11, 
1878,  whereby  it  became  equitably  and  justly  incumbent  on 
the  State  to  assume  the  responsibility  of  such  suit. 

Therefore  resolved,  That  the  said  judgment  and  costs  be 
paid  but  with  a view  to  saving  the  future  rights  of  the  State, 
that  said  judgment  be  paid  under  protest. 


4595  General  Office  Board  of  Canal  Commissioners, 

State  of  Illinois. 


State  of  Illinois 
Will  County. 


I,  John  M.  Snyder,  Acting  Secretary  of  the  Board  of  Canal 
Commissioners  of  the  State  of  Illinois,  and  Keeper  of  the 
Records  and  Files  and  Seal  belonging  to  said  Board,  do  here- 
by certify  that  the  above  and  foregoing  is  a true  and  cor- 
rect copy  from  the  Record  Book  No.  4,  page  235,  of  the  Board 


1344 


Snyder, — Direct  Exam. — Continued. 


of  Trustees  of  tlie  Illinois  & Michigan  Canal,  now  in  this 
office  and  in  my  keeping,  as  regards  the  matter  therein  con- 
tained. 

Witness  my  hand  and  the  official  seal  of  the  said  Board  of 
Canal  Commissioners  of  the  State  of  Illinois,  this  Sixth  day 
of  June,  A.  D.  1908. 

(Signed)  Johx  M.  Snydek, 

(seal)  Acting  Secretary  as  aforesaid. 

4596  Counsel  for  complainant  stated  that  he  further  offered 
it  as  a basis  of  showing  hereafter  the  position  taken  by 

these  people  as  to  the  condition  of  this  river  in  the  tiling  of  their 
briefs  in  the  Supreme  Court. 

4597  Counsel  for  defendant  offered  in  the  report  of  the  Canal 
Commissioners  to  the  Governor,  dated  February  16,  1872, 

from  page  17,  under  the  letter  D,  leases  of  the  90-foot  strip,  show- 
ing leases  I think  12  in  number  in  1871'. 

(Objection  on  the  ground  that  they  were  incompetent,  the 
resolution  of  the  Legislature  indicated  its  purpose,  and  these 
leases  could  not  be  introduced  to  show  the  construction  which 
the  Canal  Commissioners  may  have  i^ut  on  that  resolution.) 

4603  Then  follows  some  colloquy  as  to  whether  portions  of  90- 
strip  had  been  divided  into  lots  and  sold  as  such. 

Counsel  for  Defendant.  This  report  says  90-foot  strip  and 
lots.  Colonel  Snyder,  can  you  throw  any  light  on  that?  A.  I can. 
I would  suggest  that  the  90-foot  strip, — 

(Objection  to  his  testimony,  as  interpreting  the  document 
and  as  not  the  best  evidence.) 

A.  I was  going  to  explain  that.  The  90-foot  strip  is  the  strip 
on  each  side  of  the  canal  and  has  always  been  claimed  as  the  prop- 
erty of  the  State  of  Illinois,  and  in  the  leasing  of  the  90-foot  strip 
it  is  designated  usually  by  feet,  but  in  these  towns  that  were  laid 
out  by  the  canal,  a number  of  those  lots  are  embraced  in  the  cor- 
portion  of  the  city  and  are  designated  as  lots  in  the  90-foot  strip 
so  that  these  leases  of  the  90-foot  strip  and  lots  would  all 

4604  be  in  the  90-foot  strip,  but  in  many  cases  where  there  is  no 
town,  we  leased  so  man}^  feet  of  the  90-foot  strip.  Where 

there  is  a town  and  laid  out  in  lots,  it  is  lot  and  90-foot  strip. 

Counsel  foe  Complainant.  Q.  You  have  lots  in  the  towns, 


1345 


that  are  not  in  the  90-foot  strip  also,  haven’t  you!  A.  Well,  towns 
laid  off  should  embrace  that  portion  of  the  90-foot  strip — 

Q.  And  also  canal  lands  that  were  not  in  the  90-foot  strip! 
A.  Yes,  sir. 

The  witness  further  testified: 

I suppose  they  would  be  sold  if  there  was  any  offer  for  them. 
These  town,  we  will  take  to  illustrate,  the  City  of  La  Salle,  the 
large  portion  of  the  City  of  La  Salle  is  laid  out,  and  addi- 

4605  tions  were  added  to  it,  the  town  of  La  Salle,  and  certain 
reservations  were  made  and  the  lots  were  sold,  and  in  some 

cases  payments  were  not  made  and  they  reverted  to  the  State,  and 
in  every  case  along  the  line  of  the  canal  where  there  are  feeders, 
or  strips  in  connection  with  the  canal,  they  are  valuable  for  ice 
houses,  or  other  purposes,  they  being  the  property  of  the  State  and 
are  leased  for  those  particular  purposes.  The  90-foot  strip  and 
lot,  as  I remember,  is  a term  used  in  making  out  the  reports.  The 
90-foot  embraces  the  90-foot  and  lots,  there  may  have  been  lots 
outside,  any  lots  in  the  90-foot  strip  or  perhaps,  lots  outside 

4606  of  the  90-foot  strip.  All  it  stands  for  is  the  fact  that  there 
were  leases  made  in  the  90-foot  strip. 

(Counsel  for  complainant  objected  on  the  ground  that  the 
best  evidence  would  be  the  leases,  and  that  all  things  of  that 
kind  that  is  done,  and  has  not  received  the  stigma  of  legisla- 
tive criticism,  is  of  this  very  small  kind  that  does  not  inter- 
fere with  the  integrity  of  the  strip.) 

The  CouKT.  They  are  offering  it  as  an  admission  against  you. 
It  is  a report  to  the  Governor,  and  the  Governor  accepts  it,  and 
they,  therefore,  say  the  State  of  Illinois  leases  certain  property. 

If  the  State  of  Illinois  said  they  had  leased  100  feet,  they 

4607  would  not  have  to  bring  in  the  lease. 

(Counsel  for  complainant  further  objected  that  the  terms 
of  that  lease  may  be  such  that  it  amounts  to  holding  posses- 
sion of  10  feet  or  50  feet  during  the  pleasure  of  the  owner, 
during  the  pleasure  of  the  lessor,  it  would  be  reported  as  a 
lease,  and  it  would  not  be  in  conflict  with  any  position  that  he 
has  taken  on  it.) 

The  Court.  Very  well,  you  will  have  the  benefit  of  that  pos- 
sibility. 


1346 


Snyder, — Direct  Exam. — Continued. 


4608  Thereupon  counsel  for  defendant  read  Section  7 of  Chap- 
ter 19,  ‘‘Canal  Improvements  of  the  Illinois  and  Little  AYa- 
bash  Rivers.” 

“The  secretary  shall  keep  the  records  of  the  Commission- 
ers, and  perform  such  other  duties  as  they  shall  require  of 
him,  and  copies  of  all  papers,  documents  and  records  legally 
in  his  keeping,  certified  by  him  under  the  official  seal,  shall 
be  received  in  the  evidence  in  the  same  manner  and  with  like 
effect  as  the  originals.” 

And  then  stated  that  he  offered  copies  of  the  deeds  which  are 
in  the  official  keeping  of  the  Secretary,  and  which  apparently  come 
under  the  express  language  of  Section  7 of  the  act. 

(Counsel  for  defendant  objected  to  all  these  copies  of  docu- 
ments of  title  as  incompetent  on  the  ground  that  the  statute 
only  made  the  records  of  the  board  evidence.) 

4612  Thereupon  it  was  agreed  that  counsel  for  defendant  would 
concede  that  the  deeds  were  never  in  fact  recorded  and  coun- 
sel for  complainant  withdrew  their  objection. 

4613  Thereupon  counsel  for  complainant  read  in  evidence  from 
the  Act  of  January  9,  1831,  entitled,  “An  Act  for  the  con- 
struction of  the  Illinois  and  the  Michigan  Canal”,  which  created 
the  Board  of  Canal  Commissioners,  and  which  provided  by  Section 
10: 

“Said  Board  of  Commissioners  is  hereby  constituted  a body 
politic  and  corporate  with  full  power  and  authority  in  their 
corporate  name  to  contract  and  be  contracted  with,  to  sue, 
and  to  be  sued,  defend  and  be  defended,  plead  and  be  im- 
pleaded in  all  matters  and  things  relating  to  them  as  Canal' 
Commissioners,  and  they  shall  have  and  use  a common  seal 
with  such  device  as  the  Governor  may  direct.” 

And  Section  2,  of  the  Act  of  February  28,  1867 : 

“The  Canal  Commissioners  so  appointed  are  hereby  con- 
stituted a body  politic  and  corporate,  with  full  power  and 
authority,  in  their  corporate  name,  to  contract  and  be  con- 

4614  tracted  with,  sue  and  be  sued,  defend  and  be  defended,  plead 
and  be  impleaded  in  all  matters  and  things  relating  to  them 
as  such  commissioners;  and  they  shall  have  a common  seal, 
of  such  deffice  as  they  may  adopt.” 

And  from  the  Act  of  1874,  as  follows: 

“For  all  legal  purposes,  the  said  commissioners  shall  be 

. deemed  officers  of  the  State,  in  all  deeds,  contract  writings 


1347 


and  acts  may  be  made,  and  suits  prosecuted  by  them  in  the 
name  of  ‘The  Canal  Commissioners’  but  they  shall  not  be 
considered  as  a distinct  corporation,  or  liable  to  be  sued.” 

Whereupon  followed  a colloquy  between  counsel  as  to  the  abil- 
ity of  the  Canal  Commissioners  to  sue  or  to  be  sued. 

4617  Counsel  for  defendant  then  read  in  evidence: 

4619  Snyder  Exhibit  15 

All  to  Whom  These  Presents  Shall  Come — Greeting: 

Whereas,  The  Board  of  Trustees  of  the  Illinois  & Michi- 
gan Canal  contemplate  constructing  a feeder  for  the  Illinois 
& Michigan  Canal,  from  the  Kankakee  River  to  the  main 
trunk  of  the  said  Canal — 

Now  KNOW  YE  that  John  Beard,  Senior  & Mary,  his  wife 
of  the  town  of  Kankakee,  of  the  County  of  Grundy  in  the 
State  of  Illinois, 'being  desirous  for  the  construction  of  the 
said  feeder,  in  consideration  of  the  premises  and  of  one  dollar 
to  him  in  hand  paid  by  the  Board  of  Trustees  of  the  Illinois 
& Michigan  Canal,  the  receipt  of  which  is  hereby  acknowl- 
edged, have  and  by  these  presents  do  give,  grant,  bargain, 
sell,  remise,  release,  convey  and  quit-claim  to  the  said  Board 
of  Trustees  of  the  Illinois  & Michigan  Canal,  the  right  of  way 
for  the  said  feeder  over  and  through  the  followng  described 
tract,  piece  or  parcel  of  land,  viz.  all  the  lots  in  said  town 
of  Kankakee  through  which  said  feeder  shall  pass,  owned 
by  said  Board  and  also  such  number  of  feet  in  width  of  land 
from  the  center  of  said  feeder  on  the  berm  side  thereof,  and 

4620  such  number  of  feet  in  width  from  the  said  center  of  the 
Towing  Path  side  thereof,  extending  the  whole  length  of  said 
feeder  through  the  said  above  described  premises,  the  said 
land  to  be  taken  on  each  side  of  the  feeder  to  be  no  more  than 
necessary  to  the  proper  construction  thereof,  the  plan  of  the 
construction  to  be  determined  by  the  Trustees  or  the  Chief 
Engineer  in  their  employ. 

To  HAVE  and  to  hold  the  said  right  of  way,  and  the  said  land 
as  above  described  on  each  side  of  the  said  feeder  as  afore- 
said, with  the  appurtenances,  unto  the  said  Board  of  Trus- 
tees of  the  Illinois  & Michigan  Canal,  and  to  their  successors 
and  assigns,  for  the  use,  construction,  navigation,  preserva- 
tion, occupation  and  enjoyment  of  the  said  feeder  forever; 

Provided,  however,  if  the  said  feeder  should  not  be  con- 
structed over  and  through  the  said  premises,  or,  if  after  the 
construction  of  tlie  same  it  should  be,  by  the  decision  of  the 
said  Board  of  Trustees,  their  successors  or  assigns,  aban- 
doned and  discontinued,  or  the  route  thereof  changed  so  as 
not  to  be  continued  over  the  said  premises  then  and  in  that 


1348 


Snyder, — Direct  Exam. — Continued. 


case,  the  said  land  hereby  granted  shall  revert  to  the  said 
John  Beard,  Senior,  his  heirs  or  assigns. 

In  witness  whereof,  the  said  John  Beard,  Senior,  and 
Mary  his  wife  have  hereunto  set  their  hands  and  seals  this 
2nd  day  of  April,  A.  D.  1846. 

Sealed,  signed  and  delivered 
in  presence  of 

John  Beard,  Sr.  (Seal) 

Mary  Beard.  (Seal) 

M.  Benjamin. 

4621  Here  follows  certificate  of  acknowledgement  before  Garion 
D.  A.  Parks,  Notary  Public. 

Here  follows  certificate  of  John  M.  Snyder,  Acting  Secretary 
that  the  foregoing  copy  is  a true  copy. 

4623  Here  follows  a deed  in  the  same  form  from  John  Kelley 
and  Margaret,  his  wife,  to  the  said  Board  of  Trustees  of 

the  Illinois  & Michigan  Canal,  conveying  the  right  of  way  for  the 
said  feeder  over  and  through  the  following  described  tract,  piece 
or  parcel  of  land,  viz.,  the  west  half  of  the  S.  W.  quarter  of  Sec- 
tion five  (5),  Township  33  N.,  Eange  9,  East  of  the  3rd  Principal 
Meridian  and  also  such  number  of  feet  in  width  of  land  from  the 
center  of  said  feeder  on  the  berm  side  thereof,  and  such  number 
of  feet  in  width  from  the  said  center  on  the  towing  path  side  there- 
of, extending  the  whole  length  of  said  feeder  through  the 

4624  said  above  described  premises,  the  said  land  to  be  taken  on 
each  side  of  the  feeder  to  be  no  more  than  necessary  to  the 

proper  construction  thereof,  the  plan  of  the  construction  to  be  de- 
termined by  the  Trustees  or  the  Chief  Engineer  in  their  em- 
ploy. 

4625  Here  follows  certificate  of  acknowledgment  by  Garion  H. 
A.  Parks,  Notary  Public. 

4626  Here  follows  certificate  by  John  M.  Snyder,  Acting  Sec- 
retary, that  the  foregoing  is  a true  copy. 

4627  Here  follows  a deed  in  the  same  form  from  John  Beard, 
elr.,  and  Mary  his  wife,  to  the  said  Board  of  Trustees  of  the 

Illinois  & Michigan  Canal,  conveying  the  right  of  way  for  the  said 
feeder  over  and  through  the  following  described  tract,  piece  or 
parcel  of  land,  viz.,  the  N.  E.  ^ of  Section  6,  T.  33  N.,  Eange  9 E., 
of  3rd  Principal  Meridian  and  also  such  number  of  feet  in  width 


1349 


of  land  from  the  center  of  said  feeder  on  the  berm  side  thereof, 
and  such  number  of  feet  in  width  from  the  said  center  on  the 
towing  path  side  thereof,  extending  the  whole  length  of  said 

4628  feeder  through  the  said  described  premises,  the  said  land  to 
be  taken  on  each  side  of  the  feeder  to  be  no  more  than  nec- 
essary to  the  proper  construction  thereof,  the  plan  of  the  con- 
struction to  be  determined  by  the  Trustees  or  the  Chief  Engineer 

in  their  employ. 

4629  Here  follows  certificate  of  acknowledgment  by  Garion  D. 
A.  Parks,  Notary  Public. 

4630  Here  follows  a certificate  by  John  M.  Snyder,  Acting  Sec- 
retary, that  the  foregoing  is  a true  copy. 

4631  Here  follows  a deed  in  the  same  form  from  Edward  Hays 
and  Katherine,  his  wife,  to  the  said  Board  of  Trustees  of  the 

Illinois  & Michigan  Canal,  conveying  the  right  of  way  for  the 
said  feeder  over  and  through  the  following  described  tract, 
piece  or  parcel  of  land,  viz.,  the  E.  4,  S.  W.  J,  Section  5,  Town- 
ship 33  N.,  Kange  9 E.,  of  the  3rd  Principal  Meridian  and  also 
such  number  of  feet  in  width  of  land  from  the  center  of  said 
feeder  on  the  berm  side  thereof,  and  such  number  of  feet  in  width 
from  the  said  center  on  the  towing  path  side  thereof,  ex- 
.4632  tending  the  whole  length  of  said  feeder  through  the  said 
above  described  premises,  the  said  land  to  be  taken  on  each 
side  of  the  feeder  to  be  no  more  than  necessary  to  the  proper 
construction  thereof,  the  plan  of  the  construction  to  be  deter- 
mined by  the  Trustees  or  the  Chief  Engineer  in  their  employ. 

4633  Here  follows  certificate  of  acknowledgment  by  Garion  D. 
A.  Parks,  Notary  Public. 

4634  Here  follows  certificate  by  John  M.  Snyder  that  the  fore- 
going is  a true  copy. 

4635  Here  follows  a deed  in  the  same  form  from  Edward  Hays 
and  Katherine,  his  wife,  to  the  said  Board  of  Trustees  of  the 

Illinois  & Michigan  Canal,  conveying  the  right  of  way  for  the  said 
feeder  over  and  through  the  following  described  tract,  piece  or 
parcel  of  land,  viz.,  the  east  half  of  the  N.  W.  fractional  quarter 
of  Section  five,  Township  thirty-three.  North  Bange  9,  East 
of  Third  Principal  Meridian,  and  also  such  number  of  feet  in 
width  of  land  from  the  center  of  said  feeder  on  the  berm  side 


1350 


thereof,  and  such  number  of  feet  in  width  from  the  said  center 
on  the  towing  patii  side  thereof,  extending  the  whole  length 

4636  of  said  feeder  through  the  said  above  described  premises, 
the  said  land  to  be  taken  on  each  side  of  the  feeder  to  be 

no  more  than  necessary  to  the  proper  construction  thereof,  the 
plan  of  the  construction  to  be  determined  by  the  Trustees  or  the 
Chief  Engineer  in  their  employ. 

4637  Here  follows  certificate  of  acknowledgment  by  Garion  D. 
A.  Parks,  Notary  Public. 

4638  Here  follows  certificate  of  John  M.  Snyder,  Acting  Sec- 
retary that  the  foregoing  is  a true  copy. 

4639  • Patrick  Fogarty, 

a witness  for  defendant,  testified  as  follows: 

Direct  Examination, 

My  name  is  Patrick  Fogarty.  I live  in  Joliet.  I first  came 

4640  there  in  1872,  then  I went  away  from  there.  I was  around 
there  for  three  years  and  then  I went  to  California.  I was 

in  California  for  about  five  years,  and  then  came  back  there  in 
1880.  I have  resided  there  continuously  since.  Well,  I worked 
the  first  three  years  I was  there,  I was  working  at  the  stone  cut- 
ting trade,  in  the  City  of  Joliet  in  different  quarters  around  there. 
Well,  I came  back  there  in  1880;  I worked  for  five  years  for  the 
Joliet  Stone  Company  there  as  the  stone  cutter,  and  foreman 
over  stone  cutters  and  foreman  in  the  quarries.  Then  I started 
in  business  for  myself,  two  miles  and  a half  below  Joliet, 
well,  some  time  in  1885  or  1886,  I would  not  say  which.  I started 
in  at  that  time  in  the  quarry  business.  I owned  a quarry.  I was 
in  partnership  with  another  man  down  there  near  what  is  called 
Patterson  Island,  two  miles  and  a half  below  Joliet.  I stayed 

4641  there,  in  with  him  about  two  years,  then  I sold  out  and 
opened  another  quarry  down  at  Kock  Bun,  about  six  miles  be- 
tween Joliet — between  five  and  six  miles.  That  quarry  is  on  what 
is  known  as  Lake  Joliet,  right  at  the  mouth  of  Kock  Bun  Creek, 
at  the  northeast  bank  of  the  creek.  The  quarry  was  on  the  right 
hand  bank  going  down  stream.  I opened  that  quarry  up  in  1888. 
I operated  it  about  eleven  years,  from  1888  until  1899,  or  1898.  I 


1351 


built  a bridge  across  the  river  there,  a narrow  gauge  railroad  and 
took  the  stone  over  to  the  Santa  Fe.  The  Santa  Fe  run  right 
opposite  the  quarry  on  the  other  side  of  the  river,  not  on  the 
other  bank  exactly,  but  there  is  between  eight  hundred  and  a thou- 
sand feet  between  the  Santa  Fe  and  the  bank  of  the  river 

4642  there  at  that  i)lace.  The  kind  of  a place  that  I built  across 
the  river  might  be  called  a trestle  bridge.  I took  the  posts, 

timber  there,  took  two  posts  and  set  them  up  like  this,  put  cross- 
pieces on  the  bottoms  and  then  took  and  put  the  cross-pieces  like 
that,  you  know,  so  that  they  could  not  sway  (indicating),  and 
put  out  posts  down  into  the  water  there  and  drove  them  down 
with  a big  sledge  till  we  got  to  solid  bottom  and  cut  the  posts  off 
then  so  they  would  be  even.  This  is  the  point  on  AYoerman’s  Ex- 
hibit 4,  where  the  railroad  bridge  is  marked,  the  point  where  the 
bridge  was  built  across  Lake  Joliet  (counsel  indicating  on  map). 
It  run  pretty  near  in  that  way,  close  by  that.  It  was  right  by 
this  line  but  not  on  the  angle  that  is  shown  there,  more  on  an 
angle  like  that  (indicating).  It  was  at  the  very  narrowest  point 
of  the  lake  near  about  Eock  Point,  right  on  the  section  line.  It 
struck  the  bridge  about  fifty  or  seventy-five  feet  from  the 

4643  shore.  The  first  bridge  I built  was  between  four  and  five 
feet,  between  the  water  and  the  bottom  of  the  stringer;  I 

had  14-inch  stringers  in.  That  bridge  remained  there  four  years. 
AVell,  I built  the  bridge  in  1888;  it  was  washed  out  in  1890,  and 
the  bridge  all  stayed  there  with  just  the  fish  plates  broke  off  and 
the  rails  that  I had  on  the  south  side  of  the  bridge.  The  bridge 
left  out  and  swung  around  and  all  stayed  there;  I went  and  put 
it  back  just  as  it  was.  Then  it  was  washed  out  again  in  1892. 
Then  we  took  and  rebuilt  it  and  raised  it  up  higher  and  put  longer 
stringers  in.  I raised  it  up  then  so  the  top  of  the  bridge  was 
about  seven  or  eight  feet  above  the  water.  That  bridge  stayed 
there  from  1892  until  1899.  I took  it  out  in  1899,  so  that  those 
bridges  that  I maintained  there  lasted  there  from  about  1888  until 
1900,  about  that,  a period  of  about  twelve  years.  And  -they 
stretched  clear  across  the  river.  These  trestle  posts  were 

4644  apart.  The  first  bridge  I had  in,  I had  16-foot  stringers.  The 
second  bridge  I put  in,  I had  32-foot  stringers,  except  one 

span  in  the  middle  of  the  river,  that  was  50  feet.  I did  not  get  any 
authority  from  anyone  to  build  that  bridge  across  there. 


1352 


Fogarty, — Direct  Exam. — Continued. 


Q.  Does  this  paper  that  I show  you  contain  a correct  repre- 
sentation of  the  bridge  as  it  existed  from  your  quarry  across  Lake 
Joliet? 

4645  (Objection  as  immaterial  and  irrelevant.) 

The  Court.  You  may  ask  him  what  it  is. 

Counsel  for  Defendant.  Now,  Mr.  Fogarty,  state  what  is  rep- 
resented by  those  pictures  upon  that  paper  just  handed  to  you. 

A.  Well,  the  lower  picture  represents  the  bridge  here  about 
as  near,  I should  judge,  as  it  was;  and  the  upper  center  picture 
here  is  a view  of  the  quarry  and  the  other  one  up  here  is 

4646  of  an  old  building  in  Joliet  that  was,  built  from  the  quarry. 

That  picture  was  made  I think  somewhere  in  the  fall  of 
1888,  as  near  as  I can  recollect.  You  see  the  date  on  here,  that  is 
the  price  list  that  was- printed  in  1899,  in  April,  1899,  but  to  the 
best  of  my  recollection  there  was  a man  down  there  sketched  this 
in  the  fall  of  1888,  as  near  as  I can  recollect.  It  is  substan- 
tially a correct  representation  of  the  quarry  and  bridge  across  the 
river  there.  It  was  not  sketched  by  an  artist  and  engraved. 

Counsel  for  defendant  then  otfered  in  evidence  the  picture  of 
the  bridge. 

(Objection  overruled.) 

4647  Said  document  was  received  in  evidence  and  marked  Fo- 
garty Exhibit  1.  (App.  II,  p.  3904;  Trans.,  p.  6055;  Abst., 

p.  1730.) 

Q.  State  whether  or  not  there  was  any  navigation  took  place 
up  and  down  through  that  bridge  during  the  twelve  years  that  it 
remained  there?  A.  Nothing  more  than  rowboats,  fishermen  and 
hunters  that  went  up  and  down  there. 

As  to  how  familiar  I am  with  the  Desplaines  Eiver  below  Joliet, 
well,  I know  the  river  middling  well  from  Joliet  down  to  Mills- 
dale.  Millsdale  is  the  point  where  the  bridge  was  built  across  to 
Treat’s  Island,  from  the  south  bank  of  the  stream.  I did  have 
occasion  to  consider  the  matter  of  floating  the  stone  down 
that  part  of  the- river.  Well,  when  they  started  in  to  build  the 
Millsdale,  I wanted  to  put  in  a bid  on  the  abutment  of  it,  stone 
work,  and  I went  down  there,  investigated  it  around  the  head  of 


1353 


Treat’s  Island  to  see  whether  I could  float  stone  from  the 

4648  quarry  at  Kock  Run  down  there  or  not.  Well,  I was  think- 
ing about  building  a scow  or  flat  boat. 

Counsel  fok  Complainant.  I move  to  exclude  what  he  was 
thinking  about. 

The  Court.  Yes. 

Counsel  for  Defendant.  That  is  preliminary,  to  show  the  pur- 
pose of  his  investigation. 

Counsel  for  Complainant.  It  is  objected  to. 

A.  How  shall  I answer  it!  I went  down  there  and  investi- 
gated to  see  how  deep  the  water  was,  to  see  whether  it  would  he 
practicable  to  take  a boat  of  stone  down  there  or  not  and  I found 
the  water  was  very  shallow  for  a great  ways  and  then  I didn’t 
think  I could  get  the  stone  down  there  on  the  flat  boat. 

Counsel  for  Complainant.  I move  to  exclude  it. 

The  Court.  You  abandoned  the  scheme,  did  you! 

A.  Yes,  sir;  I abandoned  the  scheme. 

I was  not  considering  any  particular  size  boat  there  at  all.  I 
only  thought  if  I could  get  one  that  would  draw  a foot  or  eighteen 
inches  of  water  when  it  was  loaded. 

Q.  What  was  the  result  of  your  investigation  and  soundings 
down  there  as  to  how  far  you  could  get  down,  with  such  a 
boat! 

4649  (Objection  overruled.) 

Counsel  for  Defendant.  Q.  State  what  you  found  in 
your  investigation  there,  Mr.  Fogarty! 

A.  Well,  I found  I could  not  get  wdthin  from  three  to  five 
hundred  feet  of  the  head  of  the  island  with  a boat  drawing  a foot 
to  eighteen  inches  of  water,  the  way  the  wmter  was  then. 

As  to  why  I said  I could  not  go  down  any  farther  than  that,  that 
was  because  there  wms  not  water  enough  to  get  down  within  from 
three  to  five  hundred  feet  of  the  island;  that  was  the  only 

4650  reason;  that  there  was  not  water  enough.  The  bed  of  the 
stream  there  above  the  head  of  Treat’s  Island  was  full  of— 

awful  stony.  There  is  all  sizes  there  from  the  size  of  your  two 


1354 


F ogarty, — Direct  Exam. — Continued. 


fists  up  to  weighing  a ton  apiece  or  more,  some  of  them.  I was 
there  when  the  bridge  was  washed  out  in  1890.  I had  a car  drift 
down  there  that  was  loaded  on  the  bridge  and  it  struck  against 
the  head  of  the  little  island.  I went  down  with  a team  to  get  the 
car  out  and  I had  a time  to  get  it  out  of  there  on  account  of  the 
rock,  stony  bottom,  and  I knew  from  that  that  you  could  not  drive 
in  around  there  and  haul  a load.  Above  Treat’s  Island,  at  the 
time  I made  this  investigation,  I think  there  was  from  one  to  two 
feet  of  water.  I observed  the  condition  of  the  stream  below 

4651  the  head  of  Treat’s  Island.  The  channel  was  narrow  and 
run  with  a riffle  down  on  both  sides,  all  of  those  islands. 

There  was  a ford  there  where  we  used  to  drive  across  with  a horse 
and  buggy,  drove  right  across  from  the  south  side  over  the  big 
island  and  then  on  to  the  west  bank.  The  condition  of  the  bed 
was  pretty  stony.  Where  the  ford  was,  somebody,  I guess,  must 
have  thrown  the  big  boulders  out.  There  was  lots  of  big  boulders 
down  there  below  the  ford  in  both  places. 

Counsel  fok  Complainant.  I move  to  exclude  what  he  says, 
somebody  must  have  done. 

The  Court.  AYhat  must  have  been  done,  may  go  out. 

There  is  a few  in  there  of  big  ones  and  there  is  other  smaller 
ones.  I never  took  particular  notice  only  here  and  there  where 
I could  see  the  water  would  come  up  and  strike  them  and  make 
a deep  fall.  There  were  some  that  would  weigh  up  to  three  or 
four  tons.  There  were  some,  of  course  I didn’t  call  my  par- 

4652  ticular  attention  to  it  because  I was  not  concerned  in  it,  be- 
cause I couldn’t  say  exactly  how  plentiful  they  were,  but  I 

know  there  were  boulders  scattered  all  over  here  and  there.  There 
was  some  sticking  out  of  the  water  and  more  we  could  see  the 
water  breaking  over  them. 

Q.  How  far  up  stream  did  you  have  occasion  to  go  on  the  river 
above  your  quarry?  A.  Above  the  quarry? 

Q.  Yes,  sir.  A.  Well,  there  on  Lake  Joliet  above  the  quarry? 

Q.  Yes.  A.  You  are  going  from  Treat’s  Island  way  up  two 
miles  and  a half  above. 

Q.  Xow,  I am  going  the  other  way.  A.  All  right.  Then  I 
want  to  understand. 


1355 


Q.  Do  you  know  the  river  above  where  vour  quarry  was?  A. 
Yes. 

Q.  About  how  far  above! 

Well,  from  where  the  quarry  was  there  up  to  Patterson’s  Island 
there  is  all  the  way — well,  from  four  to  ten  feet  of  water.  Then 
when  you  get  up  to  Patterson’s  Island  then  the  water  begins  to 
get  shallow  from  there  up  to  near  Brandon’s  Bridge.  You  can 
run  on  your  rowboat  up  to  about  Brandon’s  bridge,  and  when  you 
get  to  Brandon’s  bridge  the  water  shallows  there,  it  used  to 

4653  be,  so  that  you  could  wmde  across  there  with  a pair  of  boots 
and  would  not  get  your  feet  wet.  That  was  down  from 

Brandon’s  bridge  to  Joliet;  and  from  Brandon’s  bridge  up  to 
where  the  mouth  of  Hickory  Creek  comes  in.  At  the  time  the 
Brandon’s  bridge  was  built  I was  in  this  other  quarry  down  at 
Patterson’s  Island  and  we  furnished  a lot  of  stone  that  went  into 
Brandon’s  bridge,  and  we  run  it  up  on  the  railroad,  we  dumped  it 
otf  there  and  then  took  trucks  and  hauled  it  out  into  the  river 
there  on  a stone  truck.  Eight  at  Patterson’s  Island  it  is  four 
or  five  feet.  It  shallows  for  a quarter  or  half  a mile  till  it  gets 
up  to  near  Brandon’s  bridge,  and  then  it  shallows  right  at  the 
bridge  and  just  below  the  bridge,  and  up  this  way,  from  there  all 
the  way  up  till  you  get  to  about  pretty  near  the  city  line  of  Joliet. 
In  the  stretch  of  the  river  from  near  Brandon’s  bridge  up  to  near 
the  city  line  of  Joliet,  you  could  walk  across  with  a pair  of 

4654  boots  on.  You  could  walk  across  with  a pair  of  boots  on 
there  lots  of  times  for  two  or  three  months  in  the  summer 

time.  That  was  before  the  drainage  water  was  let  in.  -The 
character  of  the  bed  of  the  stream  for  that  stretch  is  all  boulders 
and  rocks.  / never  went  right  dotvn  to  get  right  down  into  the 
river  there ^ only  they  seemed  to  be  scattered  all  around  in  there, 
from  what  I could  see  from  the  bank  of  the  canal.  I was  never 
down  in  the  bed  of  the  river  there,  only  I could  see  the  boulders 
were  pretty  plentiful.  They  were  exposed.  The  water  did  not  run 
over  them,  the  water  run  around  through  them.  I did  not  ever 
try  to  go  up  through  that  stretch  of  the  river  with  a rowboat  or 
down  it  there.  I have  been  down  the  river  from  below  Brandon’s 
bridge,  down  around  the  head  of  Treat’s  Island  in  a boat. 


1356 


Fogarty, — Direct  Exam. — Continued. 


I have  had  experience  in  navigation  somewhat.  I was 

4655  brought  up  in  New  York  State  on  a lake  there;  Otsego  Lake; 
learned  how  to  run  a rowboat  and  sailboat.  I was  on  the 

Mississippi,  St.  Louis  to  Keokuk,  Iowa.  On  the  Sacramento  Eiver 
from  Sacramento  to  San  Francisco,  ten  or  a dozen  times. 

4656  Counsel  for  Defendant.  Q.  I will  ask  you  Mr.  Fogarty, 
whether  in  your -opinion  the  Des  Plaines  River  between 

Joliet  and  Treat  ^s  Island  is  capable  of  being  used  for  ordinary 
purposes  of  commerce! 

Counsel  for  Complainant.  Objected  to  the  question  on  the 
ground  that  there  was  no  foundation  laid  for  an  expert  opinion. 
(Overruled.) 

A.  Well,  I would  have  to  qualify  that,  from  Patterson’s  Island 
down  to  near  Treat’s  Island  you  could  navigate  it  with  a boat 
drawing  from  two  to  three  feet  of  water.  At  Treat’s  Island,  when 
you  get  down  through  there  you  could  not  navigate  it  with  any- 
thing but  a rowboat;  and  from  Brandon’s  bridge  up  into  Joliet 
it  would  be  a hard  matter  to  navigate  it  with  a rowboat  when 
the  water  is  at  ordinary  stage. 

4657  I have  drove  up  and  down  the  stream  below  Treat’s  Island 
in  a horse  and  buggy,  from  there  up  to  the  mouth,  but  I do 

not  consider  myself  familiar  with  it.  I did  not  observe  the  river 
down  near  its  mouth.  I have  drove  along  the  road  there  maybe 
four  or  five  times  with  a horse  and  buggy,  and  all  I could  see  was 
what  I could  see  from  the  road.  Right  down  along  the  large 
feeder  there.  I did  not  ever  know  of  any  commercial  navigation 
being  carried  on  on  the  Desplaines  River. 

4658  C ross-Exaniinatio  n . 

I had  a bridge  across  the  river.  My  bridge  was  built  the  first 
one  in  1888.  It  was  washed  out  in  1890,  two  years  afterwards, 
and  that  bridge  had  been  built  about  five  feet,  four  to  five  feet 
above  the  water  line.  I did  not  build  a new  bridge  when  that  had 
washed  out.  The  fish  plates  broke  off  at  the  south  end  of  the 
bridge  and  the  bridge  all  stayed  there,  and  I just  put  it  right  back 
in  again  as  it  was,  got  the  same  bridge  back.  It  stood  then  until 
1892.  Then  it  was  washed  out  again.  I see  I was  too  low  down 
then,  and  I took  and  rebuilt  the  bridge  then. 


1357 


Thereupon  counsel  for  defendant  secured  permission  to  ask 
further  questions  on  the  direct  examination. 

The  witness  testified  as  follows: 

4659  I was  familiar  with  the  river  up  and  around  Lemont  and 
Komeo,  and  Lockport.  I have  known  it  for  years.  I have 

been  going  up  and  down  there  ever  since  about  1885.  I have  been 
fishing  up  there  since  they  let  the  water  in  from  the  drainage 
canal,  and  went  across  the  river  there  on  the  riffles  without  getting 
my  feet  wet.  I had  on  ordinary  leather  boots.  Before  fhey  let 
the  water  out  of  the  drainage  canal,  the  condition  of  the  river 
up  there  during  the  summer  seasons  was  very  low.  This  was 
above  Lockport.  The  drainage  water  was  not  going  in  where  I 
went  across.  It  was  lasting  from  three  to  four  months,  from  the 
summer  time,  sometimes  six  months.  Luring  those  months,  it 
would  not  be  more  than  six  or  eight  inches.  Sometimes  it  would 
not  be  that. 

4660  That  was  after  the  water  from  the  drainage  canal  was  put 
in;  that  was  after  the  water,  drainage  water  came  in  above 
that.  It  was  somewheres  above  Fitzpatrick’s  line  in  Lock- 

port. 

Q.  You  were  fishing  up  there?  A.  Yes,  sir. 

Q.  Fishing  on  six  inches  of  water?  A.  What? 

Q.  Fishing  in  six  inches  of  water?  A.  Well,  I was  fishing 
along  the  river  there  wherever  I could  find  a deep  hole. 

Q.  I understood  you  to  say  you  waded  all  around  there  with 
your  boots  on?  A.  No,  sir.  There  was  some  places  it  was  deeper. 
I am  speaking  of  the  ripples.  I am  speaking  of  the  shallow 
places. 

Q.  Did  you  have  big  rubber-hipped  boots  on?  A.  No,  sir; 
just  ordinary  leather  boots. 

Q.  Waded  across?  A.  Yes,  sir. 

Q.  Fishing  all  the  way  across  were  you?  A.  No,  sir;  I was 
not  doing  any  fishing  there.  I was  going  across  the  river,  going 
from  one  side  to  the  other.  I was  fishing  in  the  deep  places,  deep 
spots. 


1358 


Fogarty, — Cross-Exam. — Continued. 


Q.  And  you  looked  and  found  wliere  the  ford  was,  the  place, 
and  followed  it  on  the  ripples  across  over! 

4661  My  first  bridge  was  in  1888,  washed  out  in  1890.  I re- 
built it  in  1892.  Brought  the  bridge  up  higher.  I placed  it 

about  eight  feet  above  that,  about  that.  On  the  first  bridge  the 
spans  were  fifteen  feet,  and  the  next  bridge  they  were  thirty-two 
feet,  except  one  span;  I had  one  span  in  the  middle  of  the  river, 
was  fifty  feet,  where  the  water  was  deepest.  About  a carload 
of  stones  that  was  washed  down  somewhere,  it  was  not  a carload 
of  stone;  it  was  a dump  car  that  I had  for  taking  away  the  rub- 
bish from  the  quarry  and  when  the  water  got  high  in  the  river 
I loaded  the  car  and  run  it  onto  the  bridge  to  try  to  hold  the 
bridge  down,  and  when  the  bridge  went  out,  the  car  went  over 
into  the  water  and  unloaded  itself  and  went  down  against  a little 
island  and  I found  the  car  down  there  and  the  little  scale 

4662  boat  for  loading  stone  on.  I run  all  of  the  cars  on  the 
bridge  loaded,  to  try  to  hold  it  down.  The  kind  of  boats  I 

had  stone  on  was  scale  boats  we  called  them.  We  just  took  it,  two 
inch  plank  and  spliced  them  together  like  that,  spliced  them  to- 
gether crossways.  They  make  them  different  sizes  in  different 
quarries.  The  one  I had  was  5 feet  by  6,  or  5 feet  by  7,  four 
inch  thick  plank.  When  the  bridge  got  away,  the  car  that  was 
on  the  bridge  was  upset  and  emptied  itself  of  stone  and  then 
floated  down  the  river.  It  floated  about  two  miles  and  a half, 
and  then  I went  down  there  and  got  hold  of  it  with  horses  and 
pulled  it  out.  I made  the  investigation  down  there  below  Treat’s 
Island,  or  above  Treat’s  Island.  As  near  as  I can  recollect,  I 
cannot  say  positively,  I think  it  was  1895,  but  I won’t  say  for 
certain.  It  may  have  been  1894,  or  1896.  I think  it  was  in  Sep- 
tember or  October.  I cannot  say  which  it  was,  the  fall  of  the 
year. 

Q.  Where  was  that  ford  where  you  say  they  crossed  the 

4663  river!  I think  you  say  about  Treat’s  Island  where  the  stones 
were  not  in  the  way. 

Where  I suspected  that  they  had  taken  up  and  moved  the  stones 
was  where  the  ford  was,  the  ford  led  right  across  from  the  south 
branch;  it  was  not  exactly  the  south  there,  but  they  call  it  the 
south.  The  ford  is  about  600  to  800  feet  below  the  point  of  the 


1359 


Big  Island,  at  Treat’s  Island  I mean.  It  was  not  600  to  800  feet 
below  the  lower  portion  of  that  island,  the  upper  j)oint,  below 
the  upper  point  of  the  island,  as  near  as  I could  judge.  I didn’t 
see  them  picking  up  any  stone  there  and  moving  them.  I don’t 
know  as  there  had  anybody,  but  the  ford  had  been  used  for  years. 
I was  nearly — 

Q.  But  there  was  a place  there  where  there  were  no 

4664  stones  to  interfere  with  travel  in  the  river!  A.  No;  there 
was  no  very  big  ones;  but  they  were  not  smooth. 

Q.  Not  so  big,  but  what  you  would  drive  a wagon  right  over 
them!  A.  No,  sir. 

Q.  Or  ride  a horse  over  them!  A.  No,  sir. 

I was  raised  in  New  York  near  Otsego  Lake.  While  there  I 
learned  to  row  a row  boat  and  run  a sail  boat,  and  I left  there  in 
1871.  That  would  be  thirty-seven  years  ago.  I was  fifty-nine 
last  May;  this  May.  I was  twenty-one  or  twenty-two  years 

4665  old  when  I left  there.  I was  on  the  Mississippi  Eiver  once. 
I said  I had  rode  on  the  Mississippi  Biver  from  St.  Louis 

to  Keokuk  just  once  on  the  boat,  made  one  trip  across  it,  that  is 
all,  came  up  on  the  river  from  St.  Louis  to  Keokuk  as  a passen- 
ger. I spoke  of  being  on  the  Sacramento  Kiver.  I was  on  the 
boat  there  simply,,  as  a passenger,  that  is  all,  and  went  from  Sac- 
ramento to  San  Francisco.  I was  up  and  down  there  I guess 
ten  or  twelve  times,  every  time  as  a passenger,  and  that  was  all 
the  waters  that  I have  been  on. 

Q.  You  do  not  profess  to  be  very  much  of  a sea-dog,  do  you 
on  that  experience!  A.  No,  sir. 

Re-direct  Examination. 

4666  Take  those  pictures  there  and  you  will  see  a scale  boat 
hanging  right  on  the  derrick  there.  ' They  were  used  for 

putting  row  boats  down  on.  They  were  used  on  the  land.  They 
were  merely  plank  just  laid  across  each  other  like  that  and  spliced 
together,  and  some  quarries  had  them  4 by  6.  I had  them  4 by 
6,  and  4 by  7.  There  wms  some  iron  run  across  about  18  inches 
from  one  end,  and  another  iron  in  the  other  end  with  a loop 
down  2 or  3 inches^  and  we  rubel  on  those  to  take  them  over  to 


1360 


the  car,  take  them  over  to  the  railroad,  hoist  them  up  and  dump 
them  into  the  car.  It  shows  one  there  hanging  on  the  derrick  in 
the  illustration. 

Q.  What  was  this  quarry  at  Rock  Run  that  you  run  and  oper- 
ated for  some  time  known  as?  What  was  the  other  name  for  it? 

(Objection  as  not  redirect  examination.  Overruled.) 

Counsel  fok  Defendant.  Q.  What  did  the  people  call  it?  A. 
Well,  there  locally  the  place  is  known  there  as  Rock  Run.  That 
has  been  the  name,  that  has  been  the  local  name. 

4667  Q.  Did  the ^ quarry  have  a name?  A.  Yes,  sir. 

Before  that  time, At  didn’t  have  another  name.  It  was 
on  William  Miller’s  land.  I think,  as  nearly  as  I can  recollect,  it 
was  known  as  the  old  Swallum  quarry.  There  was  a quarry 
opened  there,  near  where  I was. 

Re-cross  Examination. 

These  boats  that  I had  there  did  not  have  sideboards  on  them, 
just  a flat  bottom.  Take  the  paper  there,  no  wheels.  Take 

4668  the  plank  like  the  two  thicknesses  of  your  hand,  spike  them 
together,  then  an  iron  across  each  end  with  a loop  on  each 

end,  an  iron  here,  and  a loop  here,  and  hitch  it  to  three  chains 
to  go  down  and  pick  it  up  like  this,  put  a chain  on  each  side,  and 
another  one  like  that  and  pick  thehi  up  and  when  it  was  loaded 
with  rubel  stone,  I. did  not  haul  them  on  the  ground,  laid  them 
down  in  the  quarry,  laid  the  rubel  on  them,  then  picked  them  up 
with  the  derrick,  swung  them  up  and  put  them  on  the  little  car 
of  the  quarry  and  go  to  the  railroad  car  and  hoist  them  up  and 
put  them  into  the  coal  car.  As  to  why  I call  such  a thing  as  that  a 
boat,  I don’t  know.  That  is  the  only  name  I know  for  them.  They 
have  always  bejen  called  a scale  boat. 

4669  Amos  R.  Beockway, 

a witness  for  the  defendant,  testified  as  follows : 

Direct  Exa  min  at  ion. 

My  name  is  Amos  R.  Brockway;  I am  fifty  years  old  and  live 
in  Joliet.  I have  been  in  Joliet  now  about  twenty- three  years.  I 


mu 


cannot  tell  you  exactly  what  year  it  was  I came  to  Joliet. 

4670  Before  I lived  in  Joliet  I lived  four  miles  below  Joliet.  I 
lived  there  until  after  I was  twenty-two  years  old,  along  in 

there.  I was  horn  in  Will  County.  I am  a livery  man  at  pres- 
ent. I have  been  in  that  business  for  myself  about  fifteen  years. 

I know  where  the  Desplaines  Elver  is.  I see  it  every  day, 
when  I am  in  Joliet.  I am  in  Joliet  most  of  the  time.  I see 
the  river  in  Joliet  and  I see  it  below  Joliet  or  above  Joliet,  just 
whichever  happens  to  be  my  way  to  go.  My  farm  is  just  about 
a half  mile  from  the  river. 

4671  When  I was  a small  boy  I was  within  a half  a mile  of  the 
river.  I am  pretty  familiar  with  the  river  clear  down  to 

the  mouth  of  the  Illinois.  I had  occasion  to  see  the  river  down 
below  its  mouth  because  I fished,  hunted;  I have  hauled  people 
up  and  down  there,  going  fishing,  more  or  less  ever  since  I 
have  been  old  enough  to. 

There  are  rapids  or  shallows  in  the  river  below  Joliet,  from 
the  old  Malcolm  Dam  down  below  Brandon’s  bridge,  that  is  what 
they  call  the  riffles.  Then  you  have  got  water,  a good  deal  of 
water  from  then  down  to, — well,  just  a little  this  side  of  Treat’s 
Island.  That  stretch  of  the  river  just  below  Brandon’s  bridge 
down  to  towards  Treat’s  Island  is  called  Lake  Joliet. 

4672  Well,  the  other  side  of  Charley  Smith’s  bridge  are  riffles 
and  stones.  There  is  a deep  hole,  and  then  on  down  about 

a mile  and  a half  from  there  it  goes  dry;  it  used  to  go  dry  and 
wash  holes,  the  fish  would  get  in  there  and  they  couldn’t  get  out 
until  there  would  come  another  freshet.  Smith’s  bridge  is  about 
a mile  and  a half  or  two  miles  from  Treat’s  Island,  farther  down 
the  river. 

Below  Smith’s  bridge  you  find  what  they  used  to  call  the  old 
ford.  There  are  riffles  there.  There  were  riffles  all  the  way  be- 
tween, clear  across  the  full  width.  Up  and  down  the  river  it 
probably  was  a stretch  of  about  three  miles.  Below  that  you 
would  come  to  stone,  big  nigger  heads.  I have  sat  on  them  along 
in  the  fall  of  the  year  and  fished  in  the  middle  of  the  river. 

4673  That  is  down  below  Charley  Smith’s,  down  at  the  mouth.  I 
was  fishing  there  last  year;  that  was  the  time  I sat  on  the 


1362  Brockivay, — Direct  Exam. — Continued. 

boulders  and  fished.  In  places  the  water  was  a little  over  knee 
deep;  in  other  places  it  was  not  over  four  inches. 

I am  familiar  with  the  river  below  that  down  near  the  mouth. 
The  condition  of  the  river  there  with  reference  to  the  depth  of 
water  and  boulders  is  about  the  same  all  of  the  way.  There  are 
boulders  there,  some  of  which  would  weigh  five  tons.  There  is 
lots  of  them.  Most  of  them  are  exposed;  you  can  see  them  stick 
up.  Some  of  them  you  can  see  where  the  water  runs  over  them. 
I am  referring  to  the  Desplaines  Elver  right  at  about 

4674  where  it  joins  with  the  Kankakee.  You  couldn’t  used  to  run 
a boat  through  there,  at  Treat’s  Island,  only  at  certain  times 

a year,  i.  e.,  wet  times,  late  in  the  fall,  or — You  couldn’t  run  a 
boat  through  there  excepting  in  the  spring  season,  because  you 
coludn’t  run  it  on  dry  land.  There  was  not  sufficient  water.  I 
am  referring  to  a row  boat.  There  were  plenty  of  boulders  in 
the  river  at  Treat’s  Island.  A stretch  of  river  over  from  Bran- 
don’s bridge  up  to  Joliet  is  almost  a complete  bunch  of  big,  round 
nigger  heads  and  boulders.  They  are  so  thick  that  I would  not 
want  to  try  to  take  a big  one  through  there.  The  water  between 
Joliet  and  Brandon’s  bridge  in  the  ordinary  summer,  in  the  sum- 
mer season  after  the  spring  freshets  are  over,  before  the 

4675  drainage  water  was  discharged  into  the  river,  would  not  be 
over  six  inches,  hardly  any  place  below  that,  during  the  last, 

the  rest  of  the  season. 

I am  familiar  with  the  river  above  Lockport.  I have  known  it 
about  fifteen  or  twenty  years.  I married  a woman  that  lived 
right  close  to  there.  I had  occasion  to  go  there  once  in 
a while,  before  I was  married  and  since.  I used  to  haul  people 
up  there  before  street  cars  went  through.  We  used  to  haul  lots 
of  them  up  there  fishing,  with  the  bus,  you  know.  I knew  the 
river  up  there  before  1871;  I had  occasion  to  visit  it  frequently 
before  1871. 

4676  At  9th  street,  there  at  Lockport,  there  was  a bridge  under 
water — there  would  not  be  water  enough  there  for  anybody 

to  take  a buggy  over  and  wash  it,  maybe  three  months  in  the 
year.  To  take  it  over  there,  and  further  up  it  was  very  shallow. 
When  you  got  up  to  about  Fitzpatrick’s  line  there,  you  would 
find  a deep  shoal  up  to  Lemont,  and  there  where  the  Santa  Fe 


1363 


tracks  crosses  there  never  was  very  much  water  there  until  the 
drainage  people  turned  it  through  there;  I don’t  know  just  what 
year  they  turned  it  through.  During  the  season  after  the  spring 
freshets  were  over,  above  Lockport  and  before  1871,  it  would  not 
average,  on  an  average  clear  through,  it  would  not  average  12 
to  14  inches  anywhere  hardly.  There  were  places  where  there 
was  not  six  inches  of  wtaer,  and  other  places  where  it  was 

4677  completely  dry.  Above  Lockport  there  must  be  from  three 
to  four  miles,  two  or  three,  where  there  would  be  only  six 

inches  of  water. 

I was  familiar  with  the  river  below  Joliet  before  1871.  At  that 
time,  between  Joliet  and  Brandon’s  bridge,  there  might  be  some 
places  along  in  there,  in  that  line,  in  there  that  it  would  be  prob- 
ably 8 or  9 feet  deep,  but  it  did  not  run  only  a short  way  till 
it  was  shallow  again.  There  was  about  four  miles  of  it  there 
below  Joliet  down  to  the  Eock  Run  that  was  considered  pretty 
deep.  Prior  to  1871  between  Joliet  and  Brandon’s  bridge,  be- 
fore you  get  to  Joliet,  there  never  was  any  water  there  to  any 
extent,  any  certain  depth  at  any  time,  only  just  in  a freshet. 

4678  Sometimes  there  was  not  any;  it  was  dry.  During  the  en- 
tire season  after  the  spring  freshets  were  over,  there  were 

some  places  it  would  not  average  six  inches  of  water.  When  I 
said  there  was  deep  water,  9 feet  deep,  I did  not — I was  not  re- 
ferring to  that  part  of  the  river  between  Joliet  and  Brandon’s 
bridge.  The  spring  freshets,  spring  floods  would  usually  last  in 
the  winter  before  1871,  a week  or  two  weeks. 

I had  occasion  to  observe  the  river  below  Lake  Joliet  before 
1871.  I fished  and  hunted  there.  My  folks  used  to  take  me  down 
there  when  I was  a little  fellow.  This  Treat’s  Island  used  to 
have  a little  mound  of  grapes  and  goose  berries,  and  there 

4679  was  nothing,  we  could  drive  right  across  the  river  to  one 
island,  and  down  through  the  other,  and  by  dodging  around 

through  the  stone  you  could  get  there  all  right. 

During  the  summer  season  down  on  the  shallows  at  Treat’s 
Island,  the  water  would  not  come  up  to  the  hubs  on  the  buggy. 
Along  the  riffles  near  Smith’s  bridge,  during  the  summer  season, 
it  might  average  8 to  10  inhces.  I never  knew  of  any  navigation 
being  carried  on  that  river  for  commercial  purposes.  I never 


1364 


Brockway, — Direct  Exam. — Continued. 


saw  anything  other  than  a row  boat  on  the  river.  The  only  other 
boat  that  I ever  have  known  to  be  operated  on  that  river,  was 
a fellow  who  had  a little  cannon  sticking  on  to  it,  and  we  got 
after  him — with  a cannon  in  the  end  of  it,  and  we  got  a lot  of 
rifles  and  chased  him  out.  That  was  above  Lake  Joliet. 

4680  Cross-Exa^nination. 

I am  a liveryman,  and  have  been  engaged  in  that  business  for 
about  fifteen  or  sixteen  years,  for  myself.  About  fifteen.  It  was 
along  in  1892  or  1893,  or  1894  that  I commenced.  I was  a horse- 
man when  I left  the  farm.  I left  the  farm  when  I was  about  22, 
or  a little  past.  I had  become  a horseman  before  that  time.  I 
continued  in  one  line  of  horseman  business  from  that  time 

4681  on.  From  along  about  1892  or  1893  back  to  the  time  when 
I left  the  farm,  I was  handling  horses,  and  around  stables; 

kind  of  a hostler,  a little  of  everything.  Last  year,  as  late  as 
last  year,  I was  down  fishing  down  there  in  the  river,  and  sat  on 
the  cobble  stones,  or  whatever  kind  of  stone' there  may  have  been, 
sat  on  them  and  fished  in  the  river.  The  water  was  not  to  ex- 
ceed four  inches  deejj.  I was  fishing  for  suckers;  that  is  where 
suckers  will  be  caught,  and  good  bass,  in  shallow  water.  This 
was  only  last  year. 

Q.  Don’t  you  know  that  the  drainage  water,  the  water  from 
the  drainage  canal  has  been  turned  in  for  about  eight  j^ears'^  A. 
Not  down  in  the  Illinois  River,  it  ain’t. 

Q.  It  does  go  down  there,  doesn’t  it?  A.  If  it  did,  I haven’t 
seen  it ; that  is  where  I sat  on  the  stone  right  near  where  this  dam 
is  being  built  too. 

4682  Q.  In  the  Illinois  River?  A.  Yes,  sir.  It  was  about  40 
or  50  rods  below  where  this  dam  was  being  built. 

Q.  And  this  water  from  the  drainage  canal  didn’t  come  down 
there?  A.  I didn’t  see  any  of  it. 

Q.  Where  do  you  think  it  went?  Up  the  Kankakee  River?  A. 
It  might. 

Witness.  There  was  one  fellow  duck  hunting  with  a cannon, 
in  about  1883.  He  had  a row  boat,  a great,  big  one,  a longer  one 
than  usual,  and  he  had  a gun  on  a swivel  in  the  bed  of  it,  you 


13G5 


know^  and  he  would  get  down  and  sight  that  on  a flock  of  duck, 
and  it  was  good-bye  to  the  whole  flock. 

Q.  How  far  could  he  get  them,  one,  or  two  or  three  or  four 
miles?  -A.  Well,  I will  tell  you:  I will  tell  you:  1 remem- 

4683  her  one  day  I was  about  half  a mile  below  him,  and  it  got 
so  hot  in  the  weeds  where  I was,  it  was  too  many  bees  for 
me. 

4684  Counsel  for  defendant  then  offered  in  evidence  a volume 
containing  the  issues  of  the  Chicago  American  published  in 

the  years  1835  and  1836,  in  Chicago,  Illinois;  a weekly  paper; 
from  the  issue  of  May  14^  1836,  of  this  paper,  an  advertisement 
appearing  therein  and  reading  as  follows:  The  heading  of  the 

advertisement  is: 

‘M836 

Western  Transportation. 

The  New  York  and  Oswego  Line. 

The  proprietors  of  the  above  line  will  be  prepared  on  the 
opening  of  navigation  to  forward  property  from  New  York 
by  the  Eckford  Line  of  tow-boats  to  Albany  daily;  thence 
by  the  above  line  of  canal  boats  daily  to  Oswego,  and  thence 
by  steamboats  and  vessels  of  the  first  class  to  any  point  on 
Lake  Ontario  and  via  the  Welland  Canal  to  all  ports  on  the 
upper  lakes.  William  Sabine  having  connected  himself  with 
a line  of  transportation  wagons  from  Chicago  to  the  head 
of  Navigation  on  the  Illinois  Eiver  will  forward  goods 

4685  consigned  to  him  by  the  above  line  to  any  point  on  the  Illi- 
nois Eiver  or  St.  Louis.” 

There  is  a date  under  that:  March  28th.” 

Then  signatures : 

^‘E.  J.  VanDewatee,  New  York. 
Johnson  Howlett  & Co.  Foot  of 
State  Street,  Albany,  Up  Stairs. 
Heney  Fitzhijgh,  Oswego,  (Pro- 
prietors) 

Eefer  to  A.  B.  Meech  and  Co.,  Herriman  and  Nash,  Do- 
remus,  Suydam  and  Nixon,  and  S.  Grosvenor  and  Co.  New 
York;  Meech,  Jackson  and  Co.  Albany;  Suiter  Livingston 
and  Co.  Utica;  B.  B.  Hyde  and  Co.  Eome;  Noble  and  Palmer, 
Manlius;  Danfl  Spencer  and  Co.  Syracuse;  Buckley  and 
Clark,  Sacketts  Harbour;  J.  W.  Fuller  and  Co.  Alexandria 
Bay;  White  and  Hooker,  Morristown;  E.  T.  Sec  and  Co. 
Cape  Vincent;  E.  B.  Allen  and  0.  Bacon,  Ogdensburgh;  0. 
Smith  and  0.  Hathaway,  Youngstown;  J.  Nevins,  Niagara, 


1366  Extract, — Chicago  American,  May  14,  1836. — iContinued. 

U.  C. ; J.  Brown  and  Co.  and  S.  Barnham,  Toronto,  U.  C.;. 
Truax  and  Phillips,  Kingston,  U.  C. ; E.  P.  and  D.  Smith,  W. 
Barnham,  Port  Hope;  A.  Land  and  D.  C.  Gunn,  Hamilton, 
U.  C. ; H.  and  S.  Jones,  Brockville,  U.  C.;  Tracy  and  Har- 
rison, Erie,  Penn.;  T.  Kichmond  and  Co.,  Kichmond,  Ohio; 
John  E.  Lyon,  Cleveland;  J.  W.  and  T.  Wickham  and  J. 
Fleeharty,  Huron,  Ohio;  M.  L.  Babcock  and  Co.  Sandusky; 
John  W.  Smith,  Perrysburg;  John  L.  Whiting,  Detroit. 

William  Sabine,  Chicago. 

R.  J.  VanDewater,  agent. 

Corner  of  Water  and  Broad  Sts.,  New  York.’’ 

4686  (Counsel  for  complainant  objected  to  the  materiality,  rele- 
vancy and  incompetency  of  the  matter.) 

Counsel  for  defendant  then  offered  : 

‘^The  same  advertisement  appearing  in  the  issue  of  May 
21st,  1836,  of  this  same  paper;  and  also  in  the  issue  of  May 
28th,  1836,  of  this  same  paper.” 

(Same  objection  by  counsel  for  complainant  and  same  rul- 
ing.) 

Counsel  for  defendant  then  produced  another  volume  contain- 
ing the  issues  of  the  Daily  Chicago  American  published  in  the 
year  1839;  and  otfered  in  evidence  from  the  issue  of  this  paper 
published  September  14,  1839,  the  following  advertisement: 

^‘Notice  to  Travelers. 

The  traveling  public  are  informed  that  the  mail  stage  from 
Chicago  to  Galena  leaves  the  general  stage  office  at  Chicago 
every  Sunday,  Tuesday  and  Thursday  and  arrives  at  Ga- 
lena every  Monday,  Wednesday  and  Friday,  making  it 
through  in  two  days,  and  fare  reduced  to  $12.50  for  a dis- 
tance of  156  miles.  Fare  from  Rockford  to  Chicago  $6.  Mail 
stages  leave  for  Dixon’s  Ferry  every  Monday,  Wednesday 

4687  and  Friday,  and  for  Naperville,  Warrenville,  Geneva  and 
St.  Charles  same  days  and  return  every  Tuesday,  Thursday 
and  Saturday.  From  St.  Charles  the  mail  line  is  continued 
on  direct,  three  trips  a week,  for  De  Kalb,  Court  House,  then 
to  Oregon  City  and  Butfalo  Grove  and  there  connects  with 
the  Peoria  and  Galena  Mail  stage,  making  the  line  direct 
to  Galena.  The  mail  stage  for  Milwaukee  leaves  the  general 
stage  office  at  Chicago  every  Sunday,  Tuesday  and  Thursday 
and  returns  every  alternate  day.  Last,  though  not  least,  a 
daily  mail  stage  leaves  the  above  named  office  for  Peoria 
and  makes  the  trip  from  Chicago  to  Peoria,  170  miles  in 
from  30  to  35  hours,  by  steamboats  and  stages — stages  from 
Chicago  to  Peru  and  steamboat  from  Peru  to  Peoria.  Fare, 
whole  distance,  $11,  and  found  on  board  the  boat.  This  line 
passes  through  Lockport,  Juliet,  Ottawa  and  Utica  to  Peru. 


1367 


Extras  furnished  at  all  times  for  nine  seats  at  regular  fare. 
The  proprietors  will  spare  no  pains  to  make  the  traveler 
comfortable  and  safe,  and  hope  that  if  they  do  justice  to 
the  public,  by  the  public  they  will  be  supported. 

(Signed.)  E.  C.  Stowell, 
Agent  for  the  proprietors.’^ 

Dated,  September  4th.” 

4688  It  is  stipulated  by  counsel  that  the  same  advertisement  as 
last  read  appears  in  each  issue  of  the  Daily  Chicago  Ameri- 
can published  after  September  14,  1839,  up  to  and  including  the 
issue  of  November  9,  1839. 

Counsel  for  Complainant.  That  is  all  right.  Now  we  object 
to  it,  your  Honor,  as  immaterial,  irrelevant  and  incompetent. 

The  Court.  Same  ruling. 

4689  Thomas  T.  Johnston, 

a witness  for  defendant,  testified  as  follows : 

Direct  Examination. 

My  name  is  Thomas  T.  Johnston.  I am  in  my  fifty-second  year. 
I reside  in  Evanston,  Cook  County,  Illinois.  My  occupation  is 
that  of  a civil  engineer.  I graduated  at  the  Rensselaer  Poly- 
technic Institute  at  Troy,  New  York,  in  1877.  On  the  1st  of 
January,  1878,  I entered  the  service  of  the  United  States  En- 
gineer Corps,  in  which  I remained  until  June  of  1886.  In  the 
first  half  of  1878  I was  connected  with  the  improvements 

4690  about  the  Washington  monument  in  Washington  City,  the 
work  at  Washington  being  particularly  with  reference  to 

the  making  of  the  Babcock  lakes  in  the  Washington  monument 
grounds,  together  with  their  outlet,  lakes  and  drainage. 

In  July,  1878,  I was  assigned  to  duty  on  a survey  of  a portion 
of  the  Upper  Mississippi  between  Lynchville,  Wisconsin,  and  Sa- 
vanna, Illinois.  In  December  of  the  same  year  I was  employed 
on  a short  survey  on  the  Missouri  River  at  Atchison,  Kansas, 
and  on  July  1,  1879,  I was  assigned  to  the  charge  of  what  was 
called  an  observation  party  on  a reach  of  the  Lower  Mississippi 
about  70  miles  below  Cairo,  the  reach  of  the  river  including  a 
distance  of  about  40  miles,  the  duties  being  to  survey  and  re- 
survey the  reach  of  river  with  a view  to  determining  its  hydraulic 


1368  Johnson, — Direct  Exam. — Continued. 

elements.  These  duties  and  assignments  were  all  under  the  Fed- 
eral Government  until  June  of  1886. 

4691  In  the  summer  of  1879  I spent  July  and  August  on  the 
snag  boats  at  Mound  City,  Illinois,  redncmg  the  notes  of 

the  surveys  of  the  previous  several  months. 

In  September  of  1879  I was  assigned  to  a survey  of  the  Gas- 
conade Kiver  in  Missouri,  which  work  engaged  my  attention  un- 
til in  December  of  that  year. 

In  the  winter,  the  early  winter  of  1880,  I was  in  the  St.  Louis 
engineer’s  office,  writing  up  the  notes  of  the  survey  of  the  Gas- 
conade Elver,  and  was  assigned  from  time  to  time  to  miscel- 
laneous duties  in  connection  with  the  study  of  the  physical  char- 
acteristics of  the  western  rivers. 

In  the  summer  of  1880  I was  assigned  to  the  charge  of  making 
a survey  of  the  Missouri  Eiver  in  the  vicinity  of  Yankton,  Dakota, 
and  of  Ennning  MM  ter,  Dakota,  or  Niobrara,  I think  it  is  called. 

In  the  fall  of  1880  I was  assigned  to  the  river  improvement 
work  on  the  Gasconade  Eiver  in  Missouri,  of  which  I had  charge 
of  making  the  survey  the  previous  year,  and  that  engaged  my  at- 
tention until  December  of  1880. 

On  returning  from  the  Gasconade  Eiver  to  the  St.  Louis  office 
of  the  engiener  corps,  I was  assigned  through  the  first  nine  months 
of  1881  to  work  in  connection  with  the  study  of  the  physical 
characteristics  of  the  western  rivers,  incidentally  in  that 

4692  spring  making  an  inspection  of  the  Missouri  Eiver  from 
Sioux  City  to  its  mouth,  with  reference  to  the  effect  of  a 

considerable  flood  that  occurred  in  the  spring  of  1881.  In  the 
fall  of  1881  I was  assigned  again  to  improvement  works  on  the 
Gasconade  Eiver,  which  engaged  my  attention  until  the  last  of 
the  year. 

In  the  beginning  of  1882  I returned  again  to  the  St.  Louis 
office  of  the  United  States  Engineer  Corps. 

Through  the  year  1882  I was  on  duty  in  the  St.  Louis  office  in 
relation  to  the  study  of  the  physical  characteristics  of  the  west- 
ern rivers  as  in  previous  years,  and  in  the  latter  part  of  that 
year  my  attention  was  turned  particularly  to  the  effects  of  the 
large  flood  in  the  Lower  Mississippi  in  1882. 


1369 


In  1883  until  the  middle  of  the  year  I was  engaged  in  the  same 
duties  as  through  the  year  1882.  In  the  fall  of  1883,  and  until 
the  end  of  the  year  I was  assigned  to  duties  in  connection  with 
improvements  on  the  Missouri  Eiver  at  St.  Joseph,  Missouri. 

January  1,  1884,  I was  recalled  to  the  St.  Louis  office  and 

4693  from  that  time  until  June  of  1886  my  attention  was  given  ex- 
clusively to  the  continued  study  of  the  characteristics  of 

western  rivers.  In  the  course  of  that  work  I had  to  do  with  a 
good  many  thousands  of  gauge  readings,  a thousand  or  two 
measurements  of  the  flow  of  the  western  rivers  and  incidentally 
studied  the  question  of  rivers  in  general. 

In  June  of  1886  I was  given  a position,  with  the  Chicago  Drain- 
age and  Water  Supply  Commission,  as  assistant  engineer  with — 
as  stated  in  their  report,  with  particular  reference  to  miscellane- 
ous work  and  water  supply.  I remained  with  that  commission 
until  it  went  out  of  existence  in  the  summer  of  1887.  In  the 
course  of  my  connection  with  the  Drainage  and  Water  Supply 
Commission,  I devised  the  methods  by  which  the  Chicago  Drain- 
age Canal  was  afterwards  dimensioned. 

In  February  of  1887  I conducted  the  measurement  of  the  flow 
of  the  Desplaines  Eiver  at  Eiverside,  Illinois,  locating  the  posi- 
tion at  the  point  at  which  the  measurments  were  made,  and  the 
methods  by  which  they  were  taken. 

In  the  summer  of  1887,  as  the  Drainage  Canal  Commission  or 
the  Drainage  Water  Supply  Commission  went  out  of  existence,  I 
was  continued  in  the  service  of  the  city  as  assistant  engi- 

4694  neer  with  reference  to  its  water  supply  until  May  of  1888. 

In  May  of  1888,  I was  given  the  position  of  chief  engi- 
neer of  the  water  supply  at  Memphis,  Tennessee,  and  at  that  time 
devised  the  scheme  that  has  since  supplied  that  city  with  water, 
and  I also,  as  an  engineer,  constructed  the  works  during  the  years 
of  1889  and  1890 — I mean,  1888,  1889  and  the  early  part  of  1890, 
at  a cost  of  some  six  hundred  thousand  dollars. 

The  first  of  April,  1890,  I was  given  a position  with  the  Chi- 
cago Sanitary  District,  and  my  attention  was  engaged  on  that  work 
exclusively  until  December  of  the  same  year,  at  which  time  I re- 
signed; hut  in  the  course  of  that  year’s  work  my  attention  was 


1370  Johnson, — Direct  Exam. — Continued. 

quite  largely  devoted  to  a continuance  of  the  processes  of  and  an 
investigation — of  the  processes  by  which  the  Chicago  Drainage 
Canal  was  afterwards  dimensioned. 

On  leaving  the  service  of  the  Sanitary  District  in  December, 
1890,  after  doing  a little  piece  of  work  for  the  Board  of  Health' 
of  the  State  of  Illinois,  I took  charge  of  the  water  supply  of 
Savannah,  Georgia.  That  was  early  in  1891,  and  as  an  engineer 
I devised  the  works  which  have  since  supplied  that  city  with 

4695  water  and  supervised  their  construction  during  the  years 
1891,  1892  and  the  first  half  of  1893,  acting  as  consulting 

and  supervising  engineer. 

In  the  summer  of  1891,  I was  recalled  to  Memphis  as  consulting 
engineer  in  relation  to  an  extension  of  that  water  supply,  the  do- 
ing of  which  occupied  the  following  year  or  fifteen  months. 

In  January  of  1892,  I was  recalled  to  the  service  of  the  Sanitary 
District  of  Chicago  and  remained  continuously  in  that  service 
until  the  first  of  July,  1900,  as  assistant  chief  engineer,  at  times 
acting  chief  engineer,  and  during  the  last  two  years,  or  from 
August,  1898,  until  July  1,  1900,  I was  consulting  engineer.  In 
the  course  of  my  duties  with  the  service  of  the  Sanitary  District, 
I had  to  look  after  the  hydraulic  elements  pertaining  to  that  work. 
It  was  a part  of  my  business  to  keep  myself  posted  as  to  the 
habits  of  the  Desplaines  Eiver.  In  the  course  of  that  work,  besides 
making  those  investigations  and  determinations  which  lead  to  the 
dimensioning  of  the  Drainage  Canal,  I also  made  investigations 
and  devised  the  arrangements  at  the  terminus  of  the  Drainage 
Canal  at  Lockport,  including  the  sluice  gates  and  the  bear  trap 
dam.  I also  made  those  investigations  which  lead  to  the 

4696  dimensioning  of  the  river  diversion  of  the  Desplaines  Eiver 
from  Summit  to  Lockport.  I made  investigations  and  ex- 
amination or  determinations  which  lead  to  dimensioning  the  work 
of  the  Sanitary  District  through  Joliet,  and  I reported  to  the 
Board  of  Trustees  of  the  Sanitary  District  the  project  for  the 
improvement  of  the  Chicago  Eiver. 

In  1895,  I was  consulted  again  in  relation  to  the  water  supply 
of  Memphis,  Tennessee,  and  in  the  year  1898  I acted  throughout 
that  year  as  consulting  engineer  for  the  water  supply  of  Memphis, 
Tennessee. 


1371 


Early  in  1898  I undertook  as  the  engineer  the  plans  and  con- 
structions of  the  Snoqualime  Falls  Hydro-electric  Power  Com- 
pany in  the  State  of  Washington.  I devised  the  plans  for  that 
work,  and  as  consulting  engineer,  supervised  the  construction.  I 
remained  with  that  work  until  July  of  1890,  two  and  a half  years. 

In  the  summer  of  1898  I was  engaged  by  the  Economy  Light  & 
Power  Company  of  Joliet  in  relation  with  the  construction  of 
their  work  at  the  Jackson  Street  Dam  in  Joliet,  and  through 
Joliet,  excepting  for  a period  when  I withdrew  from  the  service 
when  litigation  was  pending;  I served  through  1898,  1899, 

4697  1900  and  1902,  the  first  work  having  been  completed  by  the 
end  of  1900,  and  the  second  work  undertaken  in  1902. 

In  the  year  1901 — in  the  fall  of  the  year  1901,  I was  recalled 
again  to  Memphis,  Tennessee,  as  consulting  engineer  and  served 
continuously  from  that  time  in  that  capacity  until  the  first  of  the 
present  year. 

In  1901  I also  undertook  the  design  and  construction  as  engi- 
neer of  the  Swan  Palls  Hydro-electric  Power  Plant  on  Snake 
Kiver,  some  thirty  miles  from  Boise,  Idaho.  The  work  done  at 
that  time  occupied  about  a year,  at  a cost  of  about  $350,000;  and 
at  about  the  same  time  I was  consulted  in  relation  to  water  power 
development  at  American  Falls  on  the  Snake  Eiver  near  Pocatel- 
lo, and  also  on  the  Payette  Eiver  about  twenty  miles  north  of 
Boise. 

In  1901  I also  undertook  the  remodelling  of  the  hydro-electric 
water  power  plant  at  Kankakee,  Illinois.  In  that  year,  the  next  year, 
and  I think  the  next  year  succeeding  that  I was  retained  by  the 
electric  power  plant  there,  and  in  the  last  year  rebuilt  the  dam 
across  the  Kankakee  Eiver  at  that  point.  That  was  in  about 

4698  1903  or  1904.  I think  it  was  1904  we  built  the  dam.  It  was 
in  the  last  year  that  we  built  the  dam. 

In  the  summer  of  1903 — or  rather  first  in  the  winter  of  1902-3 
I made  plans  for  and  supervised  the  construction  of  the  masonry 
aqueduct  across  the  Pecos  Eiver  in  New  Mexico;  also  made  an 
examination  of  the  Gila  Bend  irrigation  project  on  the  Gila  Eiver, 
in  Arizona. 

In  1903  I undertook  the  design  and  construction  of  the  hydro- 


1372 


J 0 lin son,—Bi r ect  Exam. — C o n tinned . 


electric  power  plant  built  by  the  Oliver  Chilled  Plow  Works  at 
South  Bend,  Indiana.  That  work  occupied  all  of  1904  and  part 
of  1905. 

In  1904  I undertook  the  construction  of  the  hydro-electric  power 
plant  for  Mr.  Conn  at  Elkhart,  Indiana,  and  was  consulted  at  that 
time  and  before  and  since  in  relation  to  a number  of  water  power 
plants  in  Central  Wisconsin,  and  also  one  in  New  York  State  on 
the  Oswego  Eiver, 

In  1905  I undertook  the  extension  of  the  hydro-electric  power 
plant  on  the  Snake  River  near  Boise,  Idaho,  and  was  connected 
with  that  work  through  all  of  1905. 

In  1906  I repaired  and  practically  rebuilt  the  dam  on  Black 
River  near  Cheboygan,  Michigan. 

In  1907  I acted  as  consulting  engineer  in  relation  to  a hydro- 
electric power  plant  on  the  Rainy  River,  in  Wisconsin. 

At  the  present  time  in  this  year  I am  doing  some  work  for 
4699  the  City  of  Chicago  in  relation  to  its  water  supply. 

In  the  course  of  my  work  I had  made  plans  for  and  super- 
vised the  construction  of  the  Summit  spillway  for  the  Chicago 
Drainage  Canal;  Dam  Number  One  at  Joliet  for  the  Chicago 
Drainage  Supply;  a dam  across  the  Snoqualime  River  in  the  State 
of  Washington;  a dam  across  the  Snake  River  in  the  State  of 
Idaho ; a dam  across  the  Kankakee  River  in  the  State  of  Illi- 
nois at  Kankakee. 

I have  remodelled  and  repaired  the  dam  across  the  St.  Joseph 
River  of  Michigan  at  South  Bend,  Indiana;  across  the  Black 
River  at  Cheboygan,  Michigan;  across  the  Rock  River,  Beloit, 
Wisconsin;  and  I have  examined  in  one  way  or  another  in  a pro- 
fessional way  dams  at  Oswego,  New  York;  Holyoke,  Massachu- 
setts; the  Davis  Island  dam  across  the  Ohio  River  below  Pitts- 
burg, and  the  next  dam  below  that  across  the  Ohio  River,  I be- 
live  that  Beaver  Dam,  it  is  so-called;  the  dam  at  Three  Rivers 
on  the  St.  Joseph  River  in  Michigan;  Constantine  on  the  St.  elo- 
seph  River  in  Michigan;  Elkhart,  Indiana,  on  the  St.  Joseph 
River;  at  Mishawaka,  on  tlie  St.  Joseph  River  in  Indiana;  at 
Waldron  on  the  Kankakee  River  in  Illinois;  at  Kankakee  on  the 
Kankakee  River  in  Illinois;  a dam  in  the  vicinity  of  Wil- 


1373 


mington  on  the  Kankakee  River  in  Illinois;  the  old  dams  Number 
One,  Number  Two  and  Adam’s  Dam  in  Joliet;  the  dam  across 

4700  the  Illinois  River  at  Marseilles;  the  dam  across  the  Rock 
River  at  Sterling;  across  the  Fox  River  at  Dayton;  across 

the  Fox  River  at  Elgin;  across  the  Chippewa  River  at  Eau  Claire, 
Wisconsin ; across  the  St.  Croix  River,  about  forty  miles  from  St. 
Paul;  across  the  Kaushawa  River  in  Northern  Minnesota;  across 
the  Rainy  River  at  Koochening,  Minnesota. 

I have  also  inspected,  but  not  in  a professional  way,  the  dam 
across  the  Mississippi  River  at  St.  Paul;  a dam  across  the  Pecos 
River  in  New  Mexico;  across  the  Gila  River  about  thirty  miles 
from  Phoenix  in  Arizona  that  I recall  now. 

I have  also  examined  a number  of  rivers  in  different  parts  of 
the  country  with  regard  to  their  habits  in  relation  to  water  powers 
and  dams  of  which  I have  just  spoken,  and  have  also  had  to  do 
in  a professional  way  with  the  earthen  embankment  on  the  river 
diversion  of  the  Drainage  Canal,  along  the  banks  of  the  Illinois 
and  Michigan  Canal;  to  some  extent  with  the  levees  in  the  Lower 
Mississippi;  in  improvements  in  relation  to  the  irrigation  work  at 
Carlsbad,  New  Mexico,  and  with  regard  to  the  engineering — the 
irrigation  work  to  a certain  extent  near  Boise,  Idaho,  and  the 
reservoir  dam  at  Seattle,  AVashington. 

4701  The  last  one  I mentioned  was  the  reservoir  wall,  or 
reservoir  embankment  at  Seattle,  AVashington.  The  first 

reference  made  to  the  Desplaines  River  was  1887.  I had  super- 
vision over  the  gauge  readings  of  that  year,  but  I stated  that  I 
had  charge  of  the  making  of  the  flow  measurements  of  the  river 
at  Riverside  in  the  fall  of  1887.  I cannot  state  from  personal 
knowledge  who  established  the  gauge  at  Riverside.  It  was  estab- 
lished in  1886. 

AVhen  I was  connected  with  the  Economy  Light  & Power  Com- 
pany in  1902  I think  was  the  last  work  I did  on  the  Desplaines 
River.  I had  occasion  to  examine  the  river  with  reference  to  the 
drainage  in  the  case  of  the  Sanitary  District  against  Adam,  where 
I appeared  as  a witness  for  the  Sanitary  District.  That  was 

4702  a condemnation  suit,  the  Sanitary  District  condemning  the 
dam.  The  purpose  of  that  proceeding  on  the  part  of  the 

Sanitary  District  was  in  part  to  show  the  character  of  the  river. 


1374  Johnson, — Direct  Exam. — Continued. 

I made  an  examination  at  that  time.  I don^t  remember  the  year 
of  my  first  experience  with  the  river.  I suppose  it  must  have 
been  about  1894,  1895,  not  far  from  that  time. 

I had  particular  charge  of  the  collection  of  the  gauge  readings 
during  the  time  that  I was  connected  with  the  Sanitary  Dis- 
4703  trict  of  Chicago.  That  covered  in  all  about  nine  years.  I 

4705  had  immediate  sui3ervision  over  the  collection  of  those  gauge 
readings  in  my  service  with  the  Sanitary  District  in  the 

year  1890,  and  from  Januanry,  1892,  until  July  1,  1900.  In  the 
period  of  1890  Mr.  Cooley  was  my  superior  officer  and  I reported 
to  him. 

I know  what  relation  the  regularity  of  the  recurrence  of  cer- 
tain stages  of  water  has  to  do  with  the  possibilities  of  navigation 
of  the  stream  in  which  the  water  flows.  As  to  stages  of  the 

4706  river  when  it  might,  under  certain  circumstances  he  navi- 
gable, recur  with  irregularity  as  to  time  and  extent,  then  in 

a measure  the  feasibility  of  navigation  is  diminished. 

As  to  what  gauge  readings  I have  considered  with  reference 
to  determining  the  regularity  of  the  flow  in  the  Desplaines  Eiver, 
in  addition  to  those  made  under  my  own  supervision,  I ex- 

4707  amined  the  gauge  readings  reported  for  the  Desplaines  River 
between  1896  and  1904  inclusive,  as  published  in  a gov- 
ernment document  entitled  ^‘59th  Congress,  First  Session, 
House  of  Representatives,  Document  No.  263.”  I have  carried 
my  examination  of  the  gauge  readings  down  until  the  end  of  the 
year  1904.  The  period  when  I had  supervision  over  the  collec- 
tion of  the  gauge  readings  was  immediately  preceding  this. 

Including  the  year  1886,  when  I did  not  have  in  so  high  a degree 
supervision  over  the  gauge  readings  as  I did  subsequently,  they 
extend  from  the  beginning  of  the  record  of  that  gauge  in  1881,  down 
to  the  end  of  the  year  1904. 

Q.  Mr.  Johnston,  I wish  you  would  state  the  result  of  your 
investigations,  as  to  the  times  when  a stage  of  12.4  feet  was  re- 
corded during  that  period,  with  special  view  as  to  the  regularity 
of  the  recurrence  of  that  condition. 

Counsel  foe  Complainant.  To  that  I object.  We  had  to  pro- 
duce the  gauge  readings  and  put  them  in  evidence  ourselves. 


1375 


4708  The  Court.  Overruled. 

Counsel  for  Defendant.  In  your  answer  state  also  what  12.4 
feet  mean  so  far  as  the  water  in  the  river  is  concerned. 

A.  12.4  feet  on  the  riverside  gauge  corresponds  to  a flow  of 
305  feet  per  second  approximately,  passing  through  the  river  at 
that  point,  and  to  a stage  of  the  river  one  foot  above  the  stage  at 
which  the  flow  ceases,  or  becomes  so  small  as  to  be  of  no  sig- 
nificance in  that  period  of  time.  In  the  period  beginning  in  1886 
and  terminating  early  in  1896  as  tabulated — I have  tabu- 

4709  lated  the  results,  with  the  results  as  follows:  That  in  the 

month  of  January  the  record  was  complete  for  six  years,  and 

that  twice  in  this  period  the  month  of  January  showed  an  average 
flow  of  305  cubic  feet  per  second  or  more. 

Thereupon  objection  was  made  by  counsel  for  complainant  that 
the  witness  was  reading  from  a memorandum,  whereupon  counsel 
for  defendant  agreed  to  have  typewritten  copies  of  same  made  and 
given  to  counsel  for  complainant.  The  witness  continued  read- 
ing. 

4710  The  record  was  complete  for  the  month  of  February 
seven  years,  and  four  times  the  flow  reached  305  cubic  feet 

per  second  or  more. 

In  March  the  record  is  complete  for  seven  years,  and  the  flow 
before  stated  was  reached  or  exceeded  six  times. 

In  April  the  record  is  complete  for  six  years  with  a recurrence 
of  the  flow  as  before  described  four  times. 

May,  six  years,  recurrence  of  the  flow  three  times. 

June  record  complete  seven  years,  recurrence  of  the  flow  three 
times. 

The  July  records  complete  seven  years,  a recurrence  of  the 
flow  two  times. 

4712  Counsel  for  Complainant.  I only  want  to  know  whether 
the  witness  in  giving  these  dates  means  so  many  days  in 
each  of  these  months.  I do  not  understand  the  answer. 

I want  to  know,  Mr.  Johnston,  whether  these  days  you  are  giv- 
ing are  the  days  for  each  month  of  each  year  or  not?  You  speak 
about  the  seven  years  in  your  answer,  and  that  confuses  me  so 


1376 


J olinson, — Direct  Exam. — Continued. 


that  I don’t  understand  what  yon  mean.  Do  you  mean  now,  so 
many  days  for  the  month  of  March  each  year  for  the  seven  years, 

or  during  the  month  of  March  for  a certain  year  or  the  month 

« 

of  April.  If  you  will  kindly  make  that  clear  to  me  I will  he 
obliged?  A.  I referred  to  the  whole  month  in  each  year.  The 
13eriod  covers  some  nine  years  and  the  records  were  not  com- 
plete in  every  month  of  every  year,  and  I was  stating  the  num- 

^ — . 

her  of  months  first  in  which  the  records  were  complete  for  the 
whole  month,  and  then — 

The  Court.  That  is,  the  number  of  months — the  number  of 
Januaries,  in  those  nine  Januaries  in  which  the  record  was  com- 
plete for  the  whole  month? 

A.  Yes,  sir. 

4713  Q.  That  is,  there  were  six  Januaries  out  of  the  nine  in 
which  there  were  complete  records  for  the  whole  month.  A. 

Yes,  sir. 

Q.  For  every  day  of  the  month?  A.  Yes,  sir. 

Counsel  for  Complainant.  And  you  are  giving  the  number  of 
days  now  in  each  of  these  Januaries,  or  the  average  for  these 
Januaries,  during  these  seven  years. 

A.  No,  sir,  I am  giving  the  number  of  times  that  the  average 
flow  for  January  reached  or  exceeded  305  cubic  feet  per  second. 

Q.  In  the  six  or  seven  years  as  the  case  may  be?  A.  In  six 
or  seven  years  as  the  case  may  be. 

Counsel  for  Complainant.  That  would  mean  two  Januaries 
out  of  the  period?  A.  Yes,  sir. 

Q.  The  whole  of  the  month  of  January? 

The  Court.  Q.  You  mean  twice  during  the  entire  month  of 
January  or  on  a number  of  days  in  all  of  the  six  Januaries,  that 
would  be  in  the  number  of  days,  in  a hundred  and  eighty  days — 

A.  No,  sir,  it  would  be  the  average  for  January  twice. 

4714  Q.  The  average  that  is,  of  the  six — two  out  of  the  six — 
two  Januaries  out  of  six  show  an  average  of  305  or  more?. 

A.  Yes,  sir. 


1377 


Counsel  foe  Complainant.  For  a montli,  yoiir  Honor,  as  I 
nnderstand  it,  not  the  days  in  the  month,  but  for  the  month? 

A.  For  the  month. 

The  CouET.  Q.  For  the  entire  month? 

A.  The  flow  of  the  month  divided  by  the  number  of  days. 

Q.  By  the  number  of  days  in  the  month?  A.  Yes,  sir. 

Counsel  foe  Complainant.  Now,  go  on. 

A.  The  August  record  complete  in  eight  years,  in  no  one  month 
or  at  no  time  rather,  did  the  flow  occur  as  before  described;  and 
also  in  September  the  record  was  complete  for  eight  years  and 
in  no  one  month  of  September  did  the  flow  average  as  much  as 
before  described. 

For  October  the  record  was  complete  nine  years,  and  the  flow 
above  described  recurred  but  once. 

In  November  the  record  was  complete  for  eight  years,  and  at  no  . 
time  did  the  flow  above  described  recur. 

For  the  month  of  December  the  record  was  complete  five  times, 
and  the  recurrence  of  the  flow  only  once. 

4715  In  a total  of  84  months — I should  have  said  five  years — 

The  record  was  complete  for  84  months  in  this  period  and 
in  26  of  those  months  the  flow  averaged  305  cubic  feet  per  second 
or  more.  Thirteen  times  the  average  flow  of  305  cubic  feet  per 
second  or  more  occurred  in  25  winter  months,  the  winter  months 
being  December,  January,  February  and  March.  The  other  13 
times  occurred  in  59  summer  months.  Four  times  it  recurred  in 
two  consecutive  months  and  only  once  for  three  consecutive  months 
during  the  eight  summer  months.  That  answers  the  question  as 
far  as  the  record  of  the  average  readings  goes,  as  before  stated. 

The  CouET.  That  is,  out  of  25  winter  months  the  river  13  times 
reached  305. 

4716  A.  Four  times  in  the  period  in  the  summer  months  with 
the  flow  recurring  two  months  in  succession ; once  it  recurred 

three  months  in  succession. 

The  CouET.  Q.  Never  oftener? 

A.  Never  oftener. 


1378  Johnson, — Direct  Exam. — Continued. 

I have  made  a further  tabulation  from  the  gauges — this  covers 
the  period  when  I had  supervision  of  the — although  in  the  record 
of  1886  I did  not  have  the  supervision  over  it  in  as  high  a degree 
as  I did  subsequently. 

I have  examined  the  gauge  readings  at  Eiverside  as  printed  in 
congressional  document  entitled  ^^59th  Congress,  First  Session, 
House  of  Eepresentatives,  Document  No.  263,”  for  nine  years, 
1896  to  1904,  inclusive.  The  record  is  given  complete  in  all  these 
months,  in  all  of  the  months  for  all  of  these  years,  and  I have 
taken  and  picked  out  those  months  in  which  the  gauge  readings 
average  12.4  feet  or  more  on  the  Eiverside  gauge,  which 
4717  would  correspond  to  a flow  of  305  cubic  feet  per  second  or 
more.  In  this  table,  the  record  being  complete  for  each  of 
the  nine  years,  the  average  gauge  reading  12.4  feet  recurred  in 
two  Januaries;  six  times  for  February;  eight  times  for  March; 
eight  times  for  April;  twice  for  May;  three  times  in  June;  twice 
in  July;  no  times  in  August;  twice  in  September;  once  in  October; 
twice  in  November  and  once  in  December,  a total  of  108  months, 
and  the  average  gauge  reading  of  12.4  feet  recurred  37  times  in 
that  period,  of  which  17  times  were  in  the  four  months  and  20 
times  in  the  eight  summer  months. 

That  is  for  nine  years  next  succeeding  the  period  that  I have 
testified  to  in  the  other  table.  Four  times  this  average  gauge 
reading  recurred  two  months  in  succession,  and  once  three  times 
in  succession.  There  never  was  a period  when  it  occurred  for 
more  than  three  months  in  succession  in  the  summer  months. 

In  all  the  years  where  these  gauge  readings  are  shown  there 
are  certain  months  when  no  water  passes  the  gauge.  Of 
4717a  given  month  in  each  of  these  years  there  will  be  times 
when  no  water  passes  the  gauge;  either  that — that  is  abso- 
lutely true,  frequently,  but  very  frequently  when  there  is  either 
no  water  flowing  or  the  quantity  is  so  small  as  to  have  no  signifi- 
cance. 

The  Court.  Q.  You  mean  so  small  as  not  to  be  recorded  on 
the  gauge? 

A.  Yes,  sir,  as  not  to  be  measureable  on  the  gauge  of  the 


river. 


1379 


4719  The  gauge  most  all  of  the  time  has  been  a staff  gauge. 
At  one  time  there  was  what  was  called  a self-recording  gauge, 

established  at  Eiverside,  at  the  site  where  the  staff  gauge  is  located, 
something  like  a quarter  or  a half  a mile  from  the  railway  station 
at  the  bank  of  the  river.  The  staff  gauge  is  a piece  of  wood  x^er- 
haps  four  inches  wide  and  three-quarters  of  an  inch  thick,  upon 
which  are  marked  the  distance  of  feet  and  fractions  of  feet.  That 
is  fastened  to  a post  or  nailed  to  a tree  or  otherwise,  held  in  posi- 
tion so  that  one  extremity  of  it  is  always  in  the  water,  the  site 
being  chosen  where  the  bed  of  the  river  is  a little  lower  than  in 
other  places,  so  that  if  there  is  no  water  at  all  in  the  river,  the  end 
of  the  gauge  would  still  be  under  water.  The  gauge  readings 
taken  on  the  gauge  indicate — the  reading  on  this  rod  or 

4720  staff  where  the  water  siuTace  at  any  time  may  happen  to  be, 
having  all  of  the  gauge  readings  at  a given  gauge,  the  read- 
ings have  a relative  significance  as  to  the  river  being  higher  or 
lower.  It  is  the  engineer’s  object  to  run  levels  and  determine  where 
the  elevation  of  the  mark  of  zero  on  that  gauge  would  be  with 
reference  to  some  datum  which  is  in  common  use  in  the  region  for 
making  those  reference,  as  for  instance,  Chicago  datum.  On  that 
gauge  the  point  of  no  flow  is  marked  about  11.3  above  Chicago 
datum,  or  very  closely  that. 

Those  figures  that  I have  been  giving  are  on  12.4  feet,  I have 
run  on  that  gauge.  The  zero  of  that  gauge  had  reference  to  Chi- 
cago datum,  and  a reading  on  that  gauge  corresponding  to  no 
flow  would  be  11.3,  very  close  to  that. 

When  the  water  was  12.4,  it  would  be  1.1  foot  deep,  about  a foot 
and  If  inches. 

Counsel  for  Defendant.  Q.  Now,  as  I understand  you,  the 
gauge  is  set  in  a hole  or  place  steeper  than  the  ordinary  bed 
of  the  river,  so  that  water  will  be  flowing  over  it  in  days 

4721  that  it  would  not  in  the  ordinary  bed  of  the  river,  is  that 
right? 

A.  Standing  around  the  gauge  even  if  there  was  no  flow  in 
the  river. 

The  Court.  Q.  You  record  all  measurements  then  above  the 
zero,  do  you? 


1380  Johnson, — Direct  Exam. — Continued. 

A.  Yes,  sir,  above  the  zero  of  the  gauge. 

The  first  reading  on  the  gauge  is  the  lowest  reading  ever  con- 
tained in  the  record.  The  , gauge  would  be  11.3  feet  and  none  of 
the  readings  below  that  point  would  be  noticed. 

The  CouKT.  Q.  11.3  would  reach  the  minimum  I 
A.  That  would  correspond  to  no  flow. 

The  CouKT.  Q.  AVhat  is  it  you  say  as  to  the  zero  of  the 

4722  gauge  in  reference  to  Chicago  datum! 

A.  In  this  case  it  is  Chicago  datum. 

Q.  And  then  what  is  your — how  many  inches  did  you  say!  A. 
11.3  feet. 

Q.  What  is  that  11.3  feet  in  relation  to  that  river!  A.  Simply 
at  the  point  to  be  marked  on  that  gauge  at  which  no  flow  takes 
place. 

Q.  But  does  it  mean  no  water!  A.  That  means  no  water  or 
not  enough  water  to  be  measured  on  the  gauge. 

Q.  That  is  not  enough  water  to  flow!  A.  Or  to  raise  the  river 
above  a level  corresponding  to  no  flow  in  any  degree  that  can  be 
measured.  For  instance,  a one-hundredth  of  an  inch  could  not 
be  measured  or  would  not  be  measured. 

Q.  I understand,  but  what  is  not  clear  to  me  is  this:  When 

there  is  no  flow  of  the  river,  does  that  mean  that  except  in  pools 
the  thing  is  dry,  that  you  could  walk  across  the  stones,  walk  across 
the  bottom  of  the  river  without  wetting  your  feet  unless  you 
stepped  into  a pool!  A.  Yes,  sir,  usually  means  there  would  be 
points  where  you  could  cross — 

Counsel  for  Complainant.  That  would  depend  on  the  slope 
of  the  bank! 

4723  The  Court.  I am  asking  him  whether  the  elevation  of  the 
bed  at  this  Eiverside  gauge  is  this  level  of  11.3  feet  above 

Chicago  datum.  - 

4724  The  Court.  Q.  Do  you  know  whether  that  gauge  is  on  a 
' level  at  zero  with  the  bar! 

A.  No,  the  zero  of  the  gauge  is  considerably  below  the  bar,  ten 
or  eleven  feet. 


1381 


Q.  Ten  or  eleven  feet  below  the  bar!  A.  The  zero  of  the 
gauge,  yes,  the  lowest  reading  that  the  water  r-^aches  on  that 
gauges  reads  11.3. 

Q.  I mean,  of  course,  is  the  11.3  feet  on  that  gauge  on  a level 
with  the  bar!  A.  On  a level  with  the  crest  of  the  bar;  yes,  sir. 

Q.  Zero,  is  Chicago  datum!  A.  Zero  is  Chicago  datum. 

Q.  11.3  on  that  gauge  which  is  to  represent  the  beginning  of 
the  flow  of  the  river  is  on  a level  with  the  crest  of  that  bar  that 
forms  the  border  of  the  pool  into  which  the  gauge  measurement, 
the  gauge  stick  is  placed!  A.  Yes,  sir. 

Q.  Is  that  right!  A.  Yes,  sir,  on  a level  with  the  lowest  point 
on  the  crest  of  that  bar. 

4726  Q.  You  mean  the  lowest  point  over  which  any  water  can 
flow!  A.  Yes,  sir. 

Counsel  for  Defendant.  What  I want  to  get  at  and  the  ques- 
tion we  started  with  was  whether  in  each  month  in  each  year  of 
the  nine  years  fhat  you  have  a record  whether  or  not  there  were 
times  in  such  months  when  no  water  flowed  over  the  bar! 

A.  Yes,  sir. 

Q.  That  iSy  in  each  month  in  each  year  of  the  nine  years  there 
tvere  times  in  such  months  uhen  no  icater  ivent  over  the  bar,  is 
that  corrects  A.  Well,  that  is  not  the  ivay  I understood  the  ques- 
tion before.  That  may  or  may  not  be  entirely  true. 

. The  Court.  Q.  That  ivoidd  depend  upon  the  daily  readings, 
and  you  have  not  given  us  that?  You  have  only  given  us  the  aver- 
age for  the  month? 

A.  That  is  all,  and  I do  not  know  whether  1 am  prepared  noiv  to 
ansiver  that  question. 

4728  The  court  then  held  that  the  1905  Government  Deports  al- 
• ready  introduced  in  evidence  were  the  best  evidence. 

Witness.  I spent  a considerable  portion  of  time  in  studying 
the  habits  and  characteristics  of  western  rivers.  That  was  for  the 
Government  of  the  United  States.  The  object  of  the  studies  was 
to  devise  processes  and  ways  in  which  to  accomplish  river  im- 
provement. I took  notice  of  the  habit  of  the  river  for  that  pur- 
pose, in  fact. 


1382 


J ohnson, — Direct  Exam. — Continued. 


Q.  Wliat,  Mr.  Johnston,  if  you  know,  are  the  elements  to  be 
considered  in  determining  whether  or  not  a river  is  navigable  in 
fact. 

4729  Counsel  fok  Complainant.  I think  this  is  cross-examina- 
tion. 

The  CouKT.  No,  I think  not.  He  may  answer. 

A.  The  quantity  of  water  that  may  flow  in  a stream,  the  extent 
of  the  boundaries  of  the  stream,  or  in  other  words  its  confines ; the 
regularity  with  which  different  stages  of  the  river  may  recur, 
whether  they  recur  in  periods  when  the  river  can  be  navigable  or 
when  it  cannot  be  navigable  on  account  of  ice,  and  also  the  declivity 
of  the  river  in  relation  to  the  narrowness  of  its  confines  and  the 
declivity  constitutes  I believe  in  general  the  elements  that  would 
be  called  for  by  the  question  asked.  The  character  of  the  bed, 
whether  rocky  or  sandy,  or  of  boulders  would  be  an  element  also. 

I am  familiar  with  the  Desplaines  Eiver  for  about  all  of  its 
length  from  its  headwaters  to  the  junction  with  the  Kankakee 
Eiver. 

Q.  Will  you  state  whether  or  not  in  your  opinion  the  T)es- 
plaines  Eiver  is  navigable  for  the  purposes  of  commerce! 

Counsel  fok  Complainant.  That  we  object  to,  if  your  Honor 
please.  It  calls  for  an  opinion  and  for  his  opinion,  not  on  the  case 
stated,  but  on  facts  not  stated,  because  there  is  no  founda- 

4730  tion  for  his  opinion  as  an  expert  in  navigation,-  and  the  an- 
swer is  irrelevant,  incompetent  and  immaterial. 

The  Court.  He  may  answer. 

A.  It  is  not. 

Counsel  for  Defendant.  Q.  Has  it  been  at  any  time  since  you 
have  known  it! 

A.  No,  sir. 

Counsel  for  Complainant.  I object.  I suppose  it  may  be  taken 
that  the  objection  as  made  to  this  first  question  may  stand  to  all 
questions  without  repetition. 

The  Court.  Yes. 

Q.  Why  in  your  opinion  is  it  not  navigable!  A.  The  upper 
Desplaines  Eiver  aEove  Eiverside  is  not  navigable  because  of  the 


1383 


small  quantity  of  water  that  flows  in  it  most  of  the  time;  also 
on  aeconnt  of  the  narrow  confines  of  the  river  bed;  also  of  the 
irregularity  with  which  certain  stages  of  the  river  recur  when  it 
otherwise  might  be  navigable,  when  they  recur  with  reference  to 
time  and  extent;  also  because  the  recurrence  of  those  periods  when 
the  river  might  otherwise  be  navigable  is  for  so  much  of  the 

4731  time  in  the  winter  months.  The  river  between  Eiverside  and 
Lemont  in  what  is  known  as  the  twelve  mile  level  would  not 

be  navigable  for  these  same  reasons,  except  as  to  the  narrow- 
ness of  the  confines  of  the  river.  The  river  from  Lemont  to  its 
junction  with  the  Kankakee  would  not  be  navigable  for  all  of  the 
reasons  which  apply  to  the  upper  Desplaines  above  Eiverside,  and 
in  addition  because  of  the  declivity  of  the  river  being  in  general 
so  steep  and  the  nature  of  its  bed  so  sinuous  and  rocky  or  ob- 
structed by  boulders  in  a degree  that  would  render  its  navigation 
dangerous. 

The  declivities  extend  from  Lockport  to  Lake  Joliet,  a distance 
of  about  eight  miles,  approximately  that.  The  fall  from  Lockport 
to  Dam  No.  1 is  about  forty  feet,  in  four  and  a half  miles.  From 
there  to  Lake  Joliet,  a distance  of  about  three  and  a half  miles, 
the  fall  is  twenty-one  feet.  To  Lake  Joliet,  a distance  of  approxi- 
mately five  miles,  there  is  no  fall  at  low  water.  At  the  foot  of 
Lake  Joliet  down  through  Treat’s  Island  for  a distance  of  a mile 
the  fall  is  about  nine  and  a half  feet,  and  then  a distance  of 

4732  about  a mile  with  no  fall,  and  a distance  of  another  mile  with 
two  and  three-fourths  feet  fall,  and  a distance  of  about  three 

miles  with  about  two  feet  of  fall,  and  then  a distance  of  half  a 
mile  with  about  three  feet  fall.  The  bed  of  the  river  at  that  point 
is  of  boulders.  The  current  is  very  rapid.  It  is  south  of  where 
this  Economy  Dam  is  being  built. 

Between  Dam  No.  1 and  Lake  Joliet  the  minimum  width  of  the 
river,  before  the  drainage  water  was  poured  in,  was  perhaps  sixty 
feet.  The  character  of  the  bed  of  the  stream  there  would  be,  bar- 
ring a little  dirt  on  the  surface  of  the  bed  of  the  stream,  rock 
and  boulders.  There  were  islands  below  the  old  Adam  Dam,  from 
there  to  Lake  Joliet.  The  characteristics  of  the  islands, — 

4733  are  principally  of  boulders,  with  some  dirt  and  maybe  a little 
brush  growing  on  them.  The  bed  of  the  stream  was  usually 

of  boulder  formation. 


1384  Johnson, — Direct  Exam. — Continued. 

The  river  at  Treat’s  Island  was  split  up  by  islands  with  chan- 
nels irregularly  passing  through  them  with  a rapid  current  pass- 
ing in  the  channels,  which  were  perhaps  a hundred  feet  wide,  or 
such  a matter;  and  its  sinuosity  was  quite  crooked.  There  were 
boulders  there.  What  the  slope  may  be  would  depend  something 
u])on  the  distance  or  the  length  of  the  river  taken  into  consider- 
ation. The  slope  of  the  river  in  general  from  Dam  No.  1 to  Lake 
Joliet  is  about  eight  feet  to  the  mile,  but  at  places  in  that  reach 
of  the  river  the  declivity  would  be  quite  a good  deal  more  pre- 
cipitous, say  in  a distance  of  100  feet  or  such  a matter. 

4734  The  general  fall  at  Treat’s  Island  in  that  region  was  in 
a mile  there  say  about  nine  and  a half  feet;  some  places  in  a 

distance  quite  a good  deal  more,  some  less.  The  maximum  slope 
there  per  mile  was  I would  judge,  from  having  looked  at  it  with- 
out measuring  it,  it  might  run  say  to  fifteen  or  even  twenty  feet 
per  mile  for  a short  distance. 

Thereupon  counsel  for  complainant  moved  to  exclude  it,  on  the 
ground  witness  did  not  measure  it  and  does  not  know  and  puts  it 
in  as  a guess. 

The  Court.  It  may  stand. 

Counsel  for  Complainant.  If  the  court  please,  where  a man 
is  put  on  as  an  engineer  to  give  measurements  and  says  ‘‘I  do  not 
know,  I just  looked  at  it” — 

The  Court.  It  stands  only  as  an  estimate,  according  to  his 
statement. 

Witness.  As  a rule  points  of  steep  declivity  become  drowned 
out  as  the  stages  of  the  river  rise. 

4735  Q.  Would  it  be  true  then  that  a river  which  retained  a 
higher  stage  or  a high  water  stage  for  a considerable  period 

might  be  navigable  even  though  its  slopes  were  very  steep! 

Counsel  for  Complainant.  To  that  I object,  your  Honor,  as 
suggestive  and  leading  and  improper  generally,  I think. 

The  Court.  He  may  answer. 

A.  That  is  true. 

Witness.  The  Desplaines  in  the  neighborhood  of  Eiverside, 
at  the  Eiverside  gauge,  would  not  be  affected  at  all  or  could  not 


1385 


have  been  affected  by  the  deep  cut,  the  diversion  of  the  Desplaines, 
the  deepening  of  the  Illinois  and  Michigan  Canal,  or  the  building 
of  the  Sanitary  Canal  or  the  Ogden  ditch, — because  the  Eiverside 
gauge  is  at  an  elevation  above  the  field  of  influence  of  the  causes 
I have  just  named. 

The  construction  of  the  Illinois  and  Michigan  Canal  opened 
in  1848,  with  special  reference  to  the  question  of  percolation, 

4736  would  not,  in  my  opinion,  have  and  influence  on  percolation 
from  the  Desplaines  Kiver.  It  would  not  affect  at  all  the 

discharge  of  the  Desplaines  River,  in  so  far  as  percolation  is  con- 
cerned. In  cutting  off  a part  of  the  drainage  basin  of  the  Des- 
plaines River  south  of  the  Illinois  and  Michigan  Canal,  it  would 
have  some  influence,  but  a very  little,  because  the  flood  waters 
from  the  region  in  question  would  naturally  run  off  in  the  earlier 
periods  of  any  rise  in  the  river  and  be  gone  before  the  low  waters 
from  the  head  waters  of  the  stream  would  come  down. 

The  character  of  the  river  is  that  they  rise  generally  very 
quickly  and  subside  with  greater  or  less  rates  of  rapidity.  The 
higher  stages  subside  quite  rapidly  as  a rule. 

The  flow  of  the  extreme  maximum  to  midstate  would  ordi- 
narily diminish  within  the  record  within  three  or  four  days,  and 
a rise  of  that  kind,  without  any  supplemental  flow  of  water  from 
another  point  would  ordinarily  have  flowed  off  in  that  time. 

4737  The  cutting  of  the  Chicago  Divide  in  1852  near  Kedzie  ave- 
nue had  the  effect  of  causing  the  waters  of  the  river  to  flow 

away  somewhat  faster  than  they  would  have  done  naturally,  to 
the  extent  that  the  reservoir  capacity  in  the  Mud  Lake  District 
was  destroyed.  The  extent  to  which  that  influence  would  be  exerted 
would  depend  upon  several  considerations,  particularly  the  rate 
at  which  the  river  might  naturally  be  subsiding;  but  taking  that 
influence  in  connection  with  the  other  similar  influence  in  the  other 
twelve  mile  level,  and  the  influence  of  cutting  off  the  basin  or 
that  part  of  the  basin  south  of  the  Illinois  and  Michigan  Canal, 
and  the  influence  of  the  Ogden  Dam,  and  summing  them  altogether, 
the  duration  of  the  low  water  stages  would  not  in  my  opinion  be 
affected  by  the  presence  or  absence  of  those  influences  by  more 
than  ten  per  cent,  at  any  time. 


1386 


4738  In  my  opinion  the  deepening  of  the  canal  in  1866  and  1871 
did  not  have  any  effect  upon  the  amount  of  water  discharged 

into  the  Desplaines  Eiver. 

The  river  diversion  of  1892  and  1894  eliminated  substantially 
the  reseiwoir  capacity  of  the  twelve  mile  level  to  which  I have 
already  referred. 

The  opening  of  the  Sanitary  Canal  in  1900  had  no  other 

4739  effect  than  what  was  involved  in  the  drainage  canal,  in  the 
river  diversion,  except  one. 

JOHX"  M.  SXYDEE, 

recalled  for  further  direct  examination  by  counsel  for  defendant, 
testified  as  follows: 

I have  made  an  examination  of  the  records  of  my  office  with  a 
ffiew  to  ascertain  how  many  of  these  leases  and  what  leases  that 
are  listed  in  these  various  canal  reports,  reports  of  the  Canal  Com- 
missioners under  the  heading,  ‘‘Leases  of  90  Foot  Strip  and  Lots” 
are  leases  of  the  90  foot  strip.  I am  able  to  check  in  pencil  on 
the  tabulation,  very  nearly  all  of  these  Canal  Commissioners’  re- 
ports the  particular  list  that  is  a list  of  the  90  foot  strip. 

Counsel  foe  Defendant.  On  the  assumption  they  have  already 
been  checked,  in  order  to  save  time,  I will  offer  in  evidence 

4740  the  list  of  leases  of  90  foot  strips  and  lots  contained  in  the 
annual  reports  of  the  Canal  Commissioners,  which  I have  here 

before  me,  and  which  runs  from  the  report  made  in  1872  down  to 
the  report  made  in  1902;  and  ask  that  so  much  of  the  tabulations 
of  those  leases  be  copied  in  the  evidence  as  has  been  or  will  be 
checked  by  Col.  Snyder,  as  being  leases  of  the  90  foot  strip. 

(To  that  counsel  for  complainant  objected  and  asked  the 
privilege  of  cross-examination.) 

C ross-Examination. 

I have  a book  showing  these  leases  in  our  office.  It  generally 
shows  what  particular  part  of  the  90  foot  strip  are  the  leases  con- 
tained in  the  list.  We  have  some  of  the  old  leases  in  our  possession. 


1387 


I haven’t  any  clear  back,  I don’t  know  anything  about  it.  I have 
a portion  of  them.  It  is  quite  a large  proportion  of  them. 

4741  (Counsel  for  complainant  objected  to  these  reports  as  not 
being  the  best  evidence  on  the  one  hand,  the  leases  them- 
selves being  the  best  evidence;  and  furthermore  objected  to 
them  on  the  ground  that  the  complainant  was  entitled  to 
know  what  the  property  is  that  is  leased.  The  fact  of  a list 
of  something  or  other  is  not  as  proper  as  to  know  what 
property  is  leased;  and  it  was  further  insisted  that  the  mat- 
ters which  are  the  subject  of  the  present  offer  and  objection 
are  irrelevant,  incompetent  and*  immaterial.) 

(Thereupon  said  objections  were  sustained  by  the  court.) 

4744  Counsel  for  Defendant.  I showed  Colonel  Snyder  three 
documents  purporting  to  be  leases  made  by  the  Board  of 

Canal  Commissioners  of  the  State  of  Illinois,  one  purporting  to 
be  a lease  to  Herbert  S.  Norton,  dated  14th  of  April,  1894;  one 
purporting  to  be  a lease  to  Michael  Kavanagh  and  Samuel  Bus- 
sell dated  the  27th  of  November,  1894;  and  one  purporting  to  be 
a lease  to  the  Illinois  Steel  Company,  dated  the  25th  of  June,  1892; 
and  asked  the  witness  whether  those  leases  were  actually  made 
or  not, — to  which  witness  replied,  ‘‘Yes,  sir,  they  were.” 

4745  Those  are  the  original  leases,  executed  by  both  of  the 
parties.  They  are  held  in  my  possession  as  secretary  of  the 

Board  of  Canal  Commissioners. 

Counsel  for  Defendant.  I offer  these  in  evidence,  if  the  court 
please. 

Counsel  for  Complainant.  I object  to  these  because  they  are 
not  leases,  not  valid  leases.  On  the  face  of  them  it  purports  to  be 
from  the  Canal  Commissioners  to  somebody,  and  it  is  signed  by 
individuals,  and  I say  they  do  not  make  a lease. 

Counsel  for  Defendant.  Well,  in  the  regular  way,  those  leases 
were  executed  in  duplicate  and  that  is  the  copy  retained  by  the 
Canal  Board ; this  copy  being  executed  by  the  lessee. 

The  Court.  I will  admit  these.  They  are  under  the  seal  of 
the  Canal  Commissioners,  signed  by  somebody  purporting  to  be 
president,  and  somebody  purporting  to  be  secretary.  The  inden- 
ture is  recited  as  being  between  the  Canal  Commissioners;  that 


1388 


Snyder, — Cross-Exam. — Continued. 


and  the  seal  in  itself  would  be  sufficient,  without  the  signature,  I 
believe.  But  the  interpretation  of  president  and  secretary  in  con- 
nection with  the  seal  and  this  recital  is  that  they  are  president 
and  secretary  of  the  Canal  Commissioners. 

Counsel  for  Complainant.  Put  in  the  objection  they  are 

4746  incompetent,  immaterial  and  irrelevant. 

The  Court.  That  I will  overrule. 

Counsel  for  Complainant.  It  may  be  understood  that  goes  to 
all  these  matters  in  the  oral  proof. 

The  Court.  Yes. 

Counsel  for  Complainant.  Let  the  objection  further  recite 
that  it  is  objected  to  because  the  signature  of  somebody,  with  the 
name  president  under  it,  and  somebody  else  with  the  name  secre- 
tary under  it,  even  though  a corporate  seal  is  attached,  does  not 
make  a valid  lease  in  the  name  of  the  Canal  Commissioners  of  Illi- 
nois. That  is  my  objection.  On  its  face  it  purports  to  be  a lease 
by  the  Canal  Commissioners,  but  it  is  not  signed  by  them. 

Whereupon  said  leases  were  marked  respectively  ‘‘Snyder  Ex- 
hibits 20,  21  and  22”  and  are  in  words  and  figures  as  follows: 

4747  Snyder  Exhibit  “20.” 

This  Indenture,  Made  and  entered  into  this  25th  day  of 
June,  in  the  year  of  our  Lord  one  thousand  eight  hundred 
and  ninety-two,  between  The  Board  of  Canal  Commissioners 
OF  THE  State  of  Illinois,  of  the  first  part,  and  The  Illinois 
Steel  Company,  a corporation  organized  and  existing  under 
the  laws  of  the  State  of  Illinois,  of  the  second  part, 
Witnesseth:  That  the  said  party  of  the  first  part,  for  the 
consideration  hereinafter  mentioned,  agrees  to  lease  unto  the 
said  party  of  the  second  part,  for  the  term  of  twenty  (20) 
years,  that  is,  from  the  first  day  of  July  in  the  year  of  our 
Lord  one  thousand  eight  hundred  and  ninety-two  until  the 
first  day  of  July,  A.  D.  1912,  all  the  right  the  State  of  Illinois 

po of  the  erved 

ninety  t strip  lying  on  the  East  or  berm  side  of  the 

Canal,  in  Section  3,  in  Township  35  North,  of  Range  10  East, 
described  as  follows,  viz:  Being  west  of  and  adjoining  the 

property  belonging  to  the  party  of  the  second  part,  commenc- 
ing at  a point  325  feet  north  of  the  south  line  of  Section  3,  T. 
35,  E.  10,  and  extending  up  the  canal  for  a distance  of  2,675 


1389 


feet,  measured  along  the  canal  bank,  to  the  east  and  west 
center  line  of  said  Section  3,  the  same  being  more  particularly 
shown  on  a map  hereto  attached. 

And  the  said  party  of  the  second  part,  for  the  use  and  occu- 
pation of  the  said  tract  of  land,  does  hereby  covenant  and 
agree  to  and  with  the  said  party  of  the  first  part  that  it  will 

4748  pay  to  the  said  party  of  the  first  part,  as  rent,  the  sum  of 
Five  Hundred  Dollars  ($500.00)  per  annum,  payable  annu- 
ally in  advance  upon  the  first  day  of  July  of  each  year  dur- 
ing the  continuance  of  this  lease. 

It  is  further  covenanted  and  agreed,  on  the  part  of  the 
said  party  of  the  second  part,  that  it  will  not  re-let  said  Tract 
of  Land,  or  any  part  thereof,  without  the  consent,  in  writing 
of  the  said  party  of  the  first  part. 

It  is  further  agreed,  That  the  party  of  the  second  part 
shall  erect  no  buildings,  wharves  or  other  structures,  that  will 
in  any  manner  obstruct  the  free  navigation  of  the  canal,  or 
a passage  ten  (10)  feet  in  wddth  along  the  margin  of  the  same 
for  a tow-path  or  other  Canal  purposes. 

And  it  is  further  expressly  agreed  by  and  between  the 
SAID  PARTIES,  That  the  party  of  the  first  part  shall  have  the 
right  at  any  and  all  times  to  enter  upon  the  premises  hereby 
leased,  and  use  the  whole  or  any  part  thereof,  for  the  pur- 
pose of  enlarging  the  Canal  or  repairing  or  changing  the 
banks  of  the  same,  upon  the  condition  that  the  rent  shall  be 
' proportionately  abated  for  the  time  and  part  of  the  premises 
so  re-taken  and  used. 

It  is  FURTHER,  COVENANTED  AND  AGREED  BETWEEN  THE  SAID 
PARTIES,  That  in  case  of  non-payment  of  rent,  or  any  part 
thereof,  as  the  same  falls  due,  according  to  the  terms  of  this 

4749  Lease,  or  the  violation  by  the  party  of  the  second  part  of 
any  other  of  the  above  covenants,  the  said  party  of  the  first 
part,  by  its  Agent  or  Attorney,  shall  possess  the  right  to  de- 
clare this  Lease  void,  to  enter  and  distrain  any  property  be- 
longing to  the  said  party  of  the  second  part,  whether  the  same 
be  exempt  from  execution  and  distress  by  law  or  not,  for 
such  rent,  and  the  party  of  the  second  part  shall  surrender 
said  premises  to  said  party  of  the  first  part. 

It  is  also  further  agreed  and  understood.  That  the  party 
of  the  second  part  agrees  during  the  continuance  of  this  lease 
to  keep  open  and  free  from  obstruction,  the  ditch  running 
through  the  ^^90  foot  strip’’  hereby  leased,  and  parallel  with 
the  canal. 

For  the  full  and  faithful  performance  of  the  covenants  and 
stipulations  herein  contained,  to  be  performed  on  its  part, 
the  said  party  of  the  second  part  binds  itself,  its  assigns  and 
legal  representatives  firmly  by  these  presents. 


1390  Snyder  Ex.  20^ — Lease  to  111.  Steel  Co.— Continued. 


In  testimony  whereof,  the  said  parties  have  hereunto  set 
their  hands  and  seals,  the  day  and  year  first  above  written. 
(Signed  in  duplicate.) 

J.  C.  Ames, 

(seal)  PresH. 

C.  E.  Snively, 

Sec’y. 

Canal  Office 

Lockport,  111.,  June  25th,  1892. 

Illinois  Steel  Company  (seal) 
By  Jay  C.  Moore,  (seal) 
(seal)  President. 

Attest : 

H.  H.  Gray, 

Sec’y. 

4750  (Endorsements  on  back  as  follows:) 

Illinois  Steel  Company 

Lease  of  portion  of  ‘‘90  ft.  strip”  in  Sec.  3,  T.  35,  K.  10  E. 

June  25,  1892. 

20  years  from  July  1,  1892. 

Rental  $500.00  per  year  payable  annually  in  advance. 


$500.00  July  16,  1892.  Five  Hundred  Dollars,  rent  on 
within  lease  to  July  1,  1893. 


$500.00  Rec’d  July  20,  1893.  Five  Hundred  Dollars,  rent 
on  within  lease  to  July  1st,  1894. 

$500.00  Rec’d  July  18,  1894.  Five  Hundred  Dollars,  rent 
on  within  lease  to  July  1,  1895. 


$500.00  Rec’d  July  3,  1895.  Five  Hundred  Dollars  rent  on 
within  lease  to  July  1,  1896. 


$500.00  Rec’d  July  2,  1896.  Five  Hundred  Dollars,  rent 
on  within  lease  to  July  1,  1897. 


$500.00  Received  July  2,  1897.  Five  Hundred  Dollars,  rent 
on  within  lease  to  July  1,  1898. 

$500.00  Received  July  22,  1898,  rent  on  within  lease  to  Julv 
1,  1899. 


4751  $500.00  Received  Julv  4/99 — rent  on  within  lease  to  Julv 
1st,  1900. 


$500.00  Rec’d  eluly  16,  1900,  rent  on  within  lease  to  Julv 
1,  1901. 


1391 


July  26,  1901.  Kec’d  $500.0  on  within  lease  to  July  1,  1902. 


July  19,  1902  Eec’d  $500.00  on  within  lease  to  July  1,  1903. 


June  29,  1903  Rec’d  $500.00  on  within  lease  from  July  1, 
1903  to  July  1,  1904. 


June  23,  1904.  Received  $500.00  on  within  lease  from  July 
1,  1904,  to  July  1,  1905. 


June  22,  1905.  Received  $500.00  on  within  lease  from  July 
1,  1905,  to  July  1,  1906. 


July  3,  1906.  Received  $500.00  on  within  lease  from  July 
1,  1906,  to  July  1,  1907. 


July  6,  1907.  Received  $500.00  on  within  lease  from  July 
1,  1907,  to  July  1,  1908. 


(Attached  to  this  exhibit  is  a blue  printing  showing  detail 
of  Illinois  and  Michigan  Canal.) 

1752  ‘^Snyder  Ex.  21.” 

This  indenture,  Made  and  entered  into  this  14th  day  of 
April  in  the  year  of  our  Lord  one  thousand  eiclit  hundred 
and  ninety  four,  between  The  Board  of  Canal  Commissioners 
OF  THE  State  of  Illinois  of  the  first  part,  and  Herbert  S. 
Norton,  of  Lemont,  Cook  County,  Illinois,  of  the  second  part, 
WiTNEssETH,  That  the  said  party  of  the  first  part,  for  the 
consideration  hereinafter  mentioned,  agrees  to  lease  unto  the 
said  party  of  the  second  part,  for  the  term  of  Ten  (10)  years, 
that  is  from  the  7th  day  of  April  in  the  year  of  our  Lord  one 
thousand  eight  hundred  and  ninety  four  until  the  7th  day  of 
April  (1904)  Nineteen  hundred  and  four,  all  the  right  the 
State  of  Illinois  possesses  to  that  portion  of  the  reserved 
ninety  feet  strip  lying  on  the  berm  or  south  side  of  the 
Canal,  in  Section  20,  in  Township  37,  North  of  Range  11  East, 
described  as  follows,  viz : — Commencing  at  the  East  side  of 
what  is  known  as  Stevens  street,  in  the  Village  of  Lemont, 
Cook  County,  Illinois,  and  extending  North  Easterly  up  the 
Canal  for  a distance  of  about  Four  Hundred  and  Forty  two 
(442)  feet  to  the  west  line  of  S.  L.  Derby’s  Lumber  shed.  (See 
diagram  attached  hereto) 

And  the  said  -party  of  the  second  part,  for  the  use  and  oc- 
cupation of  the  said  Tract  of  Land,  does  hereby  cove- 
4753  nant  and  agree  to  and  with  the  said  party  of  the  first  part, 
that  he  will  pay  to  the  said  partv  of  the  first  part,  as  rent, 
the  sum  of  One  Hundred  and  Fifty  ($150)  Dollars,  per  an- 
num, payable  annually  in  advance. 

It  is  further  Covenanted  and  Agreed,  on  the  part  of  the 


1392  Snyder  Ex.  21, — Lease  to  Norton. — Continued. 

said  party  of  the  second  part,  that  he  will  not  re-let  said 
Tract  of  Land,  or  any  part- thereof,  without  the  consent,  in 
writing,  of  the  said  party  of  the  first  part. 

It  is  Further  Agreed,  That  the  party  of  the  second  part 
shall  erect  no  buildings,  wharves,  or  other  structures,  that 
will  in  any  manner  obstruct  the  free  navigation  of  the  Canal. 

And  it  is  Further  Expressly  Agreed  by  and  Between  the 
said  parties.  That  the  party  of  the  first  part  shall  have  the 
right  at  any  and  all  times  to  enter  upon  the  premises  hereby 
leased,  and  use  the  whole  or  any  part  thereof,  for  the  pur- 
pose of  enlarging  the  Canal  or  repairing  or  changing  the 
banks  of  the  same,  upon  the  condition  that  the  rent  shall  be 
proportionately  abated  for  the  time  and  part  of  the  premises 
so  re-taken  and  used. 

It  is  Further  Covenanted  and  Agreed  between  the  said 
Parties,  That  in  case  of  non-payment  of  rent,  or  any  part 
thereof,  as  the  same  falls  due,  according  to  the  terms  of  this 
lease,  or  the  violation  by  the  party  of  the  second  part  of  any 
other  of  the  above  covenants,  the  said  party  of  the  first  part, 

4754  by  its  Agent  or  Attorney,  shall  possess  the  right  to  declare 
this  lease  void,  to  enter  and  distrain  any  property  belonging 
to  the  said  party  of  the  second  part,  whether  the  same  be  ex- 
empt from  execution  and  distress  by  law  or  not,  for  such 
rent,  and  a lien  on  said  property  is  hereby  created  in  favor 
of  said  party  of  the  first  part,  for  said  rent,  and  the  party 
of  the  second  part  shall  surrender  said  premises  to  said  party 
of  the  first  part. 

It  is  Further  Agreed  and  Understood,  That  if  at  any  time 
within  Five  (5)  years  from  date  hereof  it  should  be  deter- 
mined by  the  Courts  of  last  resort  that  the  90-feet  strip  herein 
described  is  not  under  the  control  of  the  Board  of  Canal 
Commissioners  of  the  State  of  Illinois  then  and  in  that  event 
the  rentals  that  may  have  been  paid  by  said  second  party 
herein  shall  be  refunded  to  him  or  to  his  successor  or  assigns, 
by  the  State  of  Illinois,  through  its  Board  of  Canal  Com- 
missioners. 

For  the  full  and  faithful  performance  of  the  covenants  and 
stipulations  herein  contained,  to  be  performed  on  his  part, 
the  said  party  of  the  second  part  binds  himself,  his  heirs, 
executors,  and  administrators  firmly  by  these  presents : 

Ix  TESTIMONY  WHEREOF,  the  Said  Parties  have  hereunto  set 

4755  their  hands  and  seals  the  day  and  year  first  above  written. 
(Signed  in  Duplicate) 

William  A.  S.  Graham, 

(seal)  President 

Herbert  S.  Norton  (seal) 
Secretary 

(On  the  back  appears  the  following  endorsements:) 


1393 


$150.  Received  of  H.  S.  Norton,  One  Hundred  and  fifty 
dollars,  being  Amt.  on  within  lease  to  April  7th,  1895. 

May  16th,  1895.  Received  of  H.  S.  Norton  One  Hundred 
fifty  dollars  being  rent  on  within  lease  to  April  7,  1896. 

July  31st,  1896,  Received  of  H.  S.  Norton,  One  Hundred 
fifty  dollars  being  rent  on  within  lease  to  April  7,  1897. 

Aug.  25,  Received  on  within  lease  partial  payment,  of  ensu- 
ing year-97-98- ($37.50)  thirty-seven  Hollars  and  50  cents. 

Nov.  23,  1897,  Received  on  within  lease  Thirty  seven  and 
50/100  Dollars  ($37.50).  Ihmal  Commissioners  per  Hred  W. 
Walker,  Atty. 

Jan.  3, 1898,  Received  on  within  $25.00 
‘ ‘ 29,  1898,  Received  on  within  $25.00 

April  5,  1898,  Received  on  within  $25.00  rent  in  full  to  April 
I 7,  1898. 

' Oct.  31,  1900,  Received  on  within  lease  from  H.  S.  Norton 
of  Lemont  by  John  L.  Norton,  Three  Hundred  Dollars,  in 
payment  of  rental  to  April  7,  1900. 

4756  Know  all  men  by  these  presents,  that  I,  J.  L.  Norton,  of 
the  Village  of  Lockport,  County  of  Will  and  State  of  Illinois, 
for  and  in  consideration  of  the  o))eration  of  the  Bridgeport 
Pumping  Works  in  the  City  of  Chicago  by  the  Canal  Com- 
missioners and  maintaining  the  present  level  of  the  Illinois 

' and  Michigan  Canal,  for  the  term  of  ten  (10)  days,  to  wit: 

; from  November  15th  to  November  25th,  for  the  purpose  of 

furnishing  water  power  to  run  the  mills  of  Norton  and  Com- 
pany at  Lockport,  Illinois,  and  for  other  good  and  valuable 
considerations,  the  receipt  whereof  is  hereby  confessed,  do 
hereby  grant,  bargain,  remise,  convey,  release  and  quit  claim 
unto  the  Canal  Commissioners  of  the  State  of  Illinois,  all  the 
rights,  title,  interest,  claim  or  demand  I may  have  to  certain 
moneys,  to-wit:  three  hundred  ($300.00)  dollars,  paid  by  me 
on  or  about  October  31st,  1900,  on  a certain  lease  entered 
into  by  the  Canal  Commissioners,  party  of  the  First  Part, 
and  Herbert  S.  Norton  of  Lemont,  Cook  County,  Illinois, 
party  of  the  second  part,  bearing  date  of  April  14th,  1894,  for 
the  following  described  premises:  ‘‘That  portion  of  the 

ninety-foot  strip  lying  on  the  berm  or  south  side  of  the  canal, 
in  Section  Twenty  (20)  in  Township  Thirty-seven  (37)  North 
of  Range  Eleven  (11)  East,  described  as  follows,  viz.: — Com- 
mencing at  the  east  side  of  what  is  known  as  Stevens  street,  in 

4757  the  Village  of  Lemont,  Cook  County,  Illinois,  and  extend- 
ing northeasterly  up  the  canal  for  a distance  of  about  four 
hundred  and  forty-two  (442)  feet  to  the  west  line  of  S.  L. 
Derby’s  Lumber  shed.” 

(Signed)  J.  L.  Norton. 
“Snyder  Ex.  22.” 

This  indenture,  Made  and  entered  into  this  27th  day  of 
November  in  the  year  of  our  Lord  one  thousand  eight  hun- 


4758 


1394  Snyder  Ex.  22, — Lease  to  Kavanaugli  & Russel. — Con. 

dred  and  ninety  four,  between  The  Boaed  of  Canal  Commis- 
sioners OF  THE  State  of  Illinois,  of  the  first  part,  and  Michael 
Kavanaugh  and  Samuel  Russell  of  Utica,  LaSalle  County, 
Illinois,  of  the  second  part, 

WITNESSETH,  That  the  said  party  of  the  first  part,  for  the 
consideration  hereinbefore  mentioned,  agrees  to  lease  unto 
the  said  party  of  the  second  part,  for  the  term  of  Ten  (10) 
years,  that  is  from  the  24th  day  of  Novembeii  in  the  year  of 
our  Lord  one  thousand  and  eight  hundred  and  ninety  four 
until  the  24th  day  of  November  in  the  year  of  our  Lord  one 
thousand  nine  hundred  and  four,  all  the  right  the  State  of 
Illinois  possesses  to  that  portion  of  the  reserved  ninety-feet 
strip  lying  on  the  berm  side  of  the  Canal,  in  Section  Nine 
(9)  in  Township  Thirty-three  (33)  North  of  Range  Two  (2) 
East,  described  as  follows,  viz. : — That  part  of  the  reserved 
^‘90-feet  strip”  in  the  south-west  quarter  of  Section  Number 
Nine  (9)  Township  Number  Thirty-three  (33)  North,  Range 
Number  Two  (2)  East  of  Third  Principal  Meridian,  lying 
North  of  the  Canal. 

And  the  said  parties  of  the  second  part,  for  the  use  and 
occupation  of  the  said  Tract  of  Land,  do  hereby  covenant 

4759  and  agree  to  and  with  the  said  party  of  the  first  part,  that 
they  will  pay  to  the  said  party  of  the  first  part,  as  rent,  the 
sum  of  Seventy-five  ($75.00)  Dollars  per  annum  payable  an- 
nually in  advance. 

It  is  further  covenanted  and  agreed,  on  the  part  of  the  said 
parties  of  the  second  part,  that  they  will  not  re-let  said  Tract 
of  Land,  or  any  part  thereof,  without  the  consent,  in  writing, 
of  the  said  party  of  the  first  part. 

It  is  further  agreed,  that  the  parties  of  the  second  part 
shall  erect  no  buildings,  wharves,  or  other  structures,  that 
will  in  any  manner  obstruct  the  free  navigation  of  the  Canal, 
or  a passage  of  Ten  (10)  feet  in  width  along  the  margin  of 
the  same  for  a berm  bank  or  other  Canal  purposes. 

And  it  is  further  expressly  agreed  by  and  between  the  said 
parties,  that  the  party  of  the  first  part  shall  have  the  right 
at  any  and  all  times  to  enter  upon  the  premises  hereby  leased 
and  use  the  whole  or  any  part  thereof,  for  the  purpose  of 
enlarging  the  Canal  or  repairing  or  changing  the  banks  of 
the  same,  upon  the  condition  that  the  rent  shall  be  propor- 
tionably  abated  for  the  time  and  part  of  the  permises  so  re- 
taken and  used. 

It  is  further  covenanted  and  agreed  between  the  said  par- 
ties, that  in  case  of  non-payment  of  rent,  or  any  part  thereof, 

4760  as  the  same  falls  due,  according  to  the  terms  of  this  lease, 
or  the  violation  by  the  parties  of  the  second  part  of  any  other 
of  the  above  covenants,  the  said  party  of  the  first  part,  by  its 
Agent  or  Attorney,  shall  possess  the  right  to  declare  this 
Lease  void,  to  enter  and  distrain  any  property  belonging  to 


1395 


the  said  parties  of  the  second  part,  whether  the  same  be  ex- 
empt from  execution  and  distress  by  law  or  not,  for  such  rent, 
and  a lien  on  said  party  is  hereby  created,  in  favor  of  said 
party  of  the  first  part,  for  said  rent,  and  the  parties  of  the 
second  part  shall  surrender  said  premises  to  said  party  of 
the  first  part. 

It  is  also  further  agreed,  that  the  said  parties  of  the  sec- 
ond part  are  not  to  sell  or  in  any  way  dispose  of  spirituous, 
vinous  or  malt  liquors  on  the  premises  nor  allow  any  of 
their  agents  so  to  do,  and,  that  in  the  event  said  second  par- 
ties herein  or  any  of  their  agents,  should  violate  this  liquor 
clause,  it  shall  be  considered  a forfeiture  of  this  Lease,  and 
that  such  moneys  as  they  may  have  paid  as  a yearly  rental 
of  said  land  shall  not  be  refunded. 

For  the  full  and  faithful  performance  of  the  covenants 
and  stipulations  herein  contained,  to  be  ^^erformed  on  their 
part,  the  said  parties  of  the  second  part,  bind  themselves, 
their  heirs,  executors  and  administrators,  firmly  by  these 
presents. 

4761  In  testimony  whereof,  the  said  parties  have  hereunto  set 
their  hands  and  seals  the  day  and  year  first  above  written, 
(signed  President, 

(seal)  Secretary 

W.  A.  S.  Gkaham, 

Michael  Kavanaugh  . (seal) 
(Signed  in  Duplicate)  Samuel  J.  Eussell  (seal) 

On  the  back,  of  said  document  appears  the  following: 

Nov.  27th,  1894.  Eeceived  on  within  lease  Seventy  five 
($75.)  Dollars,  being  payment  to  Nov.  24th,  1895. 

Dec.  18th,  1895.  Eeceived  on  within  lease  Seventy-five 
($75.)  Dollars,  being  j)ayment  to  Nov.  24th,  1896. 

Nov.  30th,  1896.  Eeceived  on  within  lease  Seventy-five 
($75.)  dollars  being  payment  to  Nov.  24th,  1887. 

Dec.  23,  1897.  Eeceived  on  within  lease  Sixty  Dollars  part 
payment  of  year  97/98. 

Jany.  14,  1898.  Eeceived  on  within  lease,  balance  $15.00  due 
on  lease  to  Nov.  24,  1898.  . 

Jany.  21,  1898.  Eeceived  on  within  lease  Seventy-five  Dol- 
lars, rent  to  Nov.  24,  1899. 

April  10,  1900.  Eeceived  on  within  lease  Seventy-five  Dol- 
lars rent  to  Nov.  24,  1900. 

Jan.  7,  1901.  Eeceived  on  this  lease  $75  rent  to  Nov.  24, 
1901. 

Jan.  23,  1902.  Eeceived  $50.00  to  apply  on  lease. 

Dec.  1,  1902.  Eeceived  $25.00  in  full  rent  to  Nov.  24,  1902. 

April  8,  1903.  Eeceived  $50.00  to  aunly  on  lease. 

May  14,  1903,  Eeceived  $25.00  in  full  rent  to  Nov.  24,  1903. 

Dec.  10,  1903.  Eeceived  on  within  lease  Seventy-five  ($75.- 
00)  Dollars  rent  to  November  24th,  1904. 


1396 


Snyder, — Direct  Exam. — Continued. 


4762  On  being  shown  a document  by  the  counsel  for  defendant, 
the  witness  further  testified: 

This  is  the  Opinion  of  Honorable  Joseph  McRoberts,  Judge  of 
the  Circuit  Court  of  Will  County,  in  the  case  of  William  Adam 

V. — 

(Thereupon  counsel  for  complainant  objected  on  the 
ground  that  the  document  speaks  for  itself.) 

The  Court.  Yes,  that  document  speaks  for  itself;  if  he  can 
tell  us  independently  of  reading  that  what  it  is,  he  may  do  so. 

The  Witness.  It  is  the  Opinion  of  Hon.  Joseph  McRoberts  as 
to  the  water  jDower  at  Dam  No.  2 at  Joliet. 

Counsel  for  Complainant.  The  reading  having  occurred 
in  the  presence  of  the  court,  the  answer  having  been  read  in  the 
presence  of  the  court,  I move  it  be  excluded. 

The  Court.  I will  let  it  stand. 

Counsel  for  Defendant.  Suppose  you  look  at  it  and  state 
independently  of  the  paper  wliat'  it  is. 

4763  Counsel  for  Complainant.  Objected  to. 

A.  The  Opinion  of  Judge  McRoberts. 

The  Court.  I think  the  paper  speaks  for  itself. 

Witness.  That  paper  is  in  my  custody  as  secretary  of  the  Board 
of  Canal  Commissioners.  It  has  been  in  my  custody  for  over  four 
years.  My  predecessor  had  charge  of  it  before  that  time;  I found 
it  in  the  office  when  I came  in. 

Thereupon  counsel  for  defendant  offered  the  same  in  evi- 
dence. 

4764  (To  which  offer  counsel  for  complainant  having  objected 
on  the  ground  that  it  did  not  purport  to  be  certified, — the 
court  sustained  the  objection. 

4765  Thomas  T.  Johnston 

resumed  the  stand  for  further  direct  examination  by  coun- 
sel for  defendant,  and  testified  as  follows : 

In  my  opinion  the  combined  influence  of  the  causes  heretofore 
referred  to  would  not  exceed — would  be  such  that  the  presence 


1397 


or  absence  of  those  causes  would  not  affect  the  duration  of  the  low 
water  flow  more  than  ten  per  cent,  at  the  time. 

Q.  Now,  Mr.  Johnston,  what  if  any  effect  did  these  works  have 
upon  the  water  in  the  Desplaines  below  the  point  of  discharge  of 
the  Illinois  & Michigan  Canal,  taking  into  account  the  water  de- 
livered into  the  river  by  that  canal  as  compared  to  the  addition 
which  the  canal  made  to  the  water  of  the  Desplaines  below  the 
point  where  it  entered  into  that  river? 

4766  Counsel  for  Complainant.  To  that  I object.  Before  he 
answers  I would  like  to  have  that  point  located  by  some 

physical  object  if  it  can  be  done. 

Counsel  for  Defendant.  All  right,  locate  on  the  map  where 
the  canal  discharged  into  the  Desplaines. 

The  Summit  level  of  the  Illinois  and  Michigan  Canal  extends 
from  Bridgeport  in  Chicago  to  Lockport,  Illinois,  as  indicated  on 
Woermann’s  Exhibit  4. 

The  particular  location  of  the  first  lock  does  not  appear  to  be 
shown  on  this  map,  but  in  any  event  it  is  in  the  Village  of  Lock- 
port,  as  I understand  the  boundaries  of  the  village. 

The  effect,  prior  to  the  making  of  what  is  known  as  the 

4767  deep  cut  in  the  canal,  which  was  made  in  the  latter  sixties  and 
early  seventies,  mostly  the  latter  sixties,  I believe  was  to 

augment  the  flow  of  the  Desplaines  Eiver  below  Lockport  to  the 
extent  that  water  was  fed  into  the  Illinois  and  Michigan  Canal 
from  Lake  Michigan,  or  from  the  Calumet  Basin  through  the  so- 
called  Calumet  feeder. 

Q._  How  did  that  amount  fed  into  the  canal  ,and  thence  into 
the  Desplaines  Elver  compare  with  any  loss  that  the  Desplaines 
Elver  may  have  suffered  by  reason  of  the  works  that  we  have 
recited  in  the  previous  examination  ? 

(To  which  question  counsel  for  complainant  objected  on  the 
ground  that  the  question  assumes  a state  of  facts  to  exist  of 
which  there  is  no  evidence,  and  for  which  the  evidence  of 
this  witness  affords  no  foundation,  and  does  not  connect  with 
what  the  witness  has  been  saying  at  all;  and  that  the  ques- 
tion calls  for  a summary  of  events  without  giving  the  ele- 
ments that  make  it.  In  other  words,  it  is  a conclusion  of  the 
witness  without  giving  the  facts  upon  which  it  is  based.) 

The  Court.  Overruled. 


1398 


John  so  n , — Di  red  E xan  i. — Con  tinue  d . 


4768  Thereupon  follows  colloquy  of  counsel  as  to  the  right  to 
have  the  witness  summarize  all  the  various  causes. 

Counsel  for  Complainant.  My  point  if  your  Honor  please,  is 
a little  hit  different.  The  witness  says  that  the  canal  feeds  into 
the  Desplaines  River  at  Lockport.  If  I understand  his  answer, 
that  is  what  he  means.  Is  that  what  you  mean? 

The  Witness.  I have  seen  it  doing  so,  yes  sir. 

4769  Counsel  for  Complainant.  I asked  when  the  question  was 
first  put  that  the  point  of  in-take  from  the  canal  into  the 

river,  and  the  point  of  outflow  from  the  river  to  the  canal,  he 
fixed  so  that  we  could  know  what  it  was  he  was  referring  to. 

The  Court.  I must  have  been  distracted  when  you  asked — 
talking  to  the  bailiff.  I didnT  hear  it. 

Counsel  for  Defendant.  Read  Mr.  Starr’s  statement. 

(Statement  of  Mr.  Starr  read  as  follows:  ^‘Before  he  an- 

swers I would  like  to  have  that  point  located  by  some  physical 
object  if  it  can  be  done.”) 

The  Court.  The  witness  may  testify,  may  point  out  the  point 
of  in-take  and  outflow  that  he  is  referring  to. 

Counsel  for  Complainant.  You  say  the  in-take  from  the  canal 
into  the  river  was  within  the  limits  of  Lockport!  Where  is  the 
point  of  outflow! 

4770  The  Witness.  As  I said,  it  is  not  indicated  clearly  on 
this  chart.  It  is  at — as  I have  seen  it  discharged,  at  the 

flour  mills  at  Lockport,  what  is  called  the  basin. 

Counsel  for  Complainant.  That  is,  the  canal  into  the  river! 
A.  From  the  canal  into  the  river.  The  points  of  in-take  of  the 
water  were  at  the  south  fork  of  the  Chicago  River,  and  also  from 
the  Calumet  Feeder  at  the  point  known  as  Sag  on  the  line  of  the 
canal. 

4773  From  the  time,  1848  up  to  the  time  the  deep  cut  was  made, 
the  canal  was  fed  in  greater  or  less  degree  at  the  Bridgeport 
end  of  the  canal  in  Chicago.  At  certain  times,  it  being  fed  for 
navigation  purposes,  and  at  other  times  at  the  instance  of  -the 
City  of  Chicago  for  purposes  of  drainage.  And  while  the — I am 
unable  now  to  lay  my  hands  upon  the  records  of  the  pump  opera- 


1399 


tions  there,  but  I have  in  the  past  read  them,  and  in  my  opinion, 
in  the  light  of  those  records,  there  were  times  when  the  effect  of 
the  addition  of  Lake  Michigan  water  and  the  Calumet  Elver  water 
to  the  canal  must  have  considerably  exceeded  any  losses  that  were 
due  to  the  causes  to  which  I have  already  testified.  As  to  the 
particular  length  of  those  times,  I am  unable  to  state  now, 

4774  but  there  were  such  times  and  I flunk  of  quite  a little  period. 

When  the  deep  cut  was  made  it  had  the  effect  of  allow- 
ing water  to  flow  back  rapidly  from  the  Chicago  Eiver  through 
the  Illinois  and  Michigan  Canal  to  and  below  Lockport. 

The  quantity  of  water  fed  through  the  canal  due  to  the  deep 
cut  was  in  excess  of  that  which  could  have  been  due  to  the  loss,  as 
to  which  I have  testified.  The  proportion  was,  I should  say,  may 
be  eight  or  ten  times  as  much  excess,  taking  it  through  a period 
from  the  time  of  the  deep  cut  down,  say,  until  1900. 

4775  The  data  pertaining  to  the  capacity  of  the  canal  at  the 
time  of  the  deep  cut,  Chicago  Eiver  datum,  indicated  a flow 

of  about  12,000  cubic  feet  a minute  by  gravity. 

(Counsel  for  complainant  objected  on  the  ground  that  the 
witness  was  being  asked  for  the  bald  statement  of  fact  which, 
in  the  nature  of  things  he  knows  only  from  having  consulted 
records  of  some  kind  or  other,  without  the  disclosure  of  those 
records.) 

4777  The  Court.  What  are  the  records  that  you  base  this  state- 
ment on  I 

The  Witness.  I have  read  all  of  the  reports  of  the  city  en- 
gineer of  Chicago,  from  back  in  the  ’50 ’s,  I think,  as  early  as 
1855,  down  to  the  year  1900.  I have  looked  up  all  the  reports  of 
the  Illinois  & Michigan  Caanl  in  connection  with  my  services  with 
the  Sanitary  District,  and  I have  calculated  the  flow  of  the  water 
through  the  Illinois  and  Michigan  Canal  at  different  stages  from 
its  normal  slope  and  depth,  and  at  certain  times  I have  conducted 
and  directed  measurements  of  the  flow  of  water  in  the  Illinois  and 
Michigan  Canal. 

Q.  What  are  the  records  on  which  you  base  your  statement 
of  12,000  cubic  feetl  A.  The  specific  records  on  which  I base 
that  12,000  cubic  feet  per  minute  I do  not  recall  now,  but  I recall 
the  amount  from  an  examination  that  I have  made  in  connection 


1400 


Johnson, — Direct  Exam. — Continued. 


with  my  services  with  the  Sanitary  District  to  acquaint  myself 
with  the  capacity  of  the  Illinois  & Michigan  Canal. 

The  Court.  I will  let  it  stand. 

4778  The  IVitxess.  The  pumps  were  not  used  after  the  mak- 
ing of  the  opening  of  the  deep  cut,  until  the  pumps  started  in 

1884  by  the  City  of  Chicago  at  Bridgeport. 

Q.  And  what,  if  yon  know,  did  they  do  to  the  volume  going 
down  the  canal? 

(To  which  question  counsel  for  complainant  objected  on 
the  same  ground  urged  in  the  last  objection, — which  objec- 
tion was  overruled.) 

A.  The  operation  of  the  pumps  subsequent  to  1884  were  not 
absolutely  continuous,  but  through  a large  portion  of  that  time 
a portion  of  the  pumps  came  under  my  personal  observation  from 
the  year  1887  along  down  to  the  year  1900,  and  judging  by  my  per- 
sonal experience  with  the  operations  of  those  pumps  and  the  ob- 
servation of  them  and  such  records  as  I had  access  to  subsequent 
to  1884,  I should  say  that  the  average  flow,  of  all  of  that  period 
pumped  into  the  canal  by  the  Bridgeport  pump  was  not  far  from 
30,000  cubic  feet  per  minute,  although  at  times  the  amount 

4779  pumped  has  reached  as  high  as  40,000,  possibly  45,000  cubic 
feet  per  minute.  I have  conducted  measurements  of  the  flow 

at  one  time  within  my  recollection  now  near  Mallow  Springs,  and 
found  a flow,  as  I remember  it  now,  of  632  feet,  which  is  like 
40,000  cubic  feet  per  minute. 

I know  about  what  amount  should  have  been  taken  out  of  the 
river  by  the  canal  at  Jefferson  street  for  the  purposes  of  naviga- 
tion. 1 investigated  that  subject  two  years  ago  to  some  extent 
for  the  Illinois  and  Michigan  Canal  Commissioners.  The  pro- 
vision of  feed  water  on  that  level  so  far  as  navigation  was  con- 
cerned, could  not,  in  my  opinion,  be  over  150  cubic  feet  per  sec- 
ond, which  would  be  9,000  cubic  feet  a minute  as  a maximum. 

4780  1 have  observed  the  stage  of  water,  the  depth  of  water  of 
the  Desplaines  Eiver  in  its  various  portions  during  the  period 

exclusive  of  the  spring  freshets,  and  as  it  existed  prior  to  the  year 
1900  when  the  Sanitary  District  turned  in  its  water.  The  depth 
would  vary  from  that  which  existed  in  its  deepest  pools,  to  at 


1401 


times  nothing  on  the  bars.  I have  seen  the  bars  in  the  12  mile 
level  without  any  water  on  them  for  a considerable  period. 

I have  seen  the  same  thing  at  about  the  same  time  in  other 
parts  of  the  stream  from  Riverside  down  to  Lemont  and  Lock- 
port.  The  particular  place  that  I have  in  mind  now  where  I 
noted  the  pool  of  the  river  between  the  bars  had  evaporated  so 
that  the  crest  of  the  bar  stood  quite  a distance  above  the  level  of 
the  water,  was  opposite  what  was  known  as  Section  2 on  the  Chi- 
cago Drainage  Canal,  a mile  or  so  above  the  crest  of  Willow 
Springs. 

I have  seen  the  river  above  Riverside,  not  at  the  time  of 

4781  the  spring  freshets,  and  have  observed  its  condition  as  to 
the  stage  of  the  water.  I do  not  remember  ever  having  seen 

it  dry.  I have  seen  it  along  its  course,  along  up  to  Libertyville, 
at  times  when  the  river  was  very  low.  It  may  or  may  not  have 
been  dry  at  the  time  I saw  it.  I did  not  charge  my  mind  particu- 
larly to  note. 

The  flow  of  the  Desplaines  River  prior  to  1900  for  an  average  of 
7 or  8 months  of  the  year,  would  be,  as  I would  express  it,  as 
being  not  significant;  that  is,  the  quantity  of  flow  would  not  be 
a determinative  quantity  by  reading  the  gauge  at  Riverside. 

I have  observed  the  depth  of  the  river  below"  Lockport  prior  to 
1900  outside  of  the  period  of  spring  freshets.  I do  not  remem- 
ber now  seeing  the  river  at  any  time  when  the  Illinois  and  Michi- 
gan Canal  was  not  delivering  a considerable  quantity  of  water 
into  it,  but  it  was  on  account  of  the  increment  of  flow  out  of  the 
canal  water,  the  flow  there  that  was  not  flowing  above. 

4782  The  condition  of  the  water  from  Lockport  down,  exclud- 
ing any  contributions  from  the  Illinois  & Michigan  Canal  of 

the  Sanitary  District  channel,  would  be  substantially  the  same  as 
above  Lockport;  that  is  for  7 or  8 months  of  the  year  of  no  sig- 
nificance. 

I am  familiar  with  the  conditions  that  existed  above  Adams 
Dam  prior  to  the  destruction  of  that  dam,  and  remember  the  em- 
bankment between  the  canal  and  the  river  above  the  dam.  As  I 
remember  it  that  embankment  was  a made  bank  of  earth,  pre- 
sumably more  or  less  gravel  and  stone  mixed  in  with  it. 


1402 


J olinson, — Direct  Exam.—Continued. 


The  level  at  the  bottom  of  the  canal  was  not  far  from  the  level 
of  the  crest  of  the  dam.  The  crest  of  the  dam  was  about  60  feet 
below  Chicago  datum  and  the  level  of  the  dam  of  the  canal  per- 
haps 58  feet  below  Chicago  datum. 

The  height  of  the  bank  on  the  river  side,  with  the  river  at  low 
water,  or  at  the  crest  of  the  level — of  the  crest  of  Adams  Dam, 
which  is  minus  60 — the  level  of  the  bank  minus  50  would  be  ten 
feet. 

4783  The  height  of  the  bank  from  the  top  of  the  towpath  bank 
to  the  bed  of  the  river  would  be  8 feet  more.  That  was  the 

rise  of  Adams  Dam.  The  width  of  the  bank  on  top  was  about  12 
feet.  The  inside  of  the  bank  was  walled,  and  on  the  outside  was 
a slope  of  perhaps  2 to  1 or  such  a matter  from  there  to  the  water, 
as  I remember  it  now.  The  inside  was  quite  upright,  nearly  ver- 
tical. 

One  slope  was  built  up  in  the  nature  of  a dry  wall,  and  the 
other  was  protected  in  the  nature  of  rip-rap.  I did  not  notice 
whether  the  waters  had  had  any  effect  upon  that  bank.  I do  not 
remember  now  of  any  influence  of  the  action  of  the  waters  of  the 
Desplaines  Eiver  on  that  bank.  That  bank  extended  half  a mile  or 
more,  something  like  that  as  between  the  immediate  river  and 
the  canal. 

4784  As  to  the  portion  of  the  river  where  the  Economy  Light  & 
Power  Company  Dam  was  under  construction  involved  in 

this  suit,  I am  familiar  with  the  location  where  that  dam  was 
under  construction.  I am  familiar  with  the  character  of  the  tow- 
path  bank  there. 

Q.  What  is  the  character  of  that  bank  as  compared  with  the 
bank  above  Adams  Dam? 

(To  which  question  counsel  for  complainant  objected,  as 
incompetent  and  immaterial.) 

A.  It  was  similar,  a made  bank.  The  material  appears  to  be  a 
stitf  clay.  As  to  how  the  material  compares  with  the  material  of 
the  strip  above  Adams  Dam, — I cannot  state  specifically  for  the 
character  of  the  interior  of  the  embankment  at  Adams  Dam,  as  1 
can  down  near  the  mouth  of  the  Desplaines  Eiver,  because  I saw 


1403 


more  or  less  of  the  material  of  which  it  was  constructed  at  later 
places,  that  is,  material  on  the  interior  of  the  bank. 

Concerning  the  quality  of  the  material  of  the  towpath  hank  at 
Dresden  Heights  as  to  its  durability  or  resistance  to  the 

4785  effect  of  water, — it  was  quite  radically  suitable  for  the  pur- 
pose of  building  an  embankment. 

I have  seen  prints  showing  the  same  thing  that  is  on  these  two 
sheets  marked  Sheet  1 of  plans  of  dams  May  20,  1908;  the  first 
is  a blue  print  and  is  marked  Gr  1527,  and  G 1553  is  the  other. 
Whether  they  are  exact  copies  or  not  I cannot  state. 

Assuming  the  formation  of  a pool  by  the  work  contemplated  in 
these  blue  prints,  that  pool,  if  resting  upon  the  towpath  bank  at 
Dresden  Heights,  would  not  affect  the  durability  of  that  bank  any 
further  than  what  might  be  occasioned  by  the  wave  action.  The 
effect  of  wave  action  could  be  prevented  by  riprapping  the  surface 
of  the  bank  exposed  to  the  wave  action.  There  would  be  no  neces- 
sity of  riprapping  the  top  of  the  bank  or  paving  it,  so  far  as 

4786  wave  action  was  concerned.  I noticed  about  two  months 
ago  some  rip-rapping  or  filling  of  stone  on  the  beach,  on  the 

inside  of  the  canal.  None  of  the  navigable  waters  of  the  canal  were 
encroached  upon  by  that  riprapping. 

Q.  Assuming  if  the  dam  is  built  in  accordance  with  the  blue 
prints  which  you  have  examined,  state  whether  or  not  the  pool 
level — state  whether  or  not  provision  has  been  made  to  control 
the  pool  level,  and  the  pool  to  be  created  by  that  structure. 

(Counsel  for  the  complainant  objected  on  the  ground  that 
the  question  calls  for  information  that  lies  outside  of  the 
blue  prints  the  witness  is  looking  at, — which  objection  was 
overruled  by  the  court.) 

4787  A.  The  plans  show  that  such  provision  has  been  made. 

4788  I should  say  that  the  provision  as  shown  on  these  plans 
would  have  a level  two  feet  below  the  top  of  the  towpath,  as 

proposed  and  shown  on  these  plans — and  that  would  be  ample  to 
take  care  of  two  or  three  times  what  the  maximum  flow  of  the 
stream  might  be  at  that  point. 

I have  examined  and  know  the  location  of  the  Kankakee  feeder. 
It  would  be  entirely  feasible  in  case  that  feeder  was  restored  to 


1404 


Johnson, — Direct  Exam. — Continued. 


kise,  to  convey  the  waters  from  the  feeder  to  the  canal  without 
j’ebuilding  the  aqueduct. 

Assuming  that  the  pool  has  been  created,  according  to  the  best 
engineering  practice,  the  method  that  would  be  used  for  so  con- 
v^eying  the  water,  would  be  by  using  what  is  termed  sometimes 
a syphon  or  a pipe  laid  on  the  surface  of  the  ground  or  imme- 
diately below  it  to  and  underneath  the  waters  of  the  river.  That 
pool  would  be  a feasible  and  practicable  thing. 

Assuming  that  it  was  desired  to  restore,  or  to  have  navigation 
upon  the  feeder,  it  would  be  possible,  with  the  existence  of 

4789  this  pool,  to  arrange  so  that  boats  could  pass  from  the  feeder 
to  the  canal  into  it,  in  this  way. 

The  boats  might  be  locked  in  the  canal  on  one  side,  locked  in  the 
pool  on  one  side  and  locked  out  on  the  other  and  vice  versa. 

I have  examined  the  columns  on  which  that  aqueduct  formerl}^ 
rested.  It  would  be  impossible  to  use  those  columns  in  their  pres- 
ent condition,  in  case  it  was  desired  to  restore  the  aqueduct,  be- 
cause they  are  in  an  uncertain  stage  of  stability,  and  one  or  two 
of  them  leaning  more  or  less.  They  show  the  defects  of  age  in  a 
way  that  makes  it  quite  conclusive  that  they  should  not  be  used 
at  all. 

It  is  a rule  in  rivers  that  the  depth  varies  from  point  to  point, 
and  that  formations  known  as  pools  and  shoals  will  be  met  as  the 
length  of  the  river  is  traversed  from  one  end  to  the  other,  grow- 
ing out  of  the  fact  that  its  bed  is  not  absolutely  homogeneous  in 
resisting  the  erosion  of  water,  and  where  the  softer  spots  are, 
the  water  gets  deeper  than  where  the  hard  spots  are.  That 

4790  condition  of  shallows  and  pools  will  exist  in  all  creeks  having 
sharp  declivities. 

Cross-Examination. 

I am  not  in  the  employ  of  the  defendant  company.  I am  em- 
ployed to  make  certain  invesigations  and  to  be  a witness  here.  I 
was  first  in  the  employ  of  the  defendant  company  in  June  of  1898. 
I was  with  them  until  about  the  first  of  August,  in  1898,  and  then 
again  from  the  first  of  December,  1898,  to  the  first  of  January, 
1901,  and  then  from  January  to  December,  1902.  That  is  correct, 
I think,  perhaps  within  the  error  of  a month. 


1405 


I have  Iiad  no  employment  subsequent  to  that  time  that  could 
be  measured  in  terms  of  time.  They  have  asked  me  at  one  time 
or  another  to  make  some  investigations  or  to  do  some  service  in 
the  nature  of  consulting  work,  perhaps  taking  two  or  three 

4791  days  at  a time  at  one  time  or  another.  That  has  occurred 
perhaps  once  in  six  months,  may  be  a little  oftener.  My  last 

employment  at  their  hands  was  in  the  last  year.  That  character 
of  employment  has  lasted  up  until  the  present  time. 

4792  Q.  You  have  given  us  your  experience  as  a civil  engineer 
at  considerable  length.  I want  to  ask  you  about  some  other 

phases  of  it.  When  was  the  last  law  suit  in  which  you  testified 
as  an  expert? 

(To  which  question  defendant  by  its  counsel  objected  on  the 
ground  that  it  was  wholly  immaterial, — which  objection  was 
overruled  by  the  court.) 

A.  In  the  present  week.  That  was  at  Madison,  Wisconsin. 
The  last  one  prior  to  that  in  which  I testified  as  an  expert,  was 
about  a month  ago,  at  the  City  of  Chicago.  The  one  last  before 
that  was  in  February  of  the  present  year,  at  the  City  of  Chi- 
cago. 

4793  Next  prior  to  that  I so  testified  as  an  expert,  as  near  as  T 
can  remember  now,  in  February  a year  ago  at  Joliet,  Illinois. 

Next  prior  to  that  I testified  as  an  expert,  as  I remember  now, 
in  January  of  1907  in  the  City  of  Chicago.  I don’t  recall  now  any 
other  suit  in  1907  in  which  I testified  as  an  expert.  Oh,  I beg  par- 
don, in  1908  I testified  before  the  Legislative  Committee  in  the 
City  of  Chicago  early  in  January.  My  recollection  is  that  it  was 
early  in  January  that  I was  called.  It  was  about  the  first  of 
January  of  the  present  year.  I did  not  go  there  and  give  testimony 
in  that  case  at  the  instance  of  and  on  behalf  of  this  defend- 

4794  ant,  I did  not  testify  in  their  behalf  in  January,  1908,  nor 
in  December,  1907.  I did  not  go  before  the  Legislative  Com- 
mittee, either  in  December,  1907,  or  January,  1908,  and  give  testi- 
mony at  the  request  of  the  Economy  Light  & Power  Company  or 
some  one  in  its  behalf.  I was  summoned  there  on  a subpoena 
signed  by  Mr.  Shurtletf,  I understand  at  the  instance  of  the  Illi- 
nois and  Michigan  Canal  Commissioners.  I cannot  state  of  my 
personal  knowledge  whether  it  was  so  or  not. 


1406 


Johnson, — Cross-Exam. — Continued. 


I was  not  paid  for  my  attendance  and  service  there,  and  was 
not  promised  pay,  and  do  not  expect  to  get  any  pay.  In  the  case 
in  March,  1907,  that  I testified  in,  that  was  on  behalf  of  the 

4795  Economy  Light  & Power  Company.  In  January,  1907,  I 
testified  as  an  expert  on  behalf  of  the  City  of  Chicago. 

In  the  examination  before  the  Legislative  Committee  the  subject- 
matter  of  the  inquiry  there  was  about  this  same  dam  that  is  the 
subject  of  controversy  here.  I have  given  you  all  the  occasions 
in  which  I have  testified  as  an  expert  during  the  years  1907  and 
1908,  as  near  as  I can  recollect  now.  I do  not  recollect  any 
other  occasions  now  during  those  two  years  in  which  I have  testi- 
fied as  an  expert  witness. 

I testified  in  a case  pending  against  the  Sanitary  District  of  Chi- 
cago during  the  year  1907, — which  I believe  I referred  to — it  was 
a case  pending  between  the — as  I remember  it  between  the  Econ- 
omy Light  & Power  Company  and  the  Sanitary  District  of 
Chicago  with  reference  to  a water  power  proposition  known  as  the 
Gaylord  proposition  at  Joliet. 

It  is  not  my  recollection  that  within  the  last  couple  of 

4796  years  or  thereabouts  and  within  a few  months  of  each  other 
I testified  in  one  case  for  the  Sanitary  District  of  Chicago 

and  another  against  it. 

% 

I first  entered  the  employment  of  the  Sanitary  District  of  Chi- 
cago the  first  day  of  April,  1890.  I entered  their  employment  at 
the  request  of  Lyman  E.  Cooley.  Mr.  Cooley  was  the  chief  engineer 
of  that  district  at  that  time.  My  employment  under  him  was  as 
an  under  officer  or  employe.  I continued  at  that  time  in  the  em- 
ploy of  the  Sanitary  District  of  Chicago  until  the  10th  day  of  De- 
cember, 1890, — from  the  first  of  April  until  the  10th  day  of  Decem- 
ber. 

After  that  time  I quit  the  employment  of  the  Sanitary  District. 
I resumed  it  again  on  or  about  the  20th  of  January,  1892.  I re- 
mained in  the  employ  of  the  Sanitary  District  of  Chicago  at 

4797  that  time  until  the  first  day  of  July,  1900,  or  eight  years  and 
a half  nearly.  Then  I left  their  employment,  and  did  not  re- 
sume it  again.  I have  not  been  in  the  employ  of  the  Sanitarj^  Dis- 
trict of  Chicago  since  the  year  1900. 


1407 


As  hydraulic  engineer,  I am  at  the  present  time  doing  some  work 
for  the  City  of  Chicago.  I have  pending  water  power  matters  at 
Eainy  Kiver  in  Minnesota. 

4798  Between  1892  and  1902,  these  two  corporations  did  not 
have  litigation  in  court,  to  my  knowledge.  It  might  have 

been  between  the  State  and  the  Sanitary  District.  I did  not  un- 
understand  that  Economy  Light  & Power  Company  was  a party  to 
the  litigation  at  all. 

The  central  thought  was  with  regard  to  alterations  to  be  made 
in  Dam  No.  1 of  the  Economy  Light  & Power  Company  at  Joliet.  I 
did  not  understand  that  that  was  owned  by  the  Economy  Light  & 
Power  Company.  I understand  that  the  waters  that  would  flow 
past  that  dam  were  leased  to  the  Economy  Light  & Power  Com- 
pany; that  the  Economy  Light  & Power  Comi^any  had  anything  to 
do  with  the  dam  either  by  lease  or  property  right  I never  under- 
stood. I understand  that  the  Economy  Light  & Power  Company 
had  the  power  created  by  the  dam  but  did  not  have  the  dam  it- 
self. 

4799  I never  understood  that  the  matters  in  which  I testified 
were  matters  involved  between  the  leasehold  interests  of  the 

power  company  on  the  one  hand,  and  the  Sanitary  District  of  Chi- 
cago on  the  other.  I understood  that  I testified  in  be- 
half of  the  Sanitary  District  in  the  litigation  pending  be- 
tween the  Sanitary  District  and  the  State  of  Illinois,  in 
which  indirectly  the  Economy  Light  & Power  Company 
was  a party  in  interest,  and  at  that  same  time  I was  not  in  the  em- 
ploy of  the  Economy  Light  & Power  Company,  having  with- 
drawn from  their  service.  I had  a vacation  in  their  employment 
from  the  inception  of  that  litigation  until  its  termination, 

4800  which  was  about  four  months.  I did  resume  employment 
with  the  Economy  Light  & Power  Company  after  the  litiga- 
tion was  over  or  after  the  consent  decree  of  the  court  was  given 
out.  And  during  that  interval  of  three  or  four  months  in  my  em- 
ployment by  the  Economy  Light  & Power  Company  I was  in  the 
employ  of  the  Sanitary  District  of  Chicago. 

I have  appeared  upon  the  witness  stand,  as  an  expert  witness  in 
various  cases  in  the  last  five  or  six  years,  approximately  three  or 


1408 


Johnson, — Cross-Exam. — Continued. 


four  times  a year.  Five  times,  that  is  all.  This  is  the  fifth  time 
during  the  present  year,  including  the  appearance  before  the  Legis- 
lative Committee. 

I do  not  know  of  a company  known  as  the  Brushingham  Syndi- 
cate or  Company,  or  the  name  of  anything  which  is  pretty  close  to 
that,  nor  does  that  suggest  any  company  that  had  me  in  their  em- 
ploy at  any  time. 

4801  I think  I have  a suggestion  now  dating  hack  as  far  as  1894, 
when  after  having  asked  the  Chief  Engineer  of  the  Sanitary 

District  for  permission  to  do  so,  and  it  being  granted,  I was  em- 
ployed by  Clarence  Buckingham.  That  occurred  about  1894,  as  I 
remember.  It  wasn’t  1898.  I prepared  plans  for  a water  power 
scheme  for  them  between  Lockport  and  Joliet,  which,  if  they  had 
constructed  would  have  used  the  waters  of  the  Sanitary  District 
of  Chicago.  While  I was  doing  that  I was  also  in  the  employ  of 
the  Sanitary  District  of  Chicago. 

On  two  occasions  I have  been  employed  by  contractors,  who 
brought  suit  against  the  Sanitary  District  of  Chicago,  and  ap- 
peared as  a witness  in  their  behalf  in  court.  One 

4802  was  a suit  brought  by  Alfred  Hartlive  for  damages  on  ac- 
count of  the  forfeiture  of  a contract.  Another  was  a suit 

brought  by  a Mr.  Sexton  being  of  the  same  nature. 

In  June,  1886,  I was  first  employed  in  the  City  of  Chicago.  Not 
to  live  here;  my  business  prior  to  that  time  was  not  here. 

All  the  information  that  I have  concerning  any  of  the  matters 
about  which  I have  testified,  my  personal  knowledge  of  them  only 
extended  back  to  1886,  and  such  matters  as  I have  testified  to  prior 
to  that  time  was  information  gathered  from  such  sources  from 
which  an  engineer  usually  gets  his  information. 

I surveyed  the  bar  that  is  in  the  Desplaines  River  a short 

4803  distance  below  the  Riverside  gauge,  in  1893.  I have  been  at 
the  site  of  those  bars  numerous  times  at  various  seasons  of 

the  year.  In  fact  I have  been  in  that  vicinity  quite  frequently.  I 
have  made  it  a point  to  examine  the  bars.  I examined  them  in 
the  sense  of  a survey,  that  is  with  an  engineering  object  in  view. 
I did  that  in  1893  and  again  in  the  summer  of  1894,  and  at  odd 
times  since  then.  I remember  it  distinctly,  but  not  always  as  to 


1409 


the  i)oint  of  time,  because  I have  been  there  so  many  times  tliat  T 
naturally  would  not  charge  my  mind  with  any  particular  time. 

One  of  the  sources  of  losses  to  the  river  that  I have 

4804  already  mentioned  is  the  cutting  of  the  divide  at  Kedzie  ave- 
nue in  1852.  I know  of  that  by  such  information  as  engineers 
usually  use  in  such  connection.  I have  seen  it  in  literature 

4805  generally,  and  engineering  literature  pertaining  to  the  time. 
Mr.  Cooley  prepared  some  of  it.  I don’t  know  who  prepared 

the  greater  part  of  it. 

I cannot  tell  specifically  without  calculation  how  much  water  the 
Desplaines  River  lost  by  this  cut  I have  mentioned.  I won’t  say 
that  I do  not  know,  but  I will  say  that  I have  not  made  calculations 
and  cannot  state  at  this  time  what  the  loss  would  be.  In  a 

4806  certain  sense,  it  is  true  that  at  this  time  I don’t  know.  In 
this  sense  it  is  not  true,  namely,  in  that  I have  knowledge  that 

there  were  losses.  How  much  the  loss  is  I am  unable  to  state  now, 
as  I do  not  know.  By  virtue  of  the  elimination  of  what  is  known  as 
the  12  mile  level,  the  Desplaines  River  lost  some  water  naturally. 
I might  add  that  I mean  the  elimination  in  regard  to  its  width. 
Elimination  means  to  rub  out  or  take  out.  I mean  by  the  elimina- 
tion of  what  is  known  as  the  12  mile  level  the  restriction  of  its 
confines  to  a very  narrow  region.  I cannot  state  how  much  water 
the  river  lost  because  of  that. 

4807  The  segregation  of  the  drainage  basin  southward  from  the 
Illinois  and  Michigan  Canal  by  the  construction  of  that  canal 

also  caused  the  Desplaines  River  to  lose  some  of  its  natural  waters. 
I mean  that  the  building  of  the  Illinois  and  Michigan  Canal  on  one 
side  of  the  river  cut  out  the  flowage  into  the  river  from  that  side. 
I cannot  state  at  this  time  how  much  water  the  Desplaines  River 
lost  by  that.  To  the  extent  that  the  Illinois  and  Michigan  Canal 
was  fed  from  the  Desplaines  River  in  early  times  there  would  be 
some  loss  to  the  Desplaines  River. 

4808  I cannot  state  how  much  water  was  lost  to  the  river  by 
that  process;  I do  not  know  that.  As  to  what  other  thing 

existed  or  came  into  being  that  caused  a loss  of  water  to  the  Des- 
plaines River, — the  Illinois  and  Michigan  Canal  at  Joliet,  that  is 
the  feeding  of  the  canal  in  Joliet,  we  will  call  that.  I cannot  state 


1410 


Johnson, — Cross-Exam. — Continued. 


at  this  time  how  much  water  the  river  lost  on  that  account.  At 
this  time  I can  think  of  no  other  thing  or  factor  which  existed 
whereby  the  river  lost  water  that  naturally  flowed  into  it.  I have 
mentioned  the  drainage  of  Mud  Lake  into  the  Chicago  Eiver  in- 
stead of  permitting  it  to  flow  into  the  Desplaines  Eiver.  The  cut 
made  in  1852  at  Kedzie  avenue  includes  that. 

I recall  right  now  another  construction  that  would 

4809  have  the  same  effect,  and  that  was  the  same  construction  of 
the  Ogden  and  Nickerson  Ditches.  There  were  two  of  them. 

1 don’t  know  the  amount  of  water  lost  by  any  of  them, — not  to  my 
personal  knowledge. 

I believe  I have  examined,  for  this  dam  that  the  defendant  is 
proposing  to  put  in  the  Desplaines  Eiver,  as  far  as  drawings  are 
concerned,  on  two  occasions  only.  I examined  them  on  the  ground 
once.  I have  not  examined  the  specifications.  There  was  handed 
to  me  here  a few  minutes  ago  two  sheets  of  the  plans  of  this  dam, 
and  I looked  at  them  for  perhaps  a minute,  each  of  them,  or  half  a 
minute,  each  of  them.  I did  make  calculations  to  enable  me  to 
make  the  answers  that  were  put  to  me  from  that  examina- 
tion. 

4810  I was  asked,  as  I remember  it  in  that  connection,  whether 
this  dam  that  was  there  being  constructed  as  shown  by  these 

plans  was  capable  of  taking  care  of  the  flood  waters  that  might 
come  upon  it;  and  I looked  at  the  plan  and  within  30  seconds  of  the 
time  I was  asked  the  question  I answered  it.  I arrived  at  my  con- 
clusion in  this  way, — I constructed  a dam  across  Snake  Eiver 

4811  in  Idaho,  having  a spillway  substantially  the  same  as  this 
crest  of  this  dam.  I had  made  calculations  of  that  dam  in 

Idaho  and  was  familiar  with  it  and  was  able  to  calculate  at  once 
what  would  be  the  spillway  of  the  work  at  Dresden  Heights.  The 
amount  of  water  I took  as  entering  into  that  calculation  that  might 
come  down  this  Desplaines  Eiver  was  about  25,000  cubic  feet  a sec- 
ond. There  is  the  spillway  and  the  tainter  gates  and  water  wheels, 
and  some  sluice  gates,  I believe.  I don’t  remember  without  look- 
ing how  many  tainter  gates  there  were;  I think  there  were  some 
sluice  gates, — I am  not  sure  without  looking  at  the  map.  I remem- 
ber there  was  a spillway  about  400  feet  long. 


1411 


4812  Its  length  is  as  essential  an  element  as  any  other  element 
in  the  quantity  etf  water  that  it  will  carry.  Another  element 

is  the  head  in  which  the  water  will  discharge  over  the  dam.  An 
opening  of  a certain  width  through  which  the  water  goes  is  what  I 
described  as  being  the  length  of  the  spillway. 

I do  not  recollect  without  looking  at  the  plans  how  many  wheels 
are  provided  for  in  this  dam. 

Q.  And  you  feel  that  you  have  sufficient  data  in  your  mind 
from  the  casual  examination  or  short  examination  made  to-day, 
to  enable  you  to  make  these  calculations,  and  you  did  make  them? 
A.  Yes,  sir,  to  make  such  calculations  as  I have  evolved  in 

4813  my  answer.  I have  examined  them  at  one  time  before.  In 
making  my  calculations  to-day  I remembered  and  took  into 

account  the  examination  made  before,  to  some  extent;  together 
with  what  I have  seen  in  connection  with  works  which  I have  con- 
structed, on  the  Snake  Eiver,  and  what  I have  seen  on  these  draw- 
ings. 

4814  I won’t  say  I saw  numerous  other  plans,  perhaps  two  or 
three  sheets  of  drawings  as  I remember  it  now.  That  was 

two  years  ago  possibly.  I am  not  the  consulting  engineer  for 
the  Economy  Light  & Power  Company.  H!ad  no  connection 
with  this  dam  down  here;  I did  not  state  that  I had  been  consult- 
ing engineer  in  that  capacity,  in  connection  with  this  work.  It  was 
in  connection  with  the  work  at  Jackson  street  in  Joliet.  25,000 
cubic  feet  of  water  per  second  is  the  largest  amount  of  water  that 
may  be  expected  down  that  Desplaines  Eiver  at  the  site  of  this 
dam. 

I have  taken  in  the  ultimate  capacity  of  the  Sanitary  District 
Canal  at  10,000  cubic  feet  per  second.  The  Sanitary  District  Canal 
has  not  a capacity  for  a good  deal  more  than  that,  through- 

4815  out  its  whole  length  and  the  low  level  of  Lake  Michigan. 

There  is  a little  portion  of  the  canal  that  has  not  yet  been 
built,  as  originally  contemplated,  as  I understand  it.  The  canal  as 
contemplated  at  any  time  during  my  connection  with  the  work,  is 
completed  now  excepting  the  portion  eastward  from  Summit.  The 
plan  did  not  contemplate  when  completed  a capacity  of  14,000  cubic 
feet  instead  of  ten  throughout  its  entire  length.  I did  not  under- 
stand it  so. 


1412 


Johnson , — C ross-Exa  m . — C o n tin  ued. 


It  was  given  originally  and  during  the  time  I was  connected  with 
the  service  of  the  Sanitary  District  a capacity  of  10,000  cubic  feet 
per  second  throughout  its  entire  length.  Lately  a project  of  tap- 
' ping  a canal  through  the  Calumet  or  Sag  from  Lake  Calumet 

4816  to  the  Drainage  Canal  has  been  spoken  of,  which  under  cer- 
tain circumstances  might  result  in  14,000  cubic  feet  per  sec- 
ond being  carried  to  Lockport  and  less  than  10,000  feet  from  Chi- 
cago. 

I have  been  at  the  site  of  this  dam  that  is  being  built  by  defend- 
ant, in  recent  years  once.  I was  in  the  employ  of  the  Sanitary  Dis- 
trict of  Chicago  and^  in  the  first  instance  Mr.  Cooley  was  my  su- 
perior officer.  I left  the  service  at  the  same  time  that  Mr.  Cooley 
did.  T went  back  again,  after  Mr.  Cooley  did  and  became  a subor- 
dinate with  Benezette  Williams  as  chief  engineer.  I acted  as 

4817  chief  engineer  on  several  occasions.  I was  never  known  on 
the  record  as  chief  engineer.  Besides  Mr.  Cooley  and  Bene- 
zette "Williams,  Isham  Eandolph  was  my  chief  officer. 

I acted  as  chief  engineer  in  the  month  of  December,  1893,  and  in 
the  month  of  April,  1900,  that  I recall  now.  On  other  occasions 
for  perhaps  a period  of  two  or  three  days  or  a week  in  the  absence 
of  the  chief  engineer.  It  was  on  occasions  when  he  was  called 
away.  My  work  in  most  all  the  work  I have  done  has  not  been 
office  work  in  contravention  of  field  work;  in  fact  rather 

4818  the  reverse. 

Q.  While  yon  were  in  the  office  with  Mr.  Cooiey  yon  did 
not  do  anything  outside  except  when  he  divided  his  force  on  one 
occasion  to  make  surveys  in  three  different  places,  you  were  as- 
signed to  one  of  them  and  had  one  of  them  I A.  No,  sir,  that  is 
not  the  truth. 

Q.  That  is  not  true?  A.  -No,  sir,  it  is  not. 

Q.  That  is  all. 

Re-direct  Examination. 

I was  engineer  for  the  Economy  Light  & Power  Company  except- 
ing for  a period  of  two  or  three  weeks  I was  employed  by  the 
Sanitary  District  as  consulting  engineer.  I had  a general  practice 
aside  from  that.  When  I testified  in  the  case  of  the  Sanitary  Dis- 


1413 


trict  against  the  State,  in  1898  I testified  for  the  Sanitary  Dis- 
trict. 

4819  I stated  I had  testified  possibly  four  or  five  or  three  or  four 
times  a year  during  the  last  five  years.  None  of  it  was  for 

the  Sanitary  District.  The  fact  that  I was  preparing  plans  for 
Buckingham  in  1894  was  known  to  the  officers  of  the  Sanitary  Dis- 
trict. It  was  known  to  the  chief  engineer,  Isham  Randolph.  Mr. 
Buckingham  consulted  him  before  he  spoke  to  me,  and  Mr.  Ran- 
dolph called  me  in  and  told  me  the  circumstances  and  left  me  at 
liberty  to  accept  the  employment. 

In  February  of  this  year  I testified  in  behalf  of  the  City  of  Lake 
Forest,  Illinois,  in  a controversy  relating  to  a fair,  just  and  rea- 
sonable water  rate.  About  a month  ago  I testified  in  Judge  Mc- 
Ewen’s  court,  in  this  building,  on  behalf  of  the  Crane  Company  in 
a suit  for  personal  damages. 

That  suit  in  which  I testified  last  year  for  the  Economy  Light 
& Power  Company  was  a condemnation  proceeding, — that  is  my 
recollection. 

4820  The  last  time  that  I can  remember  that  I was  consulted  by 
the  Economy  Light  & Power  Company  at  all  with  reference 

to  its  affairs  outside  of  my  preparations  for  the  trial  of  this 
case, — as  I recollect  it  that  was  last  August. 

Q.  This  Calumet  proposition  by  which  14,000  cubic  feet 
of  water  per  second  is  contemplated,  has  not  been  adopted,  has  it! 
A.  I do  not  understand  that  it  is. 

Q.  Do  you  know  what  the  attitude  of  the  War  Department  is 
as  to  that  project.  A.  I think  I do,  yes,  sir. 

Q.  It  has  not  been  supported,  has  it,  or  it  has  not  been  ap- 
proved! 

Counsel  foe  Complainant.  To  that  I object. 

Counsel  for  Defendant.  That  is  a matter  of  common  knowl- 
edge. 

The  Court.  Sustained. 

4821  Counsel  for  defendant  produced  the  printed  report  of  the 
Canal  Commissioners  dated  December  1st,  1873,  making  a 

report  to  Governor  Beveredge  and  offered  in  evidence  from  that 


1414  Johnson, — Be-direct  Exam.— Continued. 

document  the  table  appearing*  on  page  23  thereof,  with  the  title 
‘'Unsold  Canal  lands  May  1st,  1873,”  and  asked  that  that  table  be 
copied  into  the  record. 

4822  Counsel  for  complainant  conceded  that  the  report  would 
show  such  a list  and  that  the  bed  of  the  stream  does  not  ap- 
pear in  such  a list,  and  insisted  that  that  fact  was  irrelevant,  in- 
competent and  immaterial. 

Counsel  foe  Defendant.  I produce,  the  j)rinted  documents 
showing  the  annual  reports  made  by  the  Canal  Commissioners  to 
the  Governor  of  Illinois  for  the  consecutive  years  beginning  with 
the  year  1872  and  ending  with  the  year  1902,  and  call  your  atten- 
tion to  the  fact  that  each  of  these  documents  contains  a list  en- 
titled “Unsold  Canal  Lands,”  with  the  date  being  the  first  day  of 
Xovember,  preceding  the  date  of  the  report,  which  list  does  not 
contain  any  mention  of  the  lands  constituting  the  bed  of  the  stream 
of  the  Desplaines  Eiver  in  Section  25,  Township  34,  Xorth,  Bange 
8 East  of  the  3rd  Principal  Meridian,  Grundy  County,  Illinois,  and 
does  not  show  any  lands  whatever  in  said  Section  25.  And  I ask 
whether  that  statement  as  to  what  these  tables  contain  is  agreed  to 
by  counsel  for  the  state  in  order  to  ob\fiate  the  necessity  of  copy- 
ing into  the  record  these  various  tables. 

Counsel  foe  Complainant.  Mithout  examination  I am  unable 
finally  to  state,  but  that  statement  may  stand  unless  contradicted 
upon  further  examination. 

4823  Counsel  foe  Complainant.  I think  that  is  a fair  way  to 
put  it.  It  does  show  some  of  these  lists  that  bring  forward 

new  items  which  never  have  been  mentioned  before.  The  lists  em- 
body the  opinions  of  the  board.  For  instance  the  one  for  1902 
brings  forward  a lot  of  land  that  never  had  been  platted,  places 
where  they  claim  a little  strip  along  the  river  bank.  Up  to  that 
time  they  had  never  claimed,  nobody  had  ever  claimed  it.  It  was 
.supposed  to  be  part  of  the  street. 

I may  see  fit  to  supplement  it  by  offering  some  of  the  lists  which 
mention  it  more  in  detail.  I think  my  statement  will  not  be  con- 
tradicted. You  will  admit  what  I say  Mr.  Porter  is  a method  of 
abbreviation. 

Counsel  foe  Defendant.  I also  call  attention  to  the  fact  that 


1415 


in  the  report  for  the  year  1901  and  some  of  the  other  reports  there 
appears  in  the  list  of  unsold  canal  lots,  the  following  item  entitled 
‘/Kankakee,”  meaning  Kankakee  City,  “Blocks  30,  31,  32,  34,  37, 
38,  39,  40,  and  42,  being  Section  31,  Township  34,  Eange  9 

4824  East  of  the  3rd  P.  M.,  containing  16  and  32/100  acres  at  25 
per  acre.  Then  opposite  that  under  the  heading  “Valuation” 

the  figures  “$408.”  I ask  if  counsel  agrees  that  that  statement 
and  that  item  is  in  that  last,  in  these  reports  in  order 
to  obviate  the  necessity  of  putting  in  the  entire  list.  I also 
add  that  the  word  “Kankakee”  appearing  above  this  said  descrip- 
tion refers  to  a subdivision  called  Kankakee,  which  was  an  addition 
to  the  Town  of  Kankakee,  laid  out. by  Mr.  John  Beard,  the  plat 
of  which  addition  has  already  been  referred  to  or  offered  in  evi- 
dence by  complainant.  And  I will  also  state  that  these  lands  con- 
stitute what  is  called  the  16  acre  tract  which  was  deeded  by  the 
Canal  Commissioners  to  Griswold  and  by  Griswold  to  the  defend 
ant. 

Counsel  for  Complainant.  That  statement  may  be  taken  with 
the  same  force  and  effect  as  if  the  full  list  containing  the  items 
were  offered  in  evidence.  That  is  objected  to  as  incompetent, 
irrelevant  and  immaterial. 

Counsel  for  defendant  then  offered  in  evidence  a document  which 
is  the  certificate  of  Governor  Charles  S.  Deneen,  executed  on 
April  10,  1907,  consenting  to  or  approving  the  sale  of  a portion  of 
the  90  foot  strip  at  public  auction,  which  document  is  duly  certified 
by  the  acting  secretary  of  the  Canal  Board  under  date  of  May  18, 
1908. 

(Counsel  for  complainant  objected  to  it  on  the  ground  that 

4825  it  referred  to  property  in  Will  County  many  miles  remote 
and  away  from  the  site  of  the  property  in  controversy  here, 
and  as  wholly  irrelevant,  incompetent  and  immaterial.  Ob- 
jection overruled.) 

Which  said  document  was  received  in  evidence  and  marked  ‘ ‘ Ex- 
hibit 1,  June  11th,”  and  is  as  follows: 


1416 


Certificate  of  Governor  Deneen. 


4826 


“Defendant's  Ex.  1,  1/12/08 
Office  of  the  Canal  Commissioneks 


Lockport,  111.,  Mar.  14th,  1907. 


To  the  Honorable  Charles  S.  Deneen, 

Governor  of  Illinois. 

Dear  Sir: — 

The  undersigned,  The  Canal  Commissioners,  respectfully 
recommend  that  the  interest  of  the  State  of  Illinois  in  and 
to  the  parcels  of  land,  hereinafter  described,  being  part  of 
the  Canal  Lands  of  the  State  of  Illinois,  other  .than  those 
connected  with  water  power  upon  the  said  Canal  to  wit : 

All  the  right  and  title  of  the  State  of  Illinois,  in  and  to  that 
part  of  what  is  known  as  the  ninety  (90)  foot  strip,  on  the 
west  side  of  the  Illinois  and  Michigan  Canal,  in  Sections 
Three  (3)  and  Four  (4)  in  Township  Thirty- five  (35),  North 
Eange  ten  (10)  east  of  the  Third  Principal  Meridian,  in  the 
County  of  AVill  and  State  of  Illinois,  which  lies  west  of  the 
line  drawn  parallel  with  and  fifteen  (15)  feet  distanct  wester- 
ly from  the  water  line  of  the  channel  of  said  Canal,  at  ordi- 
nary navigation  stage. 

Also  all  that  part  of  the  Canal  lands  in  said  Sections  three 
(3)  and  four  (4)  which  lies  easterly  of  a line  drawn  parallel 
4827  with  and  seventy  (70)  feet  distant  easterly  from  the  westerly 
water  line  in  the  channel  of  said  Canal  at  ordinary  navigation 
stage,  should  be  sold,  as  in  our  judgment  the  interests  of  the 
State  will  be  promoted  thereby;  and  The  Canal  Commission- 
ers request  the  approval  of  Your  Excellency  to  the  sale  there- 
of, at  public  auction  to  the  highest  and  best  bidder,  for  cash, 
at  the  Canal  Office,  in  Lockport,  111.,  on  the  21st  day  of  May, 
A.  D.  1907,  at  ten  o’clock  in  the  forenoon;  Thirty  (30)  days 
previous  notice  of  said  sale  being  first  given  in  some  news- 
paper published  in  the  County  of  Will  wherein  said  parcels 
of  land  are  situated. 


I hereby  approve  of  the  sale  of  the  parcels  of  land  described 
in  the  foregoing  report  of  The  Canal  Commissioners,  at  pub- 
lic auction  to  the  highest  and  best  bidder  for  cash,  at  the 
Canal  Office,  at  Lockport,  in  said  County  of  Will  and  State 
of  Illinois  on  the  21st  day  of  May,  A.  D.  1907,  at  ten  o’clock  in 
the  forenoon;  thirty  (30)  days  previous  notice  of  said  sale 
4828  first  given  by  The  Canal  Commissioners  in  some  newspaper 
of  general  circulation,  published  in  said  County  of  Will, 
wherein  such  parcels  of  land  are  situated. 


(Signed) 

(Signed) 

(Signed) 


C.  E.  Snively, 

President. 
AY.  E.  Newton, 

Secretary. 
AY.  L.  Sackett, 

Treasurer. 


1417 


Done  at  the  State  House  at  Springfield,  Illinois,  this  10th 
day  of  April,  A.  D.  1907. 

(Signed)  Charles  S.  Deneen, 

Governor  of  the  State  of  Illinois. 


State  of  Illinois, 
Will  County. 


General  Offices  Board  of  Canal  Commissioners, 
State  of  Illinois. 


I,  John  M.  Snyder,  Acting  Secretary  of  the  Board  of  Canal 
Commissioners  of  the  State  of  Illinois,  and  Keeper  of  the 
Eecords  and  Files  belonging  to  said  Board,  do  hereby  cer- 
tify that  the  above  and  foregoing  is  a true  and  correct  copy 
of  the  request  of  The  Canal  Commissioners  and  approval  of 
the  Governor  for  the  sale  of  the  herein  above  described  land. 

Witness  my  hand  and  official  seal  of  the  said  Board  of 
Canal  Commissioners  of  the  State  of  Illinois  this  18  day  of 
May,  A.  D.  1907. 

(Signed)  John  M.  Snyder, 

(Seal)  Acting  Secretary  as  aforesaid.” 

4829  "Counsel  for  defendant  also  offered  in  evidence  a certified 
copy  of  deed  executed  by  the  Canal  Commissioners  to  the 
Illinois  Steel  Company  under  date  of  May  21st,  1907,  conveying 
a portion  of  the  90  foot  strip  by  reason  of  the  sale  which  was 
approved  by  the  Governor  as  shown  in  the  exhibit  last  introduced. 

(Objected  to  as  irrelevant,  incompetent  and  immaterial 
and  as  not  the  best  evidence.  Overruled.) 

Which  said  document  was  received  in  evidence  and  marked 
Exhibit  2 of  June  11th,  and  is  as  follows : 


4830  ‘‘Defendant's  Ex.  2,  of  6/12/08. 

Copy. 

This  indenture  made  this  21st  day  of  May,  A.  D.  1907, 
between  the  Canal  Commissioners,  of  the  State  of  Illinois, 
party  of  the  first  part,  and  Illinois  Steel  Company,  a corpora- 
tion, organized  and  existing  under  and  by  virtue  of  the  laws 
of  the  State  of  Illinois  and  having  its  principal  office  in  Chi- 
cago in  the  State  of  Illinois,  party  of  the  second  part. 

WiTNESSETH,  that  Wlicrcas,  the  said  The  Canal  Commis- 
sioners on  the  10th  day  of  April,  1907,  obtained  the  approval 
of  the  Honorable  Charles  S.  Deneen,  Governor  of  the  State 
of  Illinois,  in  the  premises  hereinafter  described  to  sell  at  pub- 
lic auction  on  the  21st  day  of  May,  A.  D.  1907,  at  the  hour  of 


1418 


Deed  to  Illinois  Steel  Co. — Continued. 


ten  o’clock  in  the  forenoon  at  the  canal  office  at  Lockport  in 
the  County  of  Will  and  State  of  Illinois,  to  the  highest  and  best 
bidder  for  cash;  all  of  which  appears  in  the  records  of  said 
Canal  office,  and 

Whereas,  afterwards,  the  said  party  of  the  first  part  caused 
thirty  (30)  days. previous  public  notice  of  such  proposed  sale 
to  be  given  by  advertisement  of  the  time  and  place  aforesaid 
by  publication  in  the  Phoenix  Advertiser,  a public  newspaper 
published  in  the  City  of  Lockport,  in  the  County  of  Will  and 

4831  State  of  Illinois,  for  five  successive  weeks  one  time  for  five 
successive  issues  of  said  paper,  the  date  of  the  first  paper  con- 
taining such  notice  being  the  I8th  day  of  April,  1907,  and  the 
date  of  the  last  paper  containing  such  notice  being  the  16th 

• day  of  May,  1907,  and  pursuant  to  said  notice,  on  the  21st  day 
of  May,  1907,  at  the  hour  of  ten  o’clock  in  the  forenoon  at  the 
Canal  Office  at  Lockport  in  said  County  of  AVill  and  State  of 
Illinois,  said  party  of  the  first  part  exposed  and  otfered  for 
sale  at  public  auction  to  the  highest  and  best  bidder  for  cash 
all  the  interest  of  the  State  of  Illinois  in  and  to  the  said  prem- 
ises hereinafter  described,  and  thereupon  the  said  party  of 
the  second  part  offered  and  bid  therefor  the  sum  of  Forty- 
two  Thousand  ($42,000.00)  Dollars,  and  it  being  the  highest 
and  best  bidder  and  that  the  highest  and  best  bid  therefor,  the 
said  party  of  the  first  part  thereupon  struck  off  and  sold  said 
interest  of  said  State  of  Illinois  in  said  premises  for  the  sum 
aforesaid;  to  said  party  of  the  first  part,  and 

IVhekeas,  the  said  party  of  the  second  part  has  paid  to 
the  said  party  of  the  first  part  the  said  sum  of  Forty-two 
Thousand  ($42,0d0.00)  Dollars  in  cash  and  has  in  all  things 
complied  with  the  terms  of  said  sale  on  its  part  to  be  per- 
formed ; 

Xow,  THEREFORE,  Tlfis  indenture,  witxesseth,  that  the  said 
party  of  the  first  part,  in  consideration  of  the  premises  and  the 

4832  said  sum  of  Forty-two  Thousand  ($42,000.00)  Dollars  in 
hand  paid  by  the  said  party  of  the  second  part,  the  receipt 
whereof  is  hereby  acknowledged,  do  hereby  convey  all  the  in- 
terest of  said  State  of  Illinois,  in  and  to  the  said  lots,  pieces  or 
parcels  of  land,  situated  in  the  said  County  of  Mull  in  the  State 
of  Illinois  anM  known  and  described  as  follows,  to-wit: 

That  part  of  what  is  known  as  the  Xinety  (90)  foot  strip, 
on  the  west  side  of  the  Illinois  and  Michigan  Canal,  in  Sec- 
tions Three  (3)  and  Four  (4)’  in  Township  Thirty-five  (35) 
Xorth  Range  Ten  (10)  East  of  the  Third  Principal  Meridian, 
in  the  County  of  Will  and  State  of  Illinois  which  lies  west 
of  a line  drawn  parallel  with  and  fifteen  (15)  feet  distant 
westerly  from  the  water  line  of  the  channel  of  said  canal,  at 
ordinary  navigation  stage. 

Also  all  that  part  of  the  Canal  lands  in  said  Section  Three 
(3)  and  Four  (4)  which  lies  easterly  of  a line  drawn  parallel 


1419 


with  and  seventy  (70)  feet  distant  easterly  from  the  westerly 
water  line  in  the  channel  of  said  canal  at  ordinary  navigation 
stage. 

To  have  and  to  hold  the  same  unto  said  party  of  the  sec- 
ond part  its  successors  and  assigns,  forever,  as  fully  and  ef- 
fectually as  the  law  authorizes,  and  the  said  party  of  the  first 
part  might,  could  or  ought  to  sell  and  convey  the  same  l)y 
virtue  of  the  statutes  of  said  State  .of  Illinois. 

4833  In  witness  whereof  the  said  party  of  tlie  first  part  has 
caused  this  instrument  to  he  executed  by  Clarence  E.  Snively, 
its  President,  and  William  P.  Newton,  its  Secretarj",  and 
the  seal  of  said  party  of  the  first  part  to  he  hereto  attached, 
the  day  and  year  first  above  written,  pursuant  to  the  direction 
of  said  party  of  the  first  part,  and  entered  of  record  in  said 
Canal  Office. 

The  Canal  Commissioners. 

(Signed)  By  C.  E.  Snively, 

President. 

Attest : 

W.  K.  Newton,  (Signed) 

Secretary.'’ 

Here  follows  certificate  of  acknowledgment  by  Francis  P.  Stowe, 
Notary  Public. 

4834  Here  follows  certificate  by  John  M.  Snyder,  Acting  Sec- 
retary of  the  Board  of  Canal  Commissioners,  that  the  fore- 
going is  a true  copy. 

4836  Counsel  for  Defendant.  AVe  have  here  the  briefs  filed 
in  the  Appellate  and  Supreme  Courts  in  the  case  of  Druley 
against  Adams,  and  we  have  also  the  abstract  of  the  records  in 
that  case  which  was  signed  by  the  counsel  for  both  parties, 
and  signed  by  the  judge.  AVe  haven’t  here  any  person  who  can 
prove  that  those  are  identical  with  the  abstract  and  the  briefs 
filed  in  that  case.  We  can  produce  such  proof.  We  will  produce 
Mr.  Knox  to  testify  that  they  are  duplicates.  We  can  produce 
him  and  he  will  so  testify.  His  home  is  in  Joliet. 

Counsel  for  Complainant.  In  order  to  avoid  a continuance 
for  that  purpose,  counsel  for  defendant  states  that  the  witness 
named  when  produced  will  testify  as  counsel  states,  but  we  insist 
that  the  evidence  to  which  the  witness  would  so  testify  is  irrele- 
vant, incompetent  and  immaterial. 

Counsel  for  Defendant.  The  doctrine  under  which  we  claim 
the  right  to  introduce  him  is  that  as  to  matters  in  controversy 


1420 


in  a law  suit  statements  or  admissions  made  by  a party  at  any 
time  at  any  place  are  competent,  and  that  is  especially  so  of  state- 
ments made  in  proceedings  of  record  to  which  such  party  was  a 
party  or  where  he  was  the  real  party  in  interest.  The  in- 

4837  troduction  of  briefs — in  my  experience — I have  known  it  a 
number  of  times  as  being  of  the  same  nature  as  pleadings. 

Pleadings  are  always  taken  up  as  admissible  against  a party.  We 
have  established  in  this  case  that  while  the  nominal  party  was 
Mr.  Druley,  the  actual  party  was  the  State.  The  Canal  Commis- 
sioners, by  their  resolution  said  it  was  their  duty  to  assume,  the 
State’s  duty  to  assume,  and  the  state  retained  and  paid  the  attor- 
ney who  appeared  in  the  case  for  Druley  and  Slater  and  paid 
the  fees  in  that  case.  The  record  shows  clearly  that  it  was  really 
a suit  by  the  State.  The  rights  of  the  State  or  what  was  contended 
for  throughout  were  in  the  briefs  of  both  parties.  It  is  upon  that 
theory  that  we  claim  they  are  admissible. 

4838  Thereupon  the  court  overruled  the  objection  of  complain- 
ant and  admitted  said  book  App.  II,  p.  3905;  Trans.,  pp.  6059- 

6256;  Abst.,  pp.  1733-1827,  and  counsel  for  defendant  read  from 
the  abstract  of  record.  Circuit  Court  of  Will  County,  tiled  in  the 
Supreme  Court,  September  Term,  A.  D.  1881,  William  M.  Druley, 
Appellant,  vs.  William  Allen,  Appellee.  Appealed  from  Appellate 
Court,  Second  District,  a portion  on  page  2 : 

it  eemembeeed,  that  evidence  was  introduced 
which,  for  the  purposes  of  this  appeal,  it  is  stipulated  by  and 
between  the  parties  established  the  following  facts.  And  then 
sets  out  the  ownership  on  the  part  of  the  plaintiff  of  the  prop- 
erty in  question,  his  having  succeeded  to  Philo  A.  and  Orlando 
H.  Haven,  having  had  mills  propelled  by  water  power  upon 
the  river,  the  water  being  derived  from  the  river.  That  the 
canal  was  open  for  navigation  in  the  spring  of  1848 ; that  the 
Summit  division  of  said  canal  terminates  at  Lockport,  Illi- 
nois, on  Section  23,  Town  36,  Eange  10,  and  was  improved  by 
the  City  of  Chicago  so  as  to  make  a continuous  level  draw- 
ing water  from  Lake  Michigan  from  the  terminus  of  the  South 
Branch  of  the  Chicago  Eiver  to  Lock  No.  1,  aforesaid  under 
the  Act  of  the  General  Assembly  of  date  February  16,  1865; 

4839  that  said  improvement  was  completed  about  May  1,  1871 ; that 
the  State  of  Illinois,  by  Act  of  the  General  Assembly,  as- 
sumed charge  of  said  improved  level  in  the  year  1871,  by  Act 
of  date  October  20,  1871,  and  has  since  controlled  the  same. 

That  from  Dam  No.  2 in  Joliet,  south  the  caual  level  is 
known  as  the  Channahon  level;  that  all  the  water  which  is 


1421 


put  into  said  level  for  any  purposes  is  drawn  from  the  pool 
formed  by  Dam  No.  2 at  JoHet,  above  plaintiff’s  dam,  and  since 
the  building  of  said  canal  and  its  opening  in  1848,  until  the 
completion  of  the  structures  of  defendants  no  water  bad  ever 
been  drawn  from  said  level,  or  bad  been  put  into  the  same  ex- 
cept as  required  for  navigation  purposes,  nor  bad  any  water 
power  been  used  or  leased  on  said  level. 

That  there  is  more  water  introduced  into  the  Summit  level 
of  said  canal  by  reason  of  the  improvement  known  as  the 
deep  cut,  above  referred  to,  than  is  required  for  navigation 
purposes,  and  more  than  is  required  for  the  purposes  of  the 
canal  between  Locks  1 and  2,  2 and  3,  and  3 and  4,  on  said 
canal  between  Lockport  and  Joliet;  that  the  use  of  such  sur- 
plus water  is  leased  to  Norton  & Co.,  at  Lockport,  so  far  as 
they  may  require,  and  the  balance  is  discharged  by  a spillway, 
— both  the  water  used  by  Norton  & Co.  and  that  discharged 
by  said  spillway  being  conducted  by  a.  race  shown  in  map  1 

4840  from  the  hydraulic  basin,  connected  with  the  canal,  also  shown 
on  said  map,  to  the  Desplaines  Eiver,  as  shown  on  said  map, 
at  a point  in  Section  23,  in  said  Town,  and  from  thence  mingled 
with  the  other  water  of  said  river,  follows  the  bed  of  said 
stream  through  Section  22,  23,  27  and  34  in  the  Town  of  Lock- 
port,  anfl  partially  through  Section  3,  in  the  Town  of  Joliet, 
as  shown  by  said  map,  to  a point  where  said  canal  affects  a 
junction  with  said  river.” 

4841  Thereupon  counsel  for  complainant  asked  that  his  objec- 
tion might  stand  as  to  the  whole  document  without  it  being 

necessary  for  him  to  make  specific  objections  from  time  to  time, 

and  the  court  held  it  would  not  be  necessary. 

^‘That  from  said  point  in  Section  3 aforesaid  where  said 
junction  is  made  to  Dam  No.  2 in  Joliet,  said  canal  is  con- 

4842  tained  within  artificial  banks  or  walls  of  stone,  but  comprises 
the  original  bed  of  said  river,  and  leaving  said  river  as  shown 

on  said  map  at  Dam  No.  2. 

That  there  is  a mill  site  and  mill  on  said  river.  Sec.  23  in 
Lockport,  and  has  been  for  many  years;  and  that  from  the 
points  on  Sec.  23  where  said  surplus  water  is  discharged  to 
the  point  on  Sec.  3 in  Joliet,  where  the  canal  enters  into  the 
bed  of  said  river  there  is  no  connection  between  said  canal  and 
said  river,  and  no  structures,  works  or  improvements  of  any 
kind  were  ever  placed  on  said  river,  or  any  control  exercised 
over  the  same  by  any  canal  authorities  or  the  state,  for  any 
purpose;  that  said  waste-weir  is  never  used  except  in  case  of 
high  water  and  floods,  or  when  it  is  necessary  to  draw  off 
the  water  from  the  level  for  the  purpose  of  repairs,  there 
usually  being  no  more  water  than  is  utilized  at  Norton’s  mills. 

That  the  amount  of  water  which  is  discharged  into  the  Des- 


1422 


Extract, — Dniley  vs.  Allen. — Continued. 


jolaines  Eiver  at  Lockport  from  the  Summit  division  of  said 
canal  through  said  spillway  and  Norton  & Company’s  race  is 
about  25,000  cubic  feet  per  minute;  that  the  amount  of  water 
required  for  navigation  purposes  on  the  canal  from  Lock 
No.  1 to  Dam  No.  1 is  about  1,220  cubic  feet  per  minute. 
That  the  amount  of  water  required  for  navigation  purposes 
of  said  canal  from  Dam  No.  1 to  the  end  of  the  Channahon 
level  is  about  3,300  feet  per  minute,  and  the  amount  required 

4843  for  navigation  purposes  on  the  Channahon  level  alone  is  about 
2,800  cubic  feet  per  munute.” 

Counsel  for  Defendant.  Your  Honor  will  note  it  discharged  in 
1881 — 25,000  cubic  feet  per  minute,  and  the  amount  required  to  be 
taken  out  for  navigation  purposes  was  2,800  cubic  feet  per  minute. 

^‘That  since  the  completion  of  the  deep  cut  and  the  turning 
of  such  surplus  water  into  the  river  at  Lockport  the  amount 
of  water  flowing  over  Adam’s  dam  at  Joliet  before  the  diver- 
sion of  the  water  herein  complained  of  was  greater  by  two- 
thirds,  as  estimated,  than  the  amount  flowing  over  said  dam 
prior  to  said  deep  cut  improvement,  and  that  the  amount  of 
water  passing  over  Adain’sdam  since  the  diversion  complained 
of  is  double  the  amount  which  passed  over  said  dam  before 
the  completion  of  the  deep  cut. 

That  the  season  during  which  said  canal  is  open  for  nav- 
igation on  said  Channahon  level  is  generally  from  March  25th 
to  November  25th  in  each  year.” 

And  also  from  the  brief  of  Mr.  G.  D.  A.  Parks,  attorney  for  the 
appellees  in  the  Appellate  Court,  Second  District,  December  Term 
1880,  being  in  the  same  case,  page  3 — it  isjDage  1 of  the  brief 
for  appellees: 

‘^The  record  presents  the  following  as  the  principal  points 
for  consideration : 

First : Viewing  the  state  and  Adam,  in  the  relation  of  upper 
and  lower  riparian  proprietors  on  the  Desplaines  Eiver,  is 

4844  the  state  guilty  of  a diversion,  if  it  takes  out  above  Adam’s 
dam  no  more  water  than  it  brings  in  from  Lake  Michigan 

through  its  own  canal  ? 

Second:  Even  if  the  state  itself  be  supposed  guilty  of  a 

diversion  by  the  act  of  passing  the  water  from  the  pool  above 
Dam  No.  2 down  to  the  Channahon  level  on  which  the  oat 
mill  of  the  appellees  is  situated,  and  where  it  can  by  no 
possibility  again  become  available  to  the  appellant,  whatever 
use  is  made  of  it,  can  the  appellees.  Slater  & Druly,  be  sued 
as  the  responsible  agents  in  the  act  of  diversion,  which  is  thus 
already  irrevocably  consummated  by  operations  at  the  lock  and 
dam  above. 

Third:  Adam  having  purchased  subject  to  the  release  exe- 


1428 


ciited  by  his  grantors  in  1853,  does  that  relief  operate  to  bar 
the  action  r’ 

‘‘Now,  how  have  the  legal  attributes, of  this  water,  with  ref- 
erence to  the  rights  of  the  appellant,  been  essentially  chang- 
ed? The  plan  of  the  canal  as  to  the  disposition  of  the  sur- 
plus water,  obviously  contemplated  this  very  mode  of  trans- 
mission from  one  level  to  another.  The  total  fall  between 
Lockport  and  Joliet  is  about  60  feet,  and  in  that  X)art  of  the 

4845  canal  which  concerns  this  case,  it  will  be  seen,  there  are  seven 
successive  levels;  1st,  the  Summit  level;  second,  that  between 

Locks  1 and  2;  3rd,  between  Locks  2 and  3;  4th,  between  Locks 
3 and  4;  5th,  between  Lock  4 and  Dam  No.  1;  6th,  between 
Dams  1 and  2;  7th,  the  Channahon  level. 

Into  the  Summit  level  Lake  Michigan,  by  the  recent  inp^rove- 
ment,  supplies,  as  was  contemplated  in  1836,  a large  quantity 
of  surplus  water,  estimated  at  about  25,000  cubic  feet  per  min- 
ute, not  needed  for  navigation,  but  very  valuable  to  the  State 
of  Illinois  and  the  manufacturing  interests  of  Lockport  and 
Joliet,  for  hydraulic  juirposes. 

The  plan  of  the  canal  within  this  distance  affords  four  falls 
available  to  the  state  for  water  power — one  at  Lock}oort,  leased 
to  Norton  & Co.;  one  at  Dam  No.  1,  one  at  Dam  No.  2,  and  one 
on  the  Channahon  level,  a portion  of  which  is  leased  to  the 
defendants.  Thus  the  same  volume  of  water  is  repeatedly  used 
on  successive  levels  within  a space  of  about  four  miles. 

Decently  the  Canal  Commissioners  found  that  the  surplus 
water  at  their  disposal  from  the  level  above  Dam  No.  2. was 
such  that  after  leasing  all  that  could  be  leased  to  advantage 
at  the  dam,  and  after  transmitting  to  the  appellant  more 
than  double  the  amount  he  was  accustomed  to  receive  through 
his  own  x)itiful  stream  before  the  deepening  of  the  cut”  (the 
reference  being  to  the  Desplaines  River)  “there  was  still  a 

4846  large  surplus  that  could  be  utilized  most  x^rofitably  by  the 
state,  in  the  method  exemplified  in  the  case  at  bar,  viz:  by 

drawing  it  directly  through  openings  from  the  canal  itself,  and 
then  discharging  it  into  the  river,  but  necessarily  and  unavoid- 
ably below  the  plaintiff's  dam.” 

4847  On  page  25  : 

“The  fact  then,  that  this  link  of  communication  between  the 
hydraulic  basin  at  Lockport,  and  the  upper  basin  in  Joliet,” 
(that  being  Section  22,  23,. 24,  27,  the  river  in  those  sections) 
“in  which  the  river  discharges  as  a feeder,  does  not  belong 
to  the  state,  is,  I submit,  quite  immaterial  to  the  argument. 
It  is  a circumstance  affecting  only  and  exclusively  the  rela- 
tions between  those  particular  intermediate  owners  and  the 
state.  In  fact,  for  fully  two-thirds  of  the  way,  as  will  be  seen, 
the  river  runs  through  canal  lands,  which  must  be  supposed 
to  have  been  sold  subject  to  the  right  of  the  state  to  the  use 


1424 


Extract, — Druley  vs.  Allen. — Continued. 

of  tile  channel.  But  those  also  who  purchased  from  the  gov- 
ernment of  the  U.  S.  must  have  clone  so  after  the  plan  of  the 
canal  connecting  with  the  Desplaines  Elver  as  a feeder  was 
adopted,  and  with  full  knowledge  of  and  reference  to  it.”  That 
language  does  not  apply  to  the  state,  hut  applies  to  odd  sec- 
tions  22,  27,  23. 

‘‘2.  The  action  was  brought  in  evasion  of  our  express  and 

4848  established  public  policy,  in  respect  to  controversies  with  the 
state,  arising  from  the  management  of  the  canal  by  her  of- 
ficial agents.  8 St.  cited  supra.’ ^ 

That  is  they  could  not  sue  the  state,  and  they  tried  to  avoid 
that  by  suing  its  commissioners. 

‘‘It  is  very  distinctly  a case  coming  within  the  reason  and 
spirit  of  this  wise  policy  of  the  goverment.  Confessedly,  it  is 
a dispute  between  William  Adam  and  the  State  of  Illinois,  in- 
volving the  control,  at  Joliet,  of  the  immense  volume  of  sur- 
plus water  which  pours  down  from  Lake  Michigan  through 
the  deep  cut.  If  Adam  has  been  aggrieved,  the  state  should 
pay  the  damage,  and  if  constitutional  and  statutory  provision, 
while  thus  taking  the  rights  and  liabilities  of  the  state  out  of 
the  jurisdiction  of  her  judicial  tribunals,  contemplate  that  her 
legislature  will  do  him  ample  justice.  To  that  resort,  how- 
ever inconvenient,  he  is  confined.” 

On  page  2,  of  the  brief  and  argument  for  appellant  in  the 

4849  Supreme  Court  of  Illinois,  at  the  September  Term,  1891.  On 
page  2,  the  last  paragraph  at  the  bottom  of  the  page: 

“Mdien  the  canal  leaves  the  river  at  Dam  No.  2,  it  pursues 
a southwesterly  direction,  diverging  gradually  more  and  more 
from  the  river,  this  being  known  as  the  Channahon  level.  On 
this  level,  and  about  half  a mile  below  Adam’s  mill  dam,  the 
defendants  in  1878  erected  an  oat  mill  on  the  berm  or  west- 
erly bank.  The  Canal  Commissioners  had  discovered,  that  by 
simple  and  not  very  expensive  structures,  a valuable  water 
power,  promising  to  yield  a considerable  addition  to  the  rev- 
enues of  the  canal,  might  be  developed  in  this  quarter  of 
the  Town  of  Joliet;  and  accordingly  made  to  Slater  and 
Druley  a ten  years’  lease  of  sufficient  water  to  run  their  mill, 
under  which  lease  the  defendants  proceeded  to  put  their  enter- 
prise into  operation.  Their  estal3lishment  is  situated  nea/ly 
a mile  below  Dam  No.  2,  where  the  river  and  the  canal  part 
company.  It  is  for  this  water  thus  drawn  from  the  canal,  at  si 
point  far  below  the  plaintiff’s  mill,  and  far  below  Dam  No.  2, 
that  the  action  was  brought  against  them  as  lessees  of  the 
state;  Adam  not  choosing  to  make  his  contest  directly  with  the 
state  herself.” 

Your  Honor  notices  that  the  mill  which  was  using  the  diverted 


water  was  below  tlie  Adam’s  mill,  and  they  got  the  water  of 

4850  the  river  to  it  by  carrying  through  the  canal  and  around 
Adam’s  mill  more  water  than  was  necessary  for  purposes  of 

navigation.  The  stipulation  by  which  the  Havens  settled  with  the 
state,  or  the  Canal  Commissioners,  being  that  the  state  should 
use  only  such  water  as  was  necessary  for  navigation. 

‘‘It  has  never  been,  and  of  course  cannot  be  pretended  that 
the  surplus  water  in  question  is  to  be  described  as  any  part 
of  the  natural  and  customary  flow  of  the  Desplaines  River; 
if  by  that  expression  is  meant  the  flow  derived  from  its  nat- 
ural sources  and  affluents  in  the  water  shed  which  it  drains. 
The  Desplaines  is  in  truth  a very  insignificant  stream,  never 
of  much  use  as  a feeder  in  the  season  when  its  services  are 
most  needed,  and,  exce])t  as  reinforced  by  contributions  from 
the  canal,  affording  sites  only,  for  what  are  sometimes  de- 
nominated ‘thunder  shower  mills.’ 

In  1871,  when  the  Summit  level  from  Chicago  to  Lockport 
Avas  finished  on  the  original  deep  cut  plan,  wliich  the  pecuniary 
embarrassments  of  the  state  had  for  so  many  years  suspended, 
drawing  its  supply  directly  from  Lake  Michigan,  as  the  foun- 
tain head,  the  Canal  Commissioners  found  themselves  in  pos- 
session on  the  Summit  level  of  a vast  surplus  of  water,  ten 

4851  fold  beyond  what  was  required  for  navigation.  The  question 
then  met  them,  how  they  could  best  utilize  it  for  the  canal 

revenues,  and  the  public  good?” 

“First.  Subject  only  to  the  reciprocal  rights  in  the  flow  of 
the  water  existing  between  the  dominant  and  servient  estates, 
each  riparian  proprietor  is  the  owner  of  the  bed  and  banks 
forming  the  channel  of  a water  course  as  absolutely  to  all  in- 
tents and  purposes,  as  he  owns  his  farm  upon  its  borders;  and 
he  may  use  it  with  precisely  the  same  perfect  and  unqualified 
rights  of  dominion.  No  one  can  call  him  to  account  for  such 
use,  save  only  in  respect  to  the  water  which  flows  upon,  through 
and  from  his  land.  This  doctrine  is  too  familiar  to  need  the 
support  of  authorities.” 

From  page  4 of  the  same  brief : 

“The  compromise  was  assented  to  by  the  trustees,  because 
on  their  part  they  did  not  choose  to  be  harassed  with  per- 
petual suits  for  even  nominal  damages. 

The  Appellate  Court,  however,  if  we  rightly  apprehend,  its 
decision,  adopted  the  conclusion,  not  only  that  the  release  was 
no  bar  to  the  action,  but  that  it  even  had  the  effect  of  giving 
to  the  plaintiff  as  grantee  of  the  Havens,  a right  to  claim  as 

4852  riparian  proprietor  this  A^ast  additional  volume  of  water,  pro- 
duced eighteen  years  afterwards  by  an  improvement  which  en- 

entirely  revolutionized  the  former  system  of  supply — an  addi- 


1426 


Extract, — Druley  vs.  Allen. — Continued. 


tion  exceeding,  probably,  twenty  times  the  natural  flow  of  the 
Desplaines  in  1853. 

Holding  that  court,  as  we  do,  in  the  highest  respect,  we  must, 
nevertheless,  be  permitted  to  insist  here  most  strenuously  and 
confidently  that  their  position  is  unwarranted  by  any  just  con- 
struction of  the  release. 

The  whole  transaction  between  the  Havens  and  the  canal 
Trustees,  had  reference  to  the  state  of  things  then  existing. 

The  canal  had  been  completed  in  1848  upon  the  shallow  cut 
or  raised  level  plan,  as  the  best  the  state  in  those  hard  times 
could  do.  Instead  of  a direct  and  never-failing  supply  from 
the  lake,  the  level  was  to  be  supplied  by  the  poor  expedient 
of  pumps  at  Bridgeport,  re-inforced  by  the  Calumet,  and  the 
feeble  and  uncertain  tributes  in  spring  and  fall  of  the  Little 
Desplaines.  There  are  probably  upon  the  bench  of  this  court 
those  who  personally  know  how  little  anybody  in  Illinois  at 
that  early  day  expected  the  time  would  ever  come  when  this 
channel  wmuld  be  carved  deep  through  miles  of  solid  rock  to 
the  inexhaustible  bosom  of  the  lake.” 

On  page  49,  still  continuing  the  argument  on  the  release  of 
the  Havens  upon  contract  to  compromise,  and  why  it  was  entered 
into : 

4853  ^^The  Desplaines  was  not  much  of  a stream,  but  the  trus- 
tees wanted  to  control  it  as  a feeder  for  whatever  it  was 
worth,  without  the  liability  of  incessant  lawsuits.” 

On  page  39  (additional  brief  for  appellant)  : 

‘Hn  the  case  at  bar  the  state  is  directly  interested,  not  as  a 
party  it  is  true,  but  in  the  result.  If  this  judgment  is  collected, 
the  state  would  be  both  legally  and  morally  bound  to  refund 
the  money  to  the  appellants.  And  then  again,  if  the  judg- 
ment of  the  Appellate  Court  is  affirmed,  all  revenue  to  the  state 
from  this  source  will  be  lost.” 

And  from  the  petition  for  rehearing  filed  at  the  March  Term 
of  the  Supreme  Court  of  Illinois,  March  Term,  1882,  petition  signed 
by  the  same  attorne}^,  G.  D.  A.  Parks,  and  also  by  E.  F.  Bull,  as 
attorneys  for  the  petitioner: 

^‘May  it  please  your  Honors: 

So  important  are  the  public  rights  involved  in  this  case,  so 
novel  some  of  the  questions  it  presents,  and  from  certain  spe- 
cial circumstances  happening  to  attend  it  so  disastrous  to  the 
interests  of  the  canal  the  final  establishment  in  this  court  of  the 
claim  of  the  appellee,  that  we  must  earnestly  entreat  the  court 
to  reconsider  its  judgment.” 


1427 


On  page  36 : 

‘‘Is  it  not  settled  by  an  overwhelming  weight  of  authority 
that  an  upper  riparian  proprietor  on  a natural  water  course 

4854  is  only  bound  to  deliver  to  the  one  below  the  natural  and 
ordinary  flow  which  he  has  received  from  the  one  above ; and, 

as  corollary  to  this,  that  if  he  adds  to  the  stream  from  an 
independent  source  or  reservoir  of  his  own,  he  may  again  de- 
duct it  or  an  equivalent  quantity 

I omitted  one  paragraph  on  page  14,  or  rather  the  bottom  para- 
graph on  page  13: 

“What  is  there  in  this  mode  of  passing  the  water  from  one 
point  to  another  on  the  canal,  which  is  supposed  to  sever  the 
right  of  the  state  to  it?  Simply  this,  at  Lockport  the  river 
is  lower  than  the  canal;  at  Joliet,  at  the  point  of  intersection, 
the  canal  is  lower  than  the  river.  At  Lockport,  the  surplus, 
which  we  admit  must  be  got  rid  of  there  in  some  way,  is 
discharged  into  channels  which  lead  down  to  the  Desplaines, 
not  far  distant.  But  when  discharged,  the  relative  course  and 
comparative  levels  of  the  two  water  courses  are  such,  that  it 
is  destined  to  rejoin  the  canal  on  the  fifth  level  below  the 
summit  level,  that  is,  on  the  level  between  Lock  No.  4 and  Dam 
No.  1.  It  thus  leaves  the  canal  under  the  necessary  concomit- 
ant condition  of  returning  to  the  canal  and  of  returning  to  it 
before  the  beneficial  rights  of  the  appellee,  as  a lower  riparian 
proprietor,  become  involved.  If  abandonment,  in  the  sense  in 
which  the  term  is  here  used,  depends  at  all  on  intention,  we 
absolutely  know  from  the  original  plan  of  the  canal  itself,  that 

4855  there  was  not  and  could  not  be  any  intention  on  the  part  of 
the  state  to  abandon  the  water  at  Lockport  irreclaimably  to 

public  use,  save  for  the  distance  between  the  two  levels.^’ 

I may  say  parenthetically,  there  was  the  contention  that  the  in- 
tention of  the  parties  at  the  time,  as  one  act,  was  to  discharge  the 
water,  but  to  reclaim  it  again  when  it  got  down  to  the  outlet  of 
the  canal. 

“If,  then,  by  a physical  necessity,  the  water  was  to  return 
to  the  possession  of  the  state,  is  it  not  impossible  to  success- 
fully maintain  that  it  was  intentionally  abandoned? 

Thus  the  question  narrows  itself  to  a single  point:  ^ Suppos- 
ing that  the  state  intended  to  assert  whatever  legal  rights  she 
had  or  might  have  in  this  water  after  it  should  have  been  re- 
stored to  the  canal,  does  the  fact  of  its  previous  transmission 
from  the  one  point  to  the  other  through  the  medium  of  the 
Desplaines  Eiver,  a channel  not  belonging  to  her,  preclude  her 
claim  ? ” 


4856 


J.  W.  WOEKMANN, 

a witness  for  the  defendant,  testified  as  follows: 

Direct  Examin ati o n . 

f My  name  is  J.  W.  Woermann,  age  forty,  occupation  civil  en- 
gineer; I reside  in  Chicago. 

I am  in  the  employ  of  the  Economy  Light  & Power  Company,  at 
present,  in  connection  with  this  case.  I was  not  directly  in  the  em- 
ploy of  it  prior  to  that  time  in  connection  with  the  construction 
of  the  dam.  I was  in  the  employ  of  Mr.  D.  W.  Mead,  as  resi- 
dent engineer  in  charge  of  construction  of  the  power  house  and 
other  works  at  the  mouth  of  the  Desplaines  Biver. 

I entered  Washington  University  at  St.  Louis  and  began  the 
study  of  civil  engineering  in  1885.  In  1888  I assisted  in  a 

4857  class  survey  of  the  Missouri  Biver  at  Washington,  Missouri. 
In  1889  I completed  the  regular  four  year  course  and  entered 

the  service  of  the  United  States  in  connection  with  the  survey 
for  a deep  waterway  from  Lake  Michigan  to  the  Illinois  Biver 
at  La  Salle.  In  connection  with  that  survey  I made  a trip 
down  the  Desplaines  Biver  from  Joliet  to  the  mouth  in  July  of 
3889,  in  a skiff.  In  October  of  that  year  I proceeded — well  we 
did  not  stop  at  the  mouth — I started  to  say  that  we  did  not 
stop  at  the  mouth  of  the  river,  we  proceeded  on  down  to  La  Salle, 
Illinois.  That  was  in  connection  with  the  survey  of  the  river.  Part 
of  the  time  I was  in  the  office  working  on  maps  and  estimates,  and 
part  of  the  time  in  the  field.  In  making  this  trip  down  the  river 
in  a skiff  I was  securing  the  high  water  marks,  all  that  could  be 
found  from  earlier  stages.  I was  working  at  that  time  under 

4858  Mr.  L.  L.  Wheeler,  directly.  That  survey  was  what  was 
generally  knowm  as  the  Marshall  survey. 

In  October  of  that  year  I proceeded  on  down  the  Illinois  Biver 
from  La  Salle  to  La  Grange,  Illinois,  where  the  government  was 
completing  a dam  at  that  time.  I made  that  journey  also  in  a skiff. 
I then  returned  to  the  Washington  University  to  take  a fifth  year 
in  civil  engineering  and  secure  the  degree  of  civil  engineer,  which 
was  conferred  upon  me  in  June  of  1890. 

In  June,  1890,  I re-entered  the  service  of  the  United  States  in 


1429 


connection  with  the  survey  of  the  Missouri  Iviver,  and  for  a short 
time  was  engaged  upon  triangulation  work  between  Sioux  City  and 
Omaha,  and  during  the  remainder  of  the  year  upon  the  survey  of 
the  Upper  Missouri  Elver,  above  Fort  Benton.  On  the  Upper 
Eiver  I had  charge  of  a level  party;  from  tlie  head  waters  at  Gal- 
latin, where  the  Madison  and  the  Jefferson  and  the  Gallatin  unite 
to  form  the  Missouri  down  to  Fort  Benton,  a distance  of  about  250 
miles. 

4859  There  was  no  navigation  there  except  ferry  boats  at  a few 
places,  rope  ferries.  We  built  two  barges  at  the  head  waters 

and  covered  them  with  canvas,  and  floated  down.  We  proceeded 
as  far  as  Great  Falls,  where  we  had  to  abandon  the  boats  alto- 
gether and  use  wagons  from  that  point  down  to  Fort  Benton.  That 
was  about  20  miles.  We  had  to  use  a rope  to  let  us  down  over 
most  of  the  rapids. 

From  January  1,  1891,  to  July,  1892,  I was  engaged  upon  sur- 
veys and  estimates  in  connection  with  the  location  of  a canal  around 
the  lower  rapids  at  Eock  Eiver,  a portion  of  the  Hennepin  Canal ; 
from  July,  1892,  until  November,  1895,  I was  in  charge  of  the 
construction  of  one  lock,  the  first  concrete  lock  built  in  the  United 
States,  two  dams,  seven  tainter  gates,  two  swing  bridges,  one  sub- 
merged culvert  and  four  miles  of  earth  work,  forty-five  hundred 
feet  of  which  was  in  the  bed  of  Eock  Eiver,  both  embankments 
in  the  bed  of  Eock  Eiver. 

4860  That  was  opposite  Milan.  I heard  Colonel  Wheeler  testify. 
That  was  the  embankment  concerning  which  he  testified.  It 

is  shown  on  ^‘Wheeler  Exhibit  1.”  I had  charge  of  it.  The  di- 
mensions of  those  embankments  were  12  feet  wide  on  top. 

(Objection  on  the  ground  that  the  details  of  specific  works 
are  irrelevant,  incompetent  and  immaterial.  They  are  res  inter 
alios  in  the  highest  sense.) 

The  CouKT.  He  may  answer. 

Counsel,  fok  Complainant.  That  objection  may  stand  to  all  sim- 
ilar inquiries  to  avoid  repetition! 

The  Court.  Yes. 

4861  Witness.  To  describe  those  embankments : they  are  located 
in  the  bed  of  the  river  in  order  to  provide  a channel  for  mill 


1430  Woermann, — Direct  Exam. — Continued. 

creek  on  the  land  side.  It  was  not  desirable  to  take  the  creek 
into  the  canal,  because  of  its  great  volume  at  times  of  flood,  and 
also  because  of  the  amount  of  sand  and  mud  which  it  brought  down, 
and  the  canal  was  built  out  in  the  river,  leaving  a channel  for 
mill  creek  on  one  side,  and  the  flow  of  Eock  River  on  the  opposite 
side.  The  embankment  next  to  the  river  side  was  14  feet  in  height, 
12  feet  wide  on  top,  two  to  one  slope  on  the  river  side,  one  and 
one-half  to  one  on  the  canal  side.  The  embankment  on  the  land 
side  towards  the  channel  left  for  Mill  Creek,  was  12  feet  wide  on 
top,  with  slopes  of  one  and  one-half  to  one  on  each  side.  The 
height  was  four  feet  lower  than  the  hank  next  to  the  river. 

The  Hennepin  Canal  was  between  the  two  embankments,  so  that 
there  was  water  on  three  sides.  The  material  of  which  they  were 
constructed  was  brought  from  an  excavation  just  immediately 

4862  above  which  consisted  of  two  to  three  feet  of  black  loam,  um 
derlaid  by  yellow  clay,  and  a small  amount  of  gravel  just  im- 
mediately above  the  rock. 

I am  familiar  with  the  material  of  which  the  tow-path  hank  at 
Dresden  Heights  is  constructed.  The  material  in  the  embank- 
ment at  Dresden  Heights  between  the  Economy  Light  & Power 
Company’s  proposed  dam  and  Channahon,  is  much  superior,  for 
the  reason  that  it  is  heavier,  has  a great  deal  of  gravel  in  it  and 
very  little  black  loam. 

Those  banks  at  the  Rock  River  were  built  in  1893  and  1894. 
I saw  them  three  years  ago.  As  near  as  I could  determine,  the 
condition  they  were  in,  the  way  they  were  left  at  the  time  they 
were  finished,  had  not  undergone  any  change  whatever. 

4863  From  November,  1895,  until  July,  1896,  I was  in  charge  of 
the  operating  and  care  of  that  portion  of  the  canal  around 

the  lower  rapids  of  Rock  River,  it  having  been  opened  to  naviga- 
tion in  November,  1895,  in  connection  with  the  operating  and  care 
of  it  and  riprapping  the  banks  and  dredging  out  the  entrances 
at  each  end  of  the  canal;  the  Mississippi  River  being  at  the 
lower  end  and  Rock  River  at  the  upper  end. 

In  July,  1896,  until  November  of  the  same  year  I was  engaged 
upon  surveys  in  connection  with  the  location  of  the  dam  at  Sterling 
across  Rock  River,  at  the  head  of  the  feeder.  From  November, 
1896,  until  May,  1897,  I was  in  charge  of  the  inspection  of  the 


1431 


dredging  of  the  Chicago  Eiver  and  South  Branch  under  the 
United  States,  From  May,  1897,  until  October  of  the  same  year 
I was  engaged  upon  the  surveys,  maps  and  estimates  in  connection 
with  the  location  of  the  Hennepin  canal,  from  Feeder  Junction 
westward  to  Eock  Eiver,  a distance  of  34  miles.  From  October, 
1897,  until  June,  1899, 1 was  in  charge  of  miles  24  to  28  inclusive — 
miles  20  to  24  inclusive,  and  for  a short  time  of  miles  25  to  28  inclu- 
sive in  the  eastern  section  of  the  canal. 

That  is  the  Hennepin  Canal,  and  also  had  charge  of  the 

4864  erection  of  five  highway  bridges  between  Bureau  and  Wyanet. 
From  June,  1899,  until  September,  1902,  I was  in  charge  of 

the  construction  of  miles  24  to  29  inclusive  of  the  feeder,  and  of 
miles  28  to  32  inclusive  of  the  main  line  of  the  Hennepin  Canal. 
This  included  the  construction  of  more  than  20  miles  of  embank- 
ments, and  also  one  lock  and  aqueduct,  a number  of  bridges,  cul- 
verts and  similar  structures.  ‘‘Embankments”  means  canal  em- 
bankments. Those  were  earthen  embankments. 

From  September,  1902,  until  September,  1905, 1 was  in  charge  of 
the  surveys,  maps,  plans  and  estimates  for  the  14-foot  water  way 
from  Lockport,  Illinois,  to  the  Mississippi  Eiver,  including  sec- 
ondary triangulation,  precise  levels,  topography,  hydrography  and 
so  forth  of  some  866  square  miles.  I also  prepared^ — in  connection 
with  the  river  work  we  took  numerous  discharge  measurements, 
gauge  readings,  borings  and  so  forth.  I also  prepared  plans  for 
the  locks,  dams,  bridges  and  other  necessary  structures,  including 
plans  and  estimates  for  a proposed  canal  around  the  rapids  at 
Joliet  and  at  Marseilles. 

That  employment  was  by  a Board  of  Engineers  of  which  Cob 
0.  A.  Ernst  was  chairman  under  the  United  States.  That 

4865  is  embodied  in  the  government  I'eport  of  1905,  House  Docu- 
ment No.  263.  The  part  I made  is  that  which  is  signed  by  me, 

covering  some  100  pages  or  so.  It  is  my  report,  that  is,  without 
the  numerous  appendices. 

From  September,  1905,  until  the  present  time  I have  been  en- 
gaged in  private  practice;  made  the  surveys  in  connection  with 
the  location  of  the  Illinois  Traction  Company’s  bridge  over  the 
Illinois  Eiver  at  Peoria,  Illinois,  and  had  charge  of  the  construc- 
tion of  the  same;  have  also  made  numerous  examination  and  sur- 


1432 


Woennann, — Direct  Exam. — Continued. 


veys  and  reports  on  miscellaneous  matters,  including  an  estimate 
for  an  alternative  location  of  a 14-foot  waterway  in  the  vicinity  of 
the  mouth  of  the  Desplaines  Eiver,  substituting  a lock  and  dam 
at  that  point  in  place  of  two  locks  and  dams  which  form  part 
of  the  government  project.  I made  this  last  report  for  Mr.  Mon- 
roe. From  July,  1907,  until  the  work  was  stopped  by  injunction 
I had  charge  of  the  construction  of  the  proposed  dam  and  power 
house  at  the  mouth  of  the  river,  being  employed  by  Mr.  D.  W.  Mead 
as  resident  engineer. 

4866  In  connection  with  the  survey  of  1899  I saw  the  river  at 
several  places  above  Joliet,  but  was  quite — was  very  familiar 

with  it  from  Joliet  to  the  mouth  on  account  of  going  over  that  por- 
tion in  a skiff,  twice,  once  in  connection  with  that  survey,  once 
in  connection  with  my  own  survey  in  1904. 

AVell,  under  my  direction  I had  all  of  the  gauge  readings  compiled 
which  were  ever  taken  along  the  Desplaines  and  Illinois  Kivers; 
searched  all  of  the  government  and  state  and  private  offices,  city 
and  bridge  and  railroad,  and  I have  made  some  study  particularly 
in  connection  with  the  Riverside  gauge.  The  gauge  readings  are 
all  published  in  that  House  Document  No.  263.  Those  were  pre- 
pared under  my  supervision. 

(Objection  to  the  word  ‘^prepared.”) 

4867  The  MTtness.  Perhaps  compiled  would  be  a better  word 
than  ‘‘prepared.”  Let  me  add,  Mr.  Scott,  just  this  in  con- 
nection with  Mr.  Starr’s  remarks,  that  I did  establish  a great  many 
new  gauges  in  connection  with  my  suiwey,  and  those  readings  were 
taken  under  my  direction  and  also  are  compiled  in  that  same 
report. 

I have  examined  the  gauge  readings  that  have  been  offered  in 
evidence  in  this  case.  I have  made  a tabulation  showing  the  num- 
ber of  days  in  each  year  during  the  19  years  for  which  we  have 
the  records  when  there  was  no  discharge  at  Riverside;  also  another 
table  showing  the  number  of  additional  days  when  there  was 

4868  six  inches  or  less  of  water  at  Riverside.  I have  preparecf 
another  table  there,  a table  showing  the  number  of  days  in 

each  month  of  each  yeai  when  there  were  15  inches  or  more  of 
water  in  the  river  at  Riverside. 


143:j 


Q.  Now  taking  first  in  the  19  years  tlie  number  of  days  when 
there  was  no  discharge,  what  are  the  number  of  days  as  sliown 
by  the  gauge  readings  that  have  been  offered  in  evidence  here.  A. 
I would  have  to  refer  to  my  notes  for  that. 

Q.  You  may  do  that  if  you  cannot  testify  from  your  independent 
memory.  A.  Did  you  ask  if  for  each  month,  or  just  the  total  for 
each  year?  For  each  month  would  make  it  quite  lengthy. 

Q.  We  are  interested  in  knowing  as  to  each  month  because  we 
may  desire  to  make  some  argument  as  to  whether  it  was  within 
the  period  of  navigation  or  not. 

The  Court.  The  witness  states  that  he  has  it  all  written  down. 
If  it  is  correct  suppose  you  just  put  it  in. 

Counsel  for  Defendant.  We  will  give  them  a copy. 

The  Court.  And  regard  it  as  testified  to  orally. 

And  thereupon  the  said  compilation  was  read  in  evidence,  as 
follows : 

4870  Woermann’s  Waterway  Report  Continued. 

Riverside  Gauge  Readings. 

1886. 

No  Discharge  as  follows:  Less  than  6" 


July 

Aug. 

Sept. 

Oct. 

Nov. 

Dec. 

5 davs 
19 
14 
26 
29 
31 

June 

July 

Sept. 

Oct. 

Nov. 

23  davs 
17 
2 
5 
2 

Total 

No  record  from  Jan. 

52  days 
1,  to  May  15. 

Total 

124  days 

Jan. 

22  days 

1887 

May 

26  days 

June 

16 

June 

14 

July 

17 

Ang. 

20 

Sept. 

13 

Total 


55  days 


- Total 


73  days 


1434 


W oermami’ s Waterway  Report.— Continued. 


1888 


Sept. 

10  days 

Sept. 

18  days 

Oct. 

31  ‘‘ 

Nov. 

30 

Total 

18 

Dec. 

31 

Total 

102  days 

No 

record  from  Apr.  1,  to  Sept. 

4871 

1889. 

Jan. 

10  days 

Jan. 

4 days 

Feb. 

23  “ 

Feb. 

5 

Mar. 

5 

Mar. 

9 

July 

4 

Apr. 

7 ‘‘ 

Aug. 

12 

May 

10 

Sept. 

30 

June 

9 

Oct. 

31 

July 

4 ‘‘ 

Nov. 

28  ‘‘ 

Aug. 

2 

Dec. 

4 

Nov. 

2 

Dec. 

7 

Total 

147  days 

Total 

59  days 

1890. 

Ang. 

10  days 

July 

8 days 

Sept. 

14 

Aug. 

21 

Sept. 

16 

Total 

24  days 

Oct. 

31 

Nov. 

30 

Dec. 

27 

Total 

133  days 

1891. 

(No  record  available.) 

4872 

1892. 

Aug. 

8 days 

July 

12  days 

Sept. 

18 

Aug. 

23 

Oct. 

24 

Sept. 

12 

Oct. 

7 

Total 

50  days 

Nov. 

30 

Dec. 

31 

Total 

*115  days 

No  record  from  Jan.  1 to  May  3. 

1435 


1893. 


Jan. 

14  days 

Jan. 

17  days 

Aug. 

27 

Feb. 

14 

Sept. 

30 

July 

23 

Oct. 

14 

Aug. 

4 

Nov. 

11 

Oct. 

17 

Dec. 

11 

Nov. 

19 

Dec. 

5 

Total 

107  days 

Total 

99  days 

1894. 

July 

18  days 

Jan. 

15  days 

Aug. 

31 

June 

28 

Sept. 

13 

July 

13 

Oct. 

31 

Sept. 

11 

Nov. 

1 

Nov. 

29 

Dec. 

27  ‘‘ 

Total 

94  days 

Total 

123  days 

4873 

1895. 

Jan. 

24  days 

No  record  first  7 days. 

Feb. 

25 

Mar. 

4 days 

June 

27  ‘‘ 

Apr. 

12 

July 

31 

May 

25 

Aug. 

24  ‘‘ 

June 

3 

Sept. 

10 

Aug. 

7 

Oct. 

31 

Sept. 

16 

Nov. 

27 

Nov. 

3 

Dec. 

14 

Dec. 

5 

Total 

123  days 

Total 

75  days 

1896. 

June 

12  days 

Jan. 

12  days 

July 

26 

Feb. 

15 

Aug. 

6 

May 

17 

Sept. 

14 

June 

13 

July 

4 

Total 

58  days 

Aug. 

21 

Oct. 

15 

Nov. 

4 

Dec. 

16 

Total 

117  days 

1436 


Woermann’s  Watenvay  Report. — Continued. 


4874  1897. 


Aug. 

25  days 

May 

13  days 

Sept. 

30 

Jnne 

17 

Oct. 

31 

July 

31 

Nov. 

13 

Aug. 

6 

Dee. 

9 

Nov. 

17 

Dec. 

22 

Total 

108  days 

Total 

106  days 

1898. 

Jan. 

11  days 

Jan. 

12  days 

Aug. 

10 

Feb. 

9 

Sept. 

13 

May 

20 

Dec. 

8 

Jnne 

7 

Total 

42  days 

July 

21 

Aug. 

21 

Sept. 

17  ‘‘ 

Oct. 

31 

Nov. 

13 

Dec. 

15 

- 

Total 

166  days 

4875 

1899. 

Jan. 

2 days 

Jan. 

26  days 

Feb. 

21 

Feb. 

3 

July 

4 

Apr. 

8 

Sept. 

11 

May 

8 

Oct. 

14 

June 

13 

Nov. 

10 

July 

8 

Dec. 

12 

Aug. 

18 

Sept. 

19 

74  days 

Oct. 

17 

Nov. 

20 

t 

Dec. 

12 

152  days 


1437 


1900. 


May 

1 day 

Jan. 

17 

June 

11 

Feb. 

3 

July 

10 

Apr. 

2 

May 

25 

22  days 

June 

16 

July 

21 

Aug. 

19 

Sept. 

13 

Oct. 

31 

Nov. 

19 

Dec. 

19 

185  days 


4876  1901. 


Nov. 

Dec. 

3 days 
31  ‘‘ 

Jan. 
Feb. 
Mar. 
Apr. 
May 
June 
July 
Ang. 
i Sept. 

Oct. 
Nov. 

28  days 
28 

4 

8 

22 

28 

29 
21 

30 

31 
27 

266  days 

34  days 

1902. 

Jan. 

31  days 

Feb. 

1 day 

Feb. 

27 

Mar. 

15 

Apr. 

2 “ 

Apr. 

23 

Sept. 

11 

May 

6 

June 

4 

71  days 

Aug. 

18 

• Sept. 

14 

Total 

81  days 

1438  ' Woermann^s  Waterway  Report. — Continued. 


1903. 


July 

Dec. 

4 days 
■ 25  ‘‘ 

Jan. 

May 

June 

July 

Aug. 

Oct. 

Nov. 

Dec. 

16  days 
24  ‘‘ 

24 

14 

9 

6 

30 

6 

128  days 

29  days 

1904. 

Additional  days  when  there 

was  less  than  6". 

Jan. 

• 19  days 

Jan. 

4 days 

June 

23 

Feb. 

2 

July 

31 

June 

7 

Aug. 

20 

Aug. 

8 

Sept. 

28 

Sept. 

2 

Oct. 

8 

Oct. 

23 

Nov. 

8 ‘‘ 

Nov. 

22 

Dec. 

25 

Dec. 

6 

Total 

162  days 

Total 

74  days 

4876a 

1905. 

No  discharge 

as  follows: 

Additional  days  when  there 

Jan. 

20  days 

was 

less  than  6" 

Feb. 

25 

Jan. 

11  days 

July 

4 

Apr. 

5 

Oct. 

6 

June 

7 

July 

19 

Total 

55  days 

Aug. 

15 

108 

Sept. 

10 

Oct. 

12 

Grand  Total  163  days 

Nov. 

18 

Dec. 

11 

Total 

108  days 

1439 


1906. 


Jan.  (Not  given) 

May 

8 days 

May 

9 idaj^s 

Sept. 

1 

June 

30 

Oct. 

13 

July 

30 

Nov. 

9 

Aug. 

30 

Dec. 

5 

Sept. 

29 

Oct. 

16 

Total 

36  days 

Nov. 

11 

Total 

155  davs 

36 

• 

Or.  Total 

191  days 

4877  1907. 


Aug. 

19  davs 

Apr. 

1 day 

Sept. 

14  ‘‘‘ 

May 

2 days 

July 

18 

Total 

33  davs 

Aug. 

11  ‘‘ 

97 

Sept. 

3 

Oct. 

14 

Grand  Total  130  days 

Nov. 

22 

Dec. 

26 

97  days 


4877a 

Eiverside  Gauge  Eeadings,  Summary. 

No.  of  days  when  there 

No.  of  additional  days 

Year. 

was  no  discharge,  when  there  was  6"  or  less. 

Total. 

1886 

124 

52 

176 

1887 

55 

73 

128 

1888 

102 

18 

120 

1889 

147 

59 

206 

1890 

24 

133 

157 

1892 

50 

115 

165 

1893 

107 

99 

206 

1894 

94 

123 

217 

1895 

213 

75 

288 

1896 

58 

117 

175 

1897 

108 

106 

214 

1898 

42 

166 

208 

1899 

74 

152 

226 

1900 

22 

185 

207 

1901 

34 

266 

300 

1902 

71 

81 

152 

1903 

29 

129 

158 

1904 

162 

74 

236 

1905 

55 

108 

163 

1906 

155 

36 

191 

1907 

33 

97 

130 

liiO 


W oermann, — Direct  Exam. — Continued. 


4878  Mr.  Woermann  further  testified — in  the  year  1886  there 
were  124  days,  when  there  was  no  discharge  recorded 

at  Riverside;  52  additional  days  when  there  was  6 inches  or  less; 
total  176  days.  The  record  was  not  complete  for  that  year.  For 
the  first  two  or  three  months  I believe  there  was  some  lacking. 
No  record  from  January  1st  to  May  15th.  In  1887,  55  days  when 
there  was  no  discharge;  73  when  there  was  6 inches  or  less;  total 
128.  1888,  102,  18,  120.  That  means  in  each  instance  102  no  dis- 
charge— the  first  figure  I will  give  will  be  no  discharge  and  the 
second  figure  will  he  those  times  when  it  was  6 inches  or  less  and 
the  third  the  total  of  the  two. 

4879  1889,  147;  59;  206.  1890,  24;  133;  157.  1891,  No  record. 
1892,  50;  115;  165.  No  record  from  January  1st  to  May  3rd 

in  that  year.  1893,  107 ; 99 ; 206.  1894,  94;  123;  217.  1895,213; 
75;  288.  1896,  58;  117;  175.  1897,  108;  106;  214.  1898,  42; 

4880  166;  208.  1899,  74;  152;  226.  1900,  22;  185;  207.  1901,  34; 
266;  300.  1902,  71;  81;  152.  1903,  29;  129;  158.  1904,162; 

74;  236.  1905,  55;  108;  163.  1906,  155;  36;  191.  1907,  33;  97; 
130. 

Q.  That  is  the  last  record  I A.  Yes,  sir. 

Q.  Is  there  any  month  in  which  some  one  of  these  years  there 
has  not  been  a period  of  no  discharge. 

(Counsel  for  complainant  objected  as  leading  and  sugges- 
tive in  the  highest  degree;  overruled.) 

A.  I would  not  care  to  state  without  referring  to  my  compila- 
tion. 

Counsel  fok  Defendant.  Then  we  can  figure  it  ourselves  from 
this  summary. 

Witness.  I stated  that  I also  made  a summary  or  compilation  of 
the  number  of  times  or  months  in  succession  when  the  stage  of  the 
river  as  shown  by  the  Riverside  gauge  equalled  15  inches  or  more. 
I made  that  compilation  for  the  period  embraced  in  the  navigation 
season  of  each  year,  taking  the  dates  for  the  navigation  season 
from  the  reports  of  the  Illinois  and  Michigan  Canal  Commission- 
ers. 

4881  (Objection  and  motion  to  strike  out  what  he  has  so  far 
said  as  being  improper  for  him  to  say  that  I have  done  it 


1441 


for  the  navigation  season.  That  is  importing  not  only  his 
opinion  hut  the  opinion  of  somebody  else  about  the  navigation 
season,  and  I don’t  think  that  should  be  done.  It  is  irrele- 
vant and  incompetent.) 

The  Court.  Yes,  the  navigation  season  may  go  off.  If  the  re- 
port of  the  commission  showed  that,  the  report  can  be  brought  in 
here. 

4882  In  1886  between  April  1st  and  November  25th  there  were 
11  days  when  the  water — I will  say  in  that  connection  that 

this  does  not  include  the  month  of  April  for  the  reason  that  there 
is  no  record  for  that  month.  If  there  had  been  such  a record  this 
number  might  have  been  increased  to  some  extent. 

Counsel  for  Complainant.  Then  it  will  be  May  first  if  there  is 
no  record  for  April. 

I said  April  1st  to  November  25th,  because  I have  that  column 
headed  ‘‘Canal  open”  and  I took  those  from  the  Canal  Commis- 
sioner’s report.  I give  it  in  this  year  because  those  are  the  fixed 
dates  for  each  year  I have  taken. 

4883  11  days  it  occurred  in  May,  no  other  day  during  that  year. 
I mean  11  days  where  there  was  15  inches  or  more  of  water. 

In  1887,  between  April  1st  and  November  19th,  there  were  nine 
days  in  April,  14  in  October;  total  34.  1889  between  March  25th 
and  November  15th,  there  were  71  days  scattered  during  various 
— during  the  months  of  from  April  to  August,  inclusive.  The  rec- 
ord for  1890  and  1891  is  incomplete,  so  the  next  year  I have  tabu- 
lated is  1892.  From  April  1st  to  November  15th  there  were  29 
days  in  May,  30  in  June  and  11  in  July,  a total  of  70.  1893,  14  in 
April,  21  in  May,  19  in  June,  total  54.  In  all  subsequent  years  the 
period  that  is  considered  is  April  1st  to  November  15th  so  I will 
not  repeat  that.  1894,  15  in  April,  26  in  May,  total  41.  1895,  4 
days  in  April.  No  other  days  that  year.  1896,  16  days  in 

4884  April,  6 in  May,  1 in  June,  9 in  September,  6 in  October,  4 in 
November,  total  42.  1897,  27  in  April,  8 in  May,  5 in  June, 

total  40.  1898,  7 in  April,  6 in  June,  4 in  July,  5 in  November, 
total  22.  1899,  4 in  April,  7 in  May,  9 in  June,  6 in  July,  total  26. 
1900,  13  in  April,  6 in  August,  7 in  September,  total  26.  1901,  11 
in  April,  no  more  that  year.  1902,  15  in  May,  19  in  elune,  30  in 
July,  3 in  August,  2 in  September,  27  in  October,  10  in  November, 


1442  TF  oermann, — Direct  Exam. — Continued. 

total  106.  1903,  24  in  April,  5 in  August,  26  in  September,  2 in 
October,  total  57.  1904,  24  in  April,  no  more  that  year.  1905, 

12  in  April,  18  in  May,  5 in  June,  2 in  July,  2 in  August,  8 in  Sep- 
tember, 5 in  October,  total  52.  1906,  21  in  April,  no  more  that 

year.  1907,  17  in  April,  19  in  May,  18  in  June,  3 in  July,  10  in 
September,  10  in  October,  total  77. 

Q.  AVas  there  any  year  where  for  five  months  successively  be- 
tween April  and  November  15th,  there  was  15  inches  of  water  in 
the  river?  A.  No,  sir. 

Counsel  for  Complainant.  That  is  cross-examination.  That 
is  objected  to. 

The  Court.  No,  this  is  simply  on  the  results  of  his  tabulation. 
(Objection  overruled.) 

4885  MTtness.  As  to  whether  during  those  19  years  when  for  3 
months  in  the  year  between  the  first  of  April  and  the  15th  of 

November,  a 15  inch  stage  successively  occurred,  there  was  one 
year  when  there  was  more  than  90  days,  but  there  were  not  three 
successive  months.  That  was  1902.  There  was  not  any  other  year 
when  there  were  more  than  90  days  whether  successive  or  not. 
That  completes  my  summary  of  the  gauge  reading. 

I have  examined  the  profile,  Cooley  Exhibit  3 signed  Lyman  E. 
Cooley,  January,  1908.  I have  compared  it  with  the  original  1883 
profile  in  the  United  States  office,  and  also  with  the  published  pro- 
file in  the  thick  black  volume  of  maps  and  profiles. 

4886  Sheet  number  26  of  the  profile  of  the  Illinois  and  Des- 
plaines  Eiver,  plate  5 House  document  264,  p.  2511  is  in  the 

volume  of  maps  which  accompanies  House  document  No.  264.  It  is 
the  Marshall  survey  of  1889.  Marshall’s  report  of  1890  and 

4887  the  profile  that  I am  speaking  of  is  the  profile  of  1883  as  pub- 
lished in  that  volume.  That  was  prepared  under  Major 

Marshall’s  direction  from  the  original  field  notes  of  that  cross 
section,  which  were  prepared  by  Mr.  Wheeler — under  Mr.  Wheeler. 
He  took  the  field  notes  of  1883,  platted  them  and  published  the 
plat.  But  it  was  not  a republication  of  a map  that  had  before 
that  time  been  published,  as  I understand  it.  I have  observed 
some  differences  between  the  profile  represented  as  that  of  1883 
on  Cooley  Exhibit  3,  and  the  original  Government  map  showing 


1443 


that  profile.  The  greatest  differences  I have  observed  is  in  connec- 
tion with  the  depth  of  water  shown  in  the  vicinity  of  Treat’s 
Island.  The  profile  submitted  by  Mr.  Cooley  shows  a depth  of 
water  at  the  foot  of  Treat’s  Island  of  2 feet,  whereas  the  original 
shows  a foot  and  7/10.  At  the  head  of  Treat’s  Island  Mr.  Cooley’s 
profile  shows  2 feet  8/10,  and  the  original  and  also  the  published 
copy  shows  one  foot. 

4888  I am  familiar  with  the  profile  of  1867.  The  width  of  the 
stream  would  not  be  determined  from  the  profile,  but  the 

depths  of  water  are  shown  there.  They  are  much  less  than  the 
depths  of  water  as  shown  on  the  profile  of  1883.  The  increase 
shown  in  1883  over  those  of  1867  is  usually  varied  at  different 
points.  For  example,  at  the  mouth,  on  the  elevation  at  the  mouth, 
the  1867  profile  showed  4/10  of  a foot,  whereas,  the  1883  profile 
shows  a foot  and  2/10.  That  4/10  of  a foot  is  a short  distance 
above  the  place  where  we  are  building  our  dam,  perhaps 

4889  a quarter  of  a mile. 

A similar  difference  occurs  on  the  rapids  at  Joliet.  The 
profile  of  1867  shows  5/10,  or  half  a foot.  The  1883  profile  shows 
a foot  and  2/10  or  a foot  and  3/10,  something  like  that,  I don’t  re- 
member exactly.  The  contributions  that  have  been  made  to  the 
river  after  1867  and  before  1883  were  the  water  supplied  by  the 
Illinois  and  Michigan  Canal  through  the  pumps  at  Bridgeport. 
Also  through  the  deep  cut  in  1871  and  subsequent  to  that.  The 
amount  of  water  that  was  added  by  the  deep  cut  of  1871,  I have 
seen  it  variously  reported,  forty-five  to  sixty  thousand  cubic  feet 
per  minute. 

The  low  water  discharges  of  the  Desplaines  Eiver  in  its  natural 
condition  was,  some  of  the  early  measurements  show  a vol- 

4890  ume  as  low  as  17’ cubic  feet  a second;  that  is  at  Joliet.  Other 
measurements  show  that  there  is  absolutely  no  discharge. 

I am  familiar  with  the  slopes  and  depths  of  the  Desplaines 
Eiver.  I have  consulted  all  of  the  Government  surveys’  reports, 
maps,  plats  and  profiles.  The  earliest  ones  that  I recall,  that  I 
have  consulted,  the  earliest  in  point  of  time,  was  in  1867. 

4891  Q.  Will  you  describe  generally  the  river  as  you  have 
learned  from  observation  and  from  such  sources  as  an  en- 


1444  Woennann, — Direct  Exam. — Continued. 

gineer  you  have  recourse  to  or  have  had  recourse  to  as  to  the  na- 
tural condition  of  the  river,  and  as  you  have  now  recited? 

Counsel  for  Complainant.  I object  to  ‘^the  natural  condition” 
of  the  river.  He  has  already  testified  himself  that  it  has  been  al- 
tered so  radically  in  many  directions  that  the  testimony  of  the  wit- 
ness as  to  the  natural  condition  of  the  river  is  giving  nothing  but 
a series  of  irrelevant,  incompetent  and  immaterial  conclusions  of 
the  witness,  and  they  blend  data  from  many  documents  with  per- 
sonal observations  made  in  the  years  in  which  he  has  referred  to, 
which  were  long  after  the  things  occurred. 

4892  The  Court.  I think  you  would  have  to  divide  that  up,  Mr. 
Scott. 

Counsel  for  Defendant.  I will  take  out  the  personal  observa- 
tion then.  Give  simply  the  result  of  your  examination  of  the 
sources  to  which  you  have  referred  in  your  last  answer. 

The  Court.  He  may  answer  that. 

(Objection  on  the  ground  that  to  make  this  clear  and  defi- 
nite that  his  answer  should  be  made  seriatim  with  reference 
to  the  different  things,  instead  of  blending  some  8 or  10  sur- 
veys and  say  now  I have  looked  at  ten  surveys  and  I conclude 
from  the  ten  surveys  that  the  natural  condition  of  the  river 
is  this, — overruled.) 

Counsel  for  Complainant.  It  may  be  understood  that  the  ob- 
jection I have  made  stands  to  all  the  further  questions  along  this 
line. 

4893  The  Court.  Yes. 

A.  I should  add  to  my  former  statement  that  anything  I 
should  say  as  regards  slopes  was  based  on  the  1883  profile.  Coun- 
sel is  correct  in  saying  that  it  would  be  impossible  to  blend  the 
different  surveys. 

The  fall  of  the  river  from  Lockport  to  Joliet  is  about  38  feet  in 
4 and  a half  miles.  From  the  foot  of  Dam  No.  1 at  Joliet  to  the 
head  of  Treat’s  Island,  or  to  the  head  of  Lake  Joliet,  there  is  a 
fall  of  about  21  feet  in  three  and  a half  miles.  Then  comes  the 
pool  known  as  Lake  Joliet  about  five  miles  long  with  practically 
no  fall.  Then  the  rapids  at  Treat’s  Island,  where  there  is  a fall 
of  about  9 and  a half  feet  in  one  mile.  Then  a pool  about  one  mile 


1445 


long  where  there  i§  practically  no  fall.  Then  the  rapids  at  Smith’s 
bridge  where  there  is  a fall  of  I think  2.7  feet  in  one  mile.  Then 
the  pool  which  is  sometimes  called  Lake  DuPage,  where  there  is 
a fall  of  2 feet  in  about  3 and  one  half  miles.  Then  the  rapids  at 
the  mouth  where  there  is  a fall  of  about  3 and  one-half  feet  in  one- 
half  mile.  The  bed  of  the  river  from  Lockport  to  Joliet  on  down 
to  Treat’s  Island  is — on  down  to  Lake  Joliet  is  rock  covered  with 
numerous  bowlders,  islands  in  places  covered  with  more  or  less 
timber.  At  Lake  Joliet  that  bottom  is  soft.  At  Treat’s 

4894  Island  the  bottom  consists  of — it  is  a hard  bottom  covered 
with  numerous  bowlders  of  all  sizes,  some  immersed  and  some 

projecting.  At  Smith’s  bridge  also  near  the  mouth  the  bottom  is 
covered  with  bowlders  and  the  depth  of  the  water  is  (prite  vari- 
able. In  going  down  over  the  river  in  a skiff  in  1889  we  got 
aground  at  a number  of  places  and  two  of  us  had  to  get  out  of  the 
skiff  and  drag  the  skitf  over  the  gravel  bars.  We  also  found  great 
difficulty  in  dodging  the  bowlders  and  struck  them  a number  of 
times.  In  the  vicinity  of  Brandon’s  Eoad,  in  the  vicinity  of  Treat’s 
Island  is  where  we  struck  those  bowlders.  At  the  mouth  we  al- 
most capsized,  in  those  rapids,  the  waves  were  so  high.  The  river 
is  tortuous  and  the  channel  quite  narrow  in  places.  The  narrow- 
est place  was  near  Joliet  where,  on  one  side  of  an  island  which  was 
subsequently  excavated  by  the  Sanitary  District  there  was  60  feet 
on  one  side  and  40  on  the  other.  Other  places  there  was  widths  of 
80,  90  and  100  feet. 

I have  completed  my  general  description  of  that  part  of  the 
river.  I have  spoken  of  certain  slopes  being  at  so  much  per  mile. 
I have  not  included  in  those  statements  the  maximum  slopes  on  that 
river.  There  is  at  Treat’s  Island,  for  example,  9 feet  and  a 

4895  half  fall  in  the  length  of  the  island,  but  you  take  certain 
portions,  the  slope  is  very  much  steeper  than  that. 

Well,  in  the  main  channel  near  the  head  there  is  a slope  of  17 
feet  to  the  mile.  Near  the  foot  there  is  a slope  of  18  feet  to  the 
mile.  Over  in  the  right  hand  channel  there  is  a slope  in  one  place 
of  50  feet  to  the  mile, — perhaps  for  a distance  of  500  feet  or  so, 
or  a still  shorter  distance  you  could  find  still  steeper  places. 

4896  Well,  at  Smith’s  bridge  where  I gave  a fall  of  2.7  feet  in 
a mile,  if  you  take  the  steepest  portion  probably  it  would  be 


1446  Woermann, — Direct  Exam. — Continued. 

10  or  12  feet  to  the  mile  for  a short  distance  near  the  bridge; 
perhaps  for  four  or  five  hundred  feet.  The  same  way  at  the  mouth 
where  I gave  the  fall  as  about  3 feet  and  a half  a mile.  The  fall 
at  one  point  was  steeper  than  anything  I found  at  Treat’s  Island, 
that  is,  steeper  than  I found  in  the  main  channel  at  Treat’s  Island, 
I should  judge  20  feet  to  the  mile. 

I do  not  remember  the  exact  figures  for  the  mouth 

4897  of  the  river  approximately  20  feet  to  the  mile, — that  would 
be  for  perhaps  three  or  four  hundred  feet. 

Eeturning  again  for  a moment  to  this  profile  of  1867,  that  shows 
at  the  mouth  or  near  the  mouth  of  the  river  a dam. 

(Objection  on  the  ground  that  the  profile  is  in  evidence  and 
speaks  for  itself;  overruled.) 

4898  Q.  Do  you  know  of  any  map  which  shows  that  dam,  and  if 
so  what  map? 

(Objection  as  calling  for  the  contents  of  a document;  over- 
ruled.) 

A.  The  map  of  1867  shows  the  dam  at  the  same  point.  The 
profile  has  been  referred  to  in  the  evidence  in  this  case;  I don’t 
think  the  map  has. 

Q.  What  were  the  depths  of  the  water  as  shown  on  the  report, 
at  various  places  by  the  profile  of  1867  ? 

(Objection  to  question  as  irrelevant,  immaterial  and  not 
the  best  evidence;  overruled.) 

A.  I will  have  to  refer  to  some  notes.  I have  made  notes  taken 
from  the  survey.  I cannot  find  them  right  now. 

Q.  Then  we  will  drop  that  for  the  present.  Do  you  know 
whether  or  not  the  year  1867  was  an  unusually  low  year  or  a nor- 
mal year,  or  what  it  was  generally,  as  to  the  stage  of  the 

4899  water?  A.  I can  only  judge  from  the  gauge  readings  for  that 
year  and  subsequent  years. 

Q.  What  is  your  conclusions  from  the  gauge  readings? 

(Objection  to  answer  as  a conclusion;  overruled.) 

A.  That  was  not  an  abnormal  year. 

The  river  below  Lockport  I was  not  very  familiar  with  pre- 
vious to  the  opening  of  the  Drainage  Canal.  I saw  it  at  places. 


1447 


but  this  year  I have  been  over  a great  part  of  it  up  as  far  as  the 
Irving  Park  Eoad.  Irving  Park  Road  is  five  miles  north  of  Madi- 
son street.  It  is  55  miles  from  the  mouth. 

I did  make  an  examination  of  the  bridges  crossing  the  Desplaines 
River  from  Lockport  to  Irving  Park  boulevard.  I have  tabulated 
all  of  the  bridges  and  their  character,  the  length  of  span,  character 
of  piers  and  abutments  from  the  mouth  up  to  Irving  Park  road.  I 
found  fifty-three  bridges. 

Counsel  for  Defendant.  Well,  will  you  look  at  that,  Mr. 
4900  Starr,  (showing  document  produced  by  witness)!  This  con- 
tains practically  all  the  data  that  I would  desire  to  bring  out 
by  an  examination  of  the  witness  I think,  and  if — 

The  Court.  By  agreement  that  may  go  in  as  his  verbal  state- 
ment. 


Cross-Examination. 

This  list  or  schedule  which  I have  handed  you,  simply  includes 
the  bridges;  it  does  not  include  the  dams.  I made  that  examina- 
tion since  the  beginning  of  this  suit  at  various  days.  I have  spent 
four  days  going  over  that  part  of  the  river  at  different  times; 
namely  since  April,  1908, — during  May  and  June.  And  this  docu- 
ment which  I produced  as  a tabulation  of  the  observations  which 
I have  made  in  the  last  two  months  has  itself  been  made  within  the 
last  week  or  so. 

4901  Well,  I would  not  go  out  and  look  at  a single  bridge.  I 
would  go  out  and  cover  all  I could  see  in  that  day;  go  out 

again  when  I could  and  put  another  day  on  it,  covering  a certain 
stretch  of  the  river  each  time,  each  trip.  I stopped  at  Irving  Park 
because  I did  not  have  time  to  go  further.  And  it  represents  the 
conditions  as  it  is  at  this  time.  It  is  not  back  of  that.  Of  course, 
most  of  them  must  have  been  in  existence  before  that,  but  it  rep- 
resents the  present  examination.  I would  like  to  have  the  record 
show  that  those  lengths  of  span  are  not  exact.  I did  not  measure 
them  with  a tape,  but  simply  paced  them,  so  that  where  I got  a 
bridge  150  feet  it  might  be  147  or  152. 

(Objection  to  the  entire  body  of  the  testimony  as 

4902  irrelevant,  incompetent  and  immaterial;  objection  over- 
ruled.) 


1448 


Woennann, — Cross-Exam. — Continued. 


Counsel  for  Complainant.  Then  we  object  to  it — I will  raise 
the  other  form  of  objection — here  you  have  got  them  numbered, 
one,  two,  three,  four,  five,  six,  seven,  eight,  nine.  Where  is  the 
one  that  is  next  above  dam  number  one? 

A.  Above  Dam  number  one,  the  Euby  street  bridge.  That  is 
number  ten  on  this  tabulation. 

Q.  Does  that  cross  the  basin!  A.  Yes,  sir. 

Q.  And  then  you  jump  to  a tow-path  bridge.  Is  that  across  the 
basin!  A.  The  tow-path  bridge  is  at  one  side  of  the  basin  where 
the  Desplaines  runs  into  the  basin. 

Q.  The  rest  are  above  the  basin!  A.  Yes,  sir. 

Counsel  for  Complainant.  We  will  object  to  all  of  these  above 
the  basin  where  the  drainage  canal  and  the  river  merge,  as  irrele- 
vant, incompetent  and  immaterial. 

The  Court.  Overruled.  It  is  agreed  that  that  document  may 
go  in  as  stated  before,  and  have  the  effect  of  oral  testimony. 

Counsel  for  Complainant.  Sure. 

Counsel  for  Defendant.  And  I will  have  a copy  of  it  made  at 
the  noon  adjournment,  if  not  sooner. 

Direct  Examination  Continued. 

Said  document  was  received  in  evidence,  and  is  in  words  and 
figures  following,  to-wit: 


1449 


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W oermann,—List  of  Bridges. — Continued. 


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from  Kind  of  Type  of  of  of  each  Total  Piers  and 

No.  Mouth.  LOCAL  NAME.  Traffic.  Bridges.  Spans.  Span.  Length.  Abutments.  REMARKS. 

38  47.8  Forest  Home  Bridge Wagon  Thru  Truss  1 120  120  Steel  Columns  1-30'  and  1-15  Ap- 


1451 


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1452 


Woenna yin, — Direct  Exam . — C o ntinu ed. 


4905  Thereupon  counsel  for  complainant  requested  that  his 
objection  might  stand  to  all  interrogatories  about  the  bridges. 

The  CouET.  Yes. 

The  Witness.  The  bridges  shown  on  ‘‘Woermann’s  Exhibit  1,” 
June  13th,  none  of  them  have  any  draw  or  any  provision  for  per- 
mitting the  passage  of  boats.  This  schedule  shows  one  was  a pon- 
toon bridge.  The  pontoon  bridge  is  known  locally  as  the  golf 
bridge.  It  is  directly  opposite  the  point  where  the  Chicago,  Riv- 
erside and  LaG range  Electric  Road  turns  from  a westward  di- 
rection to  a southerly.  It  floats  on  the  water. 

There  is  not  a bridge  across  Lake  Joliet  at  the  present  time. 
There  was  at  one  time  a bridge  there ; parts  of  the  bridge  are  still 
there,  I think.^  It  was  a wooden  trestle  railway  bridge.  I 

4906  saw  it  when  I went  down  there, — a railroad^  trestle ; that  is, 
what  was  left  of  it  when  I went  down  the  river  in  1887  was  a 

railroad  .trestle.  It  crossed  Lake  Joliet  perhaps  a mile  and  a half 
above  the  lower  end.  It  is  shown  on  this  map,  ^‘Woermann  Ex- 
hibit 4”  (Atlas,  p.  3980;  Trans.,  p.  6634;  Abst.,  p.  1934). 

I know  what  effect  high  water  has  upon  the  slopes  of  streams. 
Almost  invariably  it  flattens  out  the  steeper  slopes  which  occur 
at  low  water.  All  the  measurements  given  by  the  Government  in 
its  reports  on  rivers  that  I have  ever  seen  were  at  low  water. 

(Objection,  as  not  the  best  evidence;  overruled.) 

4907  Witness.  The  worst  places  are  at  the  vicinity  of  Bran- 
don’s Road  and  at  Treat’s  Island,  very  abrupt  turns.  I 

measured  the  width  on  the  Government  map  in  a number  of  places 
and  put  the  width  in  figures  in  this  ‘AYoermann  Exhibit  4.” 

I could  not  recall  exactly  what  they  were  at  various  places.  At 
the  small  island  which  formerly  existed  ,just  below  Jefferson 
street,  the  width  was  sixty  feet  on  one  side  and  forty  feet  on  the 
other.  That  is  the  one  I have  already  referred  to. 

4908  At  the  first  large  island  below  McDonough  street,  the 
channel’s  greatest  width  was  211  feet,  but  the  channel  where 

most  of  the  water  goes  is  150.  At  the  second  large  island  above 
the  Brandon  Grove  bridge  the  width  is  168.  I should  say  that 


1453 


these  widths  were  measured  from  the  survey  of  1899,  the  Siddon 
Survey;  that  is  before  the  discharge  of  the  Sanitary  District 
waters. 

Between  the  island  just  above,  immediately  above  Brandon’s 
Koad  bridge,  the  largest  opening  is  90  feet.  Just  below  the 
bridge  the — opposite  the  island,  one  opening  is  118  and  the  other 
one  48.  The  widest  place  in  Treat’s  Island — in  Lake  Joliet — the 
widest  place  in  Lake  Joliet  is  1,050,  and  the  narrowest  place  250. 
That  is  the  widest  place  on  the  river;  that  is,  measuring  only  the 
water.  If  you  measure  across  a place  like  Patterson’s  Island  and 
included  the  island,  of  course,  it  would  he  wider.  Just  below 
Treat’s  Island  bridge  in  the  main  channel  the  widtlT  is  96  feet, 
and  at  the  lower  end  120  feet.  Just  below  the  mouth  of  the  Du 
Page  Biver  the  width  is  160,  and  just  above  the  mouth  of  the  river 
180  feet. 

The  points  where  I said  the  turns  were  very  abrupt  were  be- 
tween these  various  islands,  in  the  vicinity  of  Brandon’s 

4909  Eoad,  and  then  several  points  along  Treat’s  Island,  partic- 
ularly at  the  head,  right  immediately  below  the  present 

bridge,  where  there  is  a projecting  point  on  the  left  hand  bank 
extending  nearly  halfway  across  the  river,  and  then  against  the 
mouth. 

I found  three  dams  in  the  territory  which  I covered.  There  was 
a concrete  dam  known  as  Hoffman’s  Dam  at  Riverside;  a small 
timber  dam  just  below  where  the  Chicago  & Northwestern  Rail- 
road crosses,  and  a small  timber  dam  in  Schiller  Park,  just  above 
the  Irving  Park  Road.  Not  any  of  these  dams  have  any  lock  or 
opening  for  the  passage  of  boats. 

Counsel  for  Complainant.  It  is  only  by  means  of  the  answers 
that  the  location  is  developed,  and  I would  like  simply  to  save 
time  and  simplify  the  record  to  put  the  question  to  him  and  make 
it  the  basis  of  a motion  right  at  this  point.  These  three  dams  to 
which  you  have  referred  are  all  of  them  northerly  in  the 

4910  river  from  Riverside,  are  they  not,  north  of  this  Riverside 
gauge,  up-stream  from  the  Riverside  gauge! 

A.  Yes,  sir,  up-stream  from  the  Riverside  gauge,  a good  many 
miles  above  Joliet, — Riverside  is  28  miles  above  Joliet,  and  these 
are  above  that. 


1454  Woermann, — Direct  Exam. — Continued. 

Counsel  por  Complainant.  I move  to  strike  out  the  testi- 
mony with  reference  to  these  three  dams,  as  it  now  appears  that 
it  is  irrelevant,  incompetent  and  immaterial. 

(Objection,  overruled.) 

I have  examined  ‘‘McCullough  lExhibit  1’’  and  “McCullough 
Exhibit  2’’  that  are  introduced  in  evidence  in  this  case.  Those 
maps  exhibit  the  sinuosities  of  the  Desplaines  Elver,  to  some  ex- 
tent; not  fully,  on  account  of  the  fact  that  the  scale  is  too  small 
to  show  abrupt  turns. 

The  Court.  What  are  these  maps  that  you  refer  to ! 

Counsel  for  Defendant.  These  are  the  ones  that  were 
4911  referred  to  in  the  hypothetical  question  and  were  the  basis 
of  the  hypothetical  question  so  far  as  sinuosities  and  turns 
were  concerned. 

The  Court.  That  is  an  inch  to  a mile? 

Counsel  for  Defendant.  An  inch  to  a mile. 

The  Witness.  Two  inches ; that  is  two  inches  to  the  mile.  Each 
section  is  two  inches. 

(Objection  to  the  line  of  testimony  on  the  ground  that  the 
purpose  of  the  question  was  to  attack  the  hypothetical  ques- 
tion of  complainant  and  that  such  an  attack  should  have  been 
made  when  complainant’s  witnesses  were  testifying;  over- 
ruled.) 

4916  Well,  a map  on  that  scale  cannot  show  all  the  small  pro- 
jections. For  instance,  a sharp  projection  just  below  the 

bridge  at  Treat’s  Island  and  some  irregularities,  small,  but  still 
projecting  a considerable  distance  into  the  river,  are  shown. 
Furthermore  a large  number  of  islands  which  occur  in  the  river 
where  the  sharpest  bends  are,  are  not  shown  at  all. 

4917  I found  that  in  every  month  of  the  year  at  some  time 
during  that  period  the  river  had  been  dry  during  each  of 

those  nineteen  years  for  which  I have  gauge  readings.  I do  not 
mean  for  each  month  in  each  year,  but  for  example  take  the  dry 
months,  July,  August,  September  and  October,  this  river  would 
be  dry  in  those  months  almost  every  year.  Then  perhaps  for 
half  the  number  of  years  it  would  also  be  dry  in — I do  not  mean 
that  there  was  a day  in  each  month — at  least  a day  in  each  month 


1455 


in  each  of  those  years  in  which  it  was  dry;  nor  do  I mean  that 
there  was  a day,  at  least  a day  in  some  months  of  each  of  those 
years  in  which  it  was  dry.  I mean  that  you  can  find  a day  in  each 
of  the  twelve  months  in  at  least  one  of  those  years  when  the  river 
was  dry. 

4918  I have  examined  my  notes  of  the  profile  of  1867  with  a 
view  to  answering'  the  question  asked  me  as  to  the  depth 

of  water  shown  by  that  profile.  I found  them  during  the  noon 
hour.  At  Joliet  the  depth  was  six-tenths  of  a foot  in  two  places. 
In  my  testimony  this  morning  I referred  to  that  as  five-tenths 
by  mistake.  When  I say  six-tenths  of  a foot  in  two  places,  that 
means  that  is  the  depth  in  the  channel  along  the  line  of  greatest 
depth. 

In  Lake  Joliet  the  depth  varies  from  3.8  to  20  feet.  At  the 
head  of  Treat’s  Island  1.4;  at  the  foot,  or  near  the  foot  of  Treat’s 
Island  eight-tenths  of  a foot.  In  the  pool  sometimes  known  as 
Lake  Du  Page  ten  feet.  At  the  rapids  near  Smith’s  bridge,  1.2 
feet.  The  pool  just  mentioned  was  not  Lake  Du  Page,  that  is  the 
pool  a mile  long  just  below  Treat’s  Island,  in  Lake  Du  Page,  four 
feet  to  twenty  feet.  On  Beard’s  Dam,  nothing  and  on  the  rapids 
at  the  mouth  four-tenths  of  a foot. 

4919  Q.  State  whether  or  not  in  your  opinion  the  Desplaines 
Eiver  from  Lockport  to  the  mouth  is  a navigable  stream, 

capable  of  carrying  useful  commerce? 

Counsel  for  Complainant.  Objected  to  for  lack  of  foundation 
on  the  part  of  the  witness. 

The  Court.  He  may  answer. 

A.  No,  sir. 

Counsel  for  Defendant.  Was  it  prior  to  the  turning  in  of 
the  water  from  the  Drainage  Canal. 

Counsel  for  Complainant.  The  same  objection. 

The  Court.  The  same  ruling. 

A.  No,  sir. 

Counsel  for  Defendant.  AVas  it  prior  to  the  deep  cut? 
Counsel  for  Complainant.  The  same  objection. 

The  Court.  The  same  ruling.  ; 


1456  Woennann, — Direct  Exam. — Continued. 

A.  No,  sir. 

For  several  reasons;  the  depth  is  too  shallow;  the  slopes  are 
too  great;  and  on  account  of  its  rocky  bed  and  great  nnmher  of 
bonlders  and  other  ohstrnctions,  its  narrowness  and  crooked- 
ness. 

4920  The  document  known  as  ‘ AVoermann’s  Exhibit  4”  is  a map 
of  the  Desplaines  Elver  from  Lockport  to  the  month,  based 

upon  the  Government  surveys  of  1867,  1889  and  1899,  drawn  by 
W.  F.  Millar,  nnder  my  direction.  Mr.  Millar  is  a draughtsman 
working  for — employed  by  me.  I supervised  the  making  of  this 
map.  It  does  correctly  represent  what  it  purports  to  represent. 

Insofar  as  certain  dams  which  are  there  represented  on  the 
river  are  concerned,  there  are  several  of  them  which  are  not  shown 
on  any  Government  maps,  and  which  I platted  from  the  testi- 
mony given  in  this  case,  and  in  the  answer  prepared  by  tile 

4921  defendant.  The  dams  shown  upon  this  stream  are  in  exist- 
ence or  have  been  in  existence.  Of  those  shown  oh  this  map. 

Dam  No.  1 at  Joliet  is  still  in  existence;  the  rest  are  all  gone. 

Some  of  the  bridges  shown  are  gone.  The  one  across  Lake 
Joliet,  and  one  of  those  just  above  the  penitentiary  and  one  of 
those  in  Lockport  are  gone.  That  small  island  at  Joliet  has 
been  removed.  As  to  bridges  and  dams,  except  for  those  which 
I have  mentioned,  the  map  does  show  them  as  they  now  exist. 

4922  Some  of  the  other  islands  are  partly  covered  since  the 
Drainage  Canal  has  been  opened.  At  the  time  of  the  1899 

survey  they  were  all  in  existence  except  that  small  one  at  Joliet. 

Muth  those  exceptions,  the  map  then  accords  with  the  condi- 
tion at  the  time  of  the  1899  survey. 

Cross-Examination: 

I did  not  put  on  this  map  a stretch  of  country  nine  miles 

4923  wide.  I do  not  show  any  topography  upon  it.  Those  are 
rectangular  lines  which  were  used  as  co-ordinates  in  platting 

the  river,  but  where  there  is  jiothing  more  than  those  dotted  lines, 
why,  I do  not  consider  that  a map  of  the  country.  Those  lines  do 
not  correspond  with  the  section  lines.  AVhere  they  cross  the  river 
they  are  approximately  section  lines,  but  they  are  not  exactly — 


1457 


The  figures  25  means — towards  the  top  of  tlie  map  from  the  words 
written  here:  ‘‘Proposed  dam  of  the  Economy  Light  & Power 

Company/^ — refers  to  the  number  of  that  section.  That  means 
Section  25.  The  dotted  lines  are  four-inch  squares,  representing 
the  sections.  The  dotted  lines  on  this  square  around  that  25 

4924  represent  the  limits  of  that  section,  approximately.  Those 
dotted  lines  approximately  represent  section  lines. 

And  the  map,  in  order  to  get  as  long  a stretch  of  the  river  on 
as  short  a piece  of  paper  as  possible,  does  not  have  its  top  north 
and  its  bottom  south,  but  the  north  and  south  line  runs  at  a 
diagonal  of  perhaps  45  degrees  to  the  left. 

The  point  at  the  top  of  the  map  where  the  first  dotted  line 
leaves  it  is  nine  miles  distant  from  the  point  where  that  same 
dotted  line  reaches  the  bottom  of  the  map;  that  is,  those  two 
represented  points  are  nine  miles  apart.  That  simply  represents 
and  is  intended  only  to  represent  the  Desplaines  Liver,  and  inci- 
dentally the  canal  is  shown,  but  outside  of  that  there  has 

4925  been  no  attempt  to  show  anything.  And  that  is  what  I mean 
when  I say  that  it  does  not  embrace  an  area  that,  measured  on 

section  lines  which  are  diagonal  to  the  map,  is  nine  miles  wide. 

But  the  first  which  is  approximately  the  top  of  the  map  would 
be  by  section  lines  approximately  nine  miles  away  from  this  on 
the  cross  line  at  the  bottom  of  the  map.  Those  lines  are  that  dis- 
tances apart  according  to  that  scale. 

I have  put  here  on  the  map,  for  instance,  “Beard’s  Dam,  1883.” 
Phrases  like  that,  various  labels,  dam  and  aqueduct,  where  quali- 
fying adjectives  of  that  kind  are  used, — I do  not  purport  to  set 
forth  any  information  of  my  own.  The  aqueduct  is  spoken  of  as 
abandoned  on  one  of  the  Government  maps.  I think  that  repre- 
sents it  correctly  as  it  was  in  the  year  1899,  with  the  exception 
noted,  that  small  island  at  Joliet  and  the  bridges  and  dams  which 
have  been  referred  to  which  formerly  existed,  but  did  not  at  that 
time.  So  far  as  the  shore  lines  go,  and  the  turns  and  the  sinuosi- 
ties and  the  width  of  channel,  they  are  given  in  figures.  I 

4926  think  that  is  correct  with  the  exceptions  noted. 

These  notations  of  dams  and  bridges  do  not  speak  of  any 
specific  time.  There  never  was  a time  when  the  river  assembled 


1458  Woermann, — Cross-Exam. — Continued. 

all  of  the  various  dams  and  bridges  which  I represent  as  cross- 
ing the  river.  There  may  have  been  times  when  they  all  existed 
at  once.  I do  not  know.  That  dam  just  above  this  railroad  bridge 
at  Lockport  was  there  in  1899.  There  was  no  Norman’s  Dam  in 
existence  in  1899. 

4927  Part  of  the  dam  at  Treat’s  Island  was  there  in  1899.  I 
don’t  know  just  what  evidence  there  was  there,  but  it  was 

shown  on  the  Government  maps.  I did  not  make  the  survey  of 
1899.  I know  nothing  about  any  other  dams  being  there  in  1899, 
to  my  personal  knowledge.  I have  no  personal  knowledge  of  there 
being  any  such;  and  that  is  true  of  all  these  other  objects  at  dates 
anterior  to  the  date  when  I first  examined  the  river.  The  map  I 
did  not  intend  should  represent  the  physical  condition  of  the 

4928  river  as  it  was  at  some  one  particular  time.  It  is  an  as- 
sembling of  divers  different  data  from  divers  different  dates; 

some  of  which  were  of  a period  long  anterior  and  some  long  sub- 
sequent to  any  medium  date  between  the  earliest  and  latest  date 
mentioned, — I don’t  know  how  long  anterior,  an  indefinite  period 
anterior.  I mentioned  the  Government  maps  which  I consulted  and 
I think  I mentioned  all  sources  from  which  I obtained  information 
of  the  different  objects. 

Outside  of  the  Government  report,  the  information  as  to  those 
numerous  dates  concerning  dams  were  taken  from  the  testimony 
in  this  case  and  from  the  answer  of  the  defendant  published  and 
printed. 

4929  I am  unable  to  state  whether  it  is  based  entirely  on  the 
testimony  of  the  defendant,  or  partly  on — My  testimony 

here  of  Daggett’s  Dam;  question-mark  in  parenthesis,  1839,  was 
based  on  the  printed  answer  of  the  defendant.  The  signifi- 

4930  cance  of  the  question-mark  in  the  parenthesis  means  uncer- 
tainty about  the  date,  not  as  to  the  dam.  In  the  absence  of 

specific  testimony  I used  the  printed  answer  of  the  defendant  as 
the  basis. 

Counsel  for  complainant  objects  to  the  offer  of  the  exhibit 
on  the  ground  that  it  is  not  sufficiently  shown  to  be  based  on  ac- 
curate and  competent  data,  and  not  upon  data  which  are  produced; 
overruled;  and  said  map  was  received  in  evidence.  (Atlas,  p. 
3980;  Trans.,  p.  6634;  Ahst.,  p.  1934.) 


1459 


Direct  Examination  Continued. 

The  document  to  which  my  attention  is  now  called,  as  yet  un- 
marked, a map  of  the  Kankakee  River  Valley,  from  the  mouth 
of  the  river  to  the  Santa  Fe  Railroad  bridge,  showing  the  area  to 
be  overflowed  by  the  proposed  dam  below  the  mouth  of  river,  scale 
one  inch  equals  four  hundred  feet,  (witness  shown  map.  Atlas,  p. 
3981),  was  surveyed  and  platted  under  my  direction  in  connection 
with  the  survey  for  a 14-foot  waterway,  for  the  purpose  of  show- 
ing how  much  land  would  be  flooded  by  the  Illinois  and  Kankakee 
Rivers  by  the  construction  of  our  proposed  dam  below  the  mouth 
of  the  river.  It  is  a blue-print  made  from  the  Government  map 
for  that  purpose  at  the  time  of  the  survey. 

4932  It  does  show  approximately  the  location  of  the  Kankakee 
Feeder.  The  party  I had  in  the  field  did  not  make  an  exact 

survey  of  the  feeder  or  of  the  Kankakee  cut-otf,  but  that  repre- 
sents approximately  the  location.  It  is  correct  in  so  far  as  it 
shows  the  sections,  the  quarter  sections  over  which  it  lies. 

Counsel  for  defendant  offered  this  in  evidence,  to  be  marked 
^‘Woermann  Exhibit  A,  June  13th.”  (Trans.,  p.  6636;  Abst.,  p. 
1935.) 

Cross-Examination. 

I made  this  map  more  than  anyone  else.  I was  in  general 
charge.  There  is  no  map  that  in  these  days  is  made  entirely  by 
one  individual  any  more  than  a modern  office  building  is  made 
by  one  individual.  I had  general  charge  of  the  survey  and  of 
the  mapping.  I looked  over  the  field  notes,  kept  track  of 

4933  the  field  work  daily  to  see  that  everything  checked,  and 
watched  over  it  daily.  I saw  that  the  azimuth  checked,  and 

I saw  that  when  the  lines  were  platted  that  the  loops  closed,  that 
the  work  was  correctly  platted.  I saw  a great  many  other  things. 
I saw  that  it  was  correctly  platted,  with  the  training  and  experi- 
ence which  enabled  me  to  use  in  looking  after  work  of  that  kind. 
By  loops  I refer  to  the  station  lines  which  were  run  in  the  field. 
They  are  not  depicted  here. 

Q.  What  is  there  that  is  depicted  here  that  you  personally  did 
check?  A.  The  lines  that  are  depicted  there  are  based  upon  the 
station  lines  which  were  run  in  the  field  and  platted. 


1460  W oermann, — Cross-Exam. — Continued. 

4934  Q.  Answer  my  question,  please. 

(Question  read  by  the  reporter.) 

A.  Everything. 

The  section  lines  on  that  map  and  on  all  other  maps  which 
have  been  prepared  under  Government  direction  are  only  shown 
approximately.  We  found  all  the  section  corners  in  the  field  that 
could  be  found  readily  by  inquiry  or  by  observation.  If  there  was 
a fence  line  on  a section  line  that  fence  was  located.  It  is  impossi- 
ble for  any  man  when  he  has^made  a survey  of  866  square  miles  to 
keep  in  his  mind  what  he  has  done  about  every  particular  section 
line. 

4935  Counsel  for  Complainant.  What  did  you  do  with  refer- 
ence to  checking  the  line  as  shown  on  this  map? 

A.  I could  not  pick  out  a particular  line  on  that  map — 

Q.  I have  picked  out  this  particular  one  and  asked  you  to  tell 
us  what  you  did? 

Counsel  for  Defendant.  I submit,  if  your  Honor  please,  he  has 
answered  it. 

A.  I don’t  remember. 

I don’t  remember  what  I did  do  with  reference  to  checking 
the  shore  lines  of  the  Desplaines  Eiver  on  that  map.  I did  do 
something. 

Q.  But  you  cannot  tell  what  it  was?  A.  I never  let  a map 
go  out  of  my  office  that  I do  not  do  a good  deal  of  checking  on,  not 
one. 

Counsel  for  Complainant.  I move  to  strike  that  statement  out, 
if  your  Honor  please. 

(Sustained  and  answer  struck  out.) 

4936  On  the  map  here  the  section  line  has  got  a jog  of  half 
an  inch  at  that  point.  That  is  not  unusual  on  a township 

line.  It  isn’t  a fact  that  the  section  line  between  31  and  32  north 
of  the  township  line  and  five  and  six  south  of  the  township  line 
jog  about  half  an  inch  on  this  sketch,  is  at  all  unusual.  In  making 
this  map  I had  only  in  mind  at  the  time  the  object  that  is  recited 
in  the  legend  upon  the  map,  showing  the  part  to  be  overflowed. 
That  was  what  was  in  my  mind  when  I was  making  this  map. 


14G1 


When  a map  is  prepared  for  a special  purpose  of  that  kind,  to 
disregard  details  which  would  not  atfect  that  object,  frequently  is 
done  and  should  be  stated  in  a note.  I don’t  know  what  that  note 
says.  I have  not  looked  at  that  map  for  a long  time.  I did  not 
know  it  was  up  there. 

As  to  the  phrase,  ‘‘Kankakee  Feeder,  abandoned,”  which  ap- 
pears in  two  places  on  that  map, — that  word  “Abandoned” 

4937  was  put  there  by  my  direction.  That  was  an  expression  of 
a conclusion  I reached  at  that  time ; not  alone  me,  the  party 

in  the  field  and  the  farmers  along  the  line,  everybody  we  talked  to 
about  it ; my  own  observations,  the  banks  cut  through,  fences  across 
it,  aqueduct  torn  down,  solid  earth  embankments  built  across 
it,  two  railroad  embankments  across  it.  Those  things  I just 

4938  mentioned  were  not  picked  up  from  any  farmers,  they  were 
observations  of  my  own.  I included  all  that  in  my  sources  of 

information. 

Thereupon  counsel  for  complainant  moved  that  the  label  re- 
ferred to  as  “Kankakee  Feeder  abandoned”  ought  to  be  erased 
from  the  map. 

(Objection  overruled  and  said  map  was  admitted  in  evi- 
dence, Atlas,  p.  3981;  Trans.,  p.  6636;  Abst.,  p.  1935.) 

4939  When  I made  this  map  I had  not  ever  been  in  the  employ 
of  the  Economy  Ifight  & Power  Company.  I had  not  ever 

heard  of  any  such  contemplated  enterprise  as  the  erection  of  a 
dam  at  Dresden  Heights.  I did  not  know  Mr.  Munroe. 

(Witness  temporarily  withdrawn.) 

Geoege  H.  Monkoe, 
for  complainant,  testified  as  follows : 

Direct  Examination. 

My  name  is  George  H.  Monroe;  residence  Joliet;  my  busi- 

4940  ness  is  mortgage  loans  and  real  estate  in  the  summer  season. 
In  the  winter  it  is  raising  oranges.  I have  lived  in  Joliet 

since  the  fall  of  1862.  I was  eighteen  at  that  time.  I was  in  Will 
County  before  1862.  I was  taken  as  a little  boy  fourteen  miles 
south  of  Joliet  on  a farm.  My  father  moved  there  in,  I think  it 


1462  Geo.  H.  Monroe, — Direct  Exam. — Continued. 

was  the  spring  of  ^50,  about  ’51,  the  fall  of  ’51,  perhaps.  I only 
recollect  once  seeing  the  Desplaines  Elver  until  I moved  to  Joliet. 
That  was  in  the  early  summer  of  either  1853  or  1854.  I saw  it  at 
the  ford  near  Channahon,  crossing  the  Desplaines  Elver;  no 
bridge,  but  a ford.  My  grandfather  and  uncle  started  for  Cali- 
fornia at  that  time  with  ox-teams,  and  father  and  1 accom- 

4941  panied  them  down  to  the  bank  of  the  river.  AVe  nearly 
tipped  over,  the  oxen  running  the  wagon  up  on  to  some  large 

hard-heads,  sometimes  called  nigger-heads.  I was  very  -much 
frightened,  and  my  recollection  stayed  with  me  a long  time.  Not 
a large  amount  of  water;  the  water  perhaps  at  that  point  in 
the  ford  might  have  been  two  feet  deep  in  places,  not  all,  and  a 
great  many  hard-heaUs  or  nigger-heads  in  the  channel.  I moved 
to  Joliet  in  1862 ; I have  seen  the  river,  not  every  day,  but  a 
great  many  times  since  1862,  particularly  since  the  spring  of  1863. 
I had  occasion  to  see  the  river  a great  many  times.  For  two  years 
I was  travelling  about  the  county  as  deputy  sheritf  for  that  time. 
I commenced  going  into  the  country  in  1863,  the  summer  of  1863, 
and  1864,  and  the  winter  as  well.  I did  most  of  the  outside  work 
of  the  office,  errand  boy.  I had  occasion  to  see  it  frequently  dur- 
ing those  years.  The  parts  of  the  river  that  I became  fa- 

4942  miliar  with  were  from  Channahon  up  to  Eomeo,  north  of 
Lockport.  The  condition  of  the  river  above  Lockport  in  tlie 

days  before  the  deep  cut  was  made  in  1871,  was  that  the  greater 
part  of  the  year  there  was  not  very  much  water  in  the  channeL 
There  were  holes,  wallows  perhaps ; a good  deal  of  stone  and  nig- 
ger-heads in  many  places.  One  could  at  dry  times  almost  go  across 
it  with  shoes  on  with  a little  care;  easily  with  the  old  fashioned 
leather  boots.  By  the  expression  ‘‘very  little  water  during  the 
greater  part  of  the  year”  I mean  very  little  water  running  in  the 
stream.  Expressing  that  in  the  quantity  of  water,  I don’t  believe 
there  were  six  inches  of  water  on  the  level,  some  holes  deeper.  Be- 
low Joliet  prior  to  1871,  I have  often  crossed  the  stream  at  differ- 
ent places,  and  many  times  wading  in  the  stream,  fishing. 

4943  Aly  knowledge  of  the  stream  in  fhose  days  went  as  far  as 
the  ford  at  Channahon,  but  more  especially  from  below 

Joliet,  below  what  is  known  as  Alalcolm’s  Dam,  and  then  at  Treat’s 
Island. 


um 


The  condition  of  the  river  before  1871  from  Joliet  down  to  Chan- 
nahon  was  that  the  channel  along  the  rapids  some  ways  below 
Joliet,  perhaps  for  half  a mile  down  to  near  Brandon’s  bridge, 
there  was  pretty  shallow  places  around  Treat’s  Island,  not  enough 
water  to  pole  a row  boat  up-stream.  You  might  float  one  down 
perhaps,  carefully,  have  to  step  out  once  in  a while.  That  condi- 
tion would  remain  a good  many  months  of  the  year.  The  sea- 
sons, of  course,  varied.  Sometimes  there  would  be  a wet  season 
when  we  would  have  a great  deal  of  water,  but  there  was  times  in 
the  winter  months  that  the  water  was  as  low  as  in  the  summer.  In 
the  ordinary  season,  after  the  subsidence  of  the  spring  floods,  from 
that  time  up  to  say  November  first  of  that  year,  the  water  was  very 
low,  barring  sometimes  we  would  have  summer  floods  and 

4944  they  would  not  last  long,  a few  days.  By  the  expression 
‘<very  low”  I mean  about  a stage  that  one  could  not  push  a 

row  boat  up-stream,  there  was  not  water  enough.  I recollect  the 
nigger-heads  and  boulders  south  of  Joliet,  down  stream  from  Joliet 
below  Malcolm’s  Dam,  which  was  about  eighty  rods  from 
what  is  known  as  Jefferson  street.  There  was  a dam  at 
Jefferson  street,  and  Malcolm’s  Dam,  was  about  eighty  rods 
below.  It  was  latterly  known  at  the  time  it  was  taken  away  as 
Adam’s  Dam.  In  the  stream  from  that  point  down,  in  that  part 
of  the  stream  with  which  I am  familiar,  there  was  a great  many 
boulders;  that  is,  from  Adam’s  or  Malcolm’s  Dam  south  for  some 
distance,  a long  distance,  and  the  fall  is  quite  rapid.  I don’t  think 
I ever  ran  over  what  you  call  the  rapids.  I have  had  a skiff  below 
the  dam,  but  too  much  work  to  get  it  back.  I have  been  below  the 
Malcolm’s  Dam  in  a skiff. 

4945  I am  interested  in  .the  lakes  to  the  gulf  proposition,  for 
educational  purposes  for  a waterway.  The  first  conven- 
tion of  the  association  was  lakes  to  the  gulf,  held  at  St.  Louis,  two 
years  ago  this  fall;  about  twelve  hundred  delegates  gathered 
there  and  organized  this  association.  The  next  meeting  was  held 
at  Memphis  and  the  next  one  will  be  held  in  the  City  of  Chicago  in 
October,  1908.  I am  treasurer  of  that  association.  The  purpose 
of  that  association  is  a deep  waterway  from  the  lakes  to  the  gulf, 
and  the  special  work  of  the  association  is  to  agitate  and  educate 
the  people  along  the  line.  I know  what  is  proposed  to  be  done 


1464  Geo.  II . Monroe, — Direct  Exam. — Continued. 

by  the  Economy  Light  & Power  Company  near  the  month  of 

4946  the  river  in  a general  way.  I made  investigations,  for  the 
puipose  of  ascertaining  whether  the  building  of  this  dam 

and  the  work  would  be  an  obstruction  to  that  project. 

I wanted  to  know  what  their  plans  were,  whether  it  was  going 
to  interfere  with  our  waterway,  their  dam  there,  and  from 

4947  their  plans  and  statements  made — I saw  the  plans. 

I have  been  in  the  river  in  a row  boat  since  I first  be- 
came acquainted  with  it. 

Q.  State  whether  or  not  the  Desplaines  Biver  in  the  days  prior 
to  1871  was  capable  of  being  used  by  boats  for  purposes  of  com- 
merce? 

Counsel  for  Complainant.  We  object  to  that,  without  qualifica- 
tion. 

The  Court.  He  may  answer  that. 

A.  I don’t  think  it  possibly  could  be  used  for  navigation; 

4948  not  enough  water,  too  much  falls,  too  many  rocks. 

Counsel  for  Defendant.  State  whether  or  not,  in  your 
opinion,  the  Desplaines  Biver,  at  the  present  time  is  capable  of 
being  navigated  for  the  purpose  of  commerce. 

Counsel  for  Complainant.  Objected  to  for  the  same  reasons. 
The  Court.  He  may  answer. 

The  Witness.  I don’t  think  so. 

At  the  present  time,  there  is  plenty  of  water,  but  the  current  is 
so  swift,  and  the  rocks,  boulders  laying  there,  I do  not  believe 
it  is  safe  to  try  to  navigate  it  there.  I never  knew  at  any  time  in 
my  life,  of  any  navigation  being  carried  on  in  this  river.  I never 
knew  of  a boat  used  for  commercial  purposes  upon  the  river  at  any 
point.  I never  heard  of  any  such  boat,  or  any  such  naviga- 
tion. 

4949  I am  no  relation  of  Charles  A.  Miinroe  that  I know  of. 
I have  no  relation  whatever  to  the  Economy  Light  & Power 


Co. 


1465 


Cross-Examination. 

I have  been  in  the  mortgage  loan  business  perhaps  fifteen  years 
or  twenty  years.  Prior  to  being  in  the  mortgage  loan  business, 
I was  brought  up  on  a farm,  and  after  coming  on  to  Joliet  was 
deputy  sheriff  for  two  years.  In  1865  I entered  the  grocery  busi- 
ness, retail  grocery  business,  and  I was  in  that  for  ten  or 

4950  twelve  years,  and  went  into  the  wholesale  grocery  business 
and  for  many  years  have  been  interested  in  the  stone  busi- 
ness. I am  vice-president  of  the  Western  Stone  Company  at  the 
present  time,  but  do  not  give  much  time  to  it.  My  grocery  busi- 
ness ran  up  to  the  time  when  I began  to  devote  my  time  to  the 
real  estate  and  mortgage  loan  business.  We  buy  and  sell  a good 
deal  of  real  estate.  At  the  time  I left  the  wholesale  grocery  busi- 
ness I began  giving  my  time  to  the  real  estate  mortgage  and  loan 
business. 

I was  at  Springfield  as  representing  our  district  in  the  State 
Senate.  I have  given  all  of  the  different  forms  of  business  which 
have  been  my  occupation  my  time  and  attention  and  which  have 
been  my  occupation  and  they  have  taken  the  bulk  of  my  time. 

4951  In  the  wunter  I am  looking  after  an  orange  grove,  at  which  I 
spend  about  five  or  six  months. 

I think  the  Illinois  and  Michigan  Canal  was  opened  and  in 
use  when  I first  struck  Will  County,  and  has  been  ever  since.  I 
have  not  visited  this  proposed  Economy  Light  & Power  Company 
Dam  since  they  have  commenced  to  work.  I have  visited  the  loca- 
tion several  times  before.  I visited  at  Springfield  during  the 
session  of  the  Legislature  last  spring.  I used  my  influence  and 
considerable  time  against  the  claim  of  the  Sanitary  Drainage  Dis- 
trict to  build  a sluiceway  through  Joliet.  I did  not  meddle  with 
the  bill  to  remove  obstructions  from  the  Desplaines  Kiver  very 
much  one  way  or  the  other.  It  was  the  Sanitary  bill  that  ap- 

4952  peared  to  be  dangerous  to  me.  I am  in  favor  of  the  water- 
way and  not  so  particular  about  the  water  power. 


1466 


J.  W.  WOEKMANN, 

recalled,  as  a witness  for  defendant: 

Direct  Examination. 

I am  familiar  with  the  plans  which  have  been  introduced  in  evi- 
dence, the  two  sheets  for  the  erection  of  the  structure  at  the 
mouth  of  the  river  by  the  Economy  Light  & Power  Company.  I 
know  what  the  pool  will  be  that  will  be  created  by  that  dam.  I 
am  familiar  with  the  bank  as  I have  already  testified,  the  tow- 
path  bank.  By  erecting  that  pool  and  the  resting  of 

4953  one  side  of  it  against  the  tow-path  bank,  the  only  way  in 
which  it  would  affect  it  would  be  to  cause  a wave  wash  in 

certain  places  possibly.  That  could  readily  be  protected  by  rip- 
rapping. Not  more  than  a mile  of  the  bank  would  require  to 
be  riprapped  at  the  most,  and  perhaps  not  over  half  a mile.  If 
the  whole  mile  were  riprapped,  it  would  cost  probably  $15,000.00; 
if  half  a mile,  it  would  be  about  half  of  that.  In  order  to  pro- 
tect that  bank,  it  would  not  be  necessary  to  pave  the  top.  The 
Desplaines  River  has  never  overflown  the  top  of  the  tow-path  bank 
in  this  locality. 

Assuming  that  the  structure  is  built  in  accordance  with  the 

4954  plans  that  have  already  been  referred  to,  the  combined  dis- 
charge capacity  of  the  spillway  and  all  the  gates  will  be  at 

least  four  times  the  flood  discharge  of  the  Desplaines  River  with 
the  Sanitary  District  flow  added.  Not  any  of  the  work  on  the  tow- 
l)ath  bank  was  completed  prior  to  the  time  of  the  bringing  of  this 
suit,  and  it  is  not  now  completed  on  the  tow-path  bank. 

The  slopes  of  the  tow-path  bank  were  in  pretty  fair  shape  at 
the  time  of  the  high  water  this  spring,  but  after  the  high 

4955  water  subsided  I allowed  the  contractor  to  take  the  best  rock 
off  the  slopes  on  both  side  of  that  embankment  for  a distance 

of  at  least  1,000  feet,  to  be  used  in  reiDairing  the  cofferdam.  The 
rock  that  had  been  deposited  there  in  the  course  of  the  construc- 
tion of  the  work  was  good  rock.  They  picked  out  the  larger  rock 
and  left  the  smaller  ones  on  the  slope.  That  is  the  condition  it  is 
in  now.  It  got  on  the  slope  originally  by  being  dumped  from 


cars. 


1467 


Q.  Is  it  part  of  this  construction  of  this  dam? 

Objected  to  as  leading. 

The  Court.  It  is  leading,  but  still  he  may  answer. 

A.  It  was  done,  part  of  it,  in  raising  the  tow-path  and  part  of 
it  was  simply  wasted  as  a spoil  bank,  up  to  January  1st. 

It  was  wasted  during  the  excavation  of  the  power  house  of 
the  Economy  Light  & Power  Company.  It  was  rock  that  had 

4956  been  dumped  there  in  the  progress  of  this  work,  that  was 
taken  away.  I know  that  the  inside  bank  of  the  tow-path, 

that  is,  the  canal  side,  below  the  surface  line  or  water  line  is  rip- 
rapped.  That  was  riprapped  before  the  Economy  Light  & Power 
Company  began  work  there.  It  is  riprapped  the  entire  distance 
from  the  Economy  Light  & Power  Company  Dam  up  to  Chan- 
nahon. 

There  was  a bench  or  berm  at  the  upper  end  of  the  riprap  on 
the  inside  of  the  canal.  I think  it  was  caused  partly  as  being 
originally  designed  and  partly  it  was  some  other  cause.  The 
work  that  the  Economy  Light  & Power  Company  by  the  contrac- 
tors did  on  the  inside  slope  of  the  canal  bank,  was  to  till  that 
slope — the  rock  was  dumped  on  that  bench  or  berm  and  the  slope 
continued  up  to  the  proposed  top  grade,  I think  it  was  86. 

Q.  Was  any  stone  put  in  by  the  contractors,  or  the  Corn- 

4957  pany  encroaching  upon  the  navigable  waters  of  the  canal? 

Objected  to  as  leading,  on  one  of  the  particular  questions, 
in  a form  that  could  be  answered  ^^yes”  or  ^‘no’’;  overruled. 
A.  No,  sir. 

The  drawing  marked  ‘^cross-section  just  above  Adams’  Dam,” 
and  then  a drawing  below  that,  a cross-section  just  above 

4958  that  proposed  dam  marked  “Woermann’s  Exhibit  June  8th,” 
was  prepared  under  my  direction  and  the  upper  one  shows 

a cross-section  of  the  embankment  and  canal  just  above  the  old 
Adams’  Dam;  and  the  lower  one  just  above  the  proposed  dam, 
showing  the  cross-section  of  the  Illinois  and  Michigan  Canal,  and 
the  embankment  and  the  Desplaines  Eiver  in  each  case.  The  up- 
per drawing  correctly  represents  the  condition  of  the  bank  above 
the  Adams’  Dam  prior  to  the  destruction  of  that  dam.  I am  fa- 


1468  Woermann, — Direct  Exam. — Continued. 

miliar  with  the  condition  existing  ahont  the  Adams’  Dam, 

4959  the  bank  between  the  canal  and  the  river.  I knew  its  general 
condition  from  having  been  there  at  the  time  that  the  1889 

survey  was  made.  We  pulled  our  skiff  from  the  canal  into  the 
river  just  below  this  dam  and  then  I am  familiar  with  many  of  the 
Government  surveys.  I am  in  position  to  say  that  the  drawing 
or  cross-section  just  above  Adams  Dam  correctly  represents  it.  I 
do  not  mean  at  the  present  time,  I mean  before  the  dam  was  de- 
stroyed. The  Government  survey  would  show  the  structure  and 
material  of  that  embankment.  It  shows  the  top  widths  and  the 
slopes.  That  representation  is  meant  to  represent  stone,  both 
on  the  river  side  and  the  canal  side.  I know  that  from  per- 

4960  sonal  knowledge,  from  personal  inspection.  I know  that 
there  was  riprapping  of  that  character  on  both  sides,  and  that 

it  assumed  approximately  that  shape,  that  double  riprapping  on 
the  canal  side,  that  break  in  the  earthen  slope,  in  the  hack  of  the 
wall,  I couldn’t  say  as  to  that.  I know  that  that  is  approximately 
the  slope  and  that  the  face  is  stone.  I don’t  know  exactly  that 
that  representation  of  the  line  of  the  earth  upon  the  canal  side 
inside  is  stone.  I know  the  top  width  is  about  eighteen  inches, 
but  I don’t  know  the  bottom  width.  The  basis  of  that  representa- 
tion is  simply  general  knowledge,  that  a dry  rubble  stone  wall  is 
something  of  that  character.  That  is  a dry  rubble  wall  with 

4961  that  width  at  the  top.  It  simply  sustains  that  earth  from 
sliding  into  the  canal;  it  protects  it  from  wave  wash.  That 

was  a dry  rubble  wall  on  this  side  of  the  canal.  I don’t  know  the 
widtli  at  the  bottom,  or  the  exact  line  in  the  bank.  I 
know^  the  general  slope  in  the  canal.  The  way  that  is 
depicted  there  the  dry  rubble  wall  is  not  the  way  I should  have 
drawn  it  if  I had  made  every  line  myself.  The  draftsman  should 
not  have  made  that  off-set  there  about  half  way  down.  It  should 
have  been  a more  uniform  wall  in  the  back.  If  you  can  get  a cer- 
tain width  of  a dry  rubble  wall  at  the  top  it  would  gradually  in- 
crease toward  the  bottom.  But  the  increase  has  not  been  as 
gradual  as  I would  have  made  it.  I would  not  have  piled  a single 
tier  of  stone,  one  on  top  of  the  other  from  that  height  from  the 
water  line  up.  What  I know  about  by  inspection  is  the  out- 

4962  side.  I examined  that  personally  with  an  iron  rod  to  the  bot- 
tom of  the  canal  at  a number  of  points.  And  the  lower 


1469 


cross-section  just  above  the  proposed  dam  is  made  from  personal 
knowledge  and  from  measurements  taken  by  me.  The  slopes  are 
accurately  represented  there ; that  is  an  average  condition. 

On  the  river  side  of  that  bank,  the  white  stone  represents  the 
old  riprap  which  was  put  there  by  the  Canal  Commissioners  and 
the  colored  stone  the  approximate  slope  which  is  proposed  to  be 
put  there  in  connection  with  the  Economy  Light  & Power  Com- 
pany’s work.  And  on  the  inside  of  the  canal,  the  white  stone  on 
the  slope  represents  the  old  riprapping  which  w\as  put  there  by 
the  Canal  Commissioners  and  the  stone  colored  stone  which  was 
put  there  in  connection  with  the  Economy  Company’s  work.  This 
fence  extends  the  entire  distance  from  the  dam  site,  up  to  Chan- 
nahon.  It  varies  from  three  to  six  feet  in  width. 

The  line  marked  ‘^Low  water  equals  60  feet,”  at  the  lowest 
right  hand  corner  of  this  Woermann’s  Exhibit  June  8th 

4963  represents  the  low  water  in  the  Desplaines  Kiver.  ‘^Ordi- 
nary pool  level  equals  77  feet,”  represents  the  ordinary 

level  of  the  water  after  the  construction  of  the  Economy  Com- 
pany’s work.  That  would  be  the  pool  created  by  the  Economy 
Company’s  Dam.  And  “Extreme  high  water  represents  84  feet” 
represents  the  level  at  which  it  is  proposed  to  maintain  high  water 
after  the  construction  of  the  Economy  Company’s  Dam.  How  long 
that  high  water  will  continue  depends  partly  on  how  the  tainter 
gates  and  other  gates  would  be  operated.  It  would  depend  largely 
upon  the  will  of  the  operator.  That  is  the  extreme  high  flood 
water  in  case  the  tainter  gates  and  the  other  things  are  closed. 
If  the  tainter  gates  were  closed  and  the  other  twenty-four  gates 
closed,  that  would  be  approximately  the  high  water.  That  is  the 
high  water  at  which  it  is  desired  to  maintain  the  pool  level 

4964  in  order  to  create  the  desired  amount  of  power.  That  gives 
you  a seven  foot  head.  In  times  of  flood  it  couldn’t  get  any 

higher  than  that.  With  the  gates  closed,  the  spill-way  would  still 
be  open.  If  the  gates  were  all  closed  it  could  not  rise  any  higher 
than  that  in  flood  waters;  I know  the  characteristics  of  the  Des- 
plaines Eiver  as  to  its  flood  waters.  I could  speak  very  specifi- 
cally in  regard  to  the  flood  of  this  year.  Generally  speaking  the 
river  rises  rapidly  and  goes  down  rapidly.  It  won’t  stay  at  its 
flood  stage  for  over  two  or  three  hours  before  it  begins  to  fall. 


1470 


Woennann, — Direct  Exam. — Continued. 


and  providing  there  is  no  new  freshet,  it  will  drop  nsually  at  the 
rate  of  half  a foot  to  a foot  a day. 

That  on  the  upper  portion  of  this  exhibit,  Crest  of  Adams 
Dam  equals  92  feet”  is  the  elevation  expressed  in  Hennepin 
datum  at  the  crest  of  the  old  Adams  Dam.  And  ‘^High 

4965  water  1887,  elevation  97  feet,”  means  the  highest  water  on 
record,  as  far  as  I could  find  that  the  water  had  ever  rose 

while  that  dam  was  in. 

Water  surface  98  feet,  is  the  level  of  the  water  in  the  canal 
under  ordinary  conditions.  The  tow-path  bank  or  the  bank  in  the 
Adams  Dam  above  the  river  bottom,  or  above  its  base,  is  17.4 
feet.  The  tow-path  bank  as  raised  within  the  two  feet  at  the 
Dresden  Heights  was  14.5. 

Counsel  for  defendant  then  offered  Woermann’s  Exhibit  of 
June  8 in  evidence. 

(Objected  to  as  not  being  sufficiently  shown  that  it  is  a 
true  and  accurate  representation  of  the  things  that  it  purports 
to  represent.) 

The  Court.  It  may  go  in  in  connection  with  this  testimony  in 
regard  to  it. 

Said  document  was  received  in  evidence.  (Atlas,  p.  3978; 
Trans.,  p.  6630;  Abst.,  p.  1934.) 

I made  the  estimates  for  the  Government  in  connection  with  the 
proposed  dams  for  the  14  foot  waterway.  No  estimate  or  any 
plan  was  made  for  riprapping  of  the  tow-path  bank  in  those 
cases. 

4966  That  map  marked  ^^Map  of  the  Illinois  Kiver  and  of  the 
Illinois  and  Michigan  Canal,  reduced  from  maps  showing 

survey  under  Lieutenant  Colonel  J.  H.  Wilson  in  1867,  under  the 
direction  of  Captain  G.  J.  Lydecker,  Corps  of  Engineers,  U.  S. 
A.,”  it  is  certified,  is  a blue  print  from  a tracing  which  is  on  file 
in  the  U.  S.  Engineer's  Office  in  Chicago.  It  represents  the  Illinois 
and  Michigan  Canal,  based  on  the  Mulson  survey,  reduced  to  a 
smaller  scale.  I don’t  think  that  was  ever  published. 

Counsel  for  defendant  then  offered  the  map  in  evidence  as 
AVoermann’s  Exhibit  B,  June  13,  1908. 

The  blue  line  print  was  made  from  the  Van  Dyke  negative. 


1471 


and  the  Van  Dyke  negative,  as  well  as  the  original  tracing 

4967  and  the  original  map  are  all  in  the  United  States  Engineer’s 
office.  The  map  shows  the  survey  made  under  J.  H.  Wilson  in 

1867.  And  this  1878  under  Captain  G.  J.  Lydecker  was  simply  a 
redrawing  by  Mr.  Liljencrantz  on  a much  smaller  scale  for  conven- 
ience in  handling  and  for  general  reference  purposes. 

Said  map  was  received  in  evidence.  iVtlas,  p.  3982;  Trans.,  p. 
6638;  Abst.,  p.  1935.) 

The  blue  print  marked  Woermann  Exhibit  C,  June  13,  1908,  is  a 
tracing  from  the  original  Government  tracing  showing  profile  of 
1867,  the  old  tracing  being  forty  years  old  is  soiled  and  the 

4968  ink  lines  have  faded  a good  deal  so  that  it  does  not  make  a 
good  print  and  I had  my  draftsman  take  that  and  make  a 

careful  tracing  of  it;  then  I compared  it  very  carefully  after  he 
had  got  through  with  it.  I compared  it  with  the  original  profile. 

Counsel  for  defendant  offered  said  map  and  it  was  received  in 
evidence  (Atlas,  p.  3983;  Trans.,  p.  6640;  Abst.,  p.  1935). 

Witness.  It  adds  nothing  nor  omits  nothing  as  to  figures  or  lines 
or  any  description  within  the  limits  of  what  is  shown  there.  I 
brought  the  title  over  close  to  it.  On  the  original,  the  title  is  at  one 
end  of  a long  roll.  I brought  the  title  over  close  to  it,  the  original 
title  also  and  the  part  added  by  me  is  in  parenthesis  just  below 
it,  marked  ^Graced  from  the  original  Government  tracing  by 
W.  F.  Millar,  under  the  direction  of  J.  W.  Woermann,  1898.” 
That  is  what  I have  added.  It  is  a short  jiiece  off  the  original 
and  it  is  the  same  thing  that  is  on  the  long  AVilson  profile  that 
was  produced  here  and  which  has  been  examined. 

4969  AVhat  has  heretofore  been  referred  to  as  AVoermann’s  Ex- 
hibit 3,  Illinois  and  Desplaines  Eivers  surveys  to  accompany 

report  of  Board  of  Engineers,  November  17,  1900,  sheet  number 
6,  is  one  of  the  sheets  representing  the  survey  of  1899,  made  under 
the  Board  of  Engineers,  of  which  Colonel  Barlow  was  Chairman. 
That  is  a blue  print  made  from  the  Van  Dyke  negative  which  is 
in  the  United  States  Engineer’s  office,  a blue  line  print. 

It  represents  the  Desplaines  Elver  and  the  Illinois  and  Michi- 
gan Canal  and  the  adjoining  territory,  shows  contour  elevations 
and  elevations  of  river  bed,  etc.  That  plat  represents  the  condi- 
tion in  the  fall  of  1899. 


1472 


Woermann, — Direct  Exam. — Continued. 


The  report  and  the  estimates  are  published,  but  the  map  is  not 
published.  The  original  map  is  in  the  United  States  Engi- 

4970  neer’s  office,  Federal  Building,  Chicago.  And  this  is  a print. 
Said  blue  line  print  was  offered  and  received  in  evidence 

(Atlas,  p.  3960;  Trans.,  p.  6590;  Abst.,  p.  1929.) 

The  blue  line  print,  a profile  of  the  Desplaines  Eiver,  com- 
piled on  original  profiles  in  United  States  Engineer’s  office,  Chi- 
cago, Illinois,  under  the  direction  of  J.  W.  Woermann,  C.  E.,  1908. 
^^Note:  Elevations  are  in  feet  above  Hennepin  datum,”  etc.,  rep- 
resents a profile  of  the  river  from  Joliet  to  the  mouth,  as  shown 
by  the  profile  of  1867.  The  same  thing,  only  just  to  the  left, 
which  was  introduced  a few  moments  ago,  only  on  an  enlarged 
scale.  The  bottom  in  1867  and  the  water  surface  in  1867  are 
shown,  and  I have  also  added  the  profile  of  1901  as  it  was  pre- 
pared in  connection  with  my  survey  and  also  added  to  that  various 
dams,  the  same  dams  that  were  shown  on  this  map  of  the  Des- 
plaines Eiver  from  Lockport.  I got  them  in  the  same  way 

4971  that  I got  the  locations  of  the  dams,  and  the  fact  of  the  ex- 
istence of  dams  as  shown  on  Woermann  Exhibit  4.  In  addi- 
tion to  the  profile  of  1867  and  1901,  besides  the  location  of  dams,  I 
have  shown  the  mouths  of  the  several  tributaries,  the  Du  Page 
Eiver  and  the  Kankakee  Eiver  and  the  location  of  towns,  Joliet 
and  iHillsdale,  and  the  location  of  the  old  aqueduct  of  the  Kanka- 
kee Feeder,  and  the  distance  in  1,000  feet  stations  and  in  miles, 
and  the  miles  shown  by  these  little  flags.  I have  also  added  let- 
tering. These  squares  running  vertically  represent  feet;  refer 
to  Hennepin  datum. 

As  to  how  many  of  those  small  parallel  lines  running  horizon- 
tally equal  one  foot  vertically,  well,  that  is  centimeter,  millimeter 
paper  and  that  millimeter  represents  one-tenth  of  a foot.  Two  of 
those  would  be  a foot,  and  the  distance  between  those  finest  lines 
represents  one-tenth  of  a foot.  ~ 

Counsel  for  defendant  offered  in  evidence  Woermann  Exhibit 
D of  June  13,  1908  (Atlas,  p.  3984;  Trans.,  p.  6642 ; Abst.,  p. 
1935). 

4972  Witness.  This  Woermann  1)  is  a paper  of  my  own  com- 
piling. It  is  not  altogether  my  profile,  as  Cooley  Exhibit  3 is 

Mr.  Cooley’s  consolidated  profile.  That  profile  of  1901  was  pre- 


1473 


pared  in  connection  with  my  survey  for  the  deep  waterway.  This 
line  pervading  this  profile  D,  which  is  low- water  of  1901,  is  the  line 
the  original  of  which  was  compiled  under  my  direction.  I am  not 
sure  that  the  two  lines  of  1867  and  1901  are  not  drawn  to  the  same 
vertical  plane.  A single  line  drawn  that  way  is  drawn  with  a 
view  of  representing  the  flow  of  the  river  and  would  represent 
a vertical  plane  in  the  river.  This  line  of  1867  represents  a plane 
vertically,  so  drawn  in  the  river  in  the  year  1867,  and  the  line  of 
1901  represents  one  for  that  year,  they  are  separate  in 

4973  point  of  time  to  start  with,  of  course.  I have  labelled  them 
here  that  the  one  for  1901  was  drawn  in  the  left  hand  channel. 

That  would  represent  the  water  running  there.  And  the  one  for 
the  year  1867  was  drawn  in  the  right  hand  channel.  They  were 
not  both  in  the  same  channel  when  I came  there.  One  of  them 
went  down  one  channel  and  the  other  one  went  down  the  other. 
With  that  in  my  mind  I have  no  obscurity  now  about  saying  that 
they  do  not  represent  the  same  vertical  plane. 

All  of  the  answers  that  I have  made  with  reference  to  the  loca- 
tion of  dams,  bridges  and  obstructions  and  objects  on  Woermann 
Exhibit  4 would  also  apply  to  similar  objects  which  I have  brought 
forward  and  shown  on  my  profile  D of  1908. 

4974  With  qualifications  this  map  may  embody  my  opinion  and 
conclusion  as  to  the  relation  of  those  two  lines  to  each  other 

and  to  the  bottom  of  the  river. 

As  to  the  profile  of  1867,  in  making  that  survey  they  did  not  make 
it  as  thoroughly  as  the  later  surveys.  For  example,  on  the  rapids 
they  would  make  an  elevation  of  the  water  surface  at  the  head 
of  the  rapids  and  another  one  at  the  foot  and  did  not  attempt 
to  define  it.  For  example,  here  at  Joliet,  they  determined  the 
elevation  there  and  at  the  foot  of  the  rapids  and  simply  drew  a 
straight  line  between.  And  the  1867,  it  contains  a straight  line — 
contains  a series  of  straight  lines  joined  by  sharp  angles.  In 
that  respect  it  differs  from  all  of  the  other  profiles  in  the  Govern- 
ment reports.  It  is  the  earliest  one  that  was  made.  I could  not 
state  how  many  bench  marks  were  shown  in  the  river  in  the  re- 
port in  connection  with  the  profile  of  1867. 

4975  To  prevent  obscurity  hereafter:  this  Woermann  Exhibit 
D is  made  on  what  is  called  millimeter  paper.  I got  a sheet 


1474  IF  0 e nnaii n,—I)i red  Exa m . — C ontiniied. 

of  millimeter  paper,  Fut  I did  not  use  the  metric  system  of  milli- 
meters in  my  dimensions.  While  it  is  printed  and  sold  for  milli- 
meter purposes,  I substituted  feet  and  tenths  of  feet  for  milli- 
meters. As  to  the  scale  of  this  profile  of  mine,  in  length,  each  of 
these  centimeter  squares  represents  1,000  feet. 

The  figures  5,  10,  15,  20,  25  and  up  to  100,  beginning  at  0 at  the 
right  hand  at  the  top  above  Joliet  and  extending  clear  across  the 
profile  to  the  left,  mean  5,000  feet,  10,000  feet,  15,000  feet,  and  so 
on  so  that  the  whole  thing  represents  100,000  feet.  And  the 

4976  vertical  figures  which  are  found  here  in  a line  slightly  to 
the  left  of  the  general  label,  which  begin  at  the  bottom  with 

the  figures  45,  50,  55,  60,  65,  70,  75  and  run  out  up  above  the  top 
with  the  figure  115,  they  represent  elevations  in  feet  in  reference 
to  Hennepin’s  datum.  One  of  those  squares  would  represent 

5.000  feet  in  length  and  five  feet  in  elevation,  so  that  the  scale 
is  1,000  times  magnified  in  vertical  range  as  compared  with  the 
horizontal  range.  This  magnifying  of  a vertical  scale  of  1,000  to 
1 does  not  occur  as  much  as  that,  I don’t  think  on  the  profile  of 
1867.  And  it  does  not  occur  in  the  Government  profile  of  1904-5, 
but  something  very  similar  to  that.  I couldn’t  recall  the  exact 
ratio.  I could  just  as  well  have  made  it,  instead  of  making  it 

1.000  to  1,  I could  have  made  it  100  to  1,  if  I had  wanted  to.  That 
is  a matter  of  selection  in  a way  in  the  draftsman  or  engineer  who 
would  get  it  up.  You  have  a copy  of  that  profile  of  mine  of  1904; 
you  can  readily  refer  to  it. 

(Counsel  for  complainant  specifically  objected  to  the 
bringing  forward  onto  any  profile  map  of  objects  that  are 

4977  not  there  and  were  not  there  and  which  are  no  part  of  the 
profile. 

The  Court.  It  may  go  in. 

Said  map  was  received  in  evidence  (Atlas,  p.  3984;  Trans.,  p. 
6642;  Abst.,  p.  1935.) 

The  first  drawing  I had  here  of  Adams’  dam  was  buff  colored 
on  manila  paper.  It  differed  from  that  in  that  the  slope  inside  of 
the  canal  was  flatter.  They  are  the  same  except  that  on  the  buff 
colored  sheet  that  line  which  is  nearly  vertical  did  not  extend  clear 
to  the  bottom  of  tlie  grade  of  the  canal.  I made  that  before  I had 
made  the  personal  examination  with  an  iron  rod  to  see  that  they 


1475 


went  clear  to  the  bottom,  and  I didn’t  want  to  represent  it  that 
way  till  I was  sure. 

Counsel  for  Defendant.  What  have  you  to  say  here  Mr.  Woer- 
mann  as  to  the  relative  strength  of  the  bank  above  Adams’  Dam 
and  the  bank  above  the  proposed  dam  of  the  Economy  Light  & 
Power  Company! 

(Objected  to.  It  is  not  shown  liere  that  he  has  the  neces- 
sary knowledge  as  to  the  Adams  Dam.) 

Witness.  I know  the  material  that  the  bank  up  above  Adams 
Dam  is  constructed  of,  and  I know  the  material  that  the  bank 

4978  below  is  constructed  of.  That  is  Dresden  Heights  and  the 
bank  there  is  a stronger  bank  than  the  one  at  Adams  Dam. 

That  is,  I should  say  the  fact  of  safety  was  larger  at  Dresden 
Heights  than  it  was  at  the  Adams  Dam. 

On  account  of  the  relative  cross-section,  the  embankment  at  Dres- 
den Heights  has  a much  thicker  base  at  the  point  where  the  pres- 
sure is  the  greatest.  Above  Adams  Dam,  the  thickness  of  the 
embankment  at  the  level  of  the  pool  was  35  feet  and  at  Dresden 
Heights  it  is  on  the  line  of  the  bottom  of  the  canal,  it  is  47^. 
Taking  the  thickness  of  the  embankment  on  the  level  with  the 
bottom  of  the  canal  it  is  35  feet  at  Adams  Dam  and  474  at  Dresden 
Heights. 

As  to  the  relative  strain  on  this  side  on  the  tow-path  at  Dres- 
den if  this  dam  is  constructed  as  compared  to  that  which  existed 
on  the  bank  at  Adams  Dam,  under  ordinary  conditions,  there 
would  be  less  at  Dresden  Heights,  because  the  difference  between 
the  level  of  water  on  the  river  side  and  on  the  canal  side  would  be 
less  down  there  than  it  was  at  the  Adams  Dam.  The  Adams 
Dam  is  composed  of  loam  and  clay. 

4979  A dam  of  that  character,  an  embankment  of  that  character 
I should  say,  extended  for  at  least  four  blocks;  from  there 

up  the  canal  was  excavated  partly  in  rock,  so  that  from  there  up 
the  rock  embankment  was  partly  of  rock.  There  was  a spill- 
way, waste  gate  between  the  dam  and  the  tow-path  or  the  em- 
bankment. The  Adams  Dam  connected  directly  with  the  embank- 
ment. As  to  the  feeder:  assuming  that  it  was  desired  to  renew 
the  use  of  that  feeder,  restore  the  use  of  that  feeder,  the  exist- 
ence of  the  pool  created  by  the  proposed  work  would  not  prevent 


1476  Woermann, — Direct  Exam. — Continued. 

the  supplying  of  the  canal  with  water  from  the  Kankakee  feeder, 
because  it  could  be  carried  across  either  by  an  aqueduct  in  the  old 
way  or  by  siphon  underneath.  With  conditions  as  they  exist 
there  the  siphon  would  be  the  better  practice.  They  are  both 
good  practice.  It  is  better  there  to  have  a siphon,  because  at 

4980  flood  times  the  water  would  come  up  against  the  aqueduct 
and  endanger  the  structure.  That  would  be  so  whether  the 

dam  was  there  or  not.  The  piers  of  the  aqueduct  which  are  still 
standing  there  are  very  bad  and  disintegrated  and  out  of  plumb, 
and  at  least  three  of  them  have  been  removed  bodily,  indicating 
that  there  had  been  a terrific  pressure  against  them  at  some  time. 
To  carry  the  water  by  an  inverted  siphon,  a pipe  six  feet  in 
diameter  with  a head  of  one  inch  would  carry  3,000  cubic  feet  a 
second, — a minute  or  two  four  feet  pipes  could  be  used.  That 
amount  of  water  would  be  more  than  adequate.  A lockage  made 
every  twenty  minutes  would  take  about  1,000  cubic  feet  a minute. 
This  pipe  would  carry  three  times  that  amount,  and  assuming  it 
was  (desired  also  to  use  the  feeder  for  boats,  it  would  be  feasible 
to  use  the  feeder  for  that  purpose  if  that  pool  were  created  there. 
It  would  require  a lock  on  each  side  of  the  river  for  locking  into 
the  pool  and  out  of  it. 

4981  I have  estimated  the  cost  of  building  a siphon  and  the  locks. 
To  rebuild  the  old  aqueduct,  I estimate  it  would  cost  about 

$60,000.00 ; and  to  rebuild  the  old  lock,  the  ruins  of  which  still  exist 
on  the  north  side  of  the  river, — between  the  river  and  the  canal, 
there  was  a guard  lock  there.  It  wms  built  of  timber  and  it  has  all 
fallen  to  pieces, — to  rebuild  that  of  stone  or  concrete  would  prob- 
ably cost  about  $12,000.00,  making  about  $72,000.00,  to  restore  or 
rebuild  the  aqueduct  and  guard  lock  according  to  modern  prac- 
tice. To  build  a siphon  there,  I estimate  it  would  cost  about 
$20,000.00,  and  to  build  two  lift  locks,  in  order  to  lock  from  the 
feeder  into  the  river  and  out  again,  the  lock  on  the  north  side  which 
would  be  built  on  the  site  of  the  old  guard  lock  would  have  to  have 
higher  walls,  so  that  under  the  new  project  a lock  there  would 
cost  more  than  $12,000.00  which  I estimate  for  a guard  lock.  I 
estimate  that  would  cost  about  $18,000.00.  The  same  way  omthe 
other  side  of  the  river,  making  $36,000.00  for  the  two  locks  and 
$20,000.00  for  the  siphon,  or  $56,000.00  as  compared  with  $72,000.00 


1477 


to  rebuild  the  aqueduct  and  the  guard  lock.  That  is,  the  $56,- 

4982  000.00  would  restore  the  conditions  as  they  formerly  existed'. 
And  the  $56,000.00  would  be  to  put  in  the  syphon  and  the  two 

lift  locks.  Assuming  that  the  dam  to  be  built  is  a fixed  dam,  the 
proper  location  of  such  dam,  having  in  mind  also  a navigable 
waterway,  is  the  point  wdiere  the  dam  is  now  being  constructed. 

(Objected  to  on  the  ground  that  the  question,  first  expressly 
and  now  by  necessary  implication  is  directed  to  a dam  which 
will  be  used  both  for  the  production  of  water  power  and  also 

4983  for  the  purposes  of  navigation.  Overruled.) 

The  best  location,  in  my  opinion,  is  just  above  the  mouth 
of  the  Kankakee  Eiver,  mainly  on  the  basis  of  economy.  A fixed 
dam  built  below  the  mouth  of  the  Kankakee  would  overflow 

4984  an  immense  territory  up  the  Kankakee  Eiver.  The  char- 
acter of  that  territory  is  good  farming  land,  which  lies 

adjacent  to  the  Kankakee  Eiver  and  between  the  Kankakee  and 
the  Desplaines.  It  is  improved  land.  Cultivated  and  pasture, 
meadow. 

Counsel  fok  Defendant.  Would  it  have  any  effect  upon  any 
railroad  properties,  if  you  know? 

(Objected  to.  Overruled.) 

The  Witness.  It  would  raise  the  water  against  the  railroad 
embankment  up  along  Joliet  Lake. 

I made  an  estimate  at  one  time  and  based  on  government  maps 
as  to  the  amount  of  land  which  would  be  overflowed  along  the 
Kankakee  Eiver  and  between  the  Kankakee  and  Desplaines  up 
there,  I don’t  know^  the  number  of  acres,  and  I have  not  a copy 
of  the  report  here  so  that  I could  refer  to  it,  but,  as  I recall  it, 
it  was  something  like  half  a million  dollars  worth  of  land  over- 
flowed; that  wmuld  be  the  damage.  I estimated  part  of  it 

4985  at  its  full  value,  because  it  would  be  always  overflowed,  and 
during  part  of  the  year  I estimated  at  half  its  value,  because 

it  would  still  have  some  value  left  as  to  the  future. 

(Objected  to  as  not  the  best  evidence,  and  lacking  in  some 
elements.  Overruled.) 

There  would  be  a difference  of  a half  million  dollars  between 


1478  Woermann, — Direct  Exam. — Continued. 

the  two  projects.  I made  that  report  for  Mr.  Munroe  about  two 
years  ago. 

4986  (Objection  as  irrelevant  and  incompetent  and  not  the  best 
evidence.) 

The  Court.  Yes ; but  he  is  not  purporting  to  give  the  contents  of 
an}^  report.  He  is  purporting  to  give  his  present  judgment  his 
calculations.  If  anything,  it  would  tend  to  make  his  opinion  less 
valuable  than  more  valuable,  because  of  having  been  made  in  a 
sense  of  partisanship.  It  was  made  before  this  controversy  and  it 
was  made  to  be  acted  upon  by  this  party  and  it  was  made  sup- 
posedly to  have  an  influence  and  for  the  party  to  act  upon  it.  But 
he  is  not  purporting  to  give  the  contents  of  anything ; he  is  giving 
his  own  independent  judgment. 

4987  WiT^-ESS.  At  the  time  that  estimate  and  report  were  made, 
to  my  knowledge  there  was  not  any  controversy  between  the 

State  of  Illinois  and  Mr.  Munroe  as  to  the  location  of  this  dam.  I 
made  one  estimate  at  the  mouth  of  the  Desplaines  Eiver.  That  is 
where  the  dam  is  being  built.  That  was  before  any  construc- 

4988  tion  had  been  begun.  In  my  opinion  the  place  above  the 
mouth  of  the  Kankakee,  would  give  the  best  14-foot  navigable 

waterway  when  certain  things  are  considered  with  that. 

Counsel  for  Complainant.  This  all  goes  in  under  objection. 
The  Court.  Yes. 

Witness.  I made  a comparative  estimate  showing  which  would 
be  the  cheaper  plan  for  the  Government,  according  to  the  project 
that  was  adopted  of  which  Colonel  Nurse  was  chairman,  or  another 
l^roject  which  involved  a fixed  dam  above  the  mouth  of  the  Kan- 
kakee to  be  paid  for  by  private  parties,  and  all  the  land  which 
was  to  be  overflowed  to  be  paid  for  by  private  parties,  and  the 
comparison  showed  that  the  Government  would  save  nearly  half  a 
million  dollars.  Taking  that  into  account  and  also  the  difference 
in  the  cost  of  operation  and  maintenance  of  one  lock  as  com- 
pared with  two  locks  and  two  dams.  Under  the  Munroe  project, 
I might  call  it, — that  is  what  I called  it  in  making  the  compari- 
son, the  Government  would  have  one  lock  to  build  and  operate. 
Under  the  Board  project,  the  Government  would  have  two  dams 
and  two  locks  to  maintain  and  operate.  I located  the  dams  and 


1479 


designed  tliera  in  llie  survey  that  I made  for  tlie  Government. 

4989  I had  one  dam  at  tlie  foot  of  those  rapids.  It  was  of  tlie 
movable  type,  known  as  the  Chanoine  Wicket  Dam.  With  the 

Chanoine  wicket,  the  wickets  are  thrown  down  before  floods  so  that 
it  does  not  raise  the  higli  water  plane  at  all  and  the  only  land 
we  proposed  to  pay  for  and  the  only  land  included  in  the  Govern- 
ment estimates  was  the  land  which  fell  below  the  ordinary  pool 
level ; that  is,  np  to  a point  one  foot  above  that.  T was  engaged 
in  the  Marshall  survey  also.  That  showed  a fixed  dam  at  Dres- 
den Heights.  That  was  almost  the  same  place  that  the  Economy 
Light  & Power  Company  dam  is  now  building.  That  was  the 
Government  project  of  1890.  The  concrete  core  under  tlie  earthen 
part  of  this  dam  which  has  been  constructed,  was  carried  from  bed 
rock  up  to  a line  about  two  feet  above  the  deposit  of  gravel 

4990  and  boulders.  The  depth  below  the  natural  surface  varied 
to  some  extent,  but  was, — as  I remember  it,  our  trench  was 

from  15  to  17  feet  deep  and  we  filled  it  just  about  half  full  of  con- 
crete. The  core  does  not  come  to  the  natural  surface;  it  comes 
seven  to  nine  feet  below  the  natural  surface. 

Q.  Mr.  Woermann,  have  you  made  an  estimate  of  the  cost  to 
change  the  bridges  from  Lockport  down  to  the  mouth  of  the  Des- 
plaines  Eiver  in  order  to  make  draws  or  other  openings,  in  order 
to  make  the  river  possible  of  navigation?  And,  if  you  did  make 
it,  when  and  for  whom? 

(Objected  to  as  incompetent,  irrelevant  and  immaterial. 
Overruled.) 

MTtness.  I made  that  in  connection  with  my  plans  and  estimates 
for  a 14-foot  waterway  under  the  Board  of  Engineers  in  1904  and 
1905.  That  was  for  the  Government.  As  to  the  estimated  cost  of  so 
treating  the  bridges,  I couldn’t  state  exactly,  but  my  recollection  is 
that  it  averaged, — there  were  nineteen  bridges  to  be  rebuilt,  and  the 
average  was  about  $50,000.00  apiece,  $50,000  to  $60,000.00 
4991  apiece.  That  appears  in  the  printed  report.  That  was  esti- 
mated as  an  expense  of  the  Government,  in  making  this  im- 
provement of  the  river. 


1480 


Woermcmn  C ross-Examination. 

On  this  exhibit  here  labeled  Woermann  Exhibit  June  8,  it  says 
the  proposed  cross  section  of  the  Adams  Dam  and  above  the 
Adams  Dam  and  above  the  proposed  dam,  there  is  shown  in  the 
cross  section  just  above  the  Adams  Dam  the  river  bottom.  The 
scale  of  depth  shown  there  so  as  to  show  the  depth  of  the  water 
is  half  inch  to  the  foot.  It  says  river  bottom  84,  and  high  water 
of  1877,  is  97,  which  gives  a depth  of  water  13  feet  deep.  I 
had  13  feet  of  water  present  against  this  dam  when  it  was 

4992  at  the  high  water  of  1877.  I have  got  the  mark  of  extreme 
high  water  on  the  proposed  dam  of  1884,  and  I have  got  the 

low  water  at  60,  and  if  I were  to  add  3,— I believe  I have  four 
and  a half  feet  shown  by  the  soundings.  The  difference  be- 
tween 60  and  84  would  be  24,  and  44  added  would  be  284.  Then, 
under  the  same  conditions,  I would  have  284  feet  of  water  in  the 
pool  of  the  proposed  dam  as  against  13  feet  at  the  Adams  Dam 
measured  in  the  river  bed.  The  Adams  Dam  never  did  have  the 
drainage  water  come  against  it;  it  was  out  before  January,  1900, 
when  the  drainage  water  came  down,  so  that  it  never  had  the  pres- 
sure of  the  body  of  water  discharged  by  the  Sanitary  District  of 
Chicago.  I never  saw  the  material  at  the  point  where  the 

4993  vertical  line  in  the  Adams  Dam  dropped  to  the  cross  line 
at  the  point  marked  X.  I know  what  it  is  just  by  inference 

from  what  material  is  on  top  of  the  bank.  I saw  what  the  material 
is  where  the  word  tow-path  is  and  assume  it  goes  uniform  all  the 
way  down,  with  certain  qualifications;  in  the  Government  office 
here  there  are  cross-sections  on  file  showing — the  cross-sections 
of  that  bank,  showing  that  it  is  all  earth;  that  it  is  not  partly 
rock;  but  further  than  that  I could  not  state  as  to  just  how  much 
loam  or  how  much  clay  there  was  in  it.  There  is  no  cross-section 
in  any  of  the  Government  iDublished  reports  on  that.  There  are 
cross-sections  of  that  embankment  for  a long  distance  through 
Joliet,  and  more  or  less  data  in  regard  to  that  bank  in  all  of  the 
surveys,  including  the  surveys  of  1867,  measurements  were  taken 
of  that  bank,  and  are  in  the  original  field  notes  over  in  the 

4994  Government  office,  in  Chicago.  This  map  has  undergone 
some  sort  of  an  alteration.  There  is  a square  there  that  is 

perhaps  six  inches  high  and  ten  inches  long,  embracing  the  dam 


1481 


here,  that  has  been  pasted  on.  That  print  as  made  was  a copy 
of  the  original  which  was  on  manila  paper,  which  was  introduced 
as  Woermann  Exhibit  1.  That  is  a blue  line  print.  The  orig- 
inal was  made  hurriedly,  without  my  making  an  examination  as  to 
the  wall  on  the  inside.  I knew  from  memory  that  there  was  a ver- 
tical wall  there,  but  I didn’t  know  that  it  went  clear  to  the  bottom. 
After  it  was  made,  while  the  case  here  was  in  progress,  I went 
down  there  one  day  and  examined  that  all  along  there  with  an  iron 
rod  and  found  that  wall  continued  on  that  same  base  which  is  visi- 
ble above  the  water  clear  down  to  the  bottom  of  the  canal,  so  1 
changed  that  feature  of  it.  Eather  than  make  an  entire  new 
tracing,  I just  had  the  draftsman  paste  a piece  of  paper  on  there. 
The  Woermann ’s  Exhibit  1 that  I had  in  mind  is  in  this  room. 
Changing  that  wall  would  change  the  thickness  of  the  em- 

4995  bankment.  Further  than  that,  there  are  no  other  alterations 
that  I recall.  This  buff  Exhibit,  which  I produce,  that  is  th^ 

one  that  is  called  Woermann ’s  Exhibit  1,  and  shows  the  Adams 
Dam  with  the  slope  2 to  1 riprapped  in  the  present  canal.  And 
that  is  the  one  that  has  pasted  over  it  the  blue  line  print,  and 
is  the  exhibit  of  June  8th.  The  tracing  was  made  from  this  butf 
exhibit  and  a Van  Dyke  negative  from  the  tracing  and  this  blue 
line  print  from  the  Van  Dyke  negative,  so  that  that  in  its  original 
condition  was  a reproduction  of  the  drawing  on  the  butf  paper. 
The  process  in  which  I arrived  at  the  conclusion  that  the  Woer- 
mann Exhibit  1 was  wrong  in  its  showing  in  this  bank,  as  I recall 
it,  was  after  I had  made  that,  I had  Mr.  Munroe  come  in  and 
look  at  it  and  he  told  me  that  he  thought  that, — 

Counsel  for  Complainant.  I object. 

4996  The  Court.  Very  well.  You  need  not  tell  the  conversation. 
You  found  out  or  you  got  a suspicion  from  Mr.  Munroe,  is 

that  it! 

A.  Yes,  sir. 

I went  down  there  personally  and  with  an  iron  rod  I exam- 

4997  ined  that  all  along  and  found  out.  I walked  on  top  of  that. 
I stood  right  at  the  top  edge  of  the  canal  bank.  I stood  right 

here  on  the  edge  of  the  canal,  at  the  top  of  this  wall  here  repre- 
sented. I had:  an  iron  rod  and  felt  down  with  it.  I could  feel  that 
stone  wall  to  a depth  of  six  feet  below  the  water  surface.  I could 


1482 


Woennann, — Cross-Exam. — Continued. 


feel.' the  stone,  to  a depth  of  six  feet  below  the  water  surface. 
I could  feel  the  different  portions.  I stated  that  I was  the  writer 
of  the  document  263  of  1905  which  precedes  my  signature  on  page 
68.  I prepared  the  index,  and  I wrote  other  portions.  The  report 
itself  which  I say  was  my  writing,  is  the  main  portion,  be- 

4998  gins  on  page  22  and  ends  on  page  68,  and  I did  some 
work  on  the  index  and  appendices  also.  I had  the  assistance 

of  the  gentlemen  Yvdiose  names  appear  in  the  list  of  personnel 
at' the  conclusion  of  the  report.  In  this  report,  on  page  41  I state 

‘^From  the  preceding  investigation  it  has  been  decided  that 
the  velocities  which  obtain  during  extreme  high  water  are  pro- 
hibitive only  below  the  Marseilles  and  Joliet  dams.  Under  the 
adopted  project,  a canal  about  three  miles  long  has  been  pro- 
vided along  each  of  these  sections.” 

That  three  mile  canal  in  Joliet  was  to  begin  at  the  dam  number 
1 and  extend  for  a distance  of  three  miles  or  three  and  one-tenth 
miles  I think  more  exactly,  from  dam  number  1 down  stream, 
entering  the  river  at  a point  a short  distance  below  the  Brandon 
Boad.  Between  pages  16  and  17  is  a condensed  profile  that  is  la- 
beled ‘‘Sketch  Profile  of  the  Illinois  and  Desplaines  Eivers.”  Goes 
all  the  way  from  Chicago  to  Grafton.  Upon  that  I represent  the 
location  of  my  proposed  dams.  I have  got  one  below  the  Kankakee 
mouth  and  another  some  little  distance  above  the  Kankakee 

4999  mouth  at  Treat’s  Island.  My  present  plan  as  making  one 
dam  do  the  work  of  two  means  in  place  of  those  two.  This 

plan  vmuld  take  the  place  of  two  in  my  idea,  of  both  of  those. 
And  on  that  I show  a lot  of  typical  or  cross-sections  of  the  canal 
and  river  at  Joliet,  and  canal  at  Joliet.  Those  representations  of 
the  dimensions  and  arrangement  of  the  canal  and  river,  respec- 
tively, are  at  the  proposed  three  mile  canal  that  I have  just  de- 
scribed. The  excavation  for  the  canal  prism  is  in  rock,  but  you 
could  hardly  say  that  the  embankment  was  composed  partly  of 
rock  unless  you  refer  to  the  riprap  on  the  surface.  AYhen  you 
excavate  down  into  rock,  the  rock  in  its  natural  form  forms  a 
part  of  the  canal  proper,  but  is  usually  not  spoken  of  as  the 
embankment.  And  would  be  at  this  particular  point,  partly  in  rock 
excavation,  and  this  three  mile  strip  I have  described  includes 
the  area  of  the  Adams  Dam.  Eeferring  to  my  profile  which 

5000  is  marked  Exhibit  D on  this  millimeter  paper,  the  river  is  a 
foot  deep  and  shown  as  a foot  deep  at  Treat’s  Island  at  one 


1483 


point  and  1.7  feet  at  the  other,  according  to  the  1883  profile.  I 
found  those  depths  shown  by  the  1883  profile  down  at  the  main 
channel.  By  the  main  channel  I mean  the  left  hand  or  east 
channel.  The  profile  of  1883  does  not  indicate  the  depth  on  the 
other  channel.  No  depth  is  shown  on  the  other  channel  on  the 
profile. 

5001  (Plat  handed  to  the  witness.) 

Eeferring  now  to  the  Cooley  Exhibit  3,  I am  able  to  state 
upon  which  channel  adjacent  to  Treat’s  Island  the  depth  to  which 
I referred  when  I gave  those  figures  are  shown  here.  It  is  the  left 
hand  channel;  main  channel.  I stated  that  there  was  a fall  above 
Joliet  of  38  feet  in  the  Desplaines  River.  That  fall  is  taken  up 
by  a lock  constructed  by  the  Sanitary  District  in  one  way, 

5002  yes ; and,  another  way,  the  lock  is  not  in  the  Desplaines  River. 
It  is  in  the  Sanitary  District  Canal,  and  the  lift  from  the 

water  surface  of  Lake  Michigan  to  the  water  level  in  the  pool 
above  dam  number  1 is  overcome  by  this  new  lock.  And  a 
boat  that  wished  to  go  from  Chicago,  from  the  Chicago  River  down 
to  dam  number  1,  or  from  dam  number  1 up  to  the  Chicago  River 
would  pass  through  and  over  that  fall  by  means  of  that  lock,  over 
that  fall  at  the  end  of  the  Drainage  Canal  and  over  the  38  feet 
that  I referred  to  in  the  Desplaines  River.  The  Drainage  Cana] 
and  the  old  Illinois  and  Michigan  Canal  both  empty  into 

5003  the  Desplaines  River,  right  at  the  lock.  That  is,  that  needs 
qualification.  That  is  where  the  boats  would  empty  into  the 

Desplaines  River,  but  that  is  not  where  the  water  from  the  Drain- 
age Canal  comes  into  the  Desplaines ; it  comes  in  at  the  controlling 
works  at  Lockport  and  runs  together  for  that  distance.  The 
sinuosities  and  tortuosities  to  which  I have  referred  in  my  testi- 
mony in  the  Desplaines  are  not  all  shown  on  Exhibit  1.  The  scale 
of  Woermann’s  Exhibit  is  four  inches  to  the  mile.  If  I had  adopt- 
ed a scale  of  eight  inches  to  the  mile,  I could  have  shown  some 
more.  And  if  I had  adopted  a scale  of  ten  feet  to  the  mile,  I could 
have  shown  some  more.  And  clear  up  to  being  an  exhibit  which 
would  be  the  identical  scale  with  the  physical  object  itself,  I could 
show  increasingly  in  that  particular  as  I increased  in  scale. 

As  to  the  question  whether  or  not  the  Government’s  scale  for 
making  public  maps  is  two  inches  to  the  mile,  that  is  a question 


1484 


Woermann, — Cross-Exam. — Continued. 


that  I don’t  think  can  be  answered  by  yes  or  no.  The  standard 
scale  for  the  survey  of  public  lands  by  the  Government  is  two 

5004  inches  to  the  mile;  by  land  survey  in  that  connection  I mean 
subdivision  in  sections  for  the  purpose  of  sale.  That  is  the 

scale  as  used  more  often  and  for  greater  areas  than  any  other.  I 
base  my  judgment  that  the  year  1867  was  not  an  abnormal  year 
as  to  the  condition  of  low  water  in  the  Desplaines  Elver,  upon  the 
gauge  readings  which  were  taken  at  La  Salle  and  Peoria.  Those 
are  the  only  two  places  on  the  river  where  the  gauge  readings 
extend  back  to  that  date,  and  since  that  date,  and  neither  of  those 
are  on  the  Desplaines  Eiver.  That  is  not  the  data  I had.  I had 
the  rainfall  data,  and  I took  that  into  my  account.  I think  that 
was  all. 

Q.  I direct  your  attention  now  to  a statement  in  Appen- 

5005  dix  A of  the  report  on  the  survey  of  the  Illinois  Elver,  by 
James  H.  Wilson,  under  date  of  December  17,  1867,  and  pub- 
lished in  the  Government  report,  entitled  Message  of  the  Presi- 
dent of  the  United  States,  and  accompanying  documents  House 
of  Eepresentatives,  40th  Congress,  Third  Session,  Executive  Docu- 
ment 1,  part  2. 

^‘The  capacity  of  the  canal,  as  completed  by  the  Canal 
Trustees,  is  the  same  as  that  upon  which  it  was  commenced 
in  1836 ; but  the  plane  of  the  summit  division  was  changed,  to 
bring  the  cost  within  the  means  provided  for  its  completion. 
The  original  plan  was  to  cut  down  the  summit  between  Lake 
Michigan  and  Lockport  and  draw  through  this  ^Deep  Cut’  a 
supply  of  water  from  the  lake  sufficient  for  canal  purposes. 
Instead  of  this  the  present  canal  was  finished  for  about 
twenty-six  and  one-half  miles  on  a level  averaging  nine  feet 
above  the  original  bottom,  and  water  supplied  for  the  same 
by  the  Calumet  feeder,  sixteen  and  one-half  miles  long,  and 
by  pumping  vrorks  at  Bridgeport,  and  the  present  excessively 
dry  season,  furnish  the  main  supply  from  Chicago  to  Chan- 
nahon,  some  forty-five  miles.” 

Q.  Did  you  have  that  statement  in  this  report  in  mind  when  you 
stated  that  the  year  1867  was  not  an  abnormally  low  year  in  the 
matter  of  low  water  in  the  Desplaines  Eiver?  A.  I had  read 
that  report. 

5006  I cannot  say  that  I had  it  specifically  in  mind.  I read  the 
statements  on  page  464,  under  date  December,  1867,  by  Mr. 


1485 

James  Warrell,  Civil  Engineer  Assistant,  directed  to  General  Wil- 
son, as  follows: 

^Gt  is  evident  that  with  a fall  scarcely  exceeding  an  inch 
and  a half  per  mile,” — he  is  talking  about  the  Illinois  Eiver 
in  that  phrase — ‘Ghere  must  be  some  effective  navigation 
upon  this  whole  stretch  when  the  floods  prevail;  and  it  will 
scarcely  be  believed  when  it  is  stated,  that  notwithstanding 
this  vast  accumulation  of  water,  and  the  very  gentle  incline 
plane  that  carries  it  away,  the  depths  are  reduced  almost  every 
season  up  on  the  shoals  in  the  bed  of  the  stream,  until  they 
do  not  exceed  an  average  depth  of  twenty  inches,  thus  in  fact 
suspending  navigation  for  periods  varying  from  60  to  90  days, 
and  extending  sometimes,  as  in  the  season  last  past,  to  a 
period  of  150  days.” 

Q.  Did  you  have  that  statement  in  mind  when  you  stated  that 
that  year  was  not  an  abnormal  year  in  the  matter  of  low  water? 
A.  1 read  that,  but  I did  not  have  those  figures  in  mind. 

The  fact  is  that  if  these  statements  ever  attracted  my  attention, 
they  had  not  altogether  escaped  my  recollection  at  the  time  I gave 
the  answer,  but  the  exact  figures  had.  I know  of  the  general  char- 
acter of  those  statements.  I am  aware  of  the  fact  that  barge 

5007  navigation  has  been  carried  on  throughout  wide  reaches  in 
the  Mississippi  Valley  under  fixed  bridges.  I know  they 

were  not  on  the  lower  Mississippi.  I mean  this  Mississippi  itself, 
but  I dopT  know  about  those  tributaries  of  the  Mississippi  com- 
prising the  Mississippi  valley.  The  bridge  to  which  I referred 
over  Lake  Joliet  was  already  broken  out  and  gone  at  the  time  I 
first  saw  the  one  down  the  river,  and  never  has  been  replaced.  The 
breadths  to  which  I testified  were  gotten  from  measurements  taken 
before  the  water  of  the  Sanitary  District  of  Chicago  had  been 
turned  into  the  river.  I am  able  to  state  what  the  present  breadths 
are  only  in  a general  way.  I have  no  measurements  on  that  sub- 
ject. That  would  be  somewhat  larger  than  those  which  pre- 

5008  ceded  the  turning  in  of  the  Sanitary  District  waters.  The 
gauge  readings  show,  and  the  foot  notes  added  by  the  gauge 

reader  show  that  when  the  water  fell  to  11.4  the  bar  below  the 
gauge  was  dry  and  there  was  no  water  going  over  the  bar.  I would 
not  like  to  say  how  far  the  so-called  Hoffman  dam  is  up  stream 
from  the  Eiverside  gauge;  one  can  tell  by  referring  to  that  state- 
ment of  bridges. 

(Witness  looking  at  map,  Cooley  Ex.  16;  Atlas,  p.  3954;  Trans., 
p.  6578;  Abst.,  p.  1927.) 


1486  TV oerm  ann, — C ross-Exa m . — Con  tinned. 

5009  The  dam  is  just  about  at  this  bridge,  and  the  gauge  is  about 
500  feet  below  that.  I am  referring  now  to  the  little  supple- 
mental map  on  Cooley  Exhibit  16,  which  is  marked  ‘Continental 
Divide,  88’’  (Atlas,  page  3954).  I point  to  a map  that  goes  diagon- 
ally across  the  river  right  on  the  section  line.  Then  over  to  the 
northeast  of  that  I point  to  the  Eiverside  g^uge.  That  would 
make  the  distance  perhaps  one-third  of  a mile  above  the  bridge. 
Here  is  a broadening  of  the  river  in  the  loop  just  above  what  I call 

the  dam.  I understood  the  present  dam  was  built  at  about 

5010  that  point  under  authority  of  law  by  a statute  of  the  state. 

1 never  heard  as  to  the  original.  In  fact,  I did  not  know  that 
there  was  a dam.  I do  not  know  that  there  is  a suit  pending  to 
know  whether,  the  i3resent  dam  had  not  crept  from  its  place  and 
gotten  into  an  unauthorized  place.  I never  measured  the  river 
up  above  that  dam,  except  as  I saw  the  boys  swimming  and  wad- 
ing and  fishing  as  I went  up  along.  That  would  not  be  measuring 
it  accurately  in  an  engineering  sense. 

Deferring  again  to  this  Woermann  Exhibit  1,  where  I have 
shown  a cross-section  just  above  the  proposed  dam.  I think  I said 
in  answer  to  a question  on  the  direct  examination  that  there  was 
a shelf  or  berm  where  the  pink  paint  leaves  off  and  that,  in  my 
opinion,  that  shelf  was  partly  formed  in  the  original  construction 
of  the  canal  as  a matter  of  construction,  and  part  of  it  from  other 
causes.  By  the  other  causes  I meant  that  when  that  bank 
5011. was  riprapped  that  they  riprapped  up  to  about  the  level  of 
the  water  surface  and  then  stopped.  That  would  make  a 
berm  there  of  about  two  feet,  the  thickness  of  the  riprap,  meas- 
ured not  at  right  angles,  but  horizontally.  Then  subsequently  to 
that  time  the  wave  wash  from  the  passing  boats  had  washed  out, 
scooped  out  that  area  shown  there.  In  other  words,  originally 
that  earth  slope  stood  probably  like  that  (indicating),  I mean  made 
a continuous  line.  And  the  action  of  the  wave  wash  to  which  I re- 
fer has  trebled  the  breadth  of  the  berm  in  some  places.  In  other 
places,  it  has  not  equaled  the  original.  Tliat  is  a variable  amount. 
The  place  that  I have  selected  here  as  a representation  is  about 
treble  the  thickness  of  the  berm.  I think  I represented  that  about 
five  feet  that  berm,  on  that  exhibit,  and  the  riprap  about  two 
5012  feet,  so,  more  strictly  speaking,  about  two  and  a half  times, 

2 to  5,  instead  of  2 to  6.  I have  got  the  phrase  here  “Pres- 


1487 


ent  cross-section,”  and  then  I have  got  ‘^Proposed  cross-section” 
written  here  on  the  bank,  (pink  stain)  riprapping  which  is  indi- 
cated as  part  of  tiie  proposed  dam.  There  is  no  riprapping  pro- 
posed by  the  plans  or  specifications  for  this  particular  place.  The 
plans  do  not  show  any  cross-section  of  that  kind.  I have  stated 
that  that  84  feet  there  would  be  the  extreme  high  water  conceiv- 
able; I don’t  know  whether  I used  the  word  conceivable,  but  I rep- 
resented it  as  the  ultimate.  I guess  I gave  it  the  word  the  extreme 
high  water  84,  written  on  the  cross-section.  That  I regard  as  the 
highest  water  that  ever  could  come.  The  water  at  that  elevation, 
there  would  be  27,000  cubic  feet  per  second  going  over  the  spill- 
way. As  to  the  question  of  28,000  cubic  feet  coming  down 

5013  there  in  1904,  I don’t  recall  the  exact  figures.  I didn’t  think 
it  was  as  much  as  that.  The  estimate  which  I made  person- 
ally after  that  flood  of  1904  for  the  volume  of  water  at  Joliet  was 
about  24,000.  I don’t  think  it  was  augmented  by  that  amount  from 
there  to  the  mouth.  300,000  cubic  feet  per  minute  Sanitary  Dis- 
trict water  amounts  to  5,000  cubic  feet  per  second.  And  600,000, 
10,000. 

Q.  And  the  600,000  is  intended  for  how  many  people!  What  is 
the  provision  of  the  law  on  that?  A.  I did  know,  but  I cannot  re- 
call at  the  instant. 

Counsel  for  Complainant.  I read  from  the  Statute  Section 
23,  entitled  ‘^An  Act  to  Create  Sanitary  Districts  and  for  removal 
of  obstructions  in  the  Desplaines  and  Illinois  Rivers,”  approved 
May  29,  1889.  ^Mf  the  population  of  the  district  draining  into 
such  channel  shall  at  any  time  exceed  1,500,000,”  they  have 

5014  used  prior  to  that  the  figures  300,000  per  minute, — ^M,500,- 
000,  the  population  shall  exceed  that,  such  channel  shall  be 

made  and  kept  at  such  size  and  such  condition  that  it  will  maintain 
at  all  times  a continuous  flow  of  not  less  than  20,000  per  minute 
for  each  100,000  population  in  the  district.”  That  would  add,  Mr. 
"Woermann,  in  population, — 

Witness.  A flow  of  600,000  per  minute  would  provide  for  a 
population  of  3,000,000. 

I spoke  of  the  maximum  capacity  for  which  the  Drainage  Canal 
has  been  excavated  in  the  largest  point,  as  not  being  quite  even  in 
all  places.  I have  seen  that  statement  both  ways.  From  personal 


1488  Woermann, — Cross-Exam. — Continued. 

knowledge,  I cannot  say.  It  would  depend  upon  what  slope  you 
assumed  in  the  canal.  It  is  a matter  of  computation,  but  the  cer- 
tainty of  the  reply  depends  upon  what  you  take  as  to  the  slope. 
And  that  slope  varies  from  nothing.  It  depends  upon  what  you 
do  with  the  Bear-trap  Dam.  You  can  raise  that  so  that 

5015  the  whole  canal  is  at  the  level  of  Lake  Michigan ; you  can 
put  it  way  down  as  far  as  it  will  go  and  it  makes  a slope  I 

think  of  five  or  six  feet  in  it,  in  the  length  of  it,  and  those  are  the 
two  extremes,  and  it  may  he  anything  between  those  two.  If  it  is 
clear  up,  there  is  no  discharge  at  all  through  the  Drainage  Canal. 
When  it  is  clear  down, — I made  an  estimate  of  that  at  one  time, — 
I think  I computed  that  it  would  discharge  about  14,000  cubic  feet 
a second. 

Counsel  foe  Complainant.  Well,  if  you  had  a flood  such  as 
occurred  in  1904,  and  had  the  Sanitary  District  Canal  making  its 
maximum  discharge  what  would, — you  would  have  had  your  27,- 
000  cubic  feet  exceeded,  would  you  not? 

A.  It  should  not  he.  If  the  Sanitary  District  kept  within  the 
law. 

As  to  the  question  if  the  maximum  discharge  existing  at  the 
Sanitary  Canal  Dam  would  he  added  to  the  high  water  of  1904, 
so  that  they  were  both  flowing  together,  it  would  exceed  what  I 
have  got  there  as  an  extreme  high  water — that  cannot  be  answered 
by  yes  or  no,  because  that  brings  in  again  the  question  of  what  is 
done  with  the  spillway  at  Summit.  If  that  is  built  up  as  originally 
planned  and  the  flood  waters  of  the  Desplaines  are  kept 

5016  within  the  Desplaines  Valley  instead  of  being  allowed  to 
overflow  into  the  Chicago  Eiver,  then  there  is  no  reason  on 

earth  for  running  14,000  cubic  feet  per  second  through  the  Drain- 
age Canal;  and,  under  the  permit  granted  by  the  War  Department, 
it  couldn’t  be  done  legally. 

Counsel  foe  Complainant.  I move  to  strike  out  what  couldn’t 
be  done  legally. 

(Sustained.) 

Witness.  Assume  the  maximum  flow  of  the  Drainage  Canal  is 
coupled  with  or  added  to  the  high  water  of  1904;  whether  the  level 
of  the  water  at  the  proposed  dam  would  or  would  not  exceed  the 


1489 


level  of  84  that  I have  marked  there,  I don’t  think  can  be  answered 
without  qualification,  without  explanation.  If  all  of  the  gates  were 
closed  it  would  probably  raise  it  a little  above  84.  That  estimate 
I made  of  the  fiood  that  came  past  Joliet  in  1904;  at  that  time 
there  was  about  10,000  cubic  feet  per  second  coming  out  of 

5017  the  Drainage  Canal,  so  it  would  add  about  4,000.  I knew  that 
the  flood  of  1904  destroyed  the  Marseilles  Dam,  so  that  it 
had  to  be  totally  reconstructed.  The  terrific  pressure  hav- 
ing been  applied  to  the  piers  of  the  aqueduct,  is  not  likely  to  be 
applied  to  this  dam  and  tow-path. 

Counsel  for  Complainant.  Well,  there  was  a pressure  down- 
ward from  water  in  the  aqueduct,  on  top  of  the  piers  of  the  aque- 
duct, and  that  of  course  would  never  be  applied  to  this  dam  and 
tow-path,  will  it. 

A.  Yes,  sir. 

The  Court.  You  mean  it  never  will  be*? 

A.  No,  sir.  I mean  it  would  be. 

The  Court.  You  don’t  mean  to  say  that  there  will  be  a pres- 
sure from  above  that  is  on  top  of  the  aqueduct!  He  is  talking 
about  the  aqueduct  in  use,  from  water  flowing  over  it. 

A.  Yes,  sir. 

Q.  There  is  not  going  to  be  any  water  on  top  of  it!  A.  He 
did  not  confine  his  question  to  the  top. 

Q.  Yes;  he  did.  He  said  water  on  top  of  the  aqueduct. 

5018  A.  I misunderstood  him.  I thought  he  referred  to  the  slope. 

The  Court.  Is  that  right! 

Counsel  for  Complainant.  The  court  has  it  correctly. 

A.  These  dams  in  the  report  of  1904  and  1905,  and  particularly 
the  one  below  the  mouth  of  the  Desplaines  and  Kankakee,  was  one 
of  those  movable  dams  that  turns  down.  It  was  not  a fixed  dam. 

Counsel  for  Complainant.  And  in  all  the  testimony  that  has 
been  taken  in  reference  to  that  dam,  and  its  effect  upon  this  dam, 
it  has  been  in  reference  to  a movable  dam  of  the  Chanione  type! 

(Objection;  sustained.) 

5019  The  Witness.  With  the  court’s  permission,  I would  like  to 
add  something  to  one  of  the  questions  that  Mr.  Starr — in  re- 


1490  Woermann, — Cross-Exam. — Continued. 

ply  to  Mr.  Starr’s  question.  He  asked  me  in  regard  to  the  material 
that  was  in  that  embankment  at  the  Adams  Dam,  how  I knew.  I 
did  not  recall  until  after  I left  the  stand  that  in  connection  with  my 
own  survey  for  a waterway  I had  borings  made  in  that  embankment 
at  frequent  intervals  its  whole  length.  It  was  part  of  our  plan  to 
remove  that  embankment  entirely  and  it  was  necessary  to  know 
what  the  material  was  in  order  to  make  a correct  estimate  as  to 
the  cost  of  removing  it.  That  was  in  1904.  At  that  time,  the 

5020  dam  was  gone.  The  embankment  was  there.  We  made 
borings  down  in  the  rock — 

Q.  I asked  you,  did  you  in  making  the  borings  to  which  you  have 
referred  make  any  reference  to  any  dam? 

The  Court.  I confess  I do  not  understand  what  you  mean  by 
making  any  reference,  Mr.  Starr.  Do  you  mean  whether  he  made 
them  in  the  dam?  And  to  the  question  ‘‘Were  they  in  any  way  lo- 
cated by  any  measurement  connecting  them  with  the  location  of 
any  dam”  witness  replied:  “Oh,  yes,  in  this  way,  that  as  I say 
we  made  them  the  whole  length  of  the  embankment.” 

There  was  no  dam  there  at  that  time. 

Q.  Well  now,  what  boring  did  you  identify  the  location  of  with 
reference  to  the  location  of  the  Adams  Dam?  A.  I could  not  re- 
call the  numbers  of  the  borings,  but  I know  that  that  embankment 
there  above  the  Adams  Dam  for  a considerable  distance  is  earth 
until  you  run  into  the — 

5021  Counsel  for  Complainant.  I move  to  strike  that  out  as 
not  responsive. 

(Sustained.) 

Counsel  for  Complainant.  Can  you  give  any  further  answer  to 
my  question  than  that? 

A.  Dead  the  question. 

(Question  read  by  the  reporter.) 

A.  You  mean  by  that  you  would  like  to  know  the  number  of 
l)orings  that  were  taken  at  that  particular  point? 

Q.  Yes?  I want  you  to  identify  the  boring  as  connected  with 
the  location  of  Adams  Dam.  I ask  you  which  one. 


1491 


Counsel  for  Defendant.  I object.  He  did  not  say  lie  identi- 
fied one  with  relation  to  the  location  of  Adams  Dam. 

Counsel  for  Complainant.  I asked  him  if  he  could  identify 
any  one  and  he  said  he  could.  Now,  I ask  him  which  one. 

A.  I could  locate  that  in  the  boring  record  if  you  would  like  to 
know  that. 

Q.  No,  I asked  you  if  you  can.  A.  I can. 

Q.  By  going  to  your  documents  you  think  you  can?  A.  By  go- 
ing to  the  field  records,  yes,  sir. 

I did  not  say  that  I had  to  get  out  of  my  boat  up  there  by 

5022  Lockport  somewhere.  We  started  from  Joliet,  we  went  from 
Chicago  to  Joliet  through  the  canal  and  then  pulled  the  boat 

from  the  canal  over  on  to  the  river  just  below  the  Adams  Dam. 
I never  was  on  the  river  above  Joliet  in  a skiff.  I do  know  how 
many  soundings  were  taken  and  assembled  in  the  making  of  the 
profile  of  1867.  From  my  examination  of  the  reports  that  ac- 
company that  profile,  I can  say  this,  that  while  I do  not  know  how 
many — in  reply  to  the  previous  question,  if  you  will  allow  me— 
while  I could  not  say  how  many  soundings  were  taken  I have  been 
all  over  them.  I know  there  are  a large  number  filling  several  note 
books.  I could  not  say  whether  we  did  or  did  not  find  any  per- 
manent bench  marks  which  permanently  continued  so  that  in  1904 
we  were  able  to  find  bench  marks  which  had  been  used  by  Gen- 
eral Wilson  in  1867.  I made  no  mention  of  any  in  my  report. 

5023  We  did  attempt  to  record  all  the  permanent  bench  marks 
that  we  did  find.  We  made  specific  search  for  bench  marks 

used  in  previous — in  the  last  previous  survey  known  as  the  Sed^ 
den  survey  of  1899.  We  found  a large  number  of  those.  We  made 
no  hunt  for  any  of  the  survey  of  1867,  in  fact  did  not  take  the  rec- 
ord or  the  list  of  them  because  they  had  been  connected  up  by 
the  earlier  surveys.  In  the  making  of  a profile  the  water  line 
drawn  is  made  to  connect  measurements  taken  at  different  points, 
and  in  the  space  between  the  two  points  which  are  so  connected 
and  between  which  there  was  no  measurement,  the  line  is  an  in- 
ferred line,  and  the  same  is  true  of  the  bottom  line  drawn  in  the 
profile  between  points  of  measurement.  Then,  other  things  being 
equal,  the  accuracy  of  a profile,  whether  of  a water  line  or  bottom 


1492  W oennann, — Cross-Exam. — Continued. 

line,  increases  as  the  number  of  the  measurements  which  can  be  so 
assembled  and  aligned  increase. 

I stated  that  I was  on  the  survey  of  the  Upper  Missouri  from 
Fort  Benton  up  to  the  junction  of  the  Three  Forks  which 

5024  form  the  Missouri,  that  is  the  Jefferson,  the  Madison  and  the 
Gallatin.  That  was  in  1890,  from  some  time  in  July  until 

Christmas  Bay,  left  there  the  day  before  Christmas.  The  object 
of  that  survey  was  to  prepare  correct  maps  showing  the  depths 
and  slopes  of  the  river  and  the  adjoining  topography  and  also  to 
establish  a permanent  triangulation  system  and  permanent  bench 
marks  for  future  use,  also  to  determine  the  question  of  whether  it 
was  navigable  or  not.  I determined  the  elevation  of  the  water  at 
frequent  intervals.  I did  not  assist  in  the  office  reduction  after 
the  survey  was  completed.  I did  field  work  and  reduced  the  notes, 
hut  I did  not  do  any  of  the  platting  there.  The  volume  of  water 
in  the  Upper  Missouri  at  a point  halfway  between  the  Great  Falls 
and  Fort  Benton,  I am  not  absolutely  sure,  I think  it  was  some- 
thing like  2,000  cubic  feet  per  second  at  low  water. 

5025  I found  a great  number  of  rapids  up  there.  I can  recall 
the  names  of  some  of  the  falls  between  Great  Falls  and  Fort 

Benton.  I would  not  attempt  to  recall  the  names  of  the' rapids 
above  Great  Falls.  Great  Falls  is  the  greatest  fall,  where  there  are 
some  half  a dozen  altogether.  Those  falls  extend  through  a dis- 
tance of,  I think,  twenty  miles.  There  is  one  great  cataract  in  that 
stretch.  The  height  of  that  great  cataract,  I think,  was  about 
eighty  feet. 

I had  occasion  in  my  work  on  the  Hennepin  Canal  to  make  one 
stream  cross  another  at  several  different  places,  carried  a great 
many  streams  under  the  canal.  We  did  it  by  aqueduct  sometimes 
and  by  culverts  more  frequently. 

Q.  You  used  the  siphon  system!  A.  The  submerged  culverts 
are  in  the  nature  of  siphons. 

Q.  Answer  my  question:  Bid  you — 

Counsel  for  Befendant.  I submit  he  has  answered  it. 

Counsel  for  Complainant.  Bid  you  use  a siphon  such  as  you 
have  described  in  your  direct  testimony! 

5026  A.  They  are  siphons  when  the  water  is  passing  through 
them,  yes,  sir. 


1493 


Q.  In  your  last  answer  you  have  referred  to  the  culverts  that 
you  have  referred  to  in  this  previous  answer.  A.  Culverts,  yes, 
sir. 

Q.  Did  you  ever  in  any  report  about  them  describe  them  as 
siphons?  A.  They  are  the  same  thing. 

Q.  No,  answer  my  question.  A.  Describe  them  as  siphons? 

Q.  Yes?  A.  No,  sir. 

Q.  Did  you  ever  carry  a stream  across  another  by  means  of  an 
inverted  siphon  and  locks  such  as  yon  have  described  in  your  direct 
testimony?  A.  Did  I ever? 

Q.  Yes?  A.  No,  sir. 

I did  in  fact  use  the  aqueduct  system  in  several  different  places 
in  crossing  the  Hennepin  Canal.  There  are  three  across  Bureau 
Creek  at  various  place  in  the  eastern  section,  and  the  feeder  is 
carried  across  the  Green  Kiver  by  an  aqueduct,  the  main  line  is  car- 
ried across  the  Green  River  by  an  aqueduct;  there  is  Mud  Creek 
and  the  Genesee  Creek,  the  Hickory  Creek;  that,  of  course,  is  not 
the  same  Hickory  Creek  that  we  have  talked  about  here. 

5027  As  to  knowing  in  my  engineering  parlance  of  a distinc- 
tion between  a general  profile  and  a precise  profile,  I can- 
not say  that  I have  ever  seen  those  adjectives  used  in  that  con- 
nection. I have  seen  the  term  general  profile  applied  to  a profile. 
I do  not  think  I could  give  it  any  specific  and  exact  definition. 
If  a profile  is  very  much  condensed  like  the  profile  of  the  water- 
way that  I inserted  in  my  report,  made  very  small  in  order  to  get 
it  on  a single  page  of  a published  document,  I would  call  that  a 
general  profile,  because  it  cannot  be  used  to  get  depths  or  eleva- 
tions or  slopes  from  accurately.  It  is  simply  a birdseye  view. 

You  did  understand  me  correctly  to  say  that  I passed  from 
the  school  into  the  Government  employ,  but  not  from  the  Govern- 
ment employ  into  the  employ  of  the  Economy  Light  & Power 
Company.  When  I passed  from  the  Government  employ,  I opened 
an  office  in  Peoria  for  general  engineering  practice  and  I 

5028  was  employed  by  a number  of — I left  the  Government  em- 
ploy in  September,  1905.  I think  the  first  work  I did  for — 

not  the  Economy  Company,  but  Mr.  Munroe — was  in  March  of 
1906.  It  may  have  been  the  latter  part  of  February.  Since  Sep- 


1494  Woermann, — Cross-Exam. — Continued. 

tember,  1905,  I was  not  out  of  employment  up  to  February,  1906, 
before  entering  the  work  for  Mr.  Munroe.  I was  not  out  of  em- 
ployment at  all.  I went  to  Peoria  and  opened  an  office  when  I 
left  the  Government  service  in  September,  1905.  I had  had  an 
office  there  in  connection  with  my  waterway  survey  in  Peoria  for 
three  years.  In  my  work  for  the  Government  I had  kept  the 
Government  station  at  Peoria.  I had  formed  some  acquaint- 
ances there,  and  when  I left  the  Government  I opened  an 

5029  office  in  the  place  where  I last  was  located,  and  it  was  while 
I was  there  the  following  February  that  I was  first  employed 

by  Mr.  Munroe.  If  counsel  will  permit  me,  I would  like  to  add 
that  that  employment  at  that  time  was  for  two  weeks,  about,  in 
connection  with  preparing  an  estimate  for  cost  of  building  a lock 
and  dam  at  the  mouth  of  the  Desplaines  River  in  place  of  the 
Government  project;  that  I was  at  that  time  engaged  in  making 
surveys  for  the  location  of  the  bridge  across  the  Illinois  River 
at  Peoria,  and  this  was  simply  an  interruption  of  that  work  for 
a period  of  two  weeks,  the  bridge  work  survey  being  carried  on  at 
the  same  time. 

I cannot  say  that  I have  ever  seen  any  ice  on  the  Desplaines 
River  when  the  water  stood  at  a stage  of  fifteen  inches.  I have 
not  seen  the  river  at  that  stage  since  the  drainage  water  was 
turned  in.  That  was  during  the  period  of  my  survey,  my  own 
survey,  and  when  I was  connected  with  an  earlier  survey,  it  was 
during  the  summer  months. 

Re-direct  Examination. 

I never  was  employed  by  the  Economy  Light  & Power 

5030  Company  prior  to  my  employment  to  prepare  myself  to 
testify  in  this  case.  My  employment  upon  the  dam  was  by 

Mr.  Munroe;  the  construction  of  the  dam  by  Mr.  Mead.  The 
employment  by  Mr.  Munroe  was  that  of  preparing  that  estimate. 
In  connection  with  this  embankment,  I say  I took  a number  of  bor- 
ings. I do  know  exactly  where  Adams’  Dam  was  with  relation  to 
the  bank.  These  borings  were  taken  partly  above  and  partly  be- 
low, from  the  beginning  of  the  embankment  where  Dam  No.  1 

5031  is  located  clear  on  down  to  a point  about  three  miles  below 
there,  down  beyond  for  a considerable  distance.  The  Hoff- 
man Dam  diverts  no  water  whatever  from  the  river. 


M95 


As  to  why  the  same  terrific  pressure  would  not  be  applied  to 
the  dam  and  tow-path  as  had  affected  the  aqueduct,  the  five  piers 
and  two  abutments  at  the  site  of  the  old  aqueduct,  with  a space  be- 
tween them  of  less  than  fifty  feet,  is  an  invitation  at  all  times  to 
form  an  ice  gorge  there.  Down  at  the  site  of  the  ])roposed  dam  at 
the  mouth  of  the  river  there  is  an  open,  unobstructed  spillway, 
440  feet  long,  for  the  ice  to  pass  over. 

In  answer  to  a question  on  cross-examination  I said  that  un- 
der certain  conditions  there  would  be  24  feet  liead  of  water  at  Dres 
den  Heights ; that  24  feet  would  not  all  of  it  come  against  the  tow- 
path  bank.  The  difference  between  71.5  and  86,  being  four- 

5032  teen  and  a half  feet,  would  come  against  the  tow-path  bank. 
The  71.5  is  the  elevation. 

To  explain  the  cross-section  of  the  proposed  canal  around  the 
rapids  at  Joliet  that  were  referred  to  the  day  before  yesterday 
in  my  cross-examination,  in  connection  with  my  report  for  the 
Government,  the  top  width  was  ten  feet  and  the  side  slope  two  to 
one.  At  Marseilles  the  top  width  was  ten  feet  and  the  side  eleva- 
tion three  to  one.  The  occasion  for  the  difference  was  that  at 
Marseilles  we  had  a large  excess  of  earth  which  would  be  exca- 
vated from  the  canal  trunk  and  this  was  simply  placed  in  the  em- 
bankment as  being  the  cheapest  place  to  put  it. 

Q.  Mr.  Woerman,  you  were  shown  the  profile  of  1883  and  asked 
as  to  the  measurements,  whether  they  were  in  the  left  or  right 
hand  channel.  With  reference  to  the  discrepancies  which  you  tes- 
tified existed  in  Mr.  Cooley’s  testimony  as  to  depths,  state 

5033  whether  or  not  his  testimony  referred  to — whether  or  not 
the  measurements  given  by  him  were  in  the  left  channel  or  the 

right.  A.  You  mean  1883? 

Q.  1883,  yes.  A.  In  his  note  on  the  profile  he  says  that 
they  are  based  on  the  Government  profile  of  1883,  and  I know  that 
was  taken  down  the  main  channel  or  left  hand  channel. 

Q.  And  your  measurement  was  the  same  channel,  was  it!  A. 
The  same  channel.  I compared  it  with  the  original  in  the  Govern- 
ment office. 

Q.  You  were  asked  on  cross-examination  as  to  the  condition 
of  the  river  when  there  is  no  discharge,  and  you  were  told  you 


1496  Woennann, — Re-direct  Exam. — Continued. 

had  been  led  into  a most  curious  misstatement.  What  do  you 
mean  when  yon  say  that  it  would  be  then  dry  on  the  bars? 

Counsel  for  Complainant.  I object,  if  your  Honor  please.  He 
disclaimed  having  made  any  such  statement,  he  said  he  did  not 
use  that  language,  and  I then  said  to  him,  ‘Won  are  right,  Mr. 
Woermanu,  that  question  came  from  counsel.” 

The  Court.  He  accepted  the  language;  he  did  not  say  that 
he  did  not  accept  it  when  yon  said  to  him  that  “yon  have  used  it.” 
Yon  stated  to  him  that  “you  have  used  it”  and  as  I understood  it, 
that  he  had  unwittingly  accepted  it. 

Counsel  for  Complainant.  No,  not  quite  that. 

The  Court.  What  was  it  exactly? 

5034  Counsel  for  Complainant.  Strike  out  “yon”  and  insert 
“Mr.  Scott.” 

The  Court.  Well,  that  may  be,  that  the  counsel  that  stated  it — • 

Counsel  for  Complainant.  He  said  that  he  had  not  used  it  and 
I said — • 

The  Court.  Yes,  he  had  accepted  the  phrase  and  that  is  using  it. 

Counsel  for  Complainant.  I said,  “I  think  yon  are  right,  Mr. 
MMermann,  yon  did  not  use  it,  it  was  used  by  counsel  and  ap- 
parently acceded  to  by  yon  in  your  answer.” 

The  Court.  Yes. 

Counsel  for  Complainant.  That  is  vv^here  the  record  stands. 

The  Court.  That  is  a use  of  it  in  a broad  sense  of  the  term. 

Counsel  for  Defendant.  Bight  on  after  that  he  said  that  he 
had  seen  it  dry  on  the  bars,  and  I am  asking  w^hat  he  means  by  that 
right  in  answer  to  Mr.  Starr’s  question.  Shall  I proceed,  your 
Honor? 

The  Court.  Yes. 

Counsel  for  Defendant.  Go  on,  Mr.  Woermann. 

A.  Mdiy,  I mean  that  there  was  no  water  on  the  bars,  that  part 
of  the  river  would  be  dry  although  the  river  in  general  would  not 
be  dry  simply  because  the  water  would  continue  to  stand  in  pools 
between  the  bars  until  it  gradually  evaporated.  How  long  it 
stood  would  depend  on  when  the  next  supply  came. 


1497 


5035  The  flood  stage  of  the  river  before  the  addition  from  the 
Drainasfe  Canal  compares  with  the  usual  stages  with  the 

Drainage  Canal  water  added  in  this  way;  in  its  present  condition 
it  contains  five  to  six  thousand  cubic  feet  per  second,  and  that  in 
its  natural  state  would  correspond  to  an  average  flood  stage,  not 
extreme  floods,  but  ordinary  spring  condition.  The  sources  of 
supply  in  the  river  which  give  it  water  in  addition  to  the  Drain- 
age Canal,  which  were  not  original  sources  of  supply,  are  that  there 
are  a great  many  sources  of  supply,  all  of  the  same  nature.  At 
Riverside  and  all  the  other  towns  along  the  river  there  are  a large 
number  of  sewers  which  empty  into  the  river,  some  of  them  two 
feet  in  diameter,  carrying  at  times  a considerable  volume,  at  all 
times  some  water.  I am  not  familiar  with  the  water  supplies  of 
all  of  the  towns.  I know  that  some  of  them  have  wells,  I could  not 
say  as  to  what  nature  of  wells,  what  character  of  wells. 

5036  Q.  Do  you  know  whether  any  of  them  have  water  works 
systems,  water  not  drawn  from  the  river?  A.  My  under- 
standing is  that  none  of  them  take  their  water  supply  from  the 
river. 

Q.  Have  any  of  them  water  supply  systems?  A.  Yes,  sir. 

Q.  Which  ones  that  you  know  of?  A.  Well,  Riverside  for  one. 
I cannot  from  personal  knowledge;  I understand  that  most  of  those 
towns  along  the  river  have  water  supplies. 

Counsel  foe  Complainant.  I move  to  strike  out  the  last  two 
answers  of  the  witness. 

(Sustained.) 

The  Witness.  I can  say  this,  if  you  will  permit  me, — that  I 
have  seen  as  I went  along  the  river  getting  notes  in  regard  to  these 
bridges — I saw  a large  number  of  sewers  emptying  into  the  river, 
at  the  towns. 

5037  The  length  of  the  tow-path  bank  that  would  be  overflowed 
by  this  pool  to  be  formed  by  this  dam,  the  ordinary  pool 

level  would  be  about  half  of  its  length  between  the  mouth  of  the 
river  and  Channahon.  The  distance  between  the  mouth  of  the 
river  and  Channahon  is  about  20,000  feet,  a trifle  less  than  four 
miles,  and  a bout  half  of  that  would  have  the  lower  portion  of 
the  embankment  flooded  by  the  ordinary  pool  level.  I have  pre- 


1498 


W oermann, — Re-direct  Exam. — Continued. 


pared  a drawing  or  map  showing  the  land  that  would  he  overflowed 
by  the  construction  of  this  dam.  I have  it  here.  (Witness  pro- 
duces two  maps.) 

Q.  Mr.  Woermann,  what  are  the  two  maps  or  diagrams  that 
have  been  placed  upon  the  easel  now,  beginning  with  this  one  to 
the  left?  A.  Well,  the  sheets  in  their  original  condition  are  two 
sheets  of  the  Government  survey  of  1899,  which  I obtained  from 
the  United  States  Engineer's  office,  and  on  them  I platted 

5038  the  limits  of  the  right  of  way  of  land  purchased  by  the* 
Economy  Light  & Power  Company  in  connection  with  that 

project.  The  right  of  way  lines  approximately  extend  to  the  ele- 
vation of  86,  which  is  two  feet  above  the  extreme  high  water  level. 

1 see  this  goes  below  the  mouth  of  the  Kankakee — this  one  to 
the  left  which  I have  marked  Woermann  Exhibit  1 of  June  15, 
1908,  goes  below  the  mouth  of  the  Kankakee  Eiver.  The  lands  ex- 
tend below  this  mouth.  The  other  I have  marked  Woermann  Exhibit 

2 of  June  15,  1908.  The  lands  of  the  Economy  Light  & Power 
Company  which  I refer  to  are  those  marked  in  pink.  The  yellow 
upon  the  one  that  I have  marked  Woermann  Exhibit  1 of  June 
15,  1908,  represents  the  90-foot  strip  in  the  odd  sections,  and  the 
16-acre  tract,  which  are  in  controversy  in  this  suit.  I mean  the 
16-acre  tract  that  was  part  of  the  contract  with  the  Canal  Com- 
missioners, part  of  the  Canal  Commissioners’  lands,  and  also  the 
strip  across  the  river  where  the  feeder,  the  Kankakee  feeder,  comes 

in. 

5039  Counsel  for  defendant  offered  the  two  exhibits  marked 
Woermann  Exhibit  1,  June  15,  1908,  and  Woermann  Exhibit 

2,  June  15,  1908,  in  evidence. 

(Objected  to  as  irrelevant,  incompetent  and  immaterial; 
overruled.) 

Said  maps  were  received  in  evidence.  (Atlas  pages  3985  and 
3986;  Trans.,  pp.  6644-46;  Abst.,  pp.  1935-6.) 

Eef erring  to  the  dams  shown  on  Woermann  Exhibit  4, 

5040  I would  like  to  say  right  there,  the  Government — one  of  the 

Government  maps  shows  a dam  right  adjoining  a railroad 
bridge  there,  and  the  location  was  taken  from  the  Government 
map,  but  I may  be  wrong  in  calling  it  Daggett’s,  identifying  it  as 
Daggett’s.  That  is  why  I put  the  question  mark  there. 


1499 


Q.  Let  ns  go  down  the  river  and  we  will  see.  Here  is  Nor- 
man ^s  Dam  opposite  the  penitentiary,  is  there  any  doubt  about 
it? 

Counsel  for  Complainant.  I would  need  to  go  to  Woodruff 
History  to  make  sure,  and  then  I would  not  be  sure  about  the  sec- 
tion lines. 

5041  Counsel  for  Defendant.  Well,  we  will  just  call  the  court  ^s 
attention  to  it  for  that  purpose.  The  court  will  remember 

that  a number  of  witnesses  have  testified  that  Norman  Dam 
was  just  opposite  the  penitentiary,  and  the  river  opposite  the  peni- 
tentiary runs  altogether  through  No.  3,  with  a little  bayou  over  in 
the  corner  of  No.  4.  The  Jackson  Street  Dam,  the  Cass  Street  Dam, 
and  the  Jefferson  Street  Dam  are  all  in  section  nine,  the  Jeffer- 
son Street  Dam  being  dam  No.  2,  the  Adams’  Dam,  of  course, 
is  in  section  16.  The  Treat’s  Island  Dam,  or  the  head  of  Treat’s 
Island,  there  cannot  be  any  mistake  about  where  it  is,  in  section 
11,  and  the  tail  of  Treat’s  Island  above  the  section  line  is  in  section 
11.  It  is  above  the  bridge. 

Re-cross  Examination. 

The  Witness.  Deferring  to  this  new  exhibit  of  June  15th,  with 
that  pink  and  yellow  coloring  on  it,  the  lines  marked  75  and  79 

5042  down  section  36  here,  near — very  near  the  junction  of  the 
Kankakee  Diver  with  the  Illinois,  represent  the  elevation  of 

that  contour  above  Hennepin  datum.  Those  were  on  this  map 
when  I obtained  it  from  the  Government  office.  Those  are  the 
Government  figures  of  the  Government  survey. 

Q.  Does  the  level  show  right  here  on  this  June  15th  profile 
about  where  the  dam  is  going  to  be?  A.  Dight  across  there  (in- 
dicating) . 

Q.  You  draw  a pencil  from  65  to  towards  44,  and  the  spillway 
will  come  how  far  over  here?  A.  The  spillway  would  come  in 
there  something  like  that  (indicating). 

Q.  And  come  down  to  a little  beyond  the  point  where  the  pro- 
file lines  marked  70  meet  here  in  this  little — A.  About  over 
to  that  little  draw  there;  yes,  sir. 

The  elevation  of  the  dam,  the  crest  of  the  dam,  will  be  77,  and 


1500  Woermann, — B e-cross  Exam. — Continued. 

of  the  spillway,  I tlioiight  that  was  what  you  meant,  77  would  be 
the  elevation  of  the  spillway. 

5043  On  the  map  just  above  the  feeder,  the  line  of  the  feeder, 
some  hgiires,  69.6,  71.5,  72  and  72.3,  are  the  exact  points  where 

the  stadia  rod  was  held  in  getting  the  elevation  of  the  ground, 
from  those  contour  lines  which  were  drawn  by  interoplation. 
Then  the  elevation  of  the  ground  at  this  figure  would  be  lower  than 
the  elevation  of  the  spillway.  There  would  not  be  any  flow  in 
that  direction  on  account  of  high  elevation.  I mean  we  are  going 
to  build  a levee  there.  We  have  not  built  one  yet.  The  height 
of  that  levee  will  be  the  same  as  the  proposed  level  of  the  tow-path, 
86.  It  is  not  a fact  that  water  has  in  times  of  high  water  every 
year  flowed  right  out  here  over  to  the  Kankakee  from  about 

5044  the  county  line.  The  water  of  the  Desplaines  has  not  come 
right  out  over  that  whole  point  from  the  county  line  west. 

(Counsel  for  complainant  indicating.)  Not  as  you  drew  your  finger. 
That  whole  point  north  of  the  section  line  east  and  west  between 
sections  25  andd  36  in  high  water  is  all  under  water, 
overflowed.  On  the  other  side  of  the  river  the  elevation  is  very 
much  higer;  you  have  got  165  or  175  or  180.  There  is  a high 
mound  there  so  that  there  would  be  no  passage  of  water  or  ice, 
or  anything  of  that  kind  over  onto  the  right  hand  of  the  river. 

But  as  to  what  I do  know  as  to  the  river  having  actually  over- 
flowed into  the  canal  on  the  right  hand  there,  I will  say  that  I 
have  made  very  exhaustive  inquiry  in  regard  to  that  point  while 
I was  stationed  there.  I know  it  did  not  go  over  last — this  spring, 
because  I was  there.  According  to  the  gauge  readings  and  Sani- 
tary District  records,  this  was  the  highest  water  they  have 

5045  ever  had,  so  that  if  it  did  not  go  over  this  spring  it  is  pretty 
sure  it  had  not  gone  over  at  any  other  time,  and  the  testi- 
mony of  the  people  along  the  river  corroborated  that  it  never 
did  overflow  into  the  canal.  If  you  will  permit  me,  I would  like 
to  add  a statement  as  to  what  probably  gave  rise  to  that  state- 
ment that  the  river  did  overflow,  as  told  to  me  by  people  who  lived 
thereon  the  ground  and  saw  the  water  go  over  the  tow-path  at  one 
point. 

I stated  that  in  this  cross-section  of  the  proposed  dam  the  press- 
ure of  the  water  would  not  be  against  the  bank  for  the  whole  depth 


1501 


of  the  water,  but  only  tlie  top  fourteen  and  a half  feet  of  it.  As  to 
how  I fix  the  bottom  line  at  which  I say  the  pressure  will  begin, 
when  I staked  out  at  the  earthen  dam  I cross-sectioned  that  ground 
there,  took  the  elevation  at  frequent  intervals,  and  the  elevation 
of  the  ground  at  the  foot  of  that  riprap  is  71.5  according  to 

5046  my  level  notes.  Also  the  foot  of  the  embankment.  I mean  that 
the  natural  surface  and  the  embankment  met  at  that  point, 

so  I say  that  the  water  would  begin  to  press  at  that  point  where 
the  bank  began  to  rise  from  the  natural  surface.  It  would  press 
on  the  natural  surface  under  it.  As  to  that,  if  you  will  allow  me, 
that  slope  is  shown — the  natural  slope  there  is  shown  much  steeper 
than  it  actually  is,  simply  so  as  to  get  it -on  a sheet  of  that  length. 
I think  that  my  diagram  is  incorrect  in  that  particular  feature  of 
it.  In  order  to  get  it  on  a sheet  of  reasonable  length,  I made 
that  slope  steeper,  and  for  the  same  reason  was  unable  to 

5047  show  the  bottom  of  the  river.  The  pressure  would  come — 
anything  that  is  submerged  would  be  subject  to  pressure  re- 
gardless of  its  slope  or  position.  As  the  water  advanced  up  that 
natural  bank,  before  it  came  to  the  artificial  bank,  the  slope  would — 
the  pressure  would  come  as  the  water  came.  As  to  the  natural 
slope  on  the  riverside  at  the  Adams’  Dam,  the  cross-sections 
taken  in  1867  which  I studied  carefully  indicate  that  at  some  places 
the  natural  surface  would — towards  the  bottom  would  get  some* 
thing  like  that — and  this  slope  would  extend  on  that  same  line 
down  to  the  river  bottom. 

Q.  Just  draw  your  indication — A.  I would  say  that  at  some 
places  the  cross-sections  indicate  that  the  slope  extended  on  a line 
like  that  to  the  bottom  of  the  river  (indicating) ; at  other  places 
further  down,  below  the  Adams’  Dam,  that  the  artificial  slope 
would  strike  the  natural  surface,  and  bottom  of  the  slope, 

5048  you  might  say,  would  be  rounded  off,  so  that  there  would 
not  be  quite  as  sharp  an  angle  where  the  slope  angles  roughly 

at  the  bottom.  But  at  the  site  of  Adams’  Dam,  the  slope  of  the 
river  was  the  natural  slope  as  I have  represented  it  with  this 
line  of  riprap.  Oh,  I misunderstood  you.  No,  sir;  that  was  an 
artificial  embankment.  The  natural  slope  is  not  like  that. 

Natural  slopes  never  are  quite  so  geometrically  uniform 

5049  as  that  is,  that  is  true.  This  is  also  true,  that  the  bank  of 
the  river  is  not  a straight  line,  or  uniform  curved  line,  while 


1502  Woermann, — Re-cross  Exam. — Continued. 

the  canal  is  laid  down  on  geometrical  lines.  Well,  the  location 
of  the  canal  with  reference  to  the  river  determined  the  cross-sec- 
tions of  the  embankment,  and  at  places  it  was  exactly  as  there  rep- 
resented, and  at  other  places  that  slope  would  intersect  the  natural 
surface  of  the  ground  before  it  reached  the  river  bottom.  I have 
drawn  this  picture  as  representing  to  the  best  of  my  knowledge 
what  it  in  fact  was  at  the  Adams’  Dam,  and  at  other  places,  imme- 
diately above,  and  barring  the  qualifications  I have  made, 

5050  that  slope,  would  represent  the  condition  as  it  existed 
at  Adams’  Dam.  Well,  the  embankment,  the  artificial  em- 
bankment was  built  on  that  line,  and  then  the  riprap  put  on  top 
of  that  slope.  At  that  point,  it  is  all  artificial,  from  the  top  of 
the  dam  to  the  bottom  of  the  river,  an  artificial  embankment.  I 
said  slope,  yes,  sir.  It  is  an  artificial  slope,  because  the  embank- 
ment is  artificial.  I have  not  ever  been  down  to  the  river  bottom 
at  this  point. 

The  Court.  Pardon  me,  I asked  do  you  mean  that  the  embank- 
ment is  artificial  from  what  you  have  marked  as  the  bottom  of 
the  river  all  the  way  up? 

5051  A.  Yes,  sir. 

I never  have  been  on  the  river  bottom.  I never  have  per- 
sonally seen  the  natural  slope  of  the  ground  at  that  point.  I 
have  seen  the  riprap  itself.  That  is  artificial.  My  knowledge 
of  what  is  artificial  and  what  is  natural  does  not  begin  and  end 
with  riprap.  What  it  is  that  I know  about  the  natural  surface  of 
the  ground  between  the  bottom  of  the  river  and  the  level  of  the 
water  on  that  slope  is  the  cross-section  taken  in  1867  of  that  em- 
bankment. I have  no  personal  knowledge  of  my  own  as  to  how 
much  of  that  is  natural  and  how  much  of  it  is  artificial.  Well, 

5052  I have  been  all  over  it  more  than  once,  of  course,  have  seen 
the  top  and  the  inside.  So  far  as  that  slope  goes.  The 

borings  that  I made  in  that  hank,  as  I recall  it,  were  about  500 
feet  apart.  I made  one  every  500  feet. 

A dam  like  the  Adams’  Dam  makes  a deepening,  a pool  of  water 
above  it.  I would  not  say  it  would  make  it  any  shallower  below 
it.  I would  say  that  the  dam  does  not  absorb  any  water  or  divert 
any  water.  If  there  is  any  water  flowing  in  the  river  it  will 


1503 


go  over  the  crest  and  be  found  below  the  dam  as  well  as  any^ 
where  else.  It  hasn’t  been  my  observation  that  there  is  always  a 
shallow  place  immediately  below  a dam  in  ordinary  stages 

5053  of  water.  I know  it  is  not  so.  I would  say  that  it  depends 
on  the  local  conditions  entirely.  The  Adams’  Dam  was  a 

dam  which  operated  a mill.  When  a dam  operates  a mill,  usually 
there  is  a sluice  or  a flume  leading  water  away  from  the  pool 
through  a wheel,  and  then  by  a tail  race  back  into  the  stream  below 
the  dam.  There  was  a mill  there  at  Adams’  Dam,  and  it  operated 
wheels  in  the  mill,  and  the  water  was  taken  away  from  the  river 
and  returned  to  the  river  below  the  dam.  And  I have  known  of 
cases  where  those  tail  races  would  be  two  or  three  miles  long. 
In  that  stretch  from  the  dam  down  to  the  place  where  the  tail  race 
returned  the  water  to  the  river,  there  would  be  less  water  in  the 
river  than  there  was  above  the  dam,  under  those  conditions,  and 
there  would  be  a shallow  place  below  the  dam.  And  if  the 

5054  diverting  channel  were  eight  or  ten  miles  long,  there  would 
be  a shallow  place  eight  or  ten  miles  long.  Then  the  shallows 

caused  by  such  a dam  would  extend  just  as  long  as  the  diversion 
channel  extended.  And  that  has  been  true  of  the  bulk  of  the 
dams  I have  seen.  Where  dams  have  been  built  for  power  pur- 
poses, where  built  for  navigation  purposes,  that  is  to  say,  dams 
with  locks  in  them  for  navigation  purposes  and  without  any  di- 
version channel,  those  consequences  would  not  follow. 

Q.  It  is  also  true,  is  it  not,  that  these  dams  for  navigation  pur- 
poses frequently  in  summer  time  have  no  water  flowing  over  the 
top!  A.  The  dams  that  I am  familiar  with  are  not  of  that  char- 
acter; no,  sir. 

I have  seen  one  of  the  dams  which  I built  over  Eock 

5055  Eiver  at  Milan  with  no  water  going  over  it.  There  was  a shal- 
low place  below  that — I was  going  to  say  for  the  reason 

that  the  dam  on  the  other  side  of  the  island  was  built  with  a lower 
crest,  and  at  extreme  low  water  the  water  all  went  over  it  down 
that  side  of  the  island.  That  is  a point  where  there  were  two 
islands  in  the  river  opposite  Milan.  Big  Island  is  below  Milan. 
And  then  there  was  Vandrutf’s  Island. 

Q.  And  then  there  was  Seers’  Island,  and  then  there  was 
Conway’s  Island,  and  then  there  were  two  islands  a little  further 


1504  Wo  e rm  ann, — Re-cross  Exam  .—Con  tin  tied. 

upstream.  You  remember  all  of  those  islands,  don’t  you?  A.  I 
never  knew  of  Conway’s  Island  by  that  name,  but  I remember 
the  fact  of  the  island  being  there,  quite  a small  island.  I remem- 
ber also  the  watch  factory  building  there.  I remember  the  old 
cotton  mill  there.  I remember  that  there  were  five  sites 

5056  of  mills  on  different  bits  of  land  divided  by  small  channels 
in  the  Delta  of  Rock  River,  the  head  of  which  was  at  Milan. 

This  proposed  Joliet  Canal  that  I have  spoken  of  in  my  report 
had  a vertical  wall  on  the  inside  for  part  of  the  distance  at  the 
upper  end,  but  for  only  a portion  of  the  way. 

I did  not  say  that  in  making  my  trip  along  the  river  counting 
up  these  dams  and  bridges  from  the  mouth  to  Irving  Park  I 
counted  quite  a good  many  sewers  coming  into  the  river,  making 
discharges  into  it.  I in  fact  paid  no  particular  attention  to  them, 
but  just  ran  across  them  accidentally.  That  is,  I was  not  looking 
for  sewer  outlets,  but  I saw  them  in  spite  of  the  fact  that  I was 
interested  in  something  else.  I did  not  make  an  estimate  of 

5057  how  many  there  were.  I don’t  think  there  was  a sewer  at 
each  of  the  towns.  I said  those  that  I saw  were  at  towns.  I 

do  not  recall  any  at  Hillsdale,  I do  not  recall  any  at  Joliet  empty- 
ing directly  into  the  river.  At  the  penitentiary,  I don’t  know.  I 
do  not  recall  the  sewer  at  Romeo.  At  Lockport  I do  not  think 
there  was  any  sewer  coming  into  the  river  at  the  present  time. 

Q.  Or  at  any  other  time  that  you  can  recall?  A.  I don’t 
know. 

Q.  Well,  were  there  any  towns  between  the  mouth  of  the 
river  and  Lockport  where  sewers  did  put  in  that  you  no- 

5058  ticed?  A.  I do  not  recall  any  between  those  points. 

The  next  point  up  the  river  that  I came  to  above  Lockport 
was  Romeo.  There  was  none  there  that  I can  recall.  How  Romeo 
is  supplied  with  water,  I do  not  know.  The  next  point  I came  to 
was  Lamont.  I did  not  find  any  sewer  there  emptying  into  the 
river.  The  location  of  the  Drainage  Canal  between  those  town 
and  the  river  of  course  prevents  those  towns  from  emptying 

5059  their  sewers  into  the  river.  I said  the  location  of  the  Drain- 
age Canal  between  those  towns  and  the  river  Avould  pre- 
clude emptying  into  the  river.  I did  not  see  any  sewer.  Of 
course,  these  towns  of  Romeo  and  Lamont  were  there  long  before 


1505 


there  was  any  Drainage  Canal.  If  they  have  sewer  outlets  into  the 
river  that  were  there  before  the  Drainage  Canal  was  built,  I guess 
the  Drainage  Canal  obliterated  them.  At  Spring  Forest,  not 
having  made  any  notes  of  that  at  the  time,  I wmuld  not  like  to 
say  just  as  to  the  exact  location  of  the  sewers  that  I saw.  I do 
know  that  I saw  quite  a number  of  sewers  coming  into  the  river 
on  each  side,  and  that  they  were  all  discharging  water.  At  Wil- 
low Springs,  the  statement  I made  a few  moments  ago  would 

5060  apply  to  everything  up  to  Summit.  I do  not  recall  any  be- 
low Summit.  At  Summit  itself,  I did  not  find  any.  At 

Lyons,  I think  I saw  a sewer  coming  in  there  but  I am  not  positive. 
I do  not  know  how  Lyons  gets  its  water  supply.  I saw  a number 
of  sewers  coming  in  at  Eiverside.  I do  not  know  how  Eiverside 
gets  its  water  supply.  At  Altenheim,  I am  not  sufficiently  familiar 
with  the  names  of  those  suburbs  along  there  to  know  just  whether 
a certain  sewer  might  have  been  at  Altenheim  or  som.e  other  place. 
As  to  sewers  at  Proviso,  I saw  sewers  coming  in  as  I said  along  the 
river  at  different  points,  but  I would  not  undertake  to  say.  At  May- 
wood,  my  same  answer  would  apply  there.  At  Elver  Forest,  the 

5061  same  answer.  At  Irving  Park,  the  same  answer.  I saw  these 
sewers  in  the  vicinity  of  the  bridges  when  walking  from  one 

bridge  to  the  other,  and  made  no  specific  note  of  them  and  did 
not  even  attempt  mentally  to  recall  them  or  memorize  them  at  the 
time. 

Q.  Well  then,  could  you  give  us  an  estimate  of  what  you  think 
to  be  the  contribution  of  these  sewers  to  the  river?  A.  No, 
sir. 

Re-re-direct  Examination. 

Where  the  Adams  Dam  used  to  be,  the  remains  of  an  old  spill- 
way or  waste-way  of  some  kind  there,  you  could  see  that.  I did 
not  see  any  tail-race  there,  three  miles  long.  I know  that  there 
was  not  because  of  the  fact  I stated  before,  when  I went 

5062  down  the  river  in  a skiff  in  1889  we  pulled  our  skiff  over 
from  the  river  into  the  canal  just  a short  distance  below  the 

Adams  Dam. 

Q.  You  say  that  you  have  seen  riprapping  on  top  of  that  bank. 
As  an  engineer  are  you  able  to  judge  whether  or  not  that  bank 
at  that  place  is  artificial  or  not? 


150G  Woermann, — Re-re-direct  Exam. — Continued. 

Counsel  foe  Complainant.  Objected  to  as  not  re-re-direct. 

(Overruled.) 

A.  From  my  study  of  the  cross-section  taken  in  1867  there  is 
no  question  in  my  mind  as  to  that  being  an  artificial  embank- 
ment. 

Well,  up  towards  Jackson  street  part  of  it  is  natural;  that  is, 
the  canal  was  excavated  in  the  rock  there  and  the  natural  bed 
of  rock  forms  part  of  the  embankment,  between  the  canal  and  the 
river,  but  I could  not  say  now  how  much  of  it  at  any  particular 
point  was  natural.  Beginning  at  Adams’  Dam,  well,  I would  say  it 
was  of  the  artificial  character  there  represented  for  several  blocks, 
at  least. 

5063  William  P.  Gbaa^ 

a witness  for  defendant,  testified  as  follows: 

Direct  Exam  in  at  ion. 

My  name  is  William  P.  Gray;  age  63  next  month.  I reside  at 
Pasco,  Washington.  My  life  business  has  been  swift  water 
steamboating.  My  last  work  was  on  Snake  Elver.  I began  swift 
water  boating  when  I was  15  years  old  on  the  Fraser  Eiver  in 
British  Columbia,,  swift  water.  I was  operating  batteaus,  with 
my  father,  of  course,  above  where  steamboat  navigation  ends.  In 
the  winter  of  1860-1861,  father  and  I built  a sailboat  91  feet  long 
and  12  feet  wide  at  the  head  of  the  Okanagan  Eiver,  took  her 
down  the  Okanagan  and  Columbia  Eiver  to  the  Celilo  Falls. 

5064  In  the  fall  of  1861  I commenced  operating  on  Snake  Eiver, 
helping,  assisting  my  father,  I was  what  they  call  the  Bat- 

teau  man.  I went  in  a small  boat  and  carried  the  lines  up  ahead 
so  as  to  make  them  fast  to  rocks  and  stumps  qnd  then  we  would 
carry  the  line  down  and  the  large  boat  would  catch  hold  of  them 
and  warp  up.  In  that  way  I went  over  the  river  about  three 
times  every  trip  we  made  up.  In  1862  I was  running  a sail  boat, 
I was  captain  of  a sail  boat  on  the  Columbia  Eiver  from  Celilo 
Falls  to  Wallula,  Washington.  In  1863  I went  steamboating  with 
my  father,  running  from  Celilo  up  the  Columbia  to  the  Snake; 
up  Snake  Eiver  to  Lewiston;  up  the  Clear  Water  Eiver  to  Lapwai. 
Pasco  is  at  the  junction  of  the  Snake  with  the  Columbia  Eiver. 
In  ’64  I was  steamboating  on  the  Columbia  and  Williamette,  be- 


1507 


tween  Portland  and  Astoria  as  mate.  In  ’G5  I went  as  master  and 
pilot  of  steamers  for  the  Oregon  Steam  Navigation  Company 

5065  between  Celilo  and  points  on  the  Columbia  River  and  trib- 
utaries as  far  as  Lewiston  on  the  Snake  River  and  Priest 

Rapids  on  the  Columbia.  I continued  in  that  business  for  two 
or  three  years.  In  ’67  I was  employed  by  the  United  States  En- 
gineers as  assistant  engineer  and  ca]dain  of  a steamer  to  survey 
the  rapids  of  the  Columbia  River  between  Celilo  and  the  mouth 
of  Snake  River,  doing  all  the  soundings  with  a small  boat  myself, 
sounding  all  rapids  ahead — in  swift  water  it  is  very  difficult  to 
get  soundings.  We  have  to  put  a line  away  out  ahead  and  swing 
the  small  boat  on  it.  It  is  very  dangerous  where  the  water  is 
swift  and  rapid  and  in  amongst  rocks.  I could  not  trust  anybody 
else,  so  I had  to  go  myself,  between  Celilo  and  the  mouth  of  the 
Snake  River.  In  ’69  I was  employed  as  master  and  pilot  of  pas- 
senger steamers  by  the  Oregon  Steam  Navigation  Company.  In 
’70,  ’71  and  ’72  I was  master  and  pilot  and  part  owner  of  tug 
boats  on  the  Columbia  River  bar,  and  tributary  streams  around  As- 
toria. In  ’73  and  ’74  I was  in  the  butcher  business.  In '’75  I w^ent 
on  the  Williamette  River  running  from  Portland  through  the 
locks  up  as  far  as  Harrisburg,  which  is  the  extreme  limit  of 

5066  navigation,  and  also  navigated  the  Yamhill  River  as  far  as 
McMinville  River,  which  is  only  navigable  about  two  months 

in  the  year,  a small  stream.  In  ’77  I was  employed  to  take  a 
steamer  from  Seattle,  Washington,  to  Fort  Wrangel,  Alaska; 
then  run  her  on  the  Stikine  River,  which  runs— which  empties 
into  the  bay  eight  miles  above  Wrangel,  extending  back  into 
British  Columbia.  That  is  considered  one  of  the  most  difficult 
and  dangerous  to  navigate  on  the  Northwestern  coast.  I was 
master  and  pilot;  did  not  have  any  pilot  with  me,  done  my  own 
piloting.  The  man  that  went  up  next  year  sunk  her  the  first  trip, 
but  that  was  none  of  my  business.  In  ’79  I went  back  to  work 
for — hold  on,  I am  ahead — I went  back  to  work  for  the  winter 
on  the  Williamette  and  Yamhill,  and  in  ’78  was  sent  for  back  again 
onto  the  upper  Columbia  River  to  run  steamboats  up  there  as 
master  and  pilot.  I don’t  know  of  anything  to  say  about  the 
Government  boats.  In  ’78  I was  selected  to  run  a patrol 

5067  boat  on  the  river  carrying  troops.  During  the  Bannock  In- 
dian War  I patrolled  the  river  and  kept  the  Indians  from 


1508 


G ray, — Direct  Exa  m . — C ontinued. 


crossing,  and  made  it  possible  for  the  troops  to  overtake  them 
and  capture  all  the  Indians  and  ended  the  war.  In  ’79  and  ’80,  the 
same  thing.  In  ’80  was  selected  by  the  general  manager  of  the 
Northern  Pacific  Eailroad  to  go  to  Aimsworth  and  take  charge 
of  their  transfer  boats  across  the  Snake  River  while  they  were 
building  a bridge  across  the  Snake  River  for  their  railroad.  I 
was  there  until  1884.  During  ’84  the  president  of  the  Oregon 
Railway  & Navigation  Company  requested  me  to  make  a re- 
connaisance  of  the  river  of  the  Columbia  River  above  Pasco,  which 
had  been  declared  impassable,  the  rapids  had  been  declared 
impassable,  and  he  wanted  me  to  make  a reconnaisance,  and  I 
did  so  and  reported  that  it  was  possible  to  take  steam  boats  up 
over  the  rapids  in  medium  and  high  stage  of  water.  My  report 
was  given  to  the  United  States  Engineers  and  is  embodied  in 
the  report  of  Engineers  of  the  United  States  Army  for  1884,  and 
I worked  for  the  Northern  Pacific  Railroad  Company  almost 
continuously  until  ’94.  In  ’95  I brought  the  steamer  Norma  from 
Huntington,  Oregon,  down  through  the  Snake  River  canyon  250 
miles  to  Lewiston,  Idaho,  where  I had  never  seen  the  river  be- 
fore, and  arrived  safely.  In  ’96  I was  operating  at  the 

5068  Cascades  of  the  Columbia  in  swift  water  for  the  contractors, 
handling  their  scows  and  tow-boats. 

The  contractors  were  building  locks  for  the  Government  around 
the  cascades  of  the  Columbia,  a canal  and  locks.  In  ’97  I was  mas- 
ter and  pilot  on  the  Columbia  River  between  Astoria  and  Port- 
land. In  ’98  I drew  plans  and  superintended  the  construction  of 
two  steamboats  with  the  Klondike  Mining  Trading  Transporta- 
tion Company  of  London,  Ens'land.  I built  the  boats  and  put  one 
of  them — started  up  to  Fort  Wrangel  with  one  of  them  and  had 
a pilot  that  ran  me  out  onto  a rick,  busted  it,  wrecked  it,  but  was 
sent  on  to  another  boat  up  there  and  ran  her  that  season  for  27 
trips  on  the  Stikine  River  without  an  accident.  In  ’99  I fitted 
out  a stern  boat  at  Seattle,  Washington,  took  her  up  across  the 
North  Pacific  Ocean  and  Behring  Sea  to  St.  Michaels,  took  a load 
on  at  St.  Michaels  and  continued  on  up  to  Dawson  on  the  Yukon. 
There  I met  a captain  who  wanted  to  stay  in  all  winter  and  I 
wanted  to  go  on  out,  and  I took  his  steamer  and  ran  her  up 

5069  480  miles  to  Wliite  Horse,  which  is  the  head  of  navigation  on 
the  Upper  Yukon;  had  no  pilot  on  it,  never  had  seen  the  river 


1509 


before.  The  only  place  I had  a pilot  on  the  whole  trip  was  St. 
Michaels  to  White  Horse,  a distance  of  about  2,200  miles,  was 
90  miles  over  the  Yukon  flat.  I returned  to  the  Yukon  during 
1900  and  1901,  was  carried  out  on  a stretcher  that  fall  and  refused 
to  go  in. 

In  1902  I was  engaged  by  the  Northern  Pacific  to  run  a steam 
boat  on  Lake  Coeur  de  Alene,  and  the  St.  Joe  River  and  ran 
there  until  1904.  Then  the  Northern  Pacific  sent  me  over  to  Lew- 
iston, Idaho,  to  run  a steamboat  in  swift  water  where  the  other 
boys  thought  it  was  a little  dangerous. 

Q.  Was  that  above  or  below  Lewiston?  A.  Above  Lewiston, 
up  through  what  they  call  the  Wild  Goose  Rapids,  and  I ran  there 
for  about  a year,  and  in  1905  I made  a trip  down  over  the  Snake 
River  and  the  Columbia  from  Lewiston,  Idaho,  to  Celilo  to  the 
opening  and  dedication  of  the  Oregon-Portage  Railroad.  In  1906 
I was  running  on  Snake  River,  carrying  supplies  and  equipments 
to  the  contractors  for  construction  of  the  Spokane,  Portland 

5070  and  Seattle  Railroad.  From  1884  to  1890  I was  captain  and 
pilot.  Out  there  we  do  not  carry  any  pilot.  The  captain  is 

the  first  pilot,  he  is  supposed  to — from  ’84  to  ’90  I was  in  the  em- 
ploy of  the  Northern  Pacific  in  charge  of  their  transfer  across 
the  Columbia  River  at  Pasco  during  that  period,  six  years.  The 
bridge  was  completed — ^well,  in  ’88  a company  of  people  from  El- 
lensburg, — a captain  from  the  Mississippi  River  induced  a com- 
pany to  build  a steamboat  to  run  from  Pasco  up  the  Columbia 
River  through  the  Priest  Rapids,  Rock  Island  Rapids,  and  other 
dangerous  rapids  to  the  Okanagan  country,  where  there  were  min- 
ing interests.  Just  before  the  boat  was  completed  the  captain 
went  up  and  made  a reconnaisance  of  the  river,  got  cold  feet  and 
left  the  country.  The  company  came  to  me  and  said  that  they 
built  that  boat  on  the  strength  of  my  report  and  asked  me  to 
take  her.  I had  a lucrative  business  then  in  the  real  estate  busi- 
ness. I neglected  that  and  went  up  there  and  took  that  boat 
up  and  there — I got  ahead  of  my  time  now  again.  In  ’87 

5071  the  0.  R.  & N.  Co.,  Oregon  Railway  & Navigation  Com- 
pany, the  manager  and  officers,  with  General  Gibbons,  who 

was  the  Department  Commander  of  the  United  States  Army 
in  Washington,  with  120  soldiers  went  on  a steamboat  and  tried 
to  get  her  through — take  her  through  the  Rock  Island  Rapids. 


1510 


Gray, — Direct  Exam  —Continued. 


They  got  right  into  the  Rock  Island  Rapids.  They  are  on  the 
Columbia  just  below  Wenatchee.  They  failed  to  get  through. 
Their  captain  failed  them  and  I took  it  and  took  her  up  through 
the  rapids  220  miles  up  the  Columbia  River  onto  the  Okanagan 
River  and  made  several  trips.  You  will  find  the  Okanagan  com- 
ing right  down  from  the  mouth.  I took  the  boat  up  there  and 
made  a success,  and  they  are  now  running  boats  up  there  above 
these  rapids  regularly.  It  is  dangerous  to  take  a boat  over  there, 
in  fact,  there  was  one  wrecked  coming  down  last  year,  but  I 
never  had  any  trouble.  I think  thatT  am  competent  to  pass 

5072  an  opinion  on  the  navigability  of  swift  and  shoal  waters.  I 
have  seen  the  Desplaines  River  from  Joliet  to  its  junction 

with  the  Kankakee.  I have  been  in  Chicago  before,  in  the  fall  of 
’92,  in  the  fall  of  ’92,  from  July  to  the  27th  of  December,  ’92.  I 
was  in  the  real  estate  business.  I never  saw  the  Desplaines  River 
at  that  time.  I was  a commissioner  from  the  State  of  Washing- 
ton to  the  World’s  Fair.  The  first  time  I saw  the  Desplaines 
that  I remember  was  yesterday.  I saw  it  from  a point  at  Joliet 
and  the  Kankakee,  where  they  join  the  Illinois,  make  the  Illinois. 

Q.  Will  you  state  whether  or  not,  in  your  opinion,  the  Des- 
plaines River  between  the  two  points  that  you  have  named, 

5073  Joliet  and  the  mouth,  is  a navigable  river,  capable  of  being 
navigated  for  useful  purposes  of  commerce! 

(Objected  to  as  irrelevant,  incompetent  and  immaterial. 

Overruled.) 

A.  It  is  not. 

Counsel  fok  Defendant.  Why  not? 

Counsel  for  Complainant.  I suppose  your  Honor,  we  may  as- 
sume that  that  objection  will  stand  to  all  subsequent  questions 
without  repetition. 

The  Court.  Yes. 

A.  In  the  first  place,  commerce  could  not  be  handled,  freight 
could  not  be  handled  on  the  river  in  competition  with  wagons 
alongside,  as  the  current  in  the  river,  shoals,  rocks  and  bars,  would 
preclude  the  possibility  of  carrying  freight  enough  on  boats  to 
make  it  commercially  successful. 

Counsel  for  Defendant.  Q.  In  your  opinion,  would  it  be  pos- 


1511 


sible  with  safety  to  take  boats  engaged  in  carrying  freight  up 
or  down  the  Desplaines  lliver  in  safety? 

A.  It  would  not. 

Q.  And  why  not?  A.  There  are  quite  a number  of  boulders 
in  the  river. 

As  I have  seen  the  river,  of  course,  there  may  be  some  flow  in  it, 
but  as  I see  it  now  there  is  not  depth  of  water  enough  to  allow 
boats  to  pass  over  with  safety.  The  form  of  construction  of 

5074  light  draft  boats  is  such  that  their  bottom  is  very  weak  on 
account  of  having  to  be  buoyant.  A small  obstruction  in  the 

river  coming  in  contact  with  the  bottom  would  break  a hole.  That, 
of  course,  would  be  expensive  to  repair.  A slight  hole  of  six 
inches  in  diameter  in  the  bottom  of  a boat  would  cause  her  to  sink. 
The  expense  of — there  might  be  such  a think  as  a skiff  or  some- 
thing of  that  kind  being  taken  down,  but  commercially  I should 
say  that  it  is  not  practicable  at  all  to  navigate  the  river.  There 
are  quite  a number  of  boulders  in  the  river.  I determine  that  fact 
by  my  knowledge  of  water. 

Q.  At  the  mouth  of  the  river  where  the  dam  is  being  con- 

5075  structed,  assume  that  at  those  points  in  its  natural  condition 
the  river  had  in  its  bed  a very  large  number  of  boulders, 

some  above  the  water,  others  below  it,  and  that  in  its  natural  condi- 
tion the  river  did  not  have  to  exceed  15  inches  of  water  at  any 
time  during  the  season  except  in  periods  of  freshet;  what  would 
you  say  as  to  the  navigability  of  the  river  in  that  condition  for  use- 
ful purposes  of  commerce? 

■ (Objected  to  on  the  same  grounds,  and  also  on  the  grounds 
that  the  hypothetical  case  put  does  not  conform  to  the  evi- 
dence, and  also  on  the  grounds  that  it  singles  out  four  spots 
and  omits  the  rest  of  the  river.  Overruled.) 

5076  I would  say  it  would  be  less  expensive  to  build  a steamboat 
railway  around  the  outside  and  let  the  river  bed  alone.  It 

5077  could  not  be  navigated. 

Q.  You  have  stated  that  you  took  soundings  in  1867  and 
1868  under  the  survey  made  by  Colonel  E.  S.  Williamson,  Depart- 
ment of  the  United  States  Engineers.  Were  yours  the  soundings 
that  were  reported  as  the  soundings  of  the  rapids  and  river? 
A.  Were  they  mine? 


1512  Gray, — Direct  Exam. — Continued. 

'O'.  Yes?  A.  No,  sir,  I was  just — they  were  reported  by  Lieu- 
tenant Heuer. 

Q.  They  were  reported  by  Lieutenant  Heuer?  A.  Lieutenant 
Heuer. 

Q.  Are  those  the  soundings?  I call  your  attention  to  the  vol- 
ume, part  five  of  the  annual  report  of  the  United  States  En- 
gineers, United  States  Army  for  1891,  on  page  3214,  thereof,  sched- 
ule of  Snake  Eiver,  showing  slopes  per  mile,  and  ask  you  whether 
the  slopes  are  at  low  or  at  high  water,  or  at  what  stage  of  the 
river  ^s  given  in  that  report? 

Counsel  foe  Complainant.  I object  if  the  court  please.  The 
report  speaks  for  itself. 

(Overruled.) 

A.  I cannot  say  positively  that  I know. 

Counsel  foe  Defendant.  Q.  Pick  out  any  of  those  and  see  what 
is  stated  there  and  then  possibly  that  will  refresh  your  mind. 
This  is  the  column  of  slopes  per  mile  and  there  are  different 
rapids? 

5078  A.  I recognize  all  those  rapids,  but  we  pay  no  attention 
to  figures  in  steamboating.  The  slope  per  mile  carries  no 
meaning  to  a river  pilot.  He  goes  and  he  takes  his  boat  over, 
judging  the  depth  of  water  by  observation,  what  he  can  go  over 
satisfactorily,  what  he  cannot  is — 

Q.  Now,  that  suggests  an  idea  to  me.  What  has  the  depth 
of  water  to  do  with  the  navigability  of  a river  at  places  where  the 
slopes  are  high?  A.  The  deeper  the  water  the  better  you  can 
navigate  it,  and  in  most  of  the  places  where  the  slopes  are  the  high- 
est the  water  is  narrow  and  deep. 

Q.  Is  that  true  on  Snake  Eiver?  A.  In  places,  yes  sir. 

Q.  Will  you  give  the  character  of  the  Snake  Eiver  if  you  can, 
as  to  its  width  and  depth,  the  part  of  it  which  is  navigated?  A. 
On  the  shoals  between  Lewiston  and  Eiparia  where  navigation  is 
being  carried  on  at  all  times,  the  river  is,  I should  estimate,  say 
between  700  and  800  feet  wide.  The  shoals  are — on  the  shoals 
it  is  wider,  but  the  water  is  distributed  over  those  shoals  in  such 
a way  that  with  a boat  drawing  24  feet  of  water  it  would  require 


1513 


four  feet  depth  to  proceed  without  touching  the  bottom,  as  at  the 
break  of  shoal  she  will  tip  up  the  weight  of  her — , of  course  where 
there  is  a break  the  weight  of  her  that  goes  out  of  water  will 
bury  the  center.  The  stern  wheel  which  is  digging  out  the 
,5079  water  from  the  bottom  is  digging  away  her  support.  Those 
two  actions  cause  the  center  of  the  boat  to  drop  and  go  down 
further  and  her  natural  draught  when  all  of  her  whole  bottom  is  in 
the  water,  consequently  we  expect  to  touch, — with  a boat  drawing 
three  feet  we  expect  to  touch  center  on  three  feet  six  inches  or  four 
feet.  In  gravel  you  have  got  a great  deal  more  surface  to  strike 
your  bottom  than  you  have — gravel  or  sand — than  you  have  where 
it  is  rocks.  If  you  have  rocks  or  boulders  they  are  isolated  points 
and  the  boat  will  go  with  more  speed.  She  won’t  have  so  much 
underpinning,  as  you  might  say.  She  strikes  those  rocks  and  they 
knock  holes  in  the  bottom.  On  gravel  the  blow  being  distributed 
all  over  don’t  make  so  much  damage. 

Q.  Is  it  then  true  to  say  that  in  swift  water  if  you  have 
a gravel  or  a sand  shoal  you  can  go  very  much  safer  and  more 
rapidly  than  you  can  if  there  are  boulders?  A.  Much  more  so. 

(Objected  to.  Overruled.) 

Counsel  foe.  Defendant.  Do  you  know  the  depth  at  low  water 
at  Little  Pine  Tree  Rapids,  on  the  Snake  River? 

5080  A.  In  extreme  low  water  there  is  about  two  feet,  that  is  at 
Little  Pine  Tree  Shoals.  Little  Pine  Tree  Rapids  are  from 

six  to  eight  feet  of  water  in  the  channel.  The  river  begins  to 
rise  in  the  spring  about  the  first  of  April.  It  does  not  recede  so  as 
to  interfere  with  navigation  until  about  the  first  of  August.  From 
the  first  to  the  middle  of  August  is  generally  the  lowest  water 
we  have,  and  then  it  is  low  from  the  middle  of  August  for  about 
two  months,  or  very  close  to  the  first  of  November.  Then  we  have 
the  fall  raise.  The  high  water  in  the  spring  is  all  caused  by  melt- 
ing snows  in  the  mountains.  The  fall  raise  is  caused  by  rains 
which  fall  in  the  winter  time,  before  they  are  frozen  and 

5081  turned  into  snow.  These  rises  in  the  spring,  this  high  water 
rises  to  a height  of  sixteen  to  twenty  feet.  It  will  com- 
mence at  the  first  of  April  and  generally  about  the  last  of  May 
or  the  first  of  June  is  the  extreme  high  water.  It  will  gradually 
recede.  It  is  a gradual  rise  and  a gradual  receding.  Navigation 


1514 


Gray, — Direct  Exam. — Continued. 


is  suspended  at  about  eleven  indies  above  zero,  between  ten  and 
eleven  inches  above.  That  would  be  about— just  about  three  feet 
over  the  bars.  Aside  from  the  bars  we  have  all  the  way  from 
eight  to  twenty  feet  of  water  in  the  river.  There  are  spaces 
there  where  there  is  for  miles  we  have  from  eight  ot  twenty  feet 
deep  at  low  water. 

Q.  Do  you  remember  what  the  velocity  of  the  river  is,  or  have 
you  any  accurate  information  as  to  that?  A.  We  consider — of 
course,  I have  no  accurate  information,  but  it  is,  generally 

5082  considered  that  the  velocity  of  the  Snake  Eiver  in  high  water 
is  about  eight  miles  an  hour. 

Q.  What  is  the  effect  of  the  raising  of  the  water  upon  the  slopes 
at  these  various  rapids?  A.  It  equalizes  the  slopes  so  that  the 
surface  of  the  river  is — that  is,  the  currents  are  distributed — the 
current  is  distributed. 

Q.  Does  that  mean  that  it  flattens  the  slope?  A.  Yes, 
sir. 

5083  Q.  Captain  Gray,  you  said  you  were  in  the  real  estate 
business  in  Chicago  for  a year.  Were  you  selling  Chicago 

real  estate?  A.  No,  sir,  I was  selling  Pasco  real  estate.  I am 
president  of  the  Pasco  Commercial  Club. 

Cross-Examination. 

Q.  I think  you  said.  Captain,  that  you  began  work  on  the 
Fraser  River  in  British  Columbia?  A.  Yes,  sir. 

Q.  When  you  were  Ihirteen  years  old?  A.  Yes,  sir.  That 

5084  was  in  1858,  the  fall  of  1858.  I was  running  a batteau, 
helping  my  father  to  run  a batteau  and  carrying  freight  from 

Murderers’  Bar,  which  was  the  upper  end  of  the  steamboat  naviga- 
tion to  Fort  Hope,  and  also  we  continued  from  Fort  Hope  to  Fort 
Yale,  through  the  rapids.  There  are  a great  number  of  rapids 
in  the  Fraser  River.  It  is  the  second  river  in  size  on  the  coast 
to  the  Snake  River — to  the  Columbia  River.  It  empties  into  the 
Gulf  of  Georgia,  which  empties  into  the  Pacific  out  of  the  Straits 
of  Fuca  just  north  of  the  29th  parallel.  The  total  length  that  it  is 
navigated  from  its  mouth  to  the  Canyon  above  Yale  is  about  one 
hundred  and  thirty  miles,  may  be  more  than  that;  I don’t  recaD 


1515 


the  exact  distance,  it  is  so  many  years  ago.  It  is  entirely  on 
the  Pacific  slope.  There  is  a pass  at  its  head. 

5085  The  Canadian  Pacifio  follows  it  down,  follows  down  its 
north  bank  now.  They  came  right  into  the  pass  and  into 

the  valley  of  the  Fraser  Eiver.  The  old  Hudson  Bay  route  cross- 
ed the  Cascade  range,  left  the  Fraser  River  at  Fort  Hope,  fol- 
lowed the  Samilkameen  and  crossed  the  Cascades  across  Manson 
Mountain,  Deer  Mountain,  and  over  to  the  head  waters  of  the 
Samilkameen,  and  where  the  Samilkameen  empties  into  the  Okona- 
gen  and  the  Okonagen  empties  into  the  Columbia.  That  is  the 
route  McDonald  followed.  He  came  through  while  I was  at  Fort 
Hope,  I met  him  when  I was  quite  a boy.  McDonald  was  quite  an 
elderly  man  at  that  time.  He  still  continued  to  operate  by 

5086  batteaus  above  the  steamboat  navigation  of  the  Fraser.  The 
length  of  batteau  navigation  at  that  time  was  about  twenty- 

two  miles  altogether.  The  width  of  the  river  at  that  stretch 
was  from  six  hundred  to  1,000  feet,  I shouM  say.  There  were 
several  rapids  in  it.  The  Union  Bar  Rapid  was  a gravel  bar, 
rather  shoal.  In  low  water  there  was  about  four  feet  of  water 
on  it.  We  went  on  up  to  Emory^s  Bar,  which  was  a very  narrow, 
swift  rapid,  and  also  a very; — the  channel  through  there 
was  quite  deep,  but  it  was  about  300  feet  wide.  Where  the 

5087  water  runs  down  through  it  was  very  narrow;  it  run  through 
that  bar  in  a curve  and  followed  a clitf  around,  but  on  the 

other  side,  on  the  left  hand  side  going  up  was  a big  eddy,  the 
/current  flowing  around  there.  I don’t  suppose  the  current  was 
over  60  or  80  feet  wide  and  the  navigation  passed  through  that 
sixty  or  eighty  feet  strip  there.  I suppose  at  that  one  place 
it  went  about  eight  or  nine  miles  an  hour  but  it  was  just  short, 
not  more  than  a couple  of  hundred  feet. 

The  next  principal  rapid  was  Hill’s  Bar;  it  was  quite  swift  and 
there  were  large  boulders  or  reefs  that  were  scattered  around 
through  the  river ; the  surface  of  the  river  from  bank  to  bank  was 
about  600  feet,  but  the  channel,  we  had  to  go  between  rocks  where  it 
probably  wasn’t  more  than  fifty  or  sixty  feet  wide.  I know  I was 
wrecked  on  a small  boat  there  once.  These  Pacific  slope  streams 
get  their  great  water  supply  from  the  lofty  mountains,  and 

5088  are  quite  thickly  studded  with  boulders  and  erratic  stones 
and  cobbles  that  come  down  the  stream.  That  was  true  of  the 


1516 


Gray,—-C)  ’oss-Exa  v i . — C ontinued. 


Fraser.  From  Hill’s  Bar  to  the  head  of  navigation  was  about 
three  miles  to  Fort  Yale.  Then  just  above  Fort  Yale  there  is  a 
fall,  a canyon.  The  fall  is  right  in  the  canyon  with  a little  path  on 
the  outside  and  the  boats  and  batteaux  used  to  make  portages  to 
go  down  there.  They  carry  around  there.  They  sometimes  would 
shoot  the  boat  down  stream.  I never  went  over ; I have  heard  them 
say  there  was  about  eight  or  ten  feet  fall;  I couldn’t  say.  I con- 
tinued in  this  batteau  na\dgation  during  1859  and  part  of  1860. 
The  batteaux  are  Hudson  Bay  batteaux,  they  are  called.  They  are 
very  flat  on  the  bottom  and  have  flaring  sides,  and  they  are 

5089  shar23  at  both  ends,  with  a flare;  both  ends  are  sharp.  They 
come  rather  high  out  of  the  water  at  each  end  so  as  to  avoid 

taking  water  over  the  freight,  wetting  the  freight,  and  it  is  also 
so  that  the  man  who  poles — they  pole  these  boats  and  use  poles,  a 
man  in  the  bow,  they  have  a seat  right  in  the  middle  and  he  guides 
the  bow  and  the  man  in  the  stern  holds  from  his  end  of  the  boat 
also  and  he  guides  the  stern;  then  in  jDoling  they  have  a line  that 
they  attach  to  the  end  of  the  thwart  and  they  cordell  up  that  bank 
of  the  river  where  it  is  swift.  I used  the  cordell  method  in  going 
upstream  every  trip.  When  there  wasn’t  any  wind,  we  used  to 
cordell  about  three-fourths,  well,  may  be  four-fifths  of  the 

5090  way.  And  when  there  was  a good  wind  behind  us,  we  would 
put  a sail  and  carry  it  up.  I think  my  batteau  was  about  2'2 

feet  long,  about  20  or  22;  I would  not  be  sure.  The  breadth  of  it 
was  about  5 feet.  I would  carry  from  two  to  three  thousand 
pounds.  The  freight  consisted  of  merchandise,  supplies  that  would 
be  used  in  the  mines,  beans  and  coffee  and  groceries  and  food  of 
all  kinds.  We  carried  nothing  on  our  down  trip. 

Q.  And  how  did  the  size  of  your  boat  coiipDare  with  the  other 
boats,  or  batteaux  that  were  in  use  there?  A.  There  were  a great 
many  canoes  used  there,  the  Northern  canoe,  the  Chinook  canoe 
was  used,  and  also  the  Qneen  Charlotte  Islands  canoe  was  used. 

Q.  Well,  were  there  batteaux  of  this  general  type  of  your  boat 
that  were  smaller  than  yours,  and  others  that  were  larger?  A. 
]\[y  father  built  two  boats  in  1858  which  were  small.  We  run  them 
until  the  winter  of  1858  and  1859,  then  he  built  a boat  that 

5091  was  fifty  feet  long  and  seven  feet  wide.  We  used  her  in 
sailing  and  cordelling.  She  drew  about  a foot  of  water  when 


]517 


she  was  light,  and  loaded  down  to  about  two  feet  and  a half.  She 
would  carry  about  between  eight  and  ten  tons.  The  22-foot  bat- 
teaux  would  draw  about  two  feet  when  loaded.  The  fur  trade 
route  ran  off  to  the  south  of  us  a little.  It  left  at  Fort  Hope  and 
crossed  the  mountains,  following  a stream  called  the  Coquilla  and 
went  across  the  Cascade  Eange.  They  took  the  Samilkameen  to 
go  down  into  the  strait.  I went  across  that  with  my  father  in 
1860.  They  didn’t  have  any  boats  on  the  Samilkameen  Eiver,  that 
is,  a larger  boat  than  her.  I helped  father  build  a sailboat  in  1860 
and  1861,  when  we  left  Fort  Hope  and  went  across  the 

5092  mountains  down  the  Samilkameen  River,  down  to  the  Okano- 
gen,  the  head  of  the  Okanogen.  There  we  built  a boat  12 

feet  wide  and  91  feet  long  that  went  by  sails  and  a sweep  when  we 
took  her  down  the  river.  My  father  took  her  down  there.  She 
went  down  the  Okanogen  River,  we  called  it  60  miles  to  the  Colum- 
bia, then  340  miles  down  the  Columbia  to  the  mouth  of  the  He 
Schutes  River. 

Q.  Take  this  map  of  Washington.  A.  Here  you  will  find  the 
Okanogen  up  here ; there  is  the  Osoyoos  Lake,  and  that  is  where  we 
built  her,  right  in  there.  Three  miles  from  the  British  Columbia 
line.  That  is  Lake  Osoyoos;  then  here  is  the  Samilkameen;  it 
don’t  show  that,  but  we  came  across  here  and  struck  the  head 
waters  just  below  the  south  fork  of  the  Samilkameen  and  fol- 

5093  lowed  it  right  down.  We  followed  this  line  that  has  Pres- 
ton” on  it  and  came  down  here  and  followed  over  here  (indi- 
cating), and  stayed  there  all  winter.  We  just  traced  the  line  from 
Preston  to  the  lake,  then  we  followed  the  Okanogen  River,  and 
here  is  where  we  came  into  the  Columbia  at  the  point  of  its  junc- 
tion at  a town  that  is  called  Brewster  now.  We  followed  down  the 
Columbia  River,  down  through  all  these  rapids.  Here  is  the  Wen- 
atchee River. 

Q.  You  point  to  its  connection  at  a little  town  called  Wenat- 
chee? A.  Yes,  here  is  Rock  Island;  Rock  Island  is  right  there  (in- 
dicating) Rock  Island  Rapids. 

Q.  Yes,  it  is  labelled  so  on  the  map,  I see.  A.  And  we  came 
down  here,  here  is  Cabinet  Rapids,  a bad  rapid  also  at  a certain 
stage  of  the  water.  We  followed  down  the  Columbia  River  across 
the  Priest  Rapids,  and  from  Priest  Rapids  clear  down  following 


1518 


Gray, — Cross-Exam.. — Contimied. 


around  until  we  struck  the  Oregon  line  and  down  as  far  as  the  Des 
Chutes  Eiver,  and  right  here  is  where  we  landed  at  that  time,  at 
the  Des  Chutes  Eiver. 

Counsel  for  Complainant.  Mark  it. 

A.  It  is  between  the  ‘‘E”  and  ‘‘E”  in  the  word  Oregon,  away 
down  to  your  left. 

The  Court.  Down  the  Columbia  I 

5094  A.  No,  down  here,  down  at  the  bottom  of  the  Oregon 
line. 

Counsel  for  Complainant.  On  the  Washington  map,  you  see 
the  label  in  the  white  portion  for  Oregon  of  a stream  named  the 
Deschutes  coming  north? 

A.  That  is  where  we  landed.  Now,  in  1862  the  Oregon  Steam 
Navigation  Company  built  a railroad  from  The  Dalles,  the  City 
of  Dallas  up  here  to  the  City  of  Celilo,  just  below  Des  Chutes;  it 
became  the  Town  of  Celilo. 

Q.  You  have  just  drawn  a line  indicating  it  on  the  Oregon  side? 
A.  Yes,  sir,  that  is  where  it  is. 

Q.  Coming  down  from  the  Okanogen  Eiver  did  you  strike  any 
rapids  in  the  Okanogen?  A.  There  is  what  they  call  McLaugli- 
lin’s  Falls,  McLaughlin’s  canon  there.  McLaughlin’s  canon  creek 
come  out  of  there. 

5095  Q.  How  much  of  a fall  was  there?  A.  Eight  close,  just 
above  the  mouth  of  that  canon  creek  there  is  a fall  of  about 

6 feet,  a iDerpendicular  drop.  We  shot  the  falls.  The  Okanogen  at 
that  point  is  about  100  feet  wide.  This  was  a 91  foot  boat  and 
there  were  three  men  besides  my  father. 

Q.  AYell,  you  got  on  down  below  and  came  to  the  Colville  re- 
serve? A.  Colville  reserve,  yes,  sir. 

Q.  There  is  a falls  in  there  too?  A.  There  was  no  such  thing 
there. 

Q.  No  the  reserve  had  not  been  laid  oft  at  that  time.  Do 

5096  you  remember  the  falls  in  the  Colville  reserve?  A.  There 
is  no  such  falls  there;  there  is  a rapids  there. 

Q.  O,  yes.  How  much  of  a rapids  is  there?  A.  AYell  they 


1519 


have  taken  steamboats  over  there  in  the  last  four  years ; they  liave 
taken  them  up. 

Q.  Yes.  A.  A steaml)oat  lias  been  taken  right  from  the  mouth 
of  the  Okanogen  up  into  the  Osoyoos  Lake. 

Q.  What  is  the  name  of  that  boat,  if  you  happen  to  recall?  A. 
I don’t  know;  I forget  it. 

Q.  When  you  came  down,  the  old  Hudson  Bay  fort,  Okanogen, 
was  still  quite  a trading  post?  A.  It  was  still  there  but  it  was 
abandoned. 

Q.  The  Hudson  Bay  Company  bad  retired  after  the  Ashburton 
treaty?  A.  Had  left,  yes,  sir. 

Q.  Was  there  anything  there,  any  people  there?  A.  There 
was  stockade  there,  yes;  the  stockade  was  there. 

Q.  Well  did  you  encounter  the  Doivning  Rapids?  A.  I don’t 
know  anything  about  them;  I don’t  remember  that.  I remember 
where  Lake  Chelan  comes  down.  There  is  a rapids  there. 

Q.  That  is  the  one  we  now  call  the  Doiniing  Rapids?  A. 

5097  Yes. 

Q.  How  much  of  a rapids  is  that?  A.  I suppose  that 
is  a five  or  six  foot  fall;  there  is  a clitf  on  the  right  hand  side  com- 
ing down,  an  island  below,  and  there  is  a shoal  water  runs  over 
on  the  reef.  You  have  to  stick  to  the  deep  parts  to  get  through. 
We  shot  that  fall.  That  was  the  first  time  that  I encountered 
the  Rock  Island  Rapids.  I have  been  through  that  fall  since.  Eock 
Island  is  a cliff  that  puts  out  on  the  left  hand  side,  probably  thirty 
feet  high,  perpendicular,  and  there  is  a bay  above  it,  and  it  is 

5098  so  that  you  cannot  get  lines  around  it  to  pull  through.  That 
Lone  Rock  is  some  distance  below  the  rapids;  it  is  about  a 

mile  below  the  rapids.  The  island  divides  the  channel ; it  seems 
about  equally  dividing  the  channels.  The  rapids  are  named  Eock 
Island  fromi  an  island  right  in  the  middle;  it  is  very  abrupt  and 
then  there  are  high  reefs  of  rocks  running  parallel  with  the  current 
down  below  and  about  half  way  up  the  island  there  is  what  they 
call  Hobbsville  Point,  about  thirty  feet  high ; it  diverts  the  channel, 
so  that  you  come  around  that  point.  It  comes  at  more  than  a 
right  angle  the  water  coming  around  this  way  and  you  have  to  be 


1520 


Gray, — Cross-Exam. — Continued. 


very  careful  on  those  reefs  below;  you  have  to  drop  your  boat 
right  down  close  to  this  rock  underneath  so  that  it  makes  a very 
short  bend  and  follow  down  around  the  island  in  that  way.  It  is 
not  possible  to  run,  what  we  call,  ‘^run  the  rapids”;  you  must 
drop  your  boat  down  through,  and  in  going  up — we  gauge  it  for. 
dropping,  by  working  a wheel,  reversing  your  stern;  in  com- 

5099  ing  up  I had  to  put  out  four  different  lines.  One  line  we  had 
to  pull  her  out,  to  work  along,  another  breast  line  to  hold 

her  bow  from  swinging  around  when  the  current  caught  her,  an- 
other at  the  stern  to  keep  from  going  too  fast  and  another  at  the 
stern  to  keep  her  from  the  rocks. 

Q.  And  with  all  these  things  reversed,  you  could  drop  her 
down,  you  said?  A.  No,  I put  out  those  lines  going  up. 

Q.  0,  you  put  the  lines  out  going  up?  A.  And  in  going  down 
T kept  my  boat  in  the  clear  and  reversed  her  with  the  wheel,  held 
her  with  the  wheel.  The  speed  of  the  current  at  that  place  is 
not  over  6 miles  an  hour.  The  narrowest  place  is  about — the 
shortest  distance  between  rocks  is  about  80  feet,  but  by  lengthen- 
ing the  current  we  make  it  more,  that  is,  we  drop  the  boat  down 
and  let  her  swing  as  I am  holding  her,  and  when  we  get  ready  to 
shoot  in,  w^e  drive  her  into  a place  that  way.  That  width  is  from 
the  furthest  projecting  point  out  on  one  side  to  the  further  project- 
ing point  on  the  other.  Those  Boch  Island  Bapids  occupy  a reach 
of  from  one-half  to  three-fourths  of  a mile  in  the  river. 

5100  You  get  to  the  Cabinet  Bapids  shortly  below  there.  The 
Cabinet  Bapids  is  an  island  with  gravel  on  it,  a reef  on  one 

side  and  gravel  on  the  other  side  of  the  island.  In  high  water  we 
come  up  around  the  island  and  have  no  trouble;  in  low  water  it  is 
like  going  into  a box,  that  is  why  they  call  it  the  Cabinet.  You 
go  right  down  in  and  the  whole  force  of  the  current  goes  right  into 
that,  right  into  a trough  or  into  a box,  so  that  you  have  to  hold  the' 
boat  and  let  the  current  swing  her  around.  All  the  current  of 
the  river  goes  down  and  strikes  the  cliff  and  dashes  up  sometimes 
six  or  eight  or  ten  feet  and  runs  along  within  forty  feet  of  the 
shore;  on  the  other  side  will  be  an  eddy  and  you  have  to  drop 
her  down  and  have  her  go  very  close  to  the  rocks  or  hold  her 
up  with  the  wheel  and  let  her  nose  drop  down  by  until  you  get  her 
straight  to  make  the  turn  holding  her ; it  is  impossible  to  run  right 


1521 


straight  down.  The  wddth  of  it  in  the  part  wher-j  you  can 
53  01  run  your  boat  from  rock  to  rock  is  about  300  feet.  That  is, 
between  projecting  points  on  each  side  of  the  stream.  But 
the  current  is  only  about  forty  feet  wide  and  you  have  to  stay  in 
that  forty  feet  wide  because  the  eddy  would  catch  us  and  drive  us 
out  of  our  course.  This  current  forty  feet  wide  makes  a sharp 
turn  dashing  right  against  the  clitf.  When  it  makes  the  turn  I 
don’t  think  it  is  a right  angle  curve;  it  isn’t  quite,  and  just  below 
the  curve  it  goes  all  into  whirls;  there  is  no  continuous  channel 
below.  That  is  ^‘the  eddy.”  We  call  it  six  miles  from  the  head" 
of  Bock  Island  Kapids  down  to  the  foot  of  the  Cabinet  Eapids. 
The  Dry  Kiln  Eapids  don’t  amount  to  anything. 

Q.  Well  still  lower  you  come  to  the  island  rapids;  there  is 

5102  another  rapids  some  distance  further  dowm  called  the  Island 
Kapids  before  you  get  to  the  Priest  Rapids,  but  you  say  those 

don’t  amount  to  anything?  A.  I don’t  remember  them  to  amount 
to  anything,  because  I never  paid  much  attention ; we  never  had  any 
name  for  them. 

Q.  Well,  we  will  go  down  to  the  Priest  Eapids;  what  sort  of  a 
rapid  is  that!  A.  That  sir,  is — the  river  is  filled  from  one  side 
to  the  other,  I think,  from  water’s  edge  to  water’s  edge  is  from 
800  to  1,000  feet  wide  and  betv;een  that  there  are  quite  a number 
of  channels  in  between  reefs.  AVhere  they  go  over  that  reef  that 
extends — a succession  of  reefs  extends  clear  across  the  river,  it  is 
swift;  between  those  places  it  is  not  very  swift,  but  the  reefs  over- 
lap ; we  go  down  through  one  reef  and  one  place,  then  we  have 
got  to  pull  her  across  and  drop  her  down  in  another  place  and  go 
down  that  way,  and  just  seem  to  veer  across  that  way  until  we 
get  down  to  the  foot  of  the  rapid  where  there  is  a great  fall;  it  is 
almost — not  exactly  vertical,  but  it  is  a pour  and  when  I was  there, 
there  was  a rock  but  the  Government  had  improved  it;  there  was 
a rock  in  the  middle  which  made  a very  heavy  swell,  but  that 

5103  can  only  be  navigated  in  a medium  or  high  stage  of  water. 
At  the  time  we  came  down  there  the  rock  was  still  there  but 

it  has  since  been  removed.  I understand  that  the  Priest  Rapid 
is  nine  miles  long;  that  is  what  we  considered  it.  At  the  lower 
rapid  the  current,  in  my  estimation,  is  about  12  miles  an  hour. 
These  reefs  were  the  native  rock  in  the  bed  of  the  stream,  basaltic 


1522 


Gray, — Cross-Exam. — Continued. 


rock.  They  didn’t  seem  to  catch  boulders  as  they  washed  down 
the  stream;  the  boulders  got  mashed  up  to  cobble  stones  before 
they  got  there.  Our  boat  left  Lake  Osoyoos  on  the  tenth  of  May 
and  I don’t  remember  the  time  we  arrived  at  Des  Chutes;  prob- 
ably— I couldn’t  tell  you;  I think  it  wasn’t  over  twenty  days.  I 
made  the  journey  upward  from  The  Dalles,  up  to  the  lake 

5104  again  in  1888.  I run  the  river  that  season  with  a steamer. 
I made  one  trip  from  Pasco  to  Okanogen  up  to  Priest  Eapids 

and  the  Rock  Island  Rapids,  turned  around  and  made  four  trips 
from  Okanogen  to  Port  Eaton,  which  is  where  the  Chicago,  Mil- 
waukee & St.  Paul  Railroad  now  crosses  the  Columbia  River. 

Q.  What  is  the  name  of  the  town?  A.  Port  Eaton;  I don’t 
think  you  will  find  it  on  the  map.  We  called  it  that  at  the  time; 
it  is  just  a temporary  name. 

Q.  Was  it  up  above  the  Rock  Island  Rapids?  A.  No,  it  is 
just  below  Rock  Island  Rapids.  I don’t  know  whether  you  will 
find  Johnston  Canon  there  or  not. 

Q.  They  call  it  Ryansburg?  A.  Yes,  sir,  it  is  right  east  of 
Crab  Creek;  you  will  find  Crab  Creek  on  the  map  there.  Well, 
it  is  right  on  the  other  side  of  that;  I ran  from  Okanogen  down 
there,  made  four  trips;  then  I started  up  again  and  in  getting 
over  these  Cabinet  Rapids  my  engineer  made  a mistake  and  shot 
me  into  the  current  and  broke  the  line  and  throwed  a man  down 
into  the  water  and  broke  her  nose  right  square  off,  and  I had  to 
haul  her  out  and  in  hauling  out  I broke  the  capstan  and  turned 
around  and  went  back  and  run  down  over  Priest  Rapids  to  Pasco, 
got  a new  capstan  and  came  back  again.  Pasco  is  where  the 

5105  Snake  puts  into  the  Columbia.  The  steamer  that  I took 
through  there  in  1888  was  124  feet  long,  22  feet  beam,  and 

had  engines — 

Q.  What  was  the  indicated  horse  power  of  the  engines?  A. 
Ten  inch  cylinders,  three  foot  stroke,  very  small  power,  120  pounds 
of  steam  was  all  I carried,  so  that  you  can  figure  it  out,  I am 
not  an  engineer. 

Q.  How  much  water  did  she  draw?  A.  She  drew  about  two 
feet. 


1523 


Q.  And  what  did  she  carry!  A.  She  carried, — the  biggest  load 
I had  on  her  was  about  fifty  tons. 

. Q.  You  spoke  of  the  railroad  coming  in  there;  it  is  a general 
fact  in  the  history  of  the  country  out  there,  Captain,  that  after 
they  got  those  railroads  all  built  they  didn’t  use  the  rivers  as 
much  as  they  used  to  before  they  had  any  railroads,  is  it  not!  A. 
Yes,  sir,  but  they  are  running  boats  above  this  Rock  Island. 

Q.  Now  they  are  using  boats  again!  A.  They  are  still 

5106  running  them,  have  been  ever  since  I took  that  boat  up  there. 

My  freight  was  a miscellaneous  cargo  of  supplies,  groceries 
and  supplies  for  use  in  the  mines.  I was  carrying  ore  down  at 
that  time.  Since  then  they  have  developed  the  wheat  industry  and 
are  carrying  thousands  of  tons  of  wheat  every  year.  The  Celilo 
Falls  are  14  miles  above  the  City  of  The  Dalles,  in  the  Columbia 
River.  There  are  several  islands  in  this  stream,  both  above  and 
below  the  Celilo  Falls  and  in  the  river  all  the  way.  In  high  water 
there  is  no  falls;  there  is  quite  a rapid  but  there  is  no  falls.  In 
low  water  there  is  a fall  there  of  37  feet;  it  is  in  the  form  of  a 
horseshoe,  falls  around,  the  reefs  come  out  of  water  on  the  right 
hand  side  and  the  reefs  form  a horseshoe  and  drop  right  into  a 
channel  right  close  to  the  Oregon  side.  That  is,  the  cliff  over 
which  the  river  runs  has  washed  back  in  the  middle  where  the 
deeper  water  is  and  the  greater  amount  of  friction  on  the 

5107  rock.  The  whole  river  goes  through  there.  Take  the  front 
of  the  horseshoe,  where  the  deeper  passage  is,  leaving  out  the 
two  side  places  and  it  is  probably  300  feet  wide.  I never 

5108  passed  a boat  around  these  Celilo  Falls.  I have  known  it 
to  be  done.  That  has  been  done  occasionally  depending  upon 

the  condition  of  the  water.  The  Dalles  is  six  miles  below  the  Celilo 
Falls.  These  Dalles  are  the  places  around  which  the  Portage  Rail- 
road, that  is  adapted  for  the  carrying  of  freight  from  the 

5109  boats  below  to  the  boats  above,  has  been  built.  The  ^‘Dalles” 
in  the  Columbia  means  a wall,  walls  where  the  water  runs 

through.  At  low  water  in  these  Dalles  steamboats  have  been  taken 
through  it  but  in  high  water  I understand  the  Government  survey 
makes  it  that  the  whole  of  the  Columbia  River  runs  through  a 
place  there  185  feet  wide,  and  when  there  is  a flow  of  water  the 
current  is  not  very  strong  through  there  because  they  have  sounded 


1524 


Gray, — Cross-Exam. — Continued. 


down  300  feet  and  didn’t  get  any  bottom,  but  when  the  flood  come 
it  chokes  at  this  place,  and  one  year  we  had  a boat,  had  taken 
her  down  through  over  the  Celilo  Falls  and  the  watchman  kept  an 
•account  of  the  raise  in  the  water  and  there  was  a hundred  and 
forty  foot  raise,  which  backed  the  water  up  and  destroyed  the  fall 
at  Celilo.  You  see  it  is  a choke  in  the  river.  I had  made  trips  up 
the  Snake  Fiver  itself  from  Pasco  all  the  way  up  to  Lewiston.  I 
first  made  that  trip — we  left  the  mouth  of  the  Snake  Eiver  on  the 
11th  of  September,  1861,  and  arrived  at  Lewiston,  being  40 

5110  days  going  up  the  river.  We  call  it  155  miles.  We  didn’t 
go  quite  four  miles  a day. 

Q.  How  much  time  did  it  take  in  the  down  stream  trip  from 
Lewiston  to  Pasco!  A.  Coming  down  we  w^ere,  I think,  about 
four  days,  coming  about  forty  miles  a day.  We  didn’t  run  at 
night  either  time.  It  wmsn’t  safe  to  go  at  night.  The  Ainsworth 
Bar  extends  out  from  the  Walla  Walla  county  side  of  the  river 
and  extends  up  above  the  incline  on  the  Ainsworth  side  until  it 
gets  right  opposite  the  old  south  Ainsworth  incline  and  then  the 
bar  extends  right  across  the  river,  but  there  is  a depression  in 
it  that  we  go  through;  I run  that  for  a good  many  years. 

5111  The  depth  of  water  there  is  four  feet  and  a half.  I saw  it 
when  the  ice  was  froze  to  the  bottom  and  I was  stuck  draw- 
ing three  feet  of  water  right  in  the  ice.  That  was  about  the  low- 
est that  they  had  there. 

Q.  Do  you  know  Captain  Powell!  A.  Captain  Powell  of  the 
United  States  Engineers!  Yes,  sir,  I was  well  acquainted  with 
him. 

Q.  He  speaks  of  it  having  a minimum  depth  of  three  feet.  A. 
Well,  he  got  it  sometime  when  they  didn’t  strike  the  right  sound- 
ing. I can  show  you  a line  of  soundings  where  they  will  show 
ten  feet  on  the  government  survey  and  I will  show  you  a dry  reef 
sticking  out  of  water  four  feet. 

Q.  It  depends  somewhat  on  the  time  of  the  year  when  they 
take  it  and  the  condition  of  the  water!  A.  They  take  the  sound- 
ing at  high  water,  and  then  reduce.  They  will  take  a sound- 

5112  ing  when  there  is  six  feet  of  a raise.  If  they  get  nine  feet, 
they  will  reduce  it  to  three  feet;  that  is  the  way  they  get 


1525 


a great  many  of  their  measurements.  They  don’t  sound  in  low 
water. 

Perrin’s  Defeat  is  riglit  at  the  head  of  Strawberry  Island,  and 
it  is  a narrow  reef,  extends  almost  across  the  river,  and  the  chan- 
nel is  a little  nearer  the  head  of  the  island  than  it  is  over  to  the 
right  hand  shore,  and  it  is  a short  break,  deep  water  in  the  chan- 
nel, hut  very  narrow.  It  just  comes  through  a little  chute.  The 
current  is  not  so  very  swift;  it  is  so  deep  water  that  you  go  up 
into  it  with  speed  and  carry  your  weight  right  through;  if  you 
stop  and  go  slow  it  will  buck.  The  current  will  overcome  your 
boat  and  it  will  come  back.  You  have  got  to  bottle  the  steam  to 
make  it.  That  is  a common  expression  among  steamboat 

5113  men.  To  bottle  the  steam  is  to  choke  her  down  a little  and 
get  all  the  steam  up  you  can  on  the  boiler,  hold  the  throttle. 

Q.  Now,  what  amount  of  obstruction  would  that  process  en- 
able you  to  overcome,  Captain!  Assume  that  you  had  a boat 
going  normally  in  the  method  you  have  described,  and  being  over- 
come by  a current  she  lays  back  and  bottles  the  steam  and  shoots 
through.  Take  a boat  that  with  her  ordinary  power  is  equal  to 
making  head  against  the  seven  mile  current,  would  you  be  able 
by  bottling  the  steam  to  overcome  an  eight  mile  current!  A. 
Well,  that  is  owing  to  the  power  your  engines  have  got. 

Q.  Well,  I say,  take  an  engine  which  with  her  ordinary  load 
under  ordinary  conditions  could  just  make  head  against  a seven 
mile  current,  could  she  by  bottling  the  steam  make  the  passage 
through  a chute  of  that  kind  of  eight  miles  an  hour!  A.  No,  sir, 
because  if  her  limit  of  speed  is  seven  miles  an  hour,  that  is  all  you 
can  drive  her,  but  if  you  have  got  slack  water  below  she  will  come 
up  with  that  speed  and  then  her  momentum  will  carry  her  through 
an  eight  mile  current,  yes,  sir. 

5114  Q.  That  is  what  I meant.  A.  Yes,  her  momentum.  ‘^Per- 
rin’s Defeat”  is  called  that  because  he  went  up  there  with 

a steamboat  and  couldn’t  get  through.  He  took  the  boat  and  was 
going  to  Lewiston  in  too  low  water  and  he  struck  the  mouth  of 
the  Snake  Eiver  and  the  first  rapid  he  came  to  he  quit.  That  was 
in  1864.  They  never  defeated  me  there.  That  never  was  known 
as  “Gray’s  Defeat.” 


1526 


Gray, — Cross-Exam. — Gontimied. 


Q.  There  is’nt  any  other  shoal  or  rapid  known  that  way, 

5115  is  there?  A.  They  have  got  one  place  where  they  call  my 
defeat.  Well,  I went  np  to  a rapid  above  Lewiston  once 

and  broke  my  line,  broke  my  capstan  and  had  to  back  ont. 

The  Court.  Q.  Is  that  the  time  yon  told  us  about  this  morn- 
ing? A.  No,  this  was  one  trip  when  1 was  making  a commercial 
trip  up,  and  they  called  it  ‘^Gray’s  Defeat.”  I broke  everything 
I liad.  Asotin  is  just  six  miles  above  the  mouth  of  the  river. 
That  was  in  1904. 

I know  Five  Mile  Rapid.  That  is  just  five  miles  from  the 

5116  mouth  of  the  Snake  River,  four  miles  from  Pasco.  It  is 
so  named  because  of  the  distance  from  the  mouth  of 

the  river.  It  is  a short,  very  rough  looking,  a very 
rough  place.  In  low  water  the  water  pours  through  a low  lying 
reef  and  meets  a reef  extending  out  from  the  righthand  side  com- 
ing down,  also  a dry  reef  on  the  lefthand  side.  Then  as  you  get 
below  there  is  a reef  fair  in  the  middle  of  the  channel  that  some- 
times goes  dry  and  it  throws  the  current  at  a direct  almost  a 
direct  right  angle,  and  it  is  a very  short  fall  there,  I think  there 
is  about  eight  feet  in  the  fall  in  a length  of  about  300  feet.  When 
it  becomes  dry  we  do  not  stop  running.  We  dodge  into  these 
holes  and  take  our  spars  out  and  shove  ourselves  around.  Spar- 
ring through,  we  only  use  the  spars  to  push  us  out  into  the  chan- 
nel. You  cannot  get  speed  enough  to  steer.  You  go  up  the  river 
and  you  come  to  Fish  Hook  Rapids.  I have  often  run  the  Fish 
Hook  Rapids.  At  the  lower  end  of  the  Fish  Hook  Rapids 

5117  there  is  a reef  in  the  middle  of  the  river  with  a shoal  bar 
probably  two  feet  of  water  in  the  channel  off  to  the  left, 

in  the  deepest  channel ; you  move  off  to  the  left  and  directly 
over  to  the  right  it  goes  around  a point  on  the  reef,  and  you  fol- 
low up  through  the  swift  water  and  gradually  draw  out  into  the 
center.  And  from  that  for  about  a mile  or  a mile  and  a half  it 
is  one  continuous  succession  of  reefs  and  shoals  first  on  one  side 
and  then  on  the  other.  They  are  all  submerged,  just  under  the 
surface.  But  there  is  a channel  there  that  by  careful  manipula- 
tion you  handle  a boat  there.  These  submerged  reefs  break  up 
the  surface  of  the  water  into  hillocks  on  the  top  of  the  stream  and 
make  waves.  We  call  Fish  Hook  Rapids  a mile  and  a half  long. 


1527 


The  fall  there  is  in  the  lengths — we  had  one  surveyor  that  made 
it  17  feet,  and  another  that  made  it  14  feet,  and  another  that  made 
it  23  feet,  so  you  can  form  your  own  opinion. 

Q.  Well,  by  and  by  you  get  to  Long  Crossing  llapids,  you  re- 
member those  of  course!  A.  Yes,  sir,  that  is  a shoal.  That 

5118  is  the  shoalest  place  on  Snake  River.  It  has  an  island  on  the 
lefthand  side  and  the  bar  makes  off  diagonally  'across  the 

river  until  from  the  foot  of  the  island  to  where  it  joins  another 
part  on  the  other  side  is  all  of  a mile.  The  water  is  j)ouring  or 
dropping  over  this  bar  and  we  have  to  run  very  carefully  for  a 
little  bit  of  a sag  in  the  bar.  There  is  just  one  place  where  we 
can  get  through  by  manipulation.  In  the  little  sag  it  is  about 
three  feet  deep,  probably  not  in  low  water,  there  is’nt  over  two 
feet.  There  is  probably  six  inches  more  in  this  sag  than  in  the 
rest  of  it.  We  can  run  right  over  it  when  the  water  is  up  two 
feet.  Part  of  it  is  made  up  of  gravel  just  about  the  size 

5119  of  your  two  fists.  It  is  called  the  Cobble  Stone  Bar.  The 
length  of  the  swift  water  in  this  Long  Crossing  Rapids  is 

only  probably  200  feet  long,  but  the  bar  that  runs  across  is  prob- 
ably about  a mile  long.  Those  Rescue  Island  Rapids  are  a num- 
ber of  basalt  reefs  that  stands  around  promiscuously  and  it  is 
pretty  hard  to  work  through  them.  There  is  an  island  in  the 
stream  on  the  lefthand  side  going  up,  but  there  is  very  little 
water  goes  behind  it,  most  of  it  is  on  the  righthand  side.  This 
island,  that  is  what  they  call  the  island  which  has  very  little  water 
going  behind  it,  that  is  a bed  rock  reef,  basalt  reef  that  extends 
out  and  deflects  the  water  right  to  the  center  of  the  island,  and 
there  is  another  reef  that  stands  right  out,  right  perpendicular 
and  the  island  crosses  on  one  side  over  to  the  other  shore,  and 
the  rapids  are  scattered  around  considerably.  It  is  quite  a 

5120  dangerous  place.  That  Rescue  Island  Rapids  is  between  a 
quarter  and  a half  of  a mile  long.  It  has  derived  the  name 

from  an  accident.  There  was  a ferry  boat  broke  a wire  line  out  at 
Palouse.  The  ferry  turned  over  and  the  man  that  was  running  it 
got  on  top  of  it,  out  on  the  bottom  of  his  boat  and  drifted  down 
onto  the  island,  and  he  had  been  there  a day  or  two  when  a 
steamer  came  along  and  they  launched  a small  boat  and  went  out 
and  got  him.  It  is  a very  rough  place  in  high  water. 


1528 


Gray, — C ross-Exam  . — Con  tinned. 


It  is  not  so  far  above  that  before  yon  come  to  the  Pine  Tree 
Rapids.  Pine  Tree  Rapids  is  very  similar  to  Pasco,  except  yon 
follow  the  islands.  There  are  quite  a number  of  islands  and  the 
water  goes  around  the  channel  out  onto  it,  and  the  government 
has  blasted  a channel  through  there  which  some  of  ns  follow  now. 
When  I went  through  it  there  had  been  no  improvements.  We 
went  with  the  boat,  the  widest  place  we  could  find  when  we  went 
through  there  with  the  sail  boat  was  11  feet,  and  our  boat 

5121  was  12  feet  wide.  We  had  to  get  a line  out  ahead  and  twist 
her  along  and  lift  her  up.  We  got  a line  on  the  other  side 

and  twisted  her  around  and  in  that  way  we  worked  her  up.  The 
trouble  was  to  get  a line  out  on  the  reefs  that  were  submerged. 
The  channel  was  pretty  straight  along  the  island^  but  it  has  been 
improved  by  the  government.  In  the  early  days  in  ’65  when  the 
Colonel  Wright  used  to  carry  freight  up  from  Wallula  up  to  that 
island,  that  point  there,  and  then  there  was  a boat  up  above,  and 
we  would  bring  the  freight  above *and  then  carry  it  across,  make 
a portage  of  it  and  carry  it  across  the  island  to  the  boat  above. 

Q.  Trans-ship  it  on  the  new  boat?  A.  Yes  sir,  I don’t  ex- 
actly remember  how  much  depth  there  was  at  Pine  Tree  Papids 
but  there  is  quite  a fall.  From  the  hole  in  the  wall  to  the  foot 
of  the  island  it  was  about  three-quarters  of  a mile. 

Q.  Now,  you  spoke  of  Palouse,  there  were  two  or  three  Pa- 
louses?  A.  There  is  the  false  Palouse  and  the  Palouse  Kapids. 

Q.  Take  the  false  Palouse?  A.  Narrow  straight  deep 

5122  water,  not  very  strong  and  you  have  to  dodge  a little,  dodge 
the  current  a little  to  get  through. 

Q.  Then  you  come  to  one  called  the  skiff  bar,  do  you  remember 
the  Skiff  Bar  Papids?  A.  Skiff  Bar,  yes,  all  that  requires  is 
dodging  the  boulders. 

Q.  There  is  rather  a crooked  channel  there?  A.  You  have 
to  wind  around  and  dodge  the  boulders,  average  about  five  or  six 
feet  of  water  there. 

Q.  Well,  you  get  to  the  Palouse  Rapids,  how  much  of  a rapid 
do  you  have  there?  A.  Well,  in  high  water  the  reef  extends 
across  the  river,  and  it  makes  a very  rough,  boating  whirl  and  it 
twists  the  boat  there  considerably  and  makes  that  very  difficult  for 


1529 


steering.  The  channel  is  about  80  feet,  wide,  it  was  80  feet  wide 
and  I had  the  Government  engineer  take  off  about  40  feet  last 
fall  and  widen  it  so  in  high  water  it  would  not  be  so  rough.  The 
Monumental  Rapids,  that  is  below  Palouse,  and  it  is  a bar  that 
extends  right  out  on  one  side  to  the  reef  on  the  other,  and  the  bar, 
the  wash  of  the  gravel  from  above  encroaches  on  the  reef  and  it 
makes  it  very  difficult  and  dangerous.  By  the  twisting  from 

5123  the  bar  you  are  liable  to  knock — on  the  reef  you  are  liable  to 
knock  a hole  in  the  boat  or  go  on  the  bar  and  get  ashore  and 

it  is  probably  a thousand  feet  from  the  shore,  out  to  this  narrow 
channel.  You  have  to  steady  your  boat  and  it  is  quite  swift  in 
low  water.  I have  run  those  rapids,  I could  not  tell  you,  two  or 
three  hundred  times  I have  been  over — thirty  times  in  a season, 
that  is  in  the  extreme  low  water,  but  during  the  season  I used  to 
make  a trip  a week  there  for  years.  In  the  extreme  low  water 
you  have  to  put  a line  out  and  hitch  it,  pull  yourself  through  with 
the  line  and  the  capstan.  The  Texas  Eapids  is  a wild  looking 
place  but  it  is  like  some  people  it  ainT  as  dangerous  as  it  looks. 
It  is  about  a -mile  long.  It  is  about  a fifteen  foot  fall,  I would 
judge  that.  In  the  head  of  the  rapids  the  channel  through 

5124  there  has  reefs  that  divert  the  channel  and  twist  it  around 
considerably,  and  then  afterwards  it  goes  over  what  they 

call  Eoll  Eock.  Then  there  are  reefs  or  a low  ridge  in  the  center 
of  the  channel,  and  from  the  center  you  go  from  one  side  to  the 
other  and  the  water  is  quite  rough,  but  by  careful  steering  a man 
gets  down  without  any  trouble.  Eunning  up  stream  it  is  very 
strong,  I have  had  to  do — what  do  you  call  it,  double  teaming, 
double  leading  over  it.  I have  had  to  put  out  a part  of  the  load 
and  take  it  up  then  come  back  and  take  the  other  part  of  it  over. 
It  would  take  going  up  stream  to  run  through  those  Texas  Eapids 
just  about  half  an  hour  from  the  foot  to  the  head,  about  a mile. 

Q.  When  you  are  making  time  up  stream  at  the  rate  of  between 
three  and  four  miles  an  hour,  you  did  not  make  this  mile  and  a 
half  or  mile  and  a quarter,  whichever  it  was?  A.  Well,  we  was 
all  day  getting  through  the  Texas  Eapid,  and  the  Pine  Trees  we 
was  two  days  getting  through. 

Q.  You  mean  it  has  now  been  improved  to  such  a degree  that 


1530  Gray, — C ross-Exam . — C onti  n iied. 

you  are  able  to  make  it  in  from  half  an  hour  to  an  hour?  A.  Yes, 
sir. 

Q.  But  in  its  native  condition  it  took  you  a day  to  go  through 
it  and  two  days  to  go  through  the  Pine  Tree?  A.  Yes. 

5125  Q.  Do  you  remember  Granite  Point?  A.  Yes,  sir. 

Q.  Do  you  remember  the  rapids  there?  A.  Yes,  sir. 

Q.  How  much  of  a rapid  was  there  at  Granite  Point?  A.  It 
was  not  dangerous  at  all,  there  are  several  granite  boulders  that 
stand  out  close  to  the  channel  and  make  a break.  It  is  only  dan- 
gerous in  the  night  time.  In  low  water  those  boulders  there  re- 
quire close  steering,  that  is  all.  The  water  breaks  over  the  top 
of  them.  The  water  breaks  over,  they  are  right  at  the  surface  of 
the  water,  there  is  plenty  of  water  in  the  channel.  In  making  those 
trips  from  time  to  time  you  strike  these  places  where  the  water 
breaks  over  them  and  makes  waves  and  hillocks.  There  are 
places  in  low  water  where  the  boulders  stick  out  through  the  water. 
You  can  see  something  like  that  at  every  one  of  these  rapids  where 
the  boulders  are  present  in  low  water. 

Q.  When  was  the  first  trip  made  up  the  Columbia,  up  from 

5126  Celilo  to  Lewiston  that  you  know  of?  A.  We  hear  when 
we  were  living  at  the  foot  of  Osoyoos  Lake  that  a steamer 

had  gone  up  the  Snake  River  in  1860. 

Q.  When  was  this  first  trip  up  there?  A.  ’61. 

Q.  Do  you  know  Captain  White?  A.  Do  I know  Captain 
White  ? 

Q.  Yes?  A.  Captain  Lem  White,  I know  him  well. 

Q.  He  was  the  only  man — A.  He  was  the  man  that  took  the 
first  boat  up  there. 

Q.  Do  you  rememher  his  boat  the  Tonino?  A.  Yes,  sir. 

Q.  That  is  the  boat,  is  it?  A.  Yes,  sir.  With  reference  to 
Lewiston  the  Great  Shoshone  Falls  must  be  400  miles  south.  I 
have  never  been  there.  They  are  on  the  Snake  River.  The  main 
channel  of  the  Snake  River  comes  up  from  the  south  to  Lewiston 
and  turn  oft  to  the  northwest  there.  Away  down  somewhere  on 
the  line  between  Idaho  and  LHah  are  the  Shoshone  Falls. 

5127  Q.  You  speak  of  a report  of  yours  as  being’ embodied  in 
the  United  States  Engineer’s  Report  for  1884.  I show  you, 


1531 


Captain,  United  States  Engineer’s  Report  under  the  heading  of 
Report  of  Captain  Powell,  Appendix  Q 4,  Improvement  of  the 
Upper  Columbia  and  Snake  Rivers,  Oregon  and  Washington  Ter- 
ritory, Annual  Report,  Chief  of  Engineers,  United  States  Army, 
Part  III  for  1884.  Look  at  that  and  tell  us  whether  this  is  the 
report? 

This  is  the  report  beginning  on  page,  the  particular  one  I have 
directed  your  attention  to  beginning  on  page  2229  and  you  have 
now  turned  over  to — A.  Have  you  the  report  for  ’85? 

Q.  I haven’t  it  here.  You  mentioned  ’84  and  I, got  the  ’84  re- 
port? A.  I made  the  examination  in  ’84  and  I saw  the  report  in 
there,  I thought  it  was — I did  not  look  particularly  at  the  year, 
it  was  for  the  ’84  year. 

Q.  It  may  be  in  the  year  ’85  you  think?  A.  It  may  be  ’85. 

Q.  You  don’t  find  it  here  in  the  ’84  report?  A.  It  may  be  in 
some  of  these — 

Q.  You  see,  here  is  the  report  of  Philip  C.  Eastwick,  Assistant 
Engineer,  you  point  to  a reference  on  page  2232.  A.  This  ap- 
pears to  be  dated  February  26,  ’84,  and  probably — I made  my  ex- 
amination or  reconnaisance  in  June  and  July,  ’84,  it  probably  was 
not  in  there. 

Q.  The  report  to  which  I have  called  your  attention  be- 
5128  gins  on  page  2229  and  extends  through  to  2243.  You  spoke 
of  being  employed  in  ’67  by  the  United  States  Engineer  to 
survey  a rapids  in  the  Snake?  A.  In  the  Columbia. 

Q.  In  the  Columbia.  Who  was  the  engineer  under  whom  you 
took  employment  at  that  time.  Captain?  A.  Col.  Williamson,  Col. 
R.  S.  Williamson  was  in  charge  of  the  Pacific  Coast  as  Chief  En- 
gineer and  Lieutenant  Heuer  was  in  charge  of  the  survey  work. 
Lieutenant  W.  H.  Heuer. 

Q.  You  spoke  of  a number  of  trips  that  you  made  on  the  Wil- 
lamette River?  A.  Yes,  sir. 

Q.  When  were  you  running  on  the  Willamette  River?  A.  In 
1875. 

Q.  When  last?  A.  In  the  spring  of  ’78. 

Q.  What  rapids  did  you  encounter  on  the  Willamette  River, 


1532 


Gray, — C ross-Exam. — C ontinued. 


Captain?  A.  Well,  there  is  the  Clackamas  Eapids,  at  Oregon 
City.  That  is  the  place  where  the  old  P.  T.  Company  had  built  a 
dam  across  a slough  in  order  to  throw  the  water  over  a gravel 
bar  and  allow  their  boats  to  go  up.  This  was  on  the  left  bank 
they  built  the  dam.  The  channel  off  from  the  month  of  the  Clacka- 
mas Eiver  tilled  up  and  they  blowed  out,  blowed  a hole  in  the  dam 
on  the  left  bank.  We  followed  through  close  to  the  shore 

5129  to  the  foot  of  the  island  and  follow  np,  run  up  the  tail 
race  up  to  the  dam  and  go  through  the  dam  that  is  broken. 

When  the  water  is  at  low  tide  yon  have  to  put  out  a line  up  to  the 
point  of  rock  ahead  and  line  through.  Then  after  yon  get  in  that 
yon  are  in  a pool  and  yon  go  around  up  past  Oregon  City  and 
go  into  the  Oregon  City  locks. 

Q.  Were  you  ever  up  there  before  the  locks  were  built  there 
at  Oregon  City.  A.  No,  sir.  I was  up  there  in  ’64,  hold  on — I 
think  it  was  ’65  I was  up  there  on  a trip. 

Q.  That  was  before  there  had  been  any  improvement  made  on 
the  Willamette?  A.  I don’t  know  whether  there  had  been  any 
improvements,  I was  just  on  an  excursion  and  I didn’t  pay  any 
attention  to  the  improvements. 

Q.  There  were  no  locks  there  that  yon  recall?  A.'  No,  sir;  no 
lock. 

Q.  How  much  of  a fall  was  there  in  those  rapids  yon  have  men- 
tioned? 

Counsel  for  Defendant.  That  is,  if  yon  know,  if  yon  observed 
them. 

A.  That  one  I went  up  first,  I mean  the  one  we  ran  up,  my 
judgment  would  be  about,  there  is  about  between  three  and  four 
feet  of  a fall,  in  the  length  of  the  rapids,  about  half  a mile.  There 
is  quite  a shoal  place  over  the  bar  until  they  broke  a hole  in  the 
dam.  After  that  there  was  plenty  of  water. 

5130  Q.  When  you  speak  of  the  dam,  yon  mean  the  natural 
dam  formed  there  in  the  stream?  A.  No,  I mean  the  arti- 
ficial dam,  and  when  yon  get  through  there  there  isn’t  much  water 
there,  there  is  no  water  for  steamboats,  there  is  probably  about 
two  feet  of  water  over  the  natural  dam. 


1533 


Q.  Yes?  A.  But  this  artificial  dam  that  they  put  in  and  took 
out  again,  left  the  hole  in  it,  there  is  about  6 feet  of  water  there. 

Q.  That  had  been  put  in  with  a view  of  narrowing  up  the 
stream,  concentrating  the  water?  A.  That  had  been  done  to 
throw  all  the  water  into  this  natural  channel.  They  wanted  to 
straighten  it  hut  they  found  they  had  to  go  around,  it  is  a crooked 
channel. 

Q.  Yes,  and  a boat  to  make  this  trip,  you  made  the  trip  both 
ways  repeatedly  before  they  blew  out  that  dam?  A.  I never 
made  a trip  before  the  dam  was  hi  owed  up.  I just  made  one  trip 
up  there  with  a boat.  I did  not  know  which  way  they  went  when 
the  water  was  high,  I paid  no  attention. 

Q.  That  was  a steamboat?  A.  That  was  a steamboat. 

Q.  That  was  in  ’65?  A.  ’65,  I believe. 

Q.  And  vdien  you  were  last  on  the  river  was  during  the  period 
from  ’75?  A.  Yes,  sir. 

Q.  And  at  that  time  they  had  got  the  rock  blown  out?  A.  Yes, 
sir. 

5131  Q.  But  the  steambots  had  gone  on  through  there  during 
that  period?  A.  Yes,  sir. 

Q.  You  have  spoken  about  going  up  into  the  Yamhill  Elver  and 
going  to  McMinnville?  A.  The  river  was  navigable  just  about 
two  months  in  the  year.  Dayton  is  the  low  water  head  of  navi- 
gation where  they  run,  where  the  bar  is  formed  by  the  empty- 
ing of  the  Yamhill,  and  for  about  two  months  in  the  year  we  run, 
or  about  one  month  of  the  year  we  run  to  McMinnville.  I used  to 
run  from  Portland  every  other  day  to  Dayton  in  extreme  low 
water,  for  several  months.  Then  we  ran  as  far  as  LaFa}mtte. 

5132  The  mouth  of  the  river,  the  mouth  of  the  Yamhill  River  there 
was  about  three  feet  and  a half  of  water,  that  is  at  times  it 

falls  off  and  is  shallower  and  then  they  have  got  to  dredge  it,  put 
a steamboat  in  there  and  dredge  it  with  the  wheel.  The  current 
of  the  Willamette  running  by  the  Yamhill  would  stop  the  sedi- 
ment there.  Then  they  would  tie  a steamboat  in  there  a while 
and  work  her  wheel  and  that  wheel  digs  it  out.  Just  by  revolv- 
ing the  power  wheel  that  would  stir  it  up  and  the  water  would 
carry  it  off. 


1534 


G ray, — C ross-Exam . — C o n ti  nued. 


5133  Q.  You  spoke  of  going  up  into  the  Alaska  and  running 
on  the  Stikine  River?  Describe  that  river  to  us,  Captain? 

A.  Well,  it  is  a river,  the  lower  part  is  sand  and  drifts  there,  a 
great  many,  a great  deal  of  trees  and  logs.  In  ’77  I left  Fort 
Wrangel  on  the  28th  of  April  and  ran  to  Glenora  the  first  of  May, 
following  the  ice  up.  As  the  ice  melted  and  got  out  of  the  way 
we  kept  on  going.  It  is  150  miles  up  there.  As  I said,  the  lower 
part  of  the  river  is  shifting  sand. 

Q.  How  wide  is  the  channel  of  the  river  down  near  the  mouth? 
A.  The  delta  of  the  river  is  four  or  five  miles  hut  just  the  chan- 
nel that  we  go  through  is  probably  about  three  feet  wide.  There 
are  several  islands  formed  all  the  way,  and  at  one  place  up  at 
what  we  call  Hudson  Bay  Island,  or  Hudson  Bay  flats,  the  river 
is  continually  changing  going  up,  never  go  up  on  the  same  chan- 
nel. It  is  like  a drift  and  a hole,  the  gravel  and  sand  will  lodge 
and  then  it  will  change  channel  and  go  around  another  way  and 
you  have  got  to  pick  your  channel.  Then  you  get  up  to  the  canon 
which  is  about  80  miles  up;  the  river  changes  above,  but  there 
is  not  so  much  sand  and  it  is  more  permanent.  It  has  a 

5134  rocky  bottom  when  you  get  up  and  boulders,  yes,  plenty  of 
them.  Well,  the  shoalest  stretch  of  water  when  you  got  up  to 

the  boulder  on  that  run  was  about  between  four  and  five  feet.  I built 
two  boats  for  that  in  the  spring  of  ’98,  for  a Klondike  Mining, 
Trading  and  Transportation  Company.  I went  up  in  ’77  first  some 
twenty  years  before  that.  The  boat  I took  up  there  on  the  first  trip 
in  ’77  was  about  125  feet  long  and  24  feet  beam.  She  drew  about  22 
inches  light.  She  had  a pair  of  14-inch  cylinders  4-foot  stroke.  I 
do  not  know  the  exact  horse  power.  The'  Stikine  River  is 

5135  continuous  rapids.  The  Grand  Rapids  are  up  about  29  miles 
the  other  side  of  Glenora,  the  river  takes  a turn.  Well,  in 

coming  down  the  river  strikes  a sandstone  bluff  and  comes  on 
down  a little  further  about  a quarter  of  a mile,  following  around 
the  island  bar — there  has  been  a glacier  off  on  the  south  side  and 
it  gradually,  the  wash  from  the  glacier  is  gradually  filling  in.  lYell, 
that  fills  in  and  when  the  water,  there  is  a hard  boulder  bar  that 
it  is  hard  to  wash,  don’t  wash,  has  formed  an  obstruction  so  that 
it  throws  the  water  right  back  under  this  moraine  of  the  glacier 
and  it  turns  quick  to  the  left  and  then  goes  right  in  under  the 


1535 


gravel  and  bank  filled  with  sand  and  gravel  and  boulders.  It 
makes  a sharp  turn  into  it  and  when  it  strikes  that  then  turns  it 
back  to  the  right.  It  makes  almost  a Z with  a sharp  cor- 
ner and  you  would  try  to  drop  your  boat  just  as  close  to  the  bar 
as  you  can  and  let  her  hang  on  this  bar  until  you  pull  her  around 
across  the  bar  so  you  can  go  down  and  go  off,  go  over  on  the  other 
bar  and  back  that  way.  The  current  there  is  about  twelve 

5136  miles  an  hour.  No  boat  ever  went  through  without  a line 
there.  I think  the  Priest  Rapids  is  a little  the  strongest, 

but  it  is  the  deepest  and  the  water,  we  get  more  power  than  the 
Stikine,  the  deeper  the  water  the  more  power  it  has  got.  The 
Sikine  is  shallow.  Where  that  comes  around  the  Z on  the  Stikine 
up  at  the  upper  corner  it  is  probably  eight  or  ten  feet  deep,  then  as 
we  get  down  to  the  next  corner  with  the  water  on  the  right,  it 
goes  over  towards  the  island  and  it  is  gravel  there  about  3 feet 
deep,  and  from  the  point,  over  right  in  the  corner  it  is  probably  six 
feet  deep  and  right  across  then  as  it  goes  down  right  along  the 
side  of  the  perpendicular  bank,  perpendicular  to  the  cut  there  the 
water  is  ten  or  twelve  feet  deep.  That  is  the  Grand  Rapids  of  the 
Stikine.  There  are  quite  a number  of  shoals  up  above  there,  you 
have  to  wind  around  through  it  to  go  up  the  channel.  Then  you 
make  several  very  short  turns.  You  go  over  next  to  the  right 
hand  bank  and  then  follow  around  untij  you  are  finally  at 

5137  the  left  hand  bank  and  work  between  the  islands.  After  you 
get  through  the  sand,  it  gets  lower  down  to  the  gravel,  and 

you  have  to  follow  along  very  close  to  the  growing  trees.  The  trees 
almost  overhang  and  you  have  to  look  out  for  them  or  they  will 
take  off  your  upper  works.  You  have  got  to  handle  her  very  care- 
fully for  the  shoal  water  or  the  boat  will  run,  what  we  call  run,  and 
then  just  as  you  get  up  to  the  head  it  is  very  shoal.  If  she  turns 
off  she  will  run  ashore,  cannot  turn  around.  It  aint  wide  enough 
to  turn  around,  she  would  go  ashore.  I have  done  that  two  or 
three  times  myself,  get  over  there  and  the  water  would  catch  her 
and  throw  her  onto  the  bank.  Then  you  have  got  to  spar  and 
work  off  the  little  shoals,  if  you  are  shoal  aft  more  than  it  is 
forward,  you  have  got  to  line  out  and  pull  her  off  into  the  cur- 
rent. This  Grand  Rapids  Shoal  above  there,  makes  a ridge 

5138  in  the  river  from  below  the  foot  of  Grand  Rapids  to  above 
the  island  shoals,  probably  four  miles.  I donT  think  it  falls 


1536 


Gray, — Cross-Exam. — Continued. 


as  much  as  the  Priest  Eapids,  hut  much  more  than  the  Palouse.  In 
77  my  boat  ^vas  carrying  supplies  to  the  miners,  carrying  mules 
and  animals  up  in  there  to  the  Cascera  mines.  They  were  min- 
ing gold  there  in  ’77  and  had  been  mining  for  several  years. 

Q.  That  goes  clear  up  to  White  Horse?  A.  Ho,  sir;  that 

5139  is  a different  river. 

Q.  That  is  a different  river.  Have  you  ever  taken  a boat  up 
to  White  Horse  on  the  Yukon?  A.  On  the  Yukon,  yes,  sir. 

Q.  Wei],  now  then,  what  is  the  condition  of  the  Yukon  up  there 
at  Yliite  Horse?  A.  AYell,  as  to  the  Yukon  it  is  considered, — they 
call  it  now  the  head  waters  of  the  Yukon  at  AVhite  Horse,  but  up 
there  they  call  it  Fifty  Mile  Eiver.  It  empties  in  about  30  miles 
below  AYhite  Horse,  empties  into  Lake  La  Barge  and  Lake  La 
Barge  einj^ties  into  Thirty  Mile  Eiver  and  the  Thirty  Mile  Eiver 
empties  into  the  Hootalinqua  and  the  Hootalinqua  joins  the  Pellee 
at  Selkirk  and  makes  the  Yukon.  Take  the  Fifty  Mile  Eiver 
where  it  goes  into  the  lake,  the  width  of  the  Fifty  Mile  Eiver  near 
its  mouth  is  probable  200  feet  or  250.  The  width  of  the  channel 
in  which  the  boats  run  where  the  water  is  deep  enough  for  a 
boat  is  probably  all  the  way  from  150  to  the  full  width  of  the 
channel,  the  full  width  of  the  river.  At  the  mouth  after  you  get 
into  the  river  there  is  not  less  than  six  feet,  except  in  one  place, 
and  after  you  get  out  into  the  lake  then  it  shoals  out  and  is  there 
shoal  and  in  low  water  in  the  lake  there  is  about  two  feet 

5140  and  a half  of  water.  The  lake  was  really  only  a broad- 
ening of  the  river.  The  lake  is  30  miles  long  and  about  three 

or  four  miles  wide.  It  comes  down  through  and  out  into  the  Fifty 
Mile  Eiver  below.  The  boats  we  built  did  not  go  up  there,  they 
were  built  in  Victoria — AYestminster  and  finished  in  Vancouver 
on  the  Stikine  Eiver.  They  were  going  to  take  freight,  they  wei’e 
trying  to  establish  an  all  Canadian  route  from  Fort  Wrangel  to 
Glenora  or  Telegraph  Creek  and  then  up  by  Teslin  Lake  and 
through  the  Hootalinqua  Eiver  and  in  that  way  get  into  the  Yukon 
country  at  Dawson.  They  were  for  use  in  connection  with  sup- 
plying the  mines.  I came  to  the  White  Horse  Eapids  in  October, 
’99.  I stayed  there  just  long  enough  to  get  aboard  of  train. 

5141  Q.  What  has  been  your  experience  as  a real  estate  man. 
Captain.  A.  'Well,  I have  made  a whole  lot  of  money  at 

it  and  I spent  it  as  fast  as  I got  it. 


1537 


Q.  WlieD  did  you  first  go  into  the  real  estate  l)usiness?  A. 
When  I first  bought — the  first  foot  I ever  owned  in  my  life  was 
when  I went  to  establish  a transfer  of  the  Northern  Pacific  across 
the  Columbia  Eiver  at  Pasco.  I had  to  buy  a piece  of  land  to 
live  on,  and  after  I got  a little  piece  I wanted  more,  and  I kept 
on  buying  more  and  one  time  I owned  several  thousand  acres. 

Q.  And  still  own  some  I trust?  A.  Yes,  sir,  a few  pieces. 

Q.  Well,  was  there  a period  when  you  left  the  business  of 
steamboating  and  followed  the  business  of  real  estate?  A.  Yes, 
sir. 

5142  Q.  When  was  that?  A.  When  I was  in  the  employ  of  the 
Northern  Pacific  I was  looking  out  for  their  steamboat  in- 
terests and  I was  carrying  on  a real  estate  business  for  myself 
and  acting  as  local  agent  for  the  Northern  Pacific  Land  Company, 
that  was  from  about  ’87  to  ’92.  I was  captain  of  a steamboat  at 
the  same  time,  and  doing  real  estate  business  for  myself  and  for 
the  company  and  was  county  commissioner  and  I don’t  know  what 
all.  I was  actually  operating,  I was  captain  of  a transfer  boat 
which  was  carrying  cars  across  the  river,  a ferry  boat  across 

the  river.  It  was  not  necessary  for  me  to  be  on  the  boat.  I 

5143  was  looking  after  the  boat  and  this  was  outside,  incidental; 
although  I was  here  in  ’92,  I was  in  Chicago  and  I was  in 

Cincinnati  a couple  of  months.  I came  here  in  July,  ’92,  and 
left  here  on  the  27th  of  December,  ’92,  and  went  home.  I was 
sick  in  ’93^  in  the  hospital  for  three  months  and  a half.  In  ’94 
there  was  an  immense  flood  up  in  the  Columbia  Eiver  and  I took 
charge  of  running  the  steamer  for  the  Northern  Pacific  Eailroad 
Company  from  Ainsworth  to  Wallula  to  connect  the  two  roads 
which  was  washed  out,  for  about  six  weeks.  And  I was  around 
home  there  a good  deal  of  the  time.  Then  in  ’95,  I of  course  like 
everybody  else,  I went  broke  in  ’93,  and  in  ’95  I had  to  go  to  work. 
I commenced  going  round,  I think  it  was  in  ’95,  it  was  in  ’95  I 
brought  the  steamer  Norma  down  through  the  Snake  Eiver  Canon. 
That  is  between  Huntington  and  Lewiston.  Huntington  is  at  the 
end  of  where  the  Oregon  Short  Line  and  the  0.  E.  & N.  join. 

5144  That  is  up  above  on  the  Snake  Eiver  to  the  south.  We  went 
up  250  miles.  The  canon  is  between  Huntington  and  Lewis- 
ton. The  canon  proper  is  about  four  miles  long. 


1538 


Gray, — Cross-Exam. — Continued. 


Q.  You  say  you  made  that  trip  in  1895?  A.  Yes,  sir,  I believe 
that  was  the  year. 

Q.  AYhat  was  the  boat!  A.  Steamer  Norma.  I went  over  the 
rapids  or  Cascades,  Copper  Ci>?ek  Falls  was  the  worst.  Copper 
Creek  Falls  is  a perpendicular  fall  of  about  18  feet  and  at  about 
200  feet  or  250  feet  below  the  fall  where  it  pitches  over  there  is 
a cliff  about  150  feet  high  standing  right  at  right  angles 

5145  with  the  current.  The  current  has  gone  through  there  and 
the  drift  has  disintegrated  the  rock  unitl  a part  of  the  cur- 
rent runs  under  the  cliff.  As  you  pitch  over  this  cliff  it  seems 
as  though  the  boat  were  going  to  smash  her  brains  out.  You  get 
a lot  of  water  pouring  off,  there  is  a big  river,  and  you  go  off 
there  about  18  feet  fall  there,  of  course  the  supporting  water 
will  hold  it  up  at  an  angle  probably— ten  degrees,  probably,  ten 
degrees  is  pretty  heavy.  Anyhow  the  water  runs  very  fast. 

Q.  Do  you  know  where  the  place  is  they  call  the  Seventy  Mile 
Canon,  or  don’t  you  remember  that?  A.  I don’t  know.  There 
was  no  one  aboard  who  had  ever  seen  the  river  before,  we 

5146  did  not  know  where  we  were  going.  We  found  quite  a num- 
ber all  the  way  from  10  to  15  foot  falls,  all  the  way  down. 

There  are  a few  miles  at  one  place  we  found  where  the  river  had 
to  go  through  a clay  bank  with  granite  boulders.  They  had  fallen 
in  until  the  granite  boulders  were  laying  just  as  steep  as  they 
could  lay  and  the  water  was  going  down  there,  and  I assumed 
there  was  about  200  feet  of  fall  in  about  four  miles.  It  looked 
like  going  down  a chalk  line,  it  was  perfectly  white.  I stood  in 
the  pilot  house  and  I could  not  see  the  water  on  either  side.  It 
was  perfectly  straight,  I could  see  the  water  ahead  but  I could  not 
see  the  water  on  either  side  of  the  pilot  house.  I suppose 

5147  the  water  there  was  about  70  or  80  feet  wide.  1 saw  just 
the  banks,  fallen  in,  the  rocks,  the  granite  boulders  that  were 

lying  there  all  the  way,  from  the  size  of  your  head  to  6 feet  in 
diameter.  That  was  located  below  the  Copper  Ledge  Falls  and 
60  miles  above  Salmon  Eiver.  AYe  kept  on  encountering  rapids. 
Finally  we  got  to  the  mouth  of  the  Imhaha,  the  Imhaha  Eiver 
where  the  Eureka  and  Fargo  mines  are  located  now.  There  we 
found  very  difficult  rapids.  It  poured  through,  these  granite 
boulders  had  fallen  in  and  there  was — a reef  comes  this  way  on 


1539 


this  side  (indicating)  and  there  is  a basalt  reef  and  granite 
boulders  pn  that  (indicating)  at  right  angles  to  the  l)ank  of  the 
river.  And  then  at  a point  shifting  out  there,  they  had  been 

5148  shoved  out  there  by  a water  spout  and  washed  down  and 
forced  it  right  in  there  so  that  it  makes  that  part  circular 

rapids.  The  boulders  project  out  into  the  stream  out  of  the 
water,  perhaps  there  is  100  feet  to  spare,  but  it  is  very  crooked 
there  and  quite  dangerous.  When  you  get  a little  further  you 
come  to  Sheep  Rock,  there  is  where  the  steamer  Imhaha  was 
wrecked.  The  captain  was  going  through  and^  had  out  a line 
there  and  pulled  her  through,  but  they  were  a little  careless,  or 
his  men  were  careless  in  throwing  the  line  overboard  and  it 
caught  on  the  wheel  and  she  turned  down  and  ran  on  one  side, 
one  end  on  one  side  and  the  other  on  the  other,  right  across  the 
river.  They  jumped  ashore  as  soon  as  they  could  and  she 

5149  just  backed  right  otf  and  upset  a little  way  below.  The 
Sheep  Rock  projects  some  out  into  the  stream  at  that  point 

making  rather  a narrow  stone  clitf  there.  The  Priest  Rapids  is 
stronger  than  that,  it  (Sheep  Rock  Rapids)  is  a little  bit  stronger 
than  Palouse.  It  has  got  a clitf  there  at  the  side  like  the  Priest 
Rapids,  about  four  or  three  miles  below  it  goes  into  the  Salmon 
River.  Where  the  Salmon  River  comes  in  it  is  more  or  less 
broader.  Then  the  water  throws  out  on  the  right  side  and  there 
is  a bar  there  probably  60  or  70  acres.  After  it  passes 

5150  there  its  speed  is  about  7 or  8 miles  an  hour.  I think  it  is 
fifty  miles  from  the  mouth  of  the  Salmon  River  to  Lewis- 
ton. For  the  fifty  miles  down  stream  it  takes  about  two  hours 
or  two  hours  and  ten  minutes  to  run  the  distance.  To  go  up 
stream  it  takes  about  8 hours.  I have  gone  up  the  Salmon  River 
to  the  mouth  of  the  Imhaha.  That  is  as  far  as  they  ever  have 
been.  In  ’64  I was  on  a boat  that  was  sent  up  there  by  the  0.  T. 
N.  Company  and  tried  to  get  through  this  Snake  River  canon  and 
we  got  up  about  25  miles  above  Salmon  River  and  struck  one  of 

the  bars  that  went  across  the  river  and  knocked  14  feet  of 

5151  her  bow  otf  and  we  turned  around  and  came  back.  1904  I 
believe  it  was  when  I quit  the  railroad,  quit  the  company 

and  went  onto  the  Snake  River,  and  was  running  up  until  De- 
cember, 1906. 


1540 


Gray Cross-Exam. — Continued. 


Q.  And  in  73  or  ’4  when  everybody  went  broke  all  through 
the  country  you  went  into  the  butcher  business?  A.  Oh,  no. 

Q.  Wasn’t  that  the  time?  A.  ’93  when  they  all  went  broke, 
I didn’t  go  into  the  butcher  business  then. 

Q.  When  was  it  you  took  up  the  butcher  business?  A.  That 
was  in  ’73  and  ’4. 

Q.  That  is  what  I say,  in  ’73  and  ’4  was  when  some  of  us  think 
was  the  worst  panic  we  ever  had?  A.  We  didn’t  know  anything 
about  it  that  far  out  west.  I ran  up  Clear  Water  in  1863. 

5152  It  joins  the  Snake  at  Lewiston,  Idaho,  comes  in  from  the 
north,  no  the  east,  comes  in  from  the  east.  I went  up  it 

about  twelve  miles  to  the  Lapway  Agency. 

Q.  Have  you  been  there  since?  A.  Not  on  the  river. 

Q.  There  is  a railroad  through  there  now  is  there  not?  A. 
Yes,  sir. 

Q.  That  is  quite  a common  experience  out  there  where  the 
railroad  parallels  the  river,  isn’t  it?  A.  Yes,  sir.  They  tried, 
there  was  a boat  running  on  there  a few  years  ago,  tried  to  bring 
wheat  down  but  they  made  a failure  of  it. 

Q.  Your  idea  would  be  then.  Captain,  that  a river  should  be 
navigable  if  it  was  the  only  way  to  go,  but  not  navigable  if  there 
was  a better  and  cheaper  way  for  a railroad  along  side  of  it?  A. 
It  is  possible  to  take  some  boats  where  it  is  not — would  not  be 
practicable. 

Q.  Meaning  by  that  now  it  would  not  pay?  A.  Where  it  won’t 
pay. 

Q.  Yes,  and  you  mean  to  be  understood  in  that  sense  when  you 
speak  of  streams  being  practically  navigable  or  practically  not 
navigable?  A.  Yes. 

5153  Q. . And  then  its  character  would  vary  in  that  respect  with 
the  development  of  the  country?  A.  Yes,  sir. 

Q.  And  the  other  means  of  transportation,  is  that  right?  A. 
Yes. 

There  are  quite  a number  of  swift  water  rapids  on  the 
Columbia  between  Pasco  and  Celilo.  Squally  Hook  Eapids  is 
pretty  swift  and  it  is  difficult.  You  have  to  go  between  quite  a 


1541 


number  of  bars  and  rapids  to  get  up  into  the  main  rapid.  The 
main  rapids  is  straight  and  they  are  very  strong  and  swift.  It 
is  from  the  head  to  the  foot  probably  three-quarters  of  a mile. 
In  that  distance  the  river  falls,  I should  judge  it  was  about  ten 
feet,  or  an  eight  foot  fall  there,  eight  or  ten.  I have  run  that  fall 
probably  two  or  three  thousand  times.  I know  the  Umatilla 

Rapids,  upper  and  lower.  They  are  just  about  at  the  town  of 

5154  Umatilla,  on  the  Columbia  River,  between  Pasco  and  Celilo. 

In  the  whole  distance  of  two  and  a half  miles  there  is  a fall 

there  at  the  upper  Umatilla  of  17  feet.  We  measured  it  at  the 
time  I was  making  the  soundings  and  surveys.  I have  run  both 
ways.  I have  run  up  in  high  water  and  in  low  water  both  ways. 
I took  through  there  a flat  bottom  light  draught  stern  wheel 
steamboat.  The  last  boat  I was  running  there  drew  29  inches 
light.  The  boats,  the  average  boat  for  the  Columbia  River  draws 
about  30  inches  light,  when  loaded  with  a load  she  would  draw 
from  4-1/2  to  6 feet,  and  even  brought  down  as  much  as  7 feet. 
I assisted  in  the  survey  for  the  purpose  of  improving  the  chan- 
nel there  at  the  Umatilla  Rapids. 

Q.  Is  that  where  you  said  there  was  a current  of  twelve 

5155  miles  an  hour?  A.  Yes,  sir. 

As  I understand,  they  have  got  out  there,  they 
show  a current  running  at  the  gravel  bar  which  is  called 
the  Lower  Riffle,  at  nine  miles  an  hour.  The  Yukon  River 
from  the  mouth  to  the  ramparts  which  is  800  miles  up, 
is  one  continual  mass  of  sand  and  down  at  the  lower  end  it  is 
pondry ; that  is  a kind  of  mossy  growth  that  grows  in  bunches  right 
out  into  the  stream.  It  grows  right  out  in  the  islands,  innumer- 
able islands  of  ice.  And  the  channels  are,  if  a man  knows  his 
business — they  are  shifting  considerably.  After  you  get  to  the 
ramparts,  then  you  have  about  100  miles  of  rock,  where  its  chan- 
nel is  defined  and  remains  there  the  same.  Dawson  is  about  800 
miles  down,  it  is  half  way,  the  ramparts  are.  Then  after  you  get 
above  Fort  Hamlin,  which  is  about  50  or  60  miles  above  Ram- 
parts, at  Ramparts  it  commences  to  spread  out  again  and  it  is 
full  of  innumerable  islands,  and  the  channels  are  very  narrow 
and  crooked  and  it  divides  and  going  through  you  would  have 


1542 


Gray, — C ross-Exa  m, — Continued. 


to  follow  in  one  channel  where  it  runs  oft  by  the  island,  and 

5156  you  have  got  to  run  the  channel  that  you  can  find  there.  It 
would  be,  places  in  extreme  high  water  would  be  from  4 to 

5 feet  deep.  In  low  water  the  same,  because  it  goes  out,  the  high 
water  brings  the  gravel  down  and  fills  it  up  just  as  the  river  bed 
rises.  I understand  that  the  river  at  the  widest  part  of  the  Yukon 
flats  is  45  miles  from  water  to  water  on  one  side,  and  that  is  not 
— all  filled  in  between  with  a heavy  growth  of  cotton  wood  and 
even  fir  and  tamarac  growing  there,  and  all  those  innumerable 
channels  go  through  there,  so  that  is  the  only  place  that  I hired 
a pilot  when  1 went  through  because  I did  not  think  it  would  pay 
to  waste  time  hunting  for  the  channel. 

Q.  And  he  got  you  into  trouble  at  one  place?  A.  Yes. 

The  narrov/est  channel,  some  places  that  would  not  be  over  75  or 
100  feet  wide  and  four  to  six  feet  deep.  When  you  get  up  to  a little 
place  called  Fourth  of  July  creek  you  have  got  a pretty  fair  chan- 
nel, it  is  reasonably  permanent.  The  bed  of  it,  the  bed  of  the 
channel  is  of  hard  rocks  and  you  have  no  trouble  at  all  in 

5157  finding  the  channel  there.  It  is  lined  with  glaciers  going 

down  on  both  sides  of  the  river  and  there  are  moraines  run- 
ning in  on  both  sides  above  the  river  on  the  bank  all  the  way  up, 
and  all  the  way  we  saw  boulders  sticking  up  out  of  the  water,  and 
had  to  work  your  way  around  between  them.  From  Dawson  up 
to  White  Horse  it  is  continually  the  same,  although  there  are  a 
few  places  where,  as  at  steamboat  bar, — they  have  quite  a number 
of  islands  that  you  have  to  go  through.  These  islands  are 

made  very  largely  of  glacier  clay,  cementing  the  boulders  in  place. 
They  are  made  by  the  ice  and  thev  have  crowded  up  there  and  you 

can  go  back  and  come  up  there  in  the  summer  time  where 

5158  the  water  has  washed  out  and  you  can  see  the  ice  with  trees 
growing  on  top  of  them. 

Q.  That  is  what  we  call  historically  fossil  ice!  A.  Yes,  sir, 
ice  that  has  fossilized  that  is  a great  many  years  old.  That  goes 
up  near  Skagway. 

No,  White  Hjorse  is  the  name  of  a rapids.  It  derives 
its  name  from  the  fact  that  it  comes  galloping  like  a 
white  horse  there.  There  are  boulders  and  reefs  in  Ihe  stream. 
The  stream  is  lashed  into  ferment  all  the  way  down.  There  was 


1543 


a boat  on  Lake  Marsh,  wliicli  crosses  over  to  Caribou,  where  there 
have  been  boats  running. 

Q.  The  boats  were  actually  run  on  the  rapids  coming 

5159  down?  A.  No  steamboats  were  run  or  can  run  up  there 
through  the  White  Horse.  There  have  been  several  taken 

down,  several  steamers,  small  ones.  One  was  the  Nora,  was  about 
80  feet  long  and  10  feet  beam,  and  the  AVillie  Irwin,  about  the 
same  thing,  and  there  was  one  other  boat  that  was  about  100  feet 
long,  I forget  her  name.  There  have  been  I think  four  boats  taken 
down  over  the  rapids.  They  drew  about  two  feet.  The  80 

5160  foot  boat  carried  about  400  ton  up  stream,  she  had  about 
a 4 foot  draught.  The  100  foot  boat  drew  about  the  same 

amount.  The  AVhite  Horse  Rapids  proper  are  about  a mile  long. 

I have  never  been  on  the  Pellee.  I have  heard  a boat  went  up 
there  60  miles,  but  how  much  farther  she  could  have  gone  I do 
not  know.  I used  this  process  of  cordelling  in  the  days  of 

5161  my  early  batteau  ex])erience.  In  a batteau,  we  took  the 
line  in  a batteau  right  up  to  the  bank  and  the  men  jumped 

out  and  go  alon^  that  way  and  line  up  around  those  swift  waters. 
And  in  warping,  why  you  would  take  the  skiff  alongside  and  put 
your  rope  in  it  and  carry  the  rope  up  above  and  then  run  the  end 
back  to  the  big  boat  and  put  it  on  the  capstan  and  wind  up  there. 
And  sometimes  if  the  bank  is  good  they  just  jump  out  and  run 
along  side  the  bank  with  the  line,  pass  the  line  up  on  the  bank  and 
make  it  fast  and  shove  her  out  and  wind  her  up.  That  is  the  prac- 
tice in  common  use  on  the  Snake  and  Clearwater  and  everywhere 
in  the  swift  water  streams,  and  it  is  still  in  common  use  on  the 
Snake.  AVherever  a steamboat  can  go  they  put  out  a line,  and 
then  they  handle  it  with  the  capstan.  On  the  rapids  above  Lewis- 
ton there  never  has  been  a boat  went  up  through  there  that 

5162  was  run  without  a line.  Those  boats  that  run  on  the  Snake 
on  their  own  power  in  still  water  when  carrying  the  ordinary 

load  of  freight  are  about  12  mile  boats.  Coming  down  the  stream 
sometimes  on  the  Snake  River  we  would  go  more  than  twice  that 
fast.  Well,  I have  considered  that  sometimes  I went  35  miles 
an  hour,  but  I wouldn’t  swear  to  it. 

Q.  When  did  you  arrive  in  Chicago  on  this  occasion.  Captain? 
A.  Saturday  night  at  10:05. 


1544  Gray, — Cross-Exam. — Continued. 

Q.  And  yon  went  down  to  the  Desplaines  Elver  yesterday?  A. 
Yes,  sir. 

5163  Q.  On  Sunday?  A.  Yes,  sir. 

Q.  Who  were  with  you?  A.  There  was  Mr.  Logan,  Mr. 
Munroe  and  Mr.  Norton.  AYe  left  Chicago  Sunday  afternoon  and 
went  down  with  this  party  between  two  and  three  o’clock.  AYe 
got  back  here  about  half  past  eight,  I think  it  was;  somewhere 
close  to  that.  I didn’t  look  at  my  watch.  AYe  come  back  by  rail 
from  Joliet  and  went  by  rail  to  Joliet.  AYe  used  an  automobile 
from  there,  made  the  trip  from  Joliet  down  to  the  site  of  this 
proposed  dam  and  back  again. 

5164  Q.  You  came  on  here  for  the  purpose  of  giving  testimony 
in  this  case?  I suppose  so.  I didn’t  know  what  I was  coming 

for  until  I got  here. 

Q.  You  received  a message  requesting  you  to  come  on?  A. 
Yes,  sir. 

Q.  And  you  came  in  pursuance  of  that  message?  A.  Yes,  sir, 
that  came  from  the  counsel  for  the  defense. 

Re-direct  Examination. 

Q.  And  you  have  traveled  all  over  these  rivers  with  Mr.  Starr 
and  noted  their  difficulty,  and  having  that  in  mind,  are  you  still  of 
the  opinion  that  the  Desplaines  Eiver  is  not  safely  navigable  for 
boats?  A.  Yes,  sir. 

Q.  You  were  asked  whether  you  referred  to  navigability  as 
compared  to  the  use  of  railroads,  when  you  said  the  Desplaines 
Eiver  was  not  in  your  opinion  navigable.  Did  you  mean  that 
its  navigation  would  not  be  commercially  practicable  in  competi- 
tion with  railroads,  or  that  it  was  not  a navigable  stream? 
(Objected  to  as  not  proper  re-direct;  overruled.) 

5165  A.  It  is  most  certainly  not  practicable  in  competition  with 
railroads,  and  I don’t  think  it  would  be  practicable  in  competi- 
tion with  wagons. 

Counsel  for  Defendant.  Q.  Having  had  your  mind  refreshed 
with  all  the  difficulties  that  you  have  gone  over,  it  is  still  your 
opinion  that  you  could  not  safely  .take  boats  up  and  down? 


1545 


A.  Yes,  sir,  that  is  my  opinion. 

At  Sqnally  Hook  in  extreme  low  water  in  the  rapids 
there  is  a depth  of  eight  and  ten  feet.  In  the  rapids 
proper  there  is  a rock,  right  in  the  head,  where  the  water 

is  eight  or  ten  feet  deep,  but  at  the  lower  end  where  it 

5166  turns  oft,  there  is  only  about  four  feet  of  water.  The  char- 
acter of  the  bed  there  is  broken  rock  and  gravel.  IVell,  it 

is  boulders. 

Q.  Now,  the  upper  Umatilla,  what  is  the  depth  on  the  rapids 
there?  A.  There  is  no  place  that  you  come  over,  except  over  a 
rock,  except  it  has  been  blown  out  of  the  channel,  where  it  is  less 
than  five  feet  at  low  water,  but  it  is  very  crooked  and  an  innumer- 
able number  of  those  channels  that  are  much  shallower  than  the 
one  that  we  followed.  The  one  we  followed  at  the  extreme 

5167  low  water  in  our  navigation  had  about  five  feet  of  water.  The 

Yukon  channel  was  probably  300  feet  wide  and  about  5 feet 

deep,  clear  of  boulders  in  the  channel. 

The  White  Horse  Bapids  are  between  400  and  500  feet  in  width. 
It  is  not  shallow.  When  I speak  of  depth  I mean  depth  in  the 
clear.  The  channel  in  the  Stikine  at  the  place  where  the  teees 
come  over,  from  bank  to  bank,  is  about  400  feet,  but  the  chan- 

5168  nel  probably  where  the  boats  could  run,  is  not  over  75  feet. 
Its  depth  was  about  34  feet  and  its  bed  was  small  gravel.  At 

Five  Mile  Bapids  there  was  a dry  reef.  There  is  no  place  in  the 
channel  proper  where  there  is  less  than  eight  feet.  At  Fish  Hook 
Bapids  there  was  2 feet  of  water  on  the  left  and  the  deepest  water 
was  on  the  right,  about  54  to  6 feet.  The  Long  Crossing  Bapids  was 
the  shoalest  place  in  the  Snake  Biver  and  the  depth  of  channeli 
there  at  lowest  depth  was  thirty  inches. 

5169  Q.  And  three  feet  at  the  channel?  A.  Two  feet  and  a 
half  at  dead  low  water. 

Q.  Yes.  Now,  the  Bescue  Island  you  said  was  basalt  reef. 
What  were  the  depths  at  the  Bescue  Island  Bapid?  A.  The  reefs 
at  low  water  protrude  from  the  surface,  but  by  going  above,  see- 
sawing down  and  going*  up  and  see-sawing  down  again,  we  got 
through  the  channel,  and  there  was  probably  six  or  eight  feet  of 
water.  At  False  Palouse  I never  saw  less  than  eight  feet  of 
water. 


1546  Gray, — Re-direct  Exam, — Continued. 

Q.  At  Palouse  Rapids  itself,  what  is  the  depth  of  the  water? 
A.  Unknown. 

Q.  Very  deep?  A.  Very  deep.  In  very  low  water  at  the 
upper  end  of  Palouse  the  boulders  extend  almost  across,  making 
the  channel  very  swift,  and  they  are  only  about  five  feet  under 
water. 

Q.  Five  feet  under  water?  A.  Yes. 

Q,  That  is  at  lowest  navigable  water?  A.  That  is  at  lowest 
navigable  stream. 

Q.  What  is  the  depth  at  Monumental  Rapids  under  similar 
conditions?  A.  About  30  inches,  two  feet  and  a half. 

Q.  That  is  clear  of  boulders?  A.  Clear  of  gravel. 

Q.  At  the  Texas  Rapids,  what  is  the  depth  at  low  water? 

5170  A.  Texas  Rapids,  there  is  quite  a depth  there,  near  the 
head.  We  have  to  go  over  rocks  that  are  about  five  feet 

under  water. 

Q.  Now,  Priest  Rapids,  what  is  the  effect  of  high  and  medium 
stages  of  water  upon  Priest’s  Rapids?  A.  It  raises  the  water 
over  a dry  channel.  It  fills  a dry  channel  on  the  Douglass  County 
side  and  allows  steamboats  to  pass  up,  around  a canal,  which  is 
very  swift  and  turbulent. 

Q.  What  depth  of  water  do  you  have  then?  A.  About  five  feet. 
I went  down  it  and  up  it  in  a medium  stage  of  water.  It  is  navi- 
gable but  it  is  only  navigable  at  medium  and  high  stage. 
At  Jow  water  it  pours  right  into  a sluice  which  is  prob- 
ably a hundred  feet  wide  and  the  whole  of  the  river  goes  right 
through  that  one  sluice,  so  I couldn’t  tell  about  the  slope;  it 

5171  is  impossible  for  a boat  to  climb.  At  the  Cabinet  Rapids 
there  was  more  than  ten  feet  of  water.  At  Rock  Island 

Rapids  there  is  not  an  extreme  amount  of  current  there,  and  at 
the  narrowest  point  I think  the  water  was  about  8 feet  when  I 
went  through.  But  the  water  gets  low,  the  channel  that  a steam- 
boat has  to  go  through  becomes  almost  dry  and  the  rocks  stick 
out  of  the  water.  The  water  percolates  through  between  innumer- 
able channels  that  are  not  wide  enough  for  a steamboat  to  go 
through. 


1547 


Q.  How  do  you  get  the  steamboat  through!  A.  You  don’t 
get  through  there  in  low  water.  I wasn’t  - at  the  Chelan 
5172  Eapids  at  extreme  low  water;  when  I was  there,  there  was 
about  8 feet  of  water. 

Q.  And  on  that  trip  you  passed  over  the  rapids  near  McLaugh- 
lin’s Falls;  what  was  the  depth  of  the  water  there!  A.  That  I 
couldn’t  say;  we  figured  that  there  was  about  three  feet  and  a 
half  of  water. 

Q.  How  much!  A.  About  three  and  a half  feet. 

Q.  Hills’  Bar,  you  said  the  river  was  600  feet  wide,  fifty  or  sixty 
feet  between  rocks,  a channel  of  50  or  60  feet;  that  was  the  depth 
of  the  river  at  Hill’s  Bar!  A.  I was  very  young  at  that  time 
and  I don’t  remember. 

Q.  Have  you  any  distinct  recollection  as  to  the  character  of 
that  bar  at  all!  A.  I recollect  having  seen  the  rocks  breaking 
in  all  directions  and  that  we  followed  a certain  channel.  How  deep 
it  was,  I don’t  know. 

Q.  You  spoke  of  going  in  the  ‘‘Norma.”  Now,  turning  to  the 
Snake  Kiver,  what  year  was  it  you  went  down  with  the  Norma 
5173  from  Huntington  to  Lewiston!  A.  I believe  it  was  in  1885. 

Q.  Prior  to  that  time  the  Government  had  done  work  on  it, 
hadn’t  it,  between  those  points!  A.  Yes,  sir;  between  Huntington 
and  Seven  Devils. 

Q.  Let  me  read  this  to  you:  I am  reading  from  page  3532  of 
Part  5,  Report  of  Engineers  for  1901. 

Counsel  fok  Complainant.  I submit  that  Is  not  prosier  re- 
direct. 

The  Court.  Yes,  you  brought  out  about  Huntin.o’^--  mid  that 
section,  and  he  didn’t  in  his. 

Counsel  for  Complainant.  Weil,  what  I mean  is,  is  as  to  the 
use  of  extraneous  documents  as  a method  of  elaborating  the  tes- 
timony of  the  witness  is,  I submit,  not  proper  re-direct. 

The  Court.  I think  it  is  proper  under  the  circumstances.  He 
may  call  his  attention  to  Government  Reports. 

Counsel  for  Defendant  (Reading)  : 

“In  1892,  $20,000  and  in  1894  $25,000  were,  as  before  re- 
ferred to,  appropriated  for  the  improvement  of  the  Snake  from 


1548 


Gr ay, — Re-direct  Exam. — Continued. 


Huntington  bridge  down  to  the  Seven  Devils  mining  district. 
Considerable  work  was  done  in  freeing  the  river  from  ob- 
structions in  this  locality;  considerable  plant  was  collected, 
including  drills,  scows,  tools,  etc.,  and  the  work  of  removing 
ledge  rock  and  boulders  was  carried  on  for  several  seasons. 
Only  one  steamer,  the  Norma,  was  ever  built  for  navigating 
this  section  of  the  river,  and  she  made  but  one  trip  and  then 
the  owners  abandoned  the  idea  of  running.  In  1896  all  the 

5174  Government  plant  in  this  portion  of  the  river  was  sold  and 
the  river  improvement  abandoned.’^ 

Q.  That  is  the  trip  that  you  made,  is  it  not.  Captain?  A.  Yes, 
sir,  I brought  the  Norma  down. 

Q.  And  that  is  a correct  statement,  that  is  the  only  trip  you 
ever  made?  A.  No,  she  made  a trip  down  to  Seven  Devils  and 
back. 

The  CouKT.  That  is,  from  Huntington  to  Seven  Devils? 

A.  I went  from  Huntington  to  Seven  Devils  and  back  to  Hunt- 
ington, and  then  she  laid  there  until  the  next  year  and  then  I took 
her  down. 

Q.  To  Lewiston?  A.  To  Lewiston,  yes,  sir. 

Counsel  foe  Defendant.  That  was  the  complete  history  of  her 
experience  on  that  part  of  the  river? 

A.  Yes,  sir. 

Re-cross  Examination. 

5175  They  are  making  some  progress  with  the  development  of 
the  canal  all  the  way  around  the  Dalles,  but  the  canal  is 

not  yet  completed.  It  will  be  a number  of  years  to  come  before 
that  enterprise  can  be  completed.  But  there  is  navigation  below 
it  and  navigation  above  it. 

Q.  You  have  a place  there  in  the  Columbia  Kiver  wheye  there 
are  boats  below  and  boats  above,  but  the  natural  barrier  at  The 
Dalles  is  so  great  that  there  isn’t  any  navigation  through  The 
Dalles  themselves.  A.  Yes,  sir. 

Q.  Is  there  any  place  like  that,  that  you  think  of  now  on  the 
Snake  where  there  is  navigation  above  it  and  navigation  below 
it,  but  not  through  it?  A.  No,  sir;  there  is  no  such  place 

5176  as  that.  It  is  possible  to  take  a steamboat  through  the  Snake 
Kiver  canon,  but  there  are  no  boats  above  since  the  Norma 


1549 


was  brouglit  down;  I don’t  know  but  what  there  may  be  one.  The 
Okanogon  Lake  is  being  navigated  in  British  Columbia.  The 
Okanogon  Eiver  is  being  repaired  by  the  Government  so  that 
boats  can  be  taken  up  there  from  the  Columbia  Eiver.  They  ex- 
pect to  run  there  about  three  months  in  the  year. 

5177  Q.  Eeading  from  this  same  report  from  which  counsel 
read  to  you,  a statement  on  the  same  page, 

^^The  Upper  Columbia  and  Snake  Eivers  having  formed 
one  of  the  most  important  highways  of  travel  in  the  region 
in  early  days  before  the  railroads  were  completed.  Congress 
as  early  as  1872  made  appropriations  for  the  improvement 
of  the  Columbia,  and  in' 1876  the  Snake  was  added  to  the  plan 
of  improvement.” 

Do  you  accept  the  statement  as  correct  that  the  Upper  Colum- 
bia and  Snake  Eivers  formed  one  of  the  most  important  highways 
of  travel  in  the  region  in  the  early  days  before  the  railroads  were 
completed? 

5178  The  Witness.  What  is  the  question? 

Counsel  fok  Complainant.  I simply  put  the  question  to 
you  if  they  did  constitute  the  main  highways  of  travel  before  the 
railways? 

A.  They  most  certainly  did,  yes,  sir. 

Q.  Now  that  the  railways  have  been  developed  on  each  side 
of  it,  the  rivers  do  not  constitute  the  main  highway  of  travel? 

A.  They  do  not,  but  we  are  making  every  effort  to  make  them  so.» 

Q.  You  are  trying  to  hold  on  to  them  all  that  you  can?  A. 
Yes,  sir,  trying  to  develop  them.  Our  State  appropriated  $125,000 
for  the  improvement  of  the  Snake  last  year. 

5179  Re-re-direct  Examination. 

Q.  Assuming,  Captain,  the  Columbia  and  Snake  constituted 
the  most  important  highways  of  travel  in  early  days,  it  was  true, 
was  it  not,  in  that  new  country  where  you  were  brought  up  that 
every  stream  that  was  capable  of  navigation  at  all,  some  way  was 
found  to  navigate  it?  A.  Yes,  sir. 

Q.  Did  you  ever  know  a stream  that  was  capable  of  being 
navigated  that  was  not  navigated?  A.  I never  did. 


1550  Gray, — Re-re-direct  Exam. — Continued. 

5180  In  connection  with  the  cross-examination  of  Captain  Gray, 
maps  of  Oregon  and  Washington,  which  were  used  in  his 

testimony  (marked  June  16  Exhibit  1,  Oregon,  and  2,  Washing- 
ton), were  admitted  in  evidence.  (Atlas,  pages  3987  and  3988; 

Trans.,  pp.  6648-50;  Abst.,  p.  1936.) 

The  Government’s  Engineer’s  report  of  1884,  part  3,  pages 

2229  to  2243,  were  admitted  in  evidence,  as  follows : 

5181  Improvement  of  the  Upper  Columbia  and  Snake  Kivers, 

Oregon  and  Washington  Territories. 

The  plan  of  this  improvement  consists  in  rock  removal  at 
numerous  rapids,  to  give  channel  depths,  at  low  water,  of 
5-1  feet  in  the  Columbia  and  4f  in  the  Snake.  The  original 
estimate  of  cost,  made  in  1877,  of  the  work  as  now  conducted, 
is  $132,000.  The  total  appropriation  since  the  adopation  of 
the  present  project  is  $96,000;  the  amount  of  expenditure 
thereon  is  $93,944.97.  The  estimate  covers  the  reach  of  the 
rivers,  266  miles,  from  Celilo,  Oreg.,  at  the  head  of  the  Dalles 
obstructions  on  the  Columbia,  to  Lewiston,  Idaho,  at  the  junc- 
tion of  the  Snake  and  Clearwater  Eivers,  and  was  made  when 
the  Upper  Columbia  navigation  was  confined  to  that  route. 

Steamers  have  in  late  years,  however,  ascended  the  Snake 
above  Lewiston  for  traffic,  and  also  to  Priest  Eapids,  on  the 
Columbia,  73  miles  above  the  mouth  of  the  Snake.  There  is 
a fast  growing  demand  for  river  transportation  above  Priest 
Eapids,  as  high  as  the  Okinakane  Valley.  These  rapids  offer 
a serious  obstacle  to  continuous  navigation,  but  it  is  believed 
from  reliable  information  that  this  obstruction,  and  certainly 
the  higher  reach,  together  of  150  miles,  and  as  far  as  Foster 
Creek  Eapids,  are  susceptible  of  open  river  improvement. 

5182  An  estimate  from  ^an  examination  in  1881,  for  improving 
the  Snake  above  Lewiston  to  the  mouth  of  the  Brand  Eonde, 
which  appears  to  be  the  head  of  ordinary  continuous  navi- 
gation on  the  Snake,  is  $4,554.  On  the  Columbia,  between  the 
Snake  and  Priest  Eapids,  there  does  not  appear,  from  exam- 
ination and  reports  of  pilots,  to  be  any  need  of  improvement; 
but  I judge  it  is  well  to  allow  $100  per  mile  for  removal  of 
obstruction  which  may  appear  at  extreme  low  stage.  Above 
Priest  Eapids,  except  at  Cabinet  and  Eock  Islands,  where  the 
channels  are  bad,  the  river  is  like  the  original  condition  of 
the  route  from  Celilo  to  Lewiston,  whose  improvement  is 
costing  about  $500  per  mile.  Applying  this  rate  to  the  Poster 
Creek  reach,  and  omitting  the  principal  rapids  named  above, 
we  have  $67,500.  Comparing  those  rapids  to  the  minor  cas- 
cades, where  rock  work  is  in  progress,  as  of  equal  difficulty 
but  of  double  extent,  cost  of  required  improvement  of  the 


1551 


former  may  be  judged  to  be  $400,000,  or  in  the  neigliborhood 
of  $480,000  for  the  Foster  Creek  and  Grrand  Konde  reaches. 
This  proposed  extended  improvement,  like  tliat  now  in  progress 

5183  is  rock  removal  from  channels  between  stable  banks,  where 
navigation  is  impeded  by  boulders,  reefs,  and  rock  masses. 

Beyond  Foster  Creek  there  are  400  miles  of  navigable  water 
on  the  main  river,  reaching  north  of  the  Canadian  Pacific 
Bail  road,  and  nearly  half  as  much  on  the  Kootenay  broken  by 
two  places  where  canals  or  portages  will  be  required.  * * 

Operations  During  the  Year. 

These  consisted  of  an  instrumental  examination  of  the 
Snake  River  below  Lewiston,  and  in  contract  work  on  the 
Snake  at  Five-Mile  Rapid  and  at  the  reef  next  below  Five- 
Mile.  Work  at  Little  Goose  Island  and  Log  Cabin  Island 
Rapids  is  included  in  the  contract,  but  has  not  been  under- 
taken. Extended  time  of  contract  expiration  is  October  31, 
1884. 

At  Five-Mile  Rapids,  rock  projections  aggregating  22.02 
cubic  yards,  were  removed.  Two  of  the  rocks,  designated 
as  4 and  5 on  the  progress  map  herewith,  endangered  descend- 
ing streams.  Rocks  4 and  6 impeded  ascending  boats.  Re- 
moval of  these  rocks  has  made  channels  of  least  depth  and 
width  of  5 and  100  feet  respectively.  xL  difficulty  remains 
in  the  strength  of  current,  caused  by  an  excessive  rate  of  fall 
at  the  crest  of  the  rapid.  iV  reduction  of  this  slope  can  well 
be  undertaken  after  other  rapids  are  improved  to  afford  as 
safe  a passage  as  now  afforded  at  Five-Mile.  The  removal 

5184  of  channel  rocks  complied  with  the  existing  project. 

Since  the  completion  of  the  work,  the  steamer  Spokane  has 
brought  down  full  loads,  experiencing  no  difficulty  in  safely 
passmg  the  rapid,  which  was  formerly  the  worst  one  between 
Riparia  and  Ainsworth.  One  of  these  trips  was  made  at  the 
lowest  record  stage.  Difficulties  in  the  passage  of  the  rapid 
and  over  the  reef  below  decreases  as  the  river  rises. 

At  the  reef  below  Five-Mile,  the  river  has  an  unusual  width. 
Near  the  left  shore  are  two  channels,  throughout  which  were 
irregularly  scattered  boulders  and  rock  points  projecting  from 
the  shoal  reef  bottom. 

The  extreme  left  channel  was  selected  for  improvement, 
as  it  afforded  the  greater  general  depth  and  presented  the 
fewer  obstructions.  From  it  were  removed  18  boulders  and 
rock  points,  aggregating  26.76  cubic  yards.  Only  those  rocks 
which  were  34  feet  and  less  submerged  were  removed,  and 
their  removal  was  to  a depth  of  5 feet  below  low  water.  This 
gave  a depth  of  water  at  no  place  less  than  34  feet  in  a chan- 
nel nearly  straight,  and  100  feet  wide  where  narrowest.  There 
yet  remains  at  the  head  of  the  channel  a large  area  of  reef 


1552  Columbia  and  Snake  Rivers, — Eng.  Rep.  1884.— 


rock,  submerged  from  34  to  5 feet  and  presenting  a very  ir- 
regular surface.  Lower  down  are  a few  boulders  and  pro- 
jecting points,  the  removal  of  which  will  be  required  when- 
5185  ever  a free  depth  of  5 feet  below  low  water  is  called  for. 
The  passage  of  this  shoal  is  now  considered  safe  for  all  steam- 
ers on  the  river.  ^ * 


5187  Eepoet  of  Mr.  Philip  C.  Eastwick,  Assistant  Engineer. 

United  States  Engineer  Office, 

Portland,  Oreg.,  February  26,  1884. 

Sir : In  compliance  with  your  instructions,  I made  a rapid 
examination  of  the  rapids  and  other  obstructions  on  Snake 

5188  Eiver  between  Lewiston  and  its  mouth. 

I left  Lewiston  on  the  12th  of  December,  in  a bateau,  accom- 
panied by  three  men,  and  reached  Ainsworth,  near  the  mouth 
of  the  river,  on  the  29th,  making  the  time  of  eighteen  days 
spent  on  the  river.  The  weather  during  the  latter  part  Af 
this  period  was  very  stormy  and  was  accompanied  by  the 
strong  up-stream  winds  which  are  common  on  the  river  dur- 
ing the  winter. 

Finding  it  impossible  to  make  satisfactory  headway  in  the 
boat  during  the  bad  weather,  I was  detained  in  all  four  days 
thereby.  Six  days  was  consumed  in  examining  Lower  Log 
Cabin  and  Little  Goose  Eapids,  the  clearing  of  which  is  now 
under  contract.  This  left  but  eight  days  devoted  to  the  ex- 
amination of  the  other  parts  of  the  river. 

During  the  progress  of  the  examination  the  fluctuation  of 
the  river,  as  ascertained  from  records  kept  at  Eiparia  and 
Ainsworth,  was  as  follows : 

At  Eiparia,  from  low  water  to  1.1  feet  above  low- water." 
("In  this  report,  low  water  at  Eiparia  is  minus  8 inches  on 
local  gauge,  and  at  i insworth  is  328  feet  above  railroad 
datum. — C.  F.  P.) 

At  Ainsworth  from  'ow  water,  to  five-tenths  feet  above 
low  water. 

The  designated  low  water  is  the  lowest  recorded  water  plane 
as  ascertained  from  continuous  records  at  Eiparia  since  April 
1,  1882,  and  at  Ainsworth  since  March  1,  1882.  * * * 

5189  Appended  hereto  is  a descriptive  list  of  all  rapids,  swifts, 
shoals,  shipping  points,  &c.,  passed  during  the  examination. 
The  list  embraces  51  places  where  rapids,  swifts  or  shoals 
occur. 

The  five  principal  rapids  in  the  order  of  their  occurrence  are 
as  follows:  Texas  Eapids,  Palouse  Eapid,  Pine  Three  Eapid, 
Fish  Hook  Eapid,  and  Five  Mile  Eapid.  These  are  all  below 


I 

i 


1553 


Kiparia  and  are  characterized  by  a great  slope  and  strong 
currents  through  narrow  rock-bound  channels. 

Palouse  and  Five  Mile  Kapids,  it  is  believed  have  been 
cleared  of  dangerous  rocks  to  a depth  at  low  water  of  at  least 
5 feet,  so  as  to  offer  no  insurmountable  impediment  to  steam- 
ers drawing  4 feet  of  water.  The  strong  current  is  the  only 
remaining  impediment,  Init  this  can  be  easily  overcome. 

Texas,  Pine  Tree,  and  Fisli  Hook  liapids,  though  much  im- 
proved by  the  work  that  has  been  done  upon  them,  are  yet 
in  a condition  very  dangerous  to  the  safety  of  both  ascending 
and  descending  steamers. 

The  present  channels  through  them  would  be  considered  safe 
and  ample  in  width  and  depth  were  it  not  for  the  very  strong- 
current  induced  by  the  excessive  rate  of  fall.  This  current  is 

5190  now  so  strong  at  low  -water  that  ascending  steamers  cannot 
stem  it.  These  rapids  must  be  further  critically  examined  and 
the  direction,  velocity,  and  slope  of  the  currents  ascertained 
before  a plan  for  the  effective  removal  of  the  obstacles  to  navi- 
gation can  be  intelligently  determined  upon.  It  is  probable 
that  on  one  or  more  of  these  rapids  the  excessive  fall  will  call 
for  the  use  of  locks  to  open  them  to  navigation  at  extreme 
low  water. 

The  follovNung  list  comprises  all  the  other  ])laces  where  low- 
water  navigation  is  so  seriously  impeded  as  to  call  for  their 
early  improvement : 

Below  Kiparia, — Gore’s  Dread,  Long  Crossing,  Couch  Is- 
land, Rapid,  bar  below  Ford’s  Island,  Copeley’s  Cut-off,  Three 
Island  Bend,  Tiger-head  Crossing,  Ferine ’s  Defeat,  Ains- 
worth’s Bar,  and  bar  at  mouth  of  river. 

The  passage  of  many  of  those  ])laces  is  impeded  by  strong 
currents  and  is  accompanied  by  risk  of  damage  fo  steamers. 

Intermediate  between  the  rapids,  shoals,  &c.,  noted  in  the 
appended  list  are  reaches  of  slack  water,  sometimes  of  con- 
siderable length,  where  the  general  depth  is  ample  for  low- 
water  navigation,  and  where  no  disturbance  of  the  water  in- 

5191  dicates  the  presence  of  obstructions.  From  the  river  cap- 
tains, however,  I learn  that  the  channel  at  many  places  is  ob- 
structed by  submerged  boulders,  requiring  good  pilotage  to 
avoid.  At  none  of  these  intermediate  places,  however,  do  I 
consider  it  necessary  to  make  improvements  until  the  chan- 
nel at  the  more  dangerous  rapids  is  cleared. 

The  bed  of  the  river  on  the  rapids,  shoals,  and  swifts,  ex- 
cept where  otherwise  noted  in  the  appended  list,  is  of  flat, 
water-worn  cobble-stones  mixed  with  a flner  material  and 
generally  spotted  over  with  boulders  or  projections  of  rock 
from  concealed  reefs  below  the  cobble-stone.  The  cobble- 
stones are  closely  packed  and  make  a very  hard  and  firm  bed, 
which  the  strongest  currents  of  the  river  fail  to  move.  It  ap- 
pears quite  probable  that,  in  most  cases,  where  such  material 


1554  Columbia  and  Snake  Rivers, — Eng.  Rep.  1884. — Con. 


forms  the  obstructing  bars,  if  once  removed  by  blasting  and 
scraping,  they  will  not  speedily  reform. 

To  estimate  the  amount  of  work  to  be  done  at  each  of  the 
places  where  obstructions  are  found  involves  the  defining  of 
the  channel,  which  it  is  impossible  to  do  without  a survey, 
more  or  less  complete,  made  with  appliances  specially  adapted 
to  make  the  examination  in  swift  water.  The  surveys  and 
measurements  of  the  obstructions  have  heretofore  been  made 
at  the  time  the  improvements  were  in  progress,  with  the  use 

of  the  contractor’s  scow  securely  moored  at  the  obstructions. 

* * * 

5193  Biparia  is  now,  and  has  been  since  the  completion  of  the 
railroad,  the  lower  terminus  of  a steamboat  route  terminating 
above  at  Lewiston.  This  division  of  the  river  is  more  free 

5194  from  obstructions  than  the  division  below  Biparia  and  is 
navigable  at  all  times  except  when  obstructed  by  ice,  though 
at  the  lower  stages  only  by  the  light  draught  steamers. 

The  navigation  of  parts  of  the  lower  division  of  the  river 
is  possible  at  extreme  low  water,  and  that  only  by  the  lightest 
draught  steamers,  the  ascent  of  the  river  being  practically 
barred  at  Long  Crossing.  With  the  present  railroad  connec- 
tions navigation  of  the  river  will  probably  be  continued  under 
the  two  divisions  named,  the  upper  end  of  the  lower  division 

being  at  some  point  below  the  principal  obstructing  rapids. 
# * * 


5195  Bespectfully  submitted, 

Philip  G.  Eastwick, 

Assistant  Engineer. 


Capt.  Chas.  F.  Powelx., 

Corps  of  Engineers,  U.  S.  A. 


Description  of  Bapids^  Shipping  Points,  Etc.,  on  Snake 

Brh:r  Below  Lewiston,  Idaho. 

* 

2.  Lewiston  Bapids. — Opposite  Lewiston  and  above  the 
mouth  of  Clearwater.  Th'e  channel  is  straight,  narrow  and 
deep,  with  a strong  current  and  no  obstructions.  The  strong 
current  extends  over  a length  of  about  2,000  feet  of  the  river, 
with  a fall  of  4.2  feet.  At  the  head  of  the  rapid  2.6  feet  of 
this  fall  occurs  in  a length  of  600  feet  (an  average  of  0.43  feet 
per  100  feet  of  length),  including  an  excessively  rapid  cur- 
rent. Through  this  current  steamers  ascend  at  low  water  with 
5196  the  assistance  of  line  and  capstan.  (See  profile  of  water- 
surface  on  left  shore.)  At  a stage  of  five-tenths  feet  above 
low  water  the  intensity  of  the  current  is  so  far  reduced  that 
steamers  can  ascend  without  lining. 

The  intensity  of  the  current  can  be  reduced  by  widening  the 
channel  at  the  place  of  greatest  slope,  thus  lowering  the  crest 


1555 


and  distributing  the  fall  more  uniformly  over  a greater  length. 

7.  Eapid  Above  Whitens  Ferry. — Channel  slightly  curved 
water  deep.  The  total  fall  is  3.2  feet  in  a distance  of  about 

5197  2,100  feet.  At  two  points  on  the  rapid  the  river  is  con- 
tracted to  a width  of  from  300  feet  to  350  feet,  causing  chutes 
where  the  water  falls  for  short  distances  at  a more  rapid  rate, 
and  the  current,  which  throughout  the  rapid  is  generally 
strong,  is  intensified. 

At  the  chutes  the  water  is  very  turbulent.  The  strong  cur- 
rent on  this  rapid,  though  retarding  ascending  steamers,  does 
not  necessitate  a resort  to  lining.* 

Above  the  head  of  the  rapid  is  a diagonal  bar  extending 
from  the  foot  of  island  on  the  left,  above,  down  to  the  exposed 
bar  on  the  right  below.  This  makes  an  extensive  shoal, 
spotted  with  numerous  small  boulders,  to  avoid  which  steam- 
ers are  obliged  to  follow  a tortuous  course.  General  depth 
on  the  shoal  is  4 feet.  (See  profile  and  sketch.) 

No  obstructions  are  found  on  the  rapids.  The  only  improve- 
ment required  is  the  widening  of  the  river  at  the  chutes  to  dis- 
tribute the  fall  with  greater  uniformity  over  the  length  of  the 
rapid. 

At  the  shoal  above,  the  selection  of  a channel  and  its  im- 
provement by  the  removal  of  the  small  boulders  and  deepen- 
ing would  be  beneficial,  though  not  immediately  necessary. 
* # * 

5198  10.  Steptoe  Eapids. — A short,  strong  rapid  in  an  abrupt 
curve  of  the  river,  with  shoal  above.  The  channel  in  the  rapid 
is  deep  and  otfers  no  material  obstruction  to  navigation,  ex- 
cept that  of  the  current,  which  makes  it  necessary  to  line  over ; 
only,  however,  at  extreme  low  water. 

On  the  shoal  above  the  rapids,  the  minimum  depth  is  four 
feet  with  a number  of  small  obstructing  boulders. 

Deepening  the  channel  through  the  shoal  above  the  rapid, 
and  the  removal  of  the  small  obstructing  boulders  there  will 
materially  improve  the  rapid.  This  work  however,  is  not  im- 
mediately called  for.  Further  examinations  and  surveys 
should  be  made  with  a view  to  ascertain  the  practicability  of 
opening  a straight  channel  to  the  left  of  the  Middle  Cobble- 
Stone  Bar.  (See  accompanying  sketch.)  * * * 

12.  Little  Pine  Tree  Eapids. — (See  accompanying  sketch 
and  profile.)  Strong  current  falling  6.1  feet  in  2,500  feet 
length  of  channel,  4 feet  of  which  fall  occurs  in  a distance  of 
1,300  feet,  where  a very  strong  current,  accompanied  by  rough 
water,  is  induced.  Ascending  steamers  line  over  this  at  ex- 
treme low  water.  The  channel  is  deep,  except  at  the  head, 
where  it  is  obstructed  by  rock  (probably  boulders),  but  2J 

5199  feet  submerged.  It  is  narrow,  though  not  objectionably  so. 


1556  Columhia  and  Snake  Rivers — Eng.  Rep,  1884.— 

except  in  the  vicinity  of  the  rocks  above  referred  to,  where 
some  of  the  obstructions  are  situated  in  mid-channel. 

The  removal  of  these  rocks,  and  probably  the  widening  of  the 
channel  at  the  projecting  point  on  the  left,  will  be  necessary 
to  insure  a safe  passage  of  steamers.  * * * 

5200  18.  Shoal  Below  Bishop  ^s  Bae. — The  minimum  general 

depth  on  this  shoal  is  64  feet,  but  it  is  spotted  over  with  many 
rock  projections,  probably  large  boulders),  which  compel 
steamers  to  pursue  a crooked  course.  The  removal  of  rock 
from  a selected  channel  is  all  that  is  required  to  permanently 
improve  this.  * * ^ 

21.  Eapid  Above  Gkanite  Point. — The  channel  is  appar- 
ently nearly  straight.  It  lias  a minimum  depth  of  54  feet,  but 
is  much  obstructed  by  boulders,  which  necessitates  extraordi- 
nary care  in  piloting  steamers  through  it.  Passing  steamers 
have  frequently  been  damaged  in  passing  here.  The  removal 
of  the  obstructing  boulders  through  a s.elected  channel  is  nec- 
essary to  make  the  navigation  safe.  * * 

5201  24.  Uppek  Log  Cabin  Eapids. — A long  rapid  opposite  the 
head  of  Log  Cabin  Island,  with  strong  and  deep  water  and  no 
obstructions.  Ascending  steamers  are  impeded  by  the  strong 
current,  which  they,  however,  overcome  without  lining.  * * * 

25.  Lowek  Log  Cabin  Eapids. — (See  accompanying  sketch 
and  profile.)  The  river  at  this  point  is  divided  into  two  water- 
ways at  low  water  by  a low  cobble-stone  bar.  To  the  right  of 
this  bar  lies  the  channel  now  used  by  steamers  at  low  water. 
To  the  left  of  the  bar,  where  the  greatest  width  of  river  is 
found,  are  the  middle  and  left  channels. 

Eeferring  to  the  accompanying  sketch,  the  right  channel  A 
B is  narrow,  deep  and  rapid,  and  can  be  ascended  by  steamers 
above  A and  around  the  foot  of  Log  Cabin  Island  at  B,  at  low 
water  only  with  assistance  of  line  and  capstan.  The  lower  part 
of  the  channel  at  A,  is  much  obstructed  by  ledge  rock  and 
boulders,  14  feet  to  2 feet  submerged,  which  in  conjunction 
with  the  strength  of  the  current  and  the  narrowness  of  the 
channel  makes  the  ascent  of  the  rapids  at  this  place  difficult 

5202  and  dangerous.  The  removal  of  four  or  five  rocks  aggregat- 
ing but  8 to  10  cubic  yards  will  free  this  channel  from  rock 
obstructions. 

A branch  channel  to  the  left  of  the  lower  part  of  the  last 
named  'channel,  and  separated  from  it  by  a shoal  middle 
ground,  carries  a depth  of  4 feet  at  the  head  where  it  is  shoal- 
est.  A few  boulders  near  C,  but  little  submerged,  obstruct 
this  passage. 

The  current  in  this  channel,  marked  A,  though  of  less  slope 
than  that  marked  C,  is  much  stronger,  being  accelerated  by  the 
strong  current  in  the  upper  part  of  the  rapid  at  B,  which,  how- 
ever, has  but  little  accelerating  effect  on  the  current  at  0. 


1557 


Steamers  both  ascending  and  descending  the  right  channel  find 
it  impossible  to  make  the  abrupt  turns  above  B and  between  A 
and  B without  stopping  to  drift  into  position. 

The  middle  channel  is  at  present  impassable  at  low  water, 
on  account  of  the  shoalness  of  the  water  and  the  presence  of 
numerous  small  boulders  scattered  over  the  shoal  above  the 
submerged  bar  which  projects  from  the  foot  of  the  exposed 
bar  below  Log  Cabin  Island.  * * * The  middle  channel 
for  the  past  few  years  has  been  gradually  shoaling,  and  it  is 
not  now  considered,  navigable  at  low  wmter. 

5203  The  left  channel  following  close  to  the  left  shore  is  nearly 
straight  and  generally  with  an  ample  depth,  and  a width  of  60 
to  80  feet  and  more.  It  is,  however,  contracted  at  the  two 
rapids  indicated  on  the  sketch  by  the  rough  rock  detritus 
brought  down  from  the  bluffs  on  the  bank. 

The  strong  current  of  the  river  has  trailed  these  points 
down-stream,  forming  shoal  and  narrov/  bars  of  coarse  mate- 
rial. * * The  channel  is  further  obstructed  by  rocks, 

principally  small  boulders  above  and  below  the  rapid  at  E.  Ow- 
ing to  the  risk  of  damage  to  steamers  in  passing  the  rocks,  this 
channel  is  not  used  now  at  low  water.  At  times,  ascending 
steamers  use  part  of  this  channel  as  far  up  as  the  foot  of  the 
rapid  at  E,  and  then  drift  over  into  the  upper  part  of  the  mid- 
dle channel,  through  which  they  continue  the  ascent. 

This,  however,  is  only  practicable  with  the  lightest  draught 
steamers,  and  that  probably  not  at  the  extreme  low  stage. 

Except  on  a small  reach  of  the  upper  rapid  where  the  shoal- 
est  water  is  6 feet  deep,  the  left  channel  shows  in  its  middle  a 
general  depth  exceeding  ten  feet  below  and  at  least  8 feet 
above  the  shoal. 

5204  By  the  removal  of  the  rocks  referred  to  and  of  the  coarse 

material  forming  the  trailing  bars,  the  slope  on  the  two  rapids 
will  be  distributed  over  longer  reaches,  the  rapid  to  a certain 
extent  reduced,  and  the  channel  freed  for  the  passage  of  steam- 
ers. * * * 

5205  32.  Atwood  Island  Rapid. — Straight  chute  with  7 to  8 
miles  current,  and  minimum  depth  of  7 feet.  No  obstructions. 

33.  Rapid  Above  Penawwa.— (See  accompanying  sketch.) 
Strong  current,  and  general  ample  depth  of  5 feet  on  the  rapid. 
The  channel  is  somewhat  narrowed  by  boulders  on  the  right 
and  a shoal  at  the  head  of  bar  on  the  left.  The  removal  of  a 
few  of  the  boulders  to  increase  the  width  of  the  channel  would 
be  beneficial,  though  not  at  present  necessary. 

Below  the  rapid  is  a short,  crooked  bend  in  the  channel 
which  can  be  materially  straightened  by  the  removal  of  a 
few  boulders.  * * * 

5206  35.  Rapid  Below  Penawawa. — (See  accompanying  sketch.) 
Current  6 to  7 miles  per  hour.  Minimum  depth,  5 feet.  The 


1558  Columbia  and  Snake  Rivers, — Eng.  Rep.  1884. — Co7i. 

channel  is  unobstructed  but  crooked.  It  can  be  somewhat 
straightened  by  the  removal  of  a few  boulders  from  the  shoal 
at  head  of  the  island.  No  difficulty  is  experienced  by  passing 
steamers.  * * * 

37.  Shoal  Below  Centkal  Fekky. — (See  accompanying 
sketch.)  This  shoal  carries  a minimum  general  depth  of  6 feet 
in  mid-channel,  but  the  channel  is  obstructed  by  numerous 
boulders  from  2 to  24  feet  submerged,  which  can,  however,  be 
avoided  by  careful  pilotage.  Improvements  by  the  removal  of 
a few  boulders  would  be  desirable. 

38.  Shoal  Ckossing  and  Swift  Above  Diamond  Point. — 
The  shoal  and  swift  are  separated  by  a short  reach  of  deep  and 
unobstructed  slackwater.  At  the  shoal  crossing  the  current  is 
moderate,  and  depth  34  to  4 feet.  The  channel  here  is  some- 
what obstructed  by  small  boulders.  Ascending  steamers  slow 
down  in  passing.  The  channel  through  the  shoal  is  400  to  500 

5207  feet  long.  An  improvement  by  deepening  the  channel  and  by 
removing  a number  of  small  obstructing  boulders  will  benefit 
the  place,  though  by  reason  of  the  moderate  current,  which  of- 
fers but  littie  resistance  to  ascending  steamers,  the  removal  of 
the  boulders  is  all  that  is  absolutely  necessary. 

Through  the  swift  below  is  a straight  channel  with  ample 
depth  of  water.  * * * 

42.  Big  Goose  Island  Eapid. — (See  accompanying  sketch.) 
— Strong  current  in  channel  opposite  Big  Goose  Island,  on  the 
rapid,  the  head  of  which  is  at  the  foot  of  the  island  the  water 
is  very  turbulent,  the  channel  is  crooked  and  has  a minimum 
depth  of  54  feet.  No  difficulty  is  encountered  by  passing  steam- 
ers. No  obstructions  have  been  discovered  or  reported. 

43.  Little  Goose  Island  Rapids.  (See  accompanying 
sketch  and  profile.) — A swift  of  moderate  current  extending 
from  head  of  Little  Goose  Island  to  a point  about  1,800  to 

5208  1,900  feet  below  the  foot  of  the  island.  This  though  called  a 
rapid  by  the  river  men  is  more  properly  designated  by  the 
term  ^ swift.  ’ At  the  head  is  a swift  chute  where  the  least  depth 
of  water  is  5J  feet  and  the  current  for  a short  distance  is  from 
6 to  7 miles  per  hour. 

Below  this  chute  and  abreast  of  the  island  an  ample  gen- 
eral depth  of  8 feet  and  more  is  found.  Below  the  foot  of 
the  island  the  water  shoals  to  a minimum  depth  of  54  feet  at 
the  crossing  of  a long  bar  which  extends  from  the  foot  of  the 
island  on  the  left  side  of  the  channel  down  to  the  exposed  bar 
on  the  right.  The  channel  through  this  bar  and  the  approaches 
to  it  from  above  and  below  is  more  or  less  obstructed  by  sub- 
merged boulders,  the  presence  of  many  of  which  is  not  indi- 
cated by  any  disturbance  of  the  water;  they  are,  therefore, 
with  difficulty  avoided  by  passing  steamers. 


1559 


Levels  of  tlie  water  surface'  on  the  left  shore  shows  the  fall 
over  a distance  of  3,000  feet  of  the  rapids  to  be  as  follows: 

Feet. 


From  a point  1,150  feet  above  foot  of  island  to  a point  550 
feet  above  foot  of  island,  600  feet,  0.3 

From  a point  550  feet  above  foot  of  island  to  foot  of  is- 
land, 500  feet,  0.8 

From  foot  of  island  to  foot  of  rapid,  1,850  feet,  1.6 


Total  in  3,000  feet,  2.7 


The  removal  of  the  boulders  referred  to  is  all  that  is  -re- 

5209  quired  to  free  the  channel  in  the  vicinity  of  the  bar.  Their 

position  and  contents  can  only  be  ascertained  by  a careful 
survey.  * * * 

45.  Texas  Eapid,  a Shoet  Distance  Below  Rtparia. — This 
rapid  is  1^  miles  long,  and  falls  in  that  distance  14.45  feet,  or 
at  an  average  rate  of  11.56  feet  per  mile.  Mr.  R.  M.  Tabor  re- 
ports a fall,  as  ascertained  in  1881,  over  a distance  of  4,500 

5210  feet  of  12.72  feet,  or  at  the  rate  of  14.92  feet  per  mile.  The 
channel  and  water-ways,  throughout  the  length  of  the  rapid 
pass  through  very  irregular  rock  reefs,  extensive  areas  of 
which  project  above  the  surface  of  the  wmter,  or  are  but  little 
submerged,  and  obstruct  the  channel  or  narrow  it.  The  as- 
cent of  this  rapid  cannot  be  made  at  low  water  by  steamers 
without  lining,  and  is  then  accompanied  with  much  risk.  The 
descent  of  the  rapid  is  also  to  a considerable  degree  hazard- 
ous. It  is  probable  that  the  strong  current  induced  by  the  ex- 
cessive rate  of  fall,  which  on  short  reaches  will  exceed  the 
maximum  rate  given  above,  will  so  impede  the  progress  of  as- 
cending steamers  that  it  will  be  found  necessary  to  resort  to 
slack-water  navigation.  A determination  of  this  question  and 
the  projection  of  a plan  of  improvement  should  be  preceded 
by  a more  critical  survey  and  examination  than  has  hereto- 
fore been  made.  A map  of  this  rapid  was  made  by  Mr.  R.  M. 
Tabor,  assistant  engineer,  and  published  in  the  annual  report 
of  the  chief  of  engineers  for  1881. 

46.  Huntee/s  Rapid.— a short  distance  above  Grange  City. 

This  rapid  is  short,  with  turbulent  water,  and  has  a deep 
channel,  but  slightly  crossed  and  flanked  with  submerged 
rock  walls.  Though  not  materially  obstructed  the  removal  of 
a large  rock  containing  from  20  to  30  cubic  yards,  would  en- 
tirely free  and  straighten  the  channel.  * * * 

5211  48.  Palouse  Rapid. — Since  the  improvements  which  have 

heretofore  been  made  on  this  rapid  the  channel  through  it 
is  considered  perfectly  safe.  The  channel  is  generally  nar- 
row between  low  rock  walls,  and  carries  a strong  current 
with  numerous  strong  whirls.  The  fall  through  the  narrow 
channel,  as  ascertained  by  Mr.  Tabor,  is  1.3  feet  in  1,700 
feet  length,  or  at  the  rate  of  4 feet  per  mile.  * * * 


1560  Columhia  and  Snake  Rivers, — Eng.  Rep.  1884. — Con. 

51.  Eapid  Below  Palouse. — short  rapid  with  5 to  6 
mile  current.  Channel  slightly  crooked,  with  a least  general 
depth  of  6 feet.  It  is,  however,  shoaled  by  boulders,  so  that 
passing  steamers  have  to  carefully  pick  out  a route,  which, 
however,  can  be  readily  done.  This  rapid  pres^ents  no  seri- 
ous obstacles,  but  the  removal  of  a number  of  boulders  would 
be  beneficial. 

52.  Skiff  Bar  Eapid. — A short  rough  rapid,  with  slightly 
crooked  channel.  Depth  generally  6 feet  and  more  except 

5212  where  shoaled  by  boulders  which  deflect  the  channel,  but  do 
not  entirely  obstruct  it.  No  material  impediment,  but  the 
removal  of  boulders  would  be  desirable  in  order  to  straighten 
the  channel. 

53.  False  Palouse  Eapid. — Strong  water  and  narrow  and 
straight  channel  flanked  with  submerged  rocks  which  make 
numerous  whirls.  No  obstructions  are  apparent.  The  mini- 
mum depth  is  5 1/2  feet  above  the  rapid.  This  rapid  has 
been  improved  by  the  Government,  and  the  obstruction  it  is 
believed  effectually  removed. 

54.  Eapid  Above  GoreIs  Dread. — A short,  rough  water 
rapid  with  whirls,  and  no  apparent  obstructions.  Minimum 
depth  5 1/2  feet. 

55.  GoreIs  Dread. — A shoal,  rocky"  place,  with  perhaps 
ample  general  depth,  but  the  bottom  is  irregular,  with  many 
rock  projections  or  boulders,  which  makes  its  navigation  dif- 
ficult. The  short  stay  here  prevented  the  discernment  of  a 
proper  channel.  This  shoal  should  he  improved  by  carefully 
selecting  a channel  and  freeing  it  of  the  obstructing  rocks 
and  boulders. 

56.  Monumental  Eapid. — This  rapid  is  short  and  has  a 
fall  of  1.7  feet  from  head  to  foot.  It  is  characterized  by  a 
bar  extending  diagonally  across  the  channel.  At  the  deepest 
part  of  this  bar  passage  is  obstructed  with  projecting  reef 
rock,  which  should  be  removed.  Two  other  rocks,  the  one 
at  the  head  of  the  rapid  and  the  other  at  the  foot,  should  be 

5213  removed  to  afford  an  unobstructed  passage  through  the  rapid. 
It  will  probably  be  found  necessary  to  lower  the  gravel  bar 
in  addition  to  removing  the  rocks  noted,  and  also  to  remove  a 
few  smaller  boulders.  The  work  heretofore  done  by  the  Gov- 
ernment contractors  on  this  rapid  has  not  materially  benefited 

it_  ^ ^ ^ 

58.  Eapid  Below  Wastuckna  Ferry. — At  the  head  is  a 
diagonal  gravel  bar  with  a minimum  depth  of  44  feet.  The 
water  is  dee])  elsewhere  but  the  channel  is  somewhat  ob- 
structed by  a few  projecting  rocks  near  the  foot  of  the  rapid. 
The  channel  is  straight  except  at  the  head  where  the  diagonal 
l)ar  is  crossed.  This  rapid  offers  but  slight  impediment  to 
navigation. 


1561 


59.  Pine  Tkee  Eapid. — A strong,  rocky  rapid,  a mile  long, 
with  a fall  of  11  to  12  feet.  Surveys  of  tliis  rapid  were  made 
in  1877  and  1879,  and  maps  published  in  the  annual  reports 
of  those  years. 

The  work  heretofore  done,  though  quite  extensive  and  im- 
portant in  its  results,  has  not  sufficiently  cleared  the  channel 
to  make  the  passage  by  steamers  safe.  A number  of  rocks  in 
the  new  channel  at  .the  head,  and  also  opposite  the  foot  of 
the  upper  island,  should  be  removed.  * * * Xhe  current 

5214  is  very  strong  through  a narrow  channel,  and  broken  with 
strong  whirls.  The  impediments  to  navigation  appear  to  be 
due  to  the  excessive  current  on  parts  of  the  rapid,  which 
steamers  have  to  avoid  in  ascending,  thereby  throwing  them 
out  of  the  channel  heretofore  improved. 

Further  surveys  and  examinations  are  necessary  to  define 
the  work  of  future  improvement. 

60.  Kescue  Island  Rapid.  (See  accompanying  sketch.) 
A short,  rough  rapid,  with  crooked  channel,  due  to  deflection 
by  boulders.  Minimum  depth  at  head  is  6 feet.  No  imme- 
diate improvement  is  required  here,  as  it  is  considered  fairly 
safe  for  passing  steamers.  This  rapid  is  in  the  channel  to  the 
left  of  Rescue  Island.  The  passage  to  the  right  of  the  island 
is  entirely  obstructed  at  its  head  by  high  exposed  columnar 
basalt. 

61.  Long  Crossing. — (See  accompanying  sketch.)  A com- 
pacted cobble-stone  bar,  extending  from  the  lower  point  of 
Rescue  Island  to  the  mainland  on  the  left  bank,  a distance  of 
about  a half  mile.  The  water  falls  over  the  bar  as  over  a low 
dam,  a large  extent  of  the  bar  being  subnier^-^i  1 foot 

5215  and  less.  The  deepest  water  on  the  bar  is  said  to  be  3 feet 
and  in  a very  rapid  current.  The  deepest  channel  is  difficult 
to  find.  In  crossing  the  bar  I passed  over  in  2 feet  of  water 
only.  At  extreme  low  water  ascending'  steamers  have  to  line 
over.  This  is  probably  the  shoalest  place  in  the  channel  of  the 
river  between  Lewiston  and  its  mouth.  It  is  probable  that  fur- 
ther examinations  mav  show  it  to  be  practicable  to  open  a 
channel  on  the  right  of  Rescue  Island,  thus  avoiding  Long 
Crossing  entirely.  If  this  should  not  be  found  to  be  prac- 
ticable, a channel  should  be  dredged  through  the  bar,  and  its 
depth  maintained  by  contracting  the  channel  by  wing-dams 
from  the  foot  of  Rescue  Island  on  the  right  and  the  mainland 
on  the  left.  A careful  survey  of  this  place  should  precede 
any  work  of  improvement. 

62.  Couch  Island  Rapid.  (See  accompanying  sketch.)  A 
short,  rough  rapid  over  a cobble-stone  bottom,  with  crooked 
channel  and  rock  obstructions.  At  low  water  boats  have  to 
line  up.  This  is  accomplished  with  great  difficulty  and  risk 
of  damage  from  contact  with  the  rocks.  This  rapid  lies  in  d 


1562  Columbia  and  Snake  Rivers, — Eng.  Rep.  1884. — Con. 

channel  between  Conch  Island  and  the  left  shore.  To  the  right 
of  the  island  the  fall  in  the  channel  is  quite  uniformly  distrib- 
uted over  the  entire  length  of  the  island,  which  is  about  three- 
fourths  of  a mile  long,  the  same  fall  being  confined  to  the 
short  length  of  the  rapid  in  the  left  channel.  The  right  channel 

5216  has  no  rapid;  it  is  more  or  less  obstructed  by  boulders,  and 
the  passage  through  it  difficult  at  low  water.  It  is,  however, 
used  at  extreme  low  water  by  the  lightest-draught  steamers 
navigating  the  river  in  preference  to  the  left  channel,  the  risk 
of  damage  being  considered  less.  Both  channels  should  be 
critically  examined  to  determine  which  should  he  improved 
for  permanent  use  at  low  water. 

Note: — The  river  from  the  head  of  Kescue  Island  to  the 
foot  of  Couch  Island,  embracing  Eescue  and  Couch  Island 
Eapids  and  Long  Crossing,  should  he  examined  together  as  a 
whole,  with  a view  to  ascertain  the  practicability  of  opening 
a channel  to  the  right  of  the  islands,  thereby  avoiding  the  ob- 
stacles presented  by  the  two  rapids  named,  and  the  crossing 
and  securing  a more  uniform  distribution  of  the  fall. 

The  length  of  the  river  on  this  reach  is  from  24  to  3 miles, 
and  is  shown  on  the  accompanying  sketch.  * * 

5217  66.  Bar  Below  Ford^s  Island, — A shoal  gravel  bar 
spotted  with  rocks,  some  of  which  are  barely  submerged.  A 
strong  current  passes  over  this  bar.  The  minimum  depth  in 
this  channel  is  5 feet,  but  the  rocks  obstruct  and  deflect  the 
channel.  The  steamers  Almota  and  Northwest  have  been 
damaged  in  passing  this  place.  This  shoal  should  be  improved 
by  removing  rocks  from  a selected  channel. 

67.  CopLEY^s  Cut-Off. — A strong  swift  with  shoal  cobble- 
stone bar  at  head,  having  a depth  of  4 feet  for  100  feet  length 
of  channel  and  deep  water  above  and  below.  At  the  foot  of 
the  swift  the  channel  is  again  shoaled  to  a general  depth  of 
6 feet  width,  however,  many  projecting  rocks  but  little  sub- 
merged, which  crook  the  channel  and  materially  impede  navi- 
gation. Steamers  must  line  over  the  bar  at  the  head  at  low 
water.  The  channel  should  be  improved  by  deepening  the 
bar  at  the  head  and  by  clearing  the  rocks  from  a selected 
channel  at  the  foot  of  the  swift. 

68.  Shoal  Above  Anchor  Canon. — Moderately  strong  cur- 

rent. Minimum  depth  of  water  in  the  channel  is  5 feet  for  a 
short  distance,  increasing  rapidly  above  and  below.  The  chan- 
nel is  apparently  unobstructed,  but  is  reported  to  be  some- 
what impeded  and  crooked  by  boulders.  No  material  impedi- 
ment, however,  is  encountered.  The  navigable  channel  is  the 
middle  one  of  three,  separated  by  islands.  ^ * 

5218  70.  Fish  Hook  Eapid. — This  rapid  is  about  II  miles  long, 
falling  124  feet  in  that  distance  over  a rocky  bottom  and 
through  a series  of  reefs,  or  at  an  average  rate  of  10  feet  per 


1563 


mile.  On  shorter  reaches  the  rate  of  all  exceeds  this  rate,  as 
the  greater  part  of  the  fall  is  concentrated  at  the  three  princi- 
pal obstructing  reefs.  Work  was  done  on  this  rapid  in  1878 
greatly  improving  its  navigation.  It  will  be  necessary  to  re- 
move an  additional  number  of  rocks  before  the  passage  can  be 
considered  reasonably  safe  at  low  water. 

The  ascent  will  always  be  difficult  until  the  slope  of  the 
water  at  the  chutes  through  the  three  principal  reefs  is  re- 
duced by  enlarging  the  channel  through  them.  The  general 
depth  of  water  through  the  channel  is  ample.  It  would  be 
advisable  to  make  surveys  of  the  low-water  surface,  in  addi- 
tion to  those  surveys  heretofore  made,  as  a guide  in  defining 
the  amount  of  work  to  be  done  in  enlarging  the  water-ways 
through  the  obstructing  reefs. 

71.  Theee  Island  Bend. — At  this  place  there  are  three 
passages  separated  by  two  islands.  The  navigable  channels 
are  through  the  right  and  middle  passages.  The  middle  chan- 

5219  nel  is  the  one  used  by  steamers  except  at  extreme  low  water, 
when  its  ascent  is  impracticable  by  reason  of  the  strong  cur- 
rent and  one  small  rock  obstruction.  A minimum  depth  of 
4 feet  at  low  water  is  reported.  In  this  channel  the  fall  is 
concentrated  over  a short  distance,  inducing  the  strong  cur- 
rent which  bars  the  passage  of  ascendiijof  stenmers. 

Through  the  right  channel  the  fall  past  the  island  is  more 
uniformly  distributed.  On  a bar  at  the  head  of  this  channel 
3 feet  depth  was  found,  though  it  is  probable  that  a deeper 
channel  can  be  found.  For  much  of  the  remainder  of  the  dis^ 
tance  past  the  island  the  channel  shows  a depth  of  44  feet, 
with  many  projections  and  ledges,  shoaling  it  to  a less  depth 
and  impeding  the  channel.  This  is  the  only  passage  that  can 
now  be  used  at  extreme  low  water,  and  that  only  by  the  light- 
est draught  steamers. 

The  passage  is  then  always  attended  with  risk  of  damage 
by  contact  with  the  shoal  rock  projections,  the  presence  of 
which  in  the  uniform  current  are  not  indicated  by  any  dis- 
turbance of  the  surface  of  the  water. 

Both  the  middle  and  right  channels  should  be  carefully  ex- 
amined before  determining  upon  the  one  to  improve, 

72.  Bapid  Above  Haed  Bock  Point. — A short  narrow  chute 

between  rock  reefs.  This  carries  ample  depth  of  water  and 
presents  no  apparent  impediment  to  navigafion.  ^ * 

5220  75.  Tigee  Head  Ceosstng. — A shoal  diagonal  gravel  bar. 
with  a minimum  depth  of  at  least  44  feet  in  the  channel,  with 
boulders  and  rock  projections  obstructing  it  and  crooking 
the  channel  so  as  to  make  the  passage  dangerous  at  low  water. 
The  removal  of  rocks  from  a selected  channel,  and  probably 
the  deepening  of  the  gravel  bar,  will  be  required  here. 

76.  Five-Mile  Bapid. — The  improvement  made  at  this  rapid 


1564  Columbia  and  Snake  Rivers,— Eng.  Rep.  1884. — Con. 

in  the  fall  of  1883  has  freed  it  from  obstructions  to  both 
ascending  and  descending  steamers.  The  strong  current  which 
characterizes  this  rapid  can  be  reduced  only  by  widening  the 
water-way.  This  would  involve  extensive  rock  blasting, 
which  is  not  at  present  necessary,  as  the  passage  of  the  rapid 
either  way  can  be  made  at  low  water  without  risk  or  difficulty. 

77.  Shoal  Below  Five-Mile. — After  the  completion  of  the 

5221  work  done  here  in  the  fall  of  1883,  a straight  channel  up- 
ward of  80  feet  wide  and  with  a least  depth  of  3^  feet,  was 
obtained.  The  river  at  tliis  point  is  excessively  v/ide  and  shoal. 
The  bottom  is  rocky  and  very  irregular.  To  increase  the 
depth  to  5 feet  at  low  water  will  require  the  removal  of  80  to 
100  cubic  yards  from  a ledge  at  the  head  of  the  shoal  and  the 
reduction  of  numerous  small  rock  points  and  boulders  scat- 
tered irregularly  through  the  shoal  below.  These  latter  wilt 
aggregate  from  20  to  30  cubic  yards. 

78.  Ferine ^s  Defeat. — A rock  reef  extending  across  the 
river  just  below  the  last-named  shoal.  An  open  channel  with 
ample  depth  is  found  through  this  reef.  At  the  chute  through 
this  reef  the  current  is  so  strong  that  it  requires  great  skill 
on  the  part  of  a pilot  to  overcome  it.  The  enlargement  of 
the  gap  will  be  necessary  to  reduce  the  current.  Although 
the  ascent  of  this  rapid  is  difficult  it  is  not  accompanied  with 
any  risk  of  damage  to  the  steamer,  as  the  obstacle  to  naviga- 
tion is  due  entirely  to  the  strong  current. 

79.  Ainsworth  Bar. — A half  male  above  the  Town  of  Ains- 
worth. This  is  a long  diagonal  bar,  extending  from  an  island 
on  the  right  down  to  a partially  submerged  cobble-stone  bar 
on  the  left.  The  channel  through  it  has  a minimum  depth  of 
but  3 feet  for  a length  of  200  to  300  feet. . This  bar  is  a seri- 

5222  ous  impediment  to  the  navigation  of  the  river.  The  Northern 

Pacific  Eailroad  Company’s  transfer  steamer  Billings  until 
recently  has  crossed  this  bar  frequently  each  day  in  trans- 
ferring cars  across  the  river.  The  frequent  trips  made 
caused  an  erosion  on  the  bar  deepening  it  to  a certain  ex- 
tent, but  not  sufficiently  to  afford  a free  passage  at  low  water. 
After  encountering  many  difficulties  here  the  route  was  aban- 
doned and  a better  crossing  effected  at  a point  below.  The 
improvement  of  this  bar  will  require  the  dredging  of  a chan- 
nel through  it,  the  depth  of  which  will  have  to  be  maintained 
by  contracting  the  river  by  wing-dams  from  the  island  on  the 
right  and  from  the  bar  on  the  left.  * * * 

5227  Counsel  for  Defendant.  T now  present  to  the  court  cer- 
tified copies  of  the  tax  records  of  Grundy  County,  Illinois, 
showing  payment  of  taxes  on  all  parts  of  Section  25,  Township 
34,  North,  Eange  8,  in  that  county,  from  the  year  1862  down  to 
and  including  the  year  1907.  These  tax  records  are  certified  by 


1565 


the  County  Court  and  County  Clerk  of  Grundy  County,  and  also 
certified  by  the  County  Treasurer,  and  they  show  that  the  north 
fraction  of  the  southeast  quarter  and  the  south  fraction  of  the 
southeast  quarter  and  the  north  fraction  of  the  northwest  quarter 
of  said  Section  25  were  duly  listed  for  taxes  during  those  years 
and  under  those  descriptions,  and  that  taxes  were  paid  on  those 
portions  of  the  section  under  those  descriptions  during  those 
years.  In  order  to  avoid  cuinhering  the  record  with  these  bulky 
certified  copies,  I ask  counsel  whether  lie  will  examine  them  and 
see  if  he  agrees  that  they  show  the  facts  as  I have  stated  them. 

Counsel  for  Complainant.  I suppose  they  do,  though  I have 
not  seen  them. 

5228  Counsel  for  defendant  then  offered  these  certified  copies 
in  evidence. 

(Objected  to  as  incompetent,  irrelevant  and  immaterial. 

Overruled.) 

Said  certified  copies  were  thereupon  admitted  in  evidence 
marked  ^‘Defendant’s  Exhibit  Tax  Records.”  (Atlas,  p.  3989; 
Trans.,  p.  6652;  Abst.,  p.  1936.) 

5229  Counsel  for  Defendant.  I now  present  to  the  court  a 
copy  of  a letter  written  by  Governor  Ford  of  Illinois  under 

date  of  January  3,  1844,  addressed  to  the  Honorable  elohn  Davis 
and  duly  certified  to  be  a copy  by  the  Secretary  of  State  of 
Illinois,  who  certified  that  it  is  a true  copy  of  a letter  written 
by  Governor  Thomas  Ford  on  January  3,  1844,  to  Honorable 
John  Davis,  the  original  of  which  copy  is  now  on  file  and  a mat- 
ter of  record  in  this  office.  This  letter  was  written  by  Governor 
Ford  after  the  passage  of  the  Act  of  1843,  creating  the  Canal 
Trustees,  written  to  John  Davis,  and  contains  his  views  as  to 
the  meaning  of  the  Act  and  the  intent  and  purpose  of  the  state 
in  making  the  trust  for  the  security  of  all  the  old  creditors  as 
well  as  new  subscribers  to  the  loan. 

(Objected  to  as  immaterial,  irrelevant  and  incompetent.) 

The  Court.  Objection  overruled. 

Said  certified  copy  of  the  letter  referred  to  was  thereupon 
marked  “Defendant’s  Exhibit,  First  Letter  Governor  Ford,”  and 
is  as  follows: 


1566 


5230  ^ ^Defendant's  Exhibit,  First  Letter  Gov.  Ford. 

State  of  Illinois, 

Department  of  State, 

James  A.  Rose  Secretary  of  State. 

To  All  Whom  These  Present  Shall  Come,  Greeting: 

I,  James  A.  Rose,  Secretary  of  State  of  the  State  of  Illi- 
nois, do  hereby  certify  that  the  following  and  hereto  attached 
is  a true  copy  of  a copy  of  a letter  written  by  (Governor) 
Thomas  Ford  on  January  3,  1844,  to  Hon.  John  Davis,  the 
original  of  which  copy  is  now  on  file  and  a matter  of  record 
in  this  office. 

In  testimony  whereof,  I hereto  set  my  hand  and  cause  to 
be  affixed  the  great  Seal  of  State.  Done  at  the  City  of 
Springfield  this  21st  day  of  April,  A.  D.  1908. 

(Signed)  James  A.  Rose, 

(seal)  Secretary  of  State. 


(Executive  Letters — 4^ — 1840.  5 — Gov.) 

(Page)  155.  Chicago,  III.  January  3,  1844. 

Hon.  John  Davis, 

Sir. 

Your  favor  of  the  31st  Ultimo  has  been  duly  received.  The 

5231  topics  embraced  in  it  have  been  subjects  of  careful  con- 
sideration with  me  for  some  time  past;  and  I now  proceed 
to  answer  your  inquiries  according  to  the  best  of  my  knowl- 
edge and  belief. 

Your  letter  calls  on  me  for  information  on  the  following 
points. 

1st.  What  is  the  title  of  the  State  of  the  Canal  property? 

2.  Is  it  in  any  respect  incumbered  by  conveyances,  pledges 
or  liens?  Does  any  antecedent  Act  of  the  Legislature  vest 
any  title  or  right  in  the  non  subscribing  bondholders?  What 
is  the  meaning  and  design  of  the  21st  Section  of  the  Act  of 
1843? 

3.  Does  the  variance  between  the  proposed  contract  and 
tliat  specified  by  the  Legislature  raise  any  doubt  as  to  the 
power  of  the  Governor  to  enter  into  it?  Can  he  mortgage 
the  property  for  a less  sum  than  $1,600,000;  or  for  a sum 
which  obviously  cannot  complete  the  work?  Can  he  waive  or 
release  the  provisions  of  the  Act  working  a forfeiture  of  the 
contract  if  the  Canal  is  not  completed  within  three  years? 

4.  Has  the  Governor  any  power  to  convey  or  to  contract 
except  what  is  conferred  by  the  21st  Section  of  the  Act?  If 
he  has  not,  does  that  section  taken  in  connection  with  the 

5232  residue  of  the  Act  authorize  him  to  grant  in  the  manner 
proposed  or  in  any  other  terms  a preference  to  subscribers 
in  the  payment  of  their  bonds,  or  in  the  payment  of  their 


1567 


supposed  loan  I Is  such  a preference  consistent  with  the 
proviso  which  reserves  to  all  bondholders  the  rights  which 
have  been  conferred  upon  them? 

5.  What  is  the  effect  of  the  grant  contained  in  the  10th 
Section  of  the  Act  of  18431  Will  it  vest  any  title  in  such 
trustees  as  may  be  chosen?  Will  entering  into  a contract 
in  pursuance  of  the  other  provisions  of  the  Act  make  this 
operative  so  as  to  transfer  by  legislative  power  the  pro^perty 
in  the  terms  and  by  force  of  the  grant  there  made? 

Lasting,  suppose  the  deed  of  trust  to  be  drawn  upon  the 
understanding  that  all  matters  of  enquiry  shall  issue  favor- 
ably and  it  shall  turn  out  that  when  the  subscribers  to  the 
loan  come  to  enter  into  a contract  with  the  State  as  is  pro- 
vided in  the  Act  there  should  be  a deficiency  in  the  subscrip- 
tion, by  the  neglect  or  refusal  of  stockholders  to  subscribe, 
how  is  that  dehciency  to  be  made  up?  And  how  would  the 
balance  thus  necessary  to  make  up  $1,600,000  be  supplied? 

In  reply,  I have  the  honor  to  state  that  the  title  of  the 
State  of  Illinois  to  the  Canal  lands  is  secured  by  a legis- 
lative grant  contained  in  an  Act  of  Congress  to  be  found  in 

5233  Story’s  collection  of  laws,  page  2062.  The  selection  and 
approval  under  that  Act  by  the  proper  officer  of  the  U.  S. 
Government  is  in  possession  of  the  State,  a copy  of  which 
can  be  furnished  you,  if  you  think  it  necessary. 

The  lands  proposed  to  be  conveyed  in  trust  by  the  Act 
of  1843,  have  never  heretofore  been  conveyed  or  sold;  nor 
have  they  been  pledged  otherwise  than  by  the  several  Acts 
of  the  General  Assembly,  under  the  authority  of  which  loans 
have  been  obtained  for  the  Canal.  These  Acts  all  pledge 
the  faith  and  credit  of  the  State;  the  Canal  and  canal  lands 
and  other  property  for  the  payment  of  the  principal  sums 
borrowed  and  interest  thereon.  That  at  the  same  time  pro- 
vide for  a progressive  sale  of  the  lands ; and  the  Act  of  1839, 
which  authorized  a loan  of  four  million  of  dollars,  expressly 
authorizes  a sale  of  the  lands  by  the  authorities  of  the  State 
and  appropriates  the  avails  to  the  payment  of  interest,  and 
to  the  construction  of  the  Canal.  All  the  laws  of  the  State 
on  the  subject  of  the  Canal  will  be  furnished  you,  by  which 
you  will  see  the  extent  to  which  those  lands  have  been  pledged 
for  antecedent  loans. 

I hope,  however,  to  satisfy  you  in  the  course  of  my  answer 
that  the  pledges  heretofore  made,  by  no  means  precludes  the 
State  from  making  a new  pledge  of  the  same  lands  for  an 
additional  sum  of  money;  or  from  giving  a priority  of  pay- 
ment to  those  who  make  it. 

5234  The  pledge  of  the  canal  property  for  former  loans,  does 
not  amount  to  a legislative  ,2:rant  of  a legal  vested  interest. 
It  is  not  like  a mortgage,  which  in  point  of  law  conveys  the 
legal  estate;  nor  does  such  a pledge  vest  any  power  in  the 


1568  Defendant’s  Ex. — First  Letter  Gov.  Ford. — Continued. 

creditor  to  take  iDOSsession  of  the  property;  nor  did  it  carry 
with  it  any  assurance  of  a judicial  remedy  in  case  of  the 
violation  of  the  pledge.  But  on  the  contrary,  it  supposes 
that  the  Legislature  of  the  State,  is  to  continue  to  have  the 
control  and  disposal  of  the  property,  and  are  to  adopt  meas- 
ures which  in  their  wisdom  and  discretion,  will  make  it  most 
available  for  the  payment  of  the  debt  as  well  as  to  complete 
the  canal.  The  State  does  not  merely  hold  the  land  in  trust 
for  the  benefit  of  the  creditors.  The  pledge  cannot  receive 
that  construction,  because  there  is  no  legal  remedy  against 
the  State  to  compel  an  execution  of  the  trust.  It  is  merely 
honorary;  and  binding  upon  the  public  faith  and  conscience. 
It  amounts  only  to  a declaration  and  assurance  to  the  public 
creditor  that  the  property  pledged  shall  be  managed  in  the 
best  manner  for  the  benefit  of  bondholders,  according  to 
such  just  and  enlightened  discretion  as  sovereign  states  must 
necessarily  be  understood  to  reserve,  where  they  undertake 
the  management  of  a business  in  their  sovereign  capacity. 

According  to  this  view,  the  right  of  the  public  creditor  may 

5235  be  said  to  be  perfect  in  one  respect;  that  is,  he  has  a right 
morally,  to  exact  justice,  and  good  faith.  But  in  another  re- 
spect his  right  is  imperfect;  inasmuch  as  he  has  no  judicial 
remedy;  inasmuch  as  the  Legislature  must  be  the  agent  to 
dispose  of  the  property  for  his  benefit;  and  inasmuch  as  tlie 
mode  of  disposal  and  application  must  necessarilv  depend 
upon  its  views  of  policy  and  justice. 

Such,  I suppose  to  be  the  right  of  a bondholder  in  respect 
of  this  property:  Wherefore,  if  it  can  be  shown  that  the 

disposition  of  it,  proposed  by  the  Canal  law  of  1843,  is  the 
most  wise,  prudent  and  just  one,  to  all  the  public  creditors, 
the  non-subscribing  as  well  as  the  subscribing  bondholders, 
it  will  be  all  that  will  be  necessary,  legally  and  moralhy  to 
sustain  the  power  of  the  Legislature  to  make  it.  Certainly 
the  Legislature  did  not  think  that  they  were  violating  the 
rights  of  non-subscribing  bondholders,  by  postponing  them 
in  participating  in  the  benefits  of  the  trust.  Many  millions 
of  dollars  had  alreadv  been  expended  on  the  Canal.  It  was 
yet  incomplete.  It  yielded  no  revenue.  The  state  was  mil- 
lions in  debt  on  account  of  other  improvements  which  yielded 
nothing.  It  was  well  known  that  a sale  of  the  lands  and 
Canal  in  their  present  condition,  would  yield  but  little  to- 
wards satisfying  any  of  our  creditors.  The  State  was  too 
poor;  too  destitute  of  both  property  and  money,  to  pay 
the  entire  amount  of  interest  by  taxation;  and  there 
appeared  to  be  no  other  resource.  The  only  hope  of  the 

5236  public  creditor  was  in  a wise  and  judicious  management  of 
this  property,  wherebv  its  value  would  be  increased;  and  in 
the  future  growth  and  prosperity  of  a new  country. 

Under  these  circumstances,  it  was  confidently  believed  that 


1569 


although  those  lands  were,  without  the  completion  of  the 
Canal,  inadequate  to  pay  any  considerable  portion  of  the 
debt,  yet  they  might  be  made  available  to  put  the  Canal  in 
operation ; that  the  Canal  in  its  turn  would  revive  confidence ; 
turn  the  tide  of  emigration  and  wealth  from  abroad  again 
into  the  State ; increase  the  ability  of  the  people  to  pay 
taxes ; and  itself  yield  a revenue  sufficient  to  pay  a very  large 
portion  of  the  interest  on  the  public  debt;  and  we  believed 
that  the  residue  of  the  interest  could  then  be  provided  for  by 
taxation,  if  necessary.  This  was  our  financial  policy;  and 
such,  was  the  necessity  which,  in  our  opinion,  made  it  the 
most  wise,  just  and  prudent,  which  we  could  at  that  time 
adopt. 

It  does  not,  then,  appear  that  we  infringe  the  rights  of  a 
non-subscribing  bondholder  by  giving  a priority  in  payment 
to  such  of  our  creditors  as  will  advance  an  additional  sum 
of  money,  which  is  to  be  used  to  bring  about  results  so  aus- 
picious to  the  interests  of  all. 

It  is  understood  that  in  England,  where  the  same  common 
law  prevails  which  is  in  force  in  Illinois,  it  is  the  law,  in  case 

5237  of  railroad,  bridge,  and  other  such  like  corporations,  that 
the  last  loan  to  the  corporation,  is  first  to  be  paid,  notwith- 
standing previous  pledges  for  antecedent  loans.  Also,  mari- 
time loans  of  money  on  the  pledge  of  a foreign  ship,  when 
the  ship  had  been  pledged  for  more  than  one  loan,  the  last 
one  is  to  be  first  paid.  The  master  in  a foreign  port  may 
borrow  money  to  repair,  furnish,  and  victual  his  ship,  and 
pledge  the  ship  itself  in  payment.  In  the  course  of  a long 
and  unfortunate  voyage  it  may  become  necessary  to  borrow 
successive  sums  of  money  and  to  give  a new  pledge  of  the  ship 
on  each  occasion.  In  all  such  cases  the  last  advance  is  to  be 
first  paid  out  of  the  proceeds  of  the  ship.  Because  if  it 
were  otherwise,  the  antecedent  creditor  by  the  loss  of  the 
ship  might  be  wholly  deprived  of  his  security. 

The  principle  of  law  applicable  to  this  kind  of  lending 
would  seem  to  apply  with  great  force  to  this  last  advance 
of  money  requested  to  complete  the  Canal.  The  Canal  itself 
is  a nonentity  in  value  without  the  last  finish.  So  is  the 
water  power.  Town  lots  which  without  the  Canal  would  re- 
main village  lots,  with  it  would  be  city  lots.  The  land  it  is 
true  is  now  of  some  value.  But  all  well  informed  persons 
agree  that  it  would  be  quadrupled  in  value  at  least  by  the 
completion  of  the  Canal.  The  whole  property  is  now  like 
a ship  half  sunk  and  daily  going  to  destruction,  for  want  of 

5238  a little  money  to  raise  and  repair  it,  and  put  it  into  the 
trim  of  a tall  gallant  vessel. 

That  the -land  is  now  of  some  value  does  not  seem  to  dis- 
tinguish the  case  from  that  of  the  ship.  And  the  only  dif- 
ference appears  to  be,  that  in  the  case  of  the  vessel,  the 


1570  Defendant’s  Ex. — First  Letter  Gov.  Ford. — Continued. 

owners  are  not  bound,  but  in  our  case,  the  faith  of  the  State 
is  pledged  as  well  as  this  particular  property.  If  I have 
already  insisted  upon  the  inability  of  the  State  to  meet  its 
engagements,  I have  not  done  so  for  the  purpose  of  coercing 
a new  advance  of  money;  but,  simply,  truly  and  candidly  for 
the  sole  and  only  purpose  of  placing  the  additional  security  of 
a i^ledge  of  the  public  faith  in  its  true  light,  and  to  avoid 
such  inferences  as  might  possibly  be  drawn  from  it  in  case 
it  had  been  given  by  a solvent  State. 

This  view  of  the  case,  convinces  me  that  none  of  the  cred- 
itors can  strictly  claim  a priority  of  payment  in  consequence 
of  former  pledges;  and  without  some  additional  legislation, 
such  as  the  Act  of  1843,  they  must  share  pari  passu,  in  the 
proceeds  of  the  property. 

If  the  rights  of  the  creditor  consist  simply  in  a claim  upon 
the  public  faith,  which  ought  to  be  sacredj  and  if  the  pledge 
of  property  is  merely  honorary,  conveying  no  vested  inter- 
est in  the  land,  I cannot  imagine  any  reason  why  the  debts 
of  the  State  thus  secured  are  different  from  other  debts 
which  are  binding  upon  the  public  honor  and  conscience.  Nor 

5239  can  I imagine  why  the  Legislature  cannot  give  a preference 
to  one  creditor  over  another  in  the  payment  of  his  debt.  It 
is  a well  known  principle  of  law,  that  a debtor  in  failing  cir- 
cumstances may  give  such  a preference;  and  that  he  may 
conve}^  his  property  in  trust  giving  a priority  to  some  of  his 
creditors.  This  may  always  be  done  by  the  principles  of  the 
common  law,  vdiere  the  bankrupt  laws  of  the  country  do  not 
require  an  equal  distribution  of  the  effects  of  the  debtor,  and 
where  the  deed  of  trust  is  not  upon  condition  of  a discharge 
from  the  debt  and  reserves  no  property  or  benefit  to  the 
debtor  himself. 

In  our  case  we  do  not  propose  to  be  discharged  from  the 
debt;  nor  have  we  reserved  any  property  or  benefit  to  our- 
selves for  the  purpose  of  coercing  submission  on  the  part  of 
the  creditor.  Whatever  reservation  there  may  be,  is  a mere 
resulting  trust  after  the  pa^mient  of  the  debt. 

The  Legislature  have  expressly  authorized  such  a disposi- 
tion of  the  Cnnal  property;  and  I cannot  doubt,  but  that  if 
any  of  the  bondholders  had  accepted  the  terms  of  the  grant 
contained  in  the  Act  of  1843,  they  would  have  enjoyed  an 
assured  estate  in  the  property  granted.  It  seems  however 
that  the  bondholders  do  not  propose  to  accept  the  precise 
terms  of  the  law.  They  offer  to  enter  into  a contract  with 
the  Governor  in  a manner  somewhat  variant  from  the  law, 

5240  but  supposed  to  be  authorized  by  the  21st  section  of  that 
Act.  As  to  my  power  to  enter  into  such  a contract,  it  be- 
comes me  now  to  state  my  opinion. 

It  seems  to  me  clear,  that  I have  at  least  full  power  to 
convey  all  the  benefits  and  advantages  proposed  by  the  law; 


1571 


and  to  bind  the  State  in  all  particulars  whatever  in  which  it 
would  have  been  bound,  if  the  terms  of  the  law  had  been  ac- 
cepted. It  appears  to  be  clear  to  my  mind  that  the  design  of 
the  21st  section  was  to  enlarge  the  power  of  the  Governor, 
beyond  the  terms  of  the  law,  rather  than  to  restrain  it  to  a 
more  limited  sphere.  That  this  section  enlarges  the  power 
of  the  Governor,  and  authorizes  him  to  enter  a contract  at 
variance  with  the  law,  is  evident  from  the  language  of  the 
section  itself.  And  this  construction  is  fortified  by  the  known 
facts  of  the  case  which  called  for  such  a provision. 

The  facts  of  the  case  are.  That  the  State  was  possessed  of 
property  which  was  pledged  in  honor  for  the  payment  of  a 
debt.  We  were  willing  to  surrender  it  to  our  creditors  for 
that  purpose,  and  the  only  question  was  how  it  could  be  made 
most  available;  and  upon  what  terms  and  conditions  our 
creditors  would  prefer  to  receive  it  in  part  payment  of  their 
debt.  The  whole  law  was,  therefore  considered  as  a mere 
proposal  to  the  bondholders.  We  had  no  information  from 
them  as  to  what  terms  they  would  be  most  likely  to  accept. 

5241  In  this  uncertainty  .as  to  what  they  would  do,  we  endeavored 
to  make  our  proposal  as  reasonable  and  just  and  as  likely 
to  succeed  as  we  could.  We  legislated  according  to  the  best 
lights  which  we  possessed  at  the  time.  But  for  fear  we  might 
not  hit  the  views  of  our  creditors ; or  in  the  language  of  the 
21st  section  we  provide  that  ‘If  in  consequence  of  any  de- 
fect, omission  or  objection  to  the  foregoing  Act,  the  said 
bondholders  or  other  persons  shall  neglect  or  refuse  to  sub- 
scribe for  the  said  loan,  in  that  case  the  Governor  is  hereby 
authorized  to  negotiate  and  enter  into  contract  with  the  said 
bondholders  or  other  persons  in  ])ursuance  of  the  general 
principles  of  this  Act.  Provided  that  he  shall  make  no  fur- 
ther pledge  of  the  faith  or  credit  of  the  State,  for  any  ad- 
vance of  money,  but  shall  be  limited  to  pledging  the  Canal 
and  Canal  property  therefor.  And  provided  further  that 
in  any  negotiation  to  be  made  under  the  provisions  of  this 
Act  for  the  purpose  of  carrying  them  into  effect,  nothing 
shall  be  done  which  shall  in  anywise  interfere  with  the  rights 
now  secured  to  the  holders  of  Canal  bonds.’  This  is  the  21st 
section,  by  which  it  clearly  appears  that  a variance  from 
the  terms  of  the  law  was  contemplated.  If  the  creditors  ob- 
jected on  account  of  any  defect  or  omission  in  the  law,  such 
a defect  or  omission  was  to  be  supplied  by  contract;  and  in 
like  manner  anything  which  the  bondholders  could  reasonably 
object  to  in  the  terms  of  the  law,  was  to  be  provided  for  by 
contract.  The  power  given  to  the  Governor  to  contract  is 

5242  very  general  and  sweeping  and  is  only  limited  in  three  par- 
ticulars. The  contract  is  to  be  according  to  the  general  prin- 
ciples of  the  Act.  That  is,  I make  no  doubt,  the  power  to 
contract  is  to  be  ^exercised  for  the  purpose  of  attaining  the 


1572  Defendant’s  Ex. — First  Letter  Gov.  Ford. — Continued. 

same  great  object  which  the  Legislature  had  in  view  to  ac- 
complish, and  in  a manner  agreeing  with  the  cardinal  fea- 
tures of  the  law.  This  limitation  is  expressed  in  a very  in- 
definite manner,  from  which  I cannot  hesitate  to  believe  if 
the  Governor  exercises  the  power  conferred  upon  him  rea- 
sonably and  discreetly  to  obtain  the  desired  object,  that  the 
State  could  make  no  objection. 

The  next  limitation  is,  that  the  Governor  shall  not  pledge 
the  faith  or  credit  of  the  State;  which  of  itself  is  a lucid 
commentary  by  the  Legislature  upon  their  own  meaning;  and 
upon  the  extent  of  power  which  they  thought  might  be  exer- 
cised by  the  Governor  without  this  limitation.  It  seems  that 
they  feared  that  the  power  conferred  in  the  first  part  of  the 
section  might  enable  the  Governor  to  pledge  the  faith  and 
credit  of  the  State  unless  restrained  by  express  enactments. 

The  other  limitation  is,  as  to  the  rights  of  non-subscrib- 
ing bondholders.  These  are  not  to  be  affected  by  any  con- 
tract of  the  Governor.  I have  already  shown,  as  I flatter 
myself,  the  nature  of  the  rights  of  a bondholder. 

5243  If  I have  already  succeeded  in  establishing  the  positions. 
That  the  pledge  in  former  laws  in  favor  of  non-subscribing 
bondholder  is  merely  honorary;  that  it  conveyed  no  legal  inter- 
est ; that  it  only  amounted  to  a declaration  and  assurance  bind- 
ing in  honor  and  conscience;  that  the  State  in  its  sovereign  ca- 
pacity is  to  be  the  agent  in  disposing  of  the  pledge  for  the 
benefit  of  creditors;  that  in  the  execution  of  this  agency,  the 
State  is  bound  simply  by  the  principles  of  justice,  and  a wise 
discretion;  that  the  canal  law  of  1843,  makes  the  most  wise 
and  just  disposition  of  the  property  for  the  benefit  of  all 
creditors;  that  this  law  expressly  authorizes  a priority  in 
favor  of  subscribing  bondholders,  and  that  the  21st  section 
enlarges  the  power  of  the  Governor  beyond  the  terms  of  the 
law.  I cannot  conceive  why  this  -proviso  should  be  construed 
to  inhibit  the  Governor  from  giving  such  a preference  by 
contract,  as  is  already  given  by  the  law,  if  the  terms  of  it 
had  been  accepted.  The  section  in  which  this  proviso  is  con- 
tained authorizes  the  Governor  to  contract  with  persons  who 
are  not  bondholders  and  give  them  a preference  in  the  pay- 
ment of  money  advance.  From  all  which  I infer  that  this 
proviso  simply  means,  that  the  Governor  in  executing  the 
power  conferred  upon  him  to  contract,  is  to  regard  the  rights 
of  non-subscribing  bondholders  in  the  same  beneficent  and 
equitable  light  in  which  they  are  provided  for  by  the  other 
portions  of  the  Act.  It  certainly  could  pot  have  been  the 

5244  meaning  of  the  Legislature,  that  this  proviso  should  defeat 
all  the  provisions  of  the  law.  And  yet  this  must  necessarily 
be  understood  if  we  suppose  that  the  non-subscribing  bond- 
holders have  rights  which  are  inconsistent  with  a new  pledge 
in  favor  of  other,  and  certainly  more  meritorious,  creditors. 


1573 


The  10th  section  of  the  Canal  law  of  1843,  expressly  conveys 
the  canal  property  in  trust  for  specified  purposes;  and  the 
13th  section  makes  it  take  effect,  upon  the  election  and  appoint- 
ment of  trustees:  So  that  the  principles  of  the  common  law 

requiring  an  estate  to  be  vested  in  praesenti,  are  wholly  im 
applicable.  I propose  to  convey  the  same  property  in  trust 
which  is  offered  to  be  conveyed  by  the  10th  section.  The  21st 
section  authorizes  me  to  do  so ; and  the  13th  section  of  course 
would  vest  the  title  and  possession  upon  the  appointment  of 
trustees.  This  seems  to  l3e  clear,  from  the  fact  that  I am  to 
incorporate  the  general  principles  of  the  law  (of  which  this  is 
one)  into  the  contract. 

I am  well  satisfied  that  if  the  Legislature  had  the  power  to 
pass  the  law,  I have  power  to  contract  in  pursuance  of  its 
provisions ; and  such  a contract  being  made,  that  the  property 
would  be  vested  in  trustees  by  force  of  legislative  power. 

It  is  my  opinion  that  I can  mortgage  the  property  for  less 
than  $1,600,000  in  the  manner  proposed  by  the  bondholders; 

5245  that  is  they  are  to  share  pari  passu  with  others  who  may 
hereafter  contribute  to  the  completion  of  the  canal.  I do  not 
understand  that  the  property  is  to  be  conveyed  to  them  for 
their  sole  use  and  benefit;  or  that  they  could  cause  it  to  be  sold 
before  the  canal  shall  be  completed,  to  pay  their  first  advance. 
Those  who  are  to  make  future  advances  could  not  share  pari 
passu  in  the  benefit  of  the  pledge  if  the  property  could  be  sold 
to  pay  the  first. 

The  21st  section  does  not  limit  the  sum  to  be  borrowed  other- 
wise than  by  requiring  the  power  to  be  exercised  in  pursu- 
ance of  the  general  principles  of  the  Act;  which  Act  however 
specifies  the  sum  of  $1,600,000  as  necessary  to  complete  the 
Canal.  I however  place  my  power  to  enter  into  the  contract 
in  this  respect  upon  this  ground:  there  is  nothing  in  the  Act 
which  requires  me  to  borrow  the  whole  amount  of  $1,600,000 
of  the  same  persons,  I think  I may  contract  with  one  set  of 
persons  for  a part  of  the  money  and  with  another  set  for  the 
residue.  My  power  over  the  subject  does  not  cease  until  I 
have  completed  the  whole  negotiation.  It  is  similar  in  this 
respect  to  the  power  of  the  Governor  to  negotiate  former  loans. 
By  one  Act,  the  Governor  was  authorized  to  negotiate  a loan  of 
four  millions  of  dollars.  ' Bonds  were  sold  at  many  differ- 
ent times  to  many  different  individuals,  each  one  containing  a 
pledge  of’  the  lands  &c.  No  one  of  these  sales  nor  all  of  them 

5246  together  produced  a sum  of  money  sufficient  to  complete  the 
Canal.  But  I presume  there  would  be  no  question  as  to  the 
legality  of  such  loans  as  were  effected  under  that  law. 

I do  not  doubt  but  that  I have  the  power  in  pursuance  of 
the  general  principles  of  the  Act  to  convey  all  the  property 


1574  Defendant’s  Ex. — First  Letter  Gov.  Ford. — Continued. 

mentioned  in  the  10th  section  to  trustees,  to  be  applied  accord- 
ing to  the  provisions  of  the  Canal  law. 

I do  not  question  either,  my  power  to  release  the  forfeiture 
of  the  contract  if  the  Canal  shall  not  be  completed  within 
three  years. 

My  reasons  for  these  opinions  have  already  been  given. 
They  are  founded  upon  the  construction  which  I think  ought 
to  be  given  to  the  21st  section.  My  conviction  is  that  this 
section  enlarges  the  power  of  the  Governor,  instead  of  re- 
straining it.  That  it  authorizes  me  to  depart  from  the  terms 
of  the  ]aw  by  supplying  defects  and  omissions,  and  waiving 
objections  to  the  law  itself;  that  I am  restrained  in  this  par- 
ticular, only  so  far  as  I am  required  to  contract  in  pursuance 
of  the  general  principles  of  the  Act.  If  I understand  the 
proposition  of  the  bondholders,  they  do  not  wish  to  forfeit 
whatever  they  may  have  advanced,  in  case  of  failure  to  pay 
the  residue  of  their  subscriptions;  and  they  desire  that  the 
property  may  still  continue  to  be  held  in  trust  for  their  bene- 
fit, so  far  as  they  may  make  advances,  as  well  as  for  the  benefit 
of  others  who  may  advance  the  residue  of  the  money  to  make 

5247  the  Canal.  In  this  sense  I cannot  perceive  that  the  proposed 
contract  would  be  variant  from  the  general  principles  of  the 
law. 

The  object  of  the  law  in  providing  for  a reversion  of  the 
lands  to  the  State,  in  case  the  Canal  shall  not  be  completed 
in  three  years,  was,  as  I well  know  myself,  to  secure  the  ulti- 
mate control  of  the  State  over  the  work,  in  case  of  the  long 
continued  and  unreasonable  delinquency  of  the  subscribers. 
It  was  thought  that  it  would  be  improvident  legislation  to 
convey  those  lands  to  trustees  for  the  benefit  of  subscribers 
who  might  take  their  own  time,  and  perhaps  never  fulfill  their 
part  of  the  engagement.  In  the  meantime  the  State  author- 
ities would  be  prevented  from  making  other  arrangements  for 
prosecuting  the  work  on  the  Canal.  To  avoid  this  evil  and  this 
only,  it  was  provided,  that  if  the  subscribers  should  fail  to 
make  the  Canal  in  three  years  the  property  should  revert  to 
the  State.  I think  that  I could  not  lawfully  enter  into  any 
contract  which  would  tie  up  the  hands  of  the  Legislature  in 
this  manner.  But  I make  no  question  that  I can  release  a 
forfeiture  of  money  paid,  and  also  provide  that  the  trust  shall 
continue  as  a security  for  its  reimbursement  together  with 
other  sums  which  may  be  afterwards  advanced. 

In  this  manner  the  ultimate  control  of  the  Legislature  would 
be  secured  over  the  work,  at  the  same  time  securing  to  the 
subscribers  whatever  money  they  may  advance.  The  mere 

5248  forfeiture  of  the  money  paid  and  of  the  security  for  its  re- 
payment, I cannot  believe  was  cardinal  object  of  the  Legis- 
lature to  accomplish.  There  would  be  no  justice  in  it,  and 


1575 


I solemnly  believe  that  an  agreement  providing  against  such 
a forfeiture  would  be  so  just  and  equitable  in  itself ; and 
would  accord  so  well  with  a discreet  and  prudent  exercise  of 
power  under  the  21st  section,  that  no  objection  could  be  made 
to  it,  either  in  law  or  equity,  and  that  it  might  well  be  con- 
sidered as  one  of  those  objections  to  the  law  which  might  be 
supplied  by  contract. 

When  I first  saw  the  proposal  of  the  bondholders  T had 
some  doubt  as  to  the  power  of  the  Governor  to  enter  into  the 
contract.  But  that  doubt  originated  in  the  uncertain  mode  of 
expression  used.  Since  I have  seen  Messrs.  Oakley  and  liyan, 
and  heard  from  them  the  meaning  intended,  I have  had  no 
doubt  whatever. 

Your  remaining  question  is  this:  Suppose  there  should  be  a 
deficiency  in  the  subscription,  by  the  neglect  or  refusal  of  the 
Stockholders  to  subscribe,  how  is  that  deficiency  to  be  made 
up!  And  how  would  the  balance  thus  necessary  to  make  up 
the  $1,600,000  be  supplied! 

I have  already  stated  that  I consider  the  contract  to  borrow 
a portion  of  the  money  to  be  good  as  a part  execution  of  the 
power  vested  in  me  to  negotiate  a loan  of  $1,600,000.  The 
sum  thus  obtained,  would  put  about  fifty  miles  of  the  Canal 

5249  into  operation;  and  I cannot  conceive  that  if  the  contract 
should  be  good  and  valid  as  a part  execution  of  the  power  con- 
ferred upon  me  at  the  time  it  is  entered  into,  that  the  validity 
of  the  Act  could  be  affected  by  a failure  to  negotiate  the  resi- 
due of  the  loan,  if  such  be  the  case.  But  I do  not  apprehend 
danger  of  failure.  It  might  perhaps  be  improper  for  me  to 
anticipate  at  this  time  what  the  future  policy  of  the  State 
would  be  in  case  of  a failure  to  negotiate  a part  of  the  whole 
of  this  loan.  But  I should  expect  with  confidence,  that  further 
inducements  might  be  provided  to  obtain  all  the  money  which 
may  be  necessary  to  complete  the  Canal ; and  if  not,  the  sum 
now  to  be  advanced  would  not  be  expended  in  vain. 

I am  very  Respectfully, 

Your  obedient  servant, 

Thomas  Foed.” 

5250  (Further  objected  to  on  the  grounds  that  there  is  no  proof 
of  the  circumstances  under  which  those  letters  were  written, 
and  there  is  no  proof  that  it  falls  within  the  duties  of  the  Gov- 
ernor to  construe  the  law  so  as  to  make  it  an  official  act,  and 
of  course,  that  the  absence  of  the  original  is  not  accounted 
for.  Overruled.) 

Counsel  foe  Defendant.  We  offer  it  under  the  section  of  the 
statute  of  1843  which  expressly  provides  that  if,  for  any  reason, 
the  Act  as  passed  cannot  be  carried  out,  the  Governor  himself  is 


1576 


authorized  to  make  any  amendment  he  sees  fit  so  long  as  he  does 
not  pledge  the  credit  of  the  State. 

Counsel  for  defendant  also  offered  in  evidence  a certified  copy 
of  another  letter  written  by  Governor  Ford  to  Honorable  John 
Davis  and  David  Leavitt  under  date  of  March  10,  1845.  This  also 
is  duly  certified  by  the  Secretary  of  State  as  part  of  the  history 
of  the  negotiation  between  the  Governor  and  subscribers  to  the 
new  loan. 

(The  same  objection.  The  same  ruling.) 

Said  certified  copy  was  thereupon  admitted  in  evidence,  marked 
‘‘Defendant’s  Exhibit,  Second  Letter  of  Governor  Ford,”  and  is 
as  follows : 

(Here  follows  Certificate  of  the  Secretary  of  State  in  the  same 
form.) 

5251  “(Executive  Letters — 4 — 1840 — 5 — Gov.) 

(Page)  175  Springfield,  March  10,  1845. 

Gentlemen  : 

I have  received  your  favor  of  the  2nd  inst.  and  in  accord- 
ance with  our  understanding  when  you  were  here,  I send  you 
a blank  appointment  for  the  election  of  trustees.  I have  al- 
ready transmitted  to  you  a copy  of  the  contract,  together  with 

5252  Gov.  Davis’  draft.  I have  also  transmitted  another  copy  to 
Genl.  Fry  and  Mr.  Matteson  to  be  signed  at  Chicago  and  then 
to  be  forwarded  to  Mr.  Leavitt.  In  my  letter  accompanying 
the  copy  of  the  contract  transmitted  to  Mr.  Leavitt,  I promise 
to  forward  to  him  and  to  Governor  Davis  a blank  appointment 
for  the  election  of  trustees,  to  be  used  according  to  your  dis- 
cretion, as  soon  as  you  become  satisfied  that  there  is  but  little 
doubt  that  the  contract  will  be  signed  and  the  law  accepted 
by  the  subscribers. 

Your  letter  of  the  2nd  inst.  would  seem  to  vest  a larger 
discretion  in  me;  and  authorizes  me  if  I see  proper  to  com- 
plete the  papers  immediately  and  risk  the  approval  of  the 
European  subscribers.  If  you  think  proper  to  take  this  course, 
you  have  my  hearty  concurrence.  If  the  matter  should  fail 
contrary  to  all  expectation,  I can  only  subject  myself  to  some 
censure,  by  being  over  sanguine  of  success,  which  I am  ready 
to  incur  inasmuch  as  if  it  succeeds  the  work  will  commence 
so  much  the  earlier  on  the  canal  this  season.  You  will  see 
that  I have  already  signed  the  contract,  on  my  part,  and  it 
now  rests  with  the  Atlantic  subscribers  and  the  gentlemen 
who  hold  the  proxies  of  the  foreign  subscribers,  whether  they 


1577 


will  at  once  complete  the  arrangement,  relying  upon  its  rati- 
fication by  the  subscribers  abroad. 

I will  in  due  time  provide  a form  for  a registry  of  bonds 
&c.,  and  appoint  persons  in  Chicago,  New  York  and  London, 

5253  with  whom  such  registry  can  be  made. 

I am  with  the  highest  respect. 

Your  obedient  servant, 

Thomas  Ford. 

Grov.  John  Davis, 

David  Leavitt,  Esq., 

New  York.’’ 

5254  Counsel  for  defendant  read  in  evidence  from  a printed 
copy  of  the  report  of  the  Canal  Commissioners  of  the  State 

of  Illinois  under  date  December  1,  1894,  following  portion  of  the 

report,  beginning  on  page  5,  as  follows: 

‘‘The  following  table  will  show  the  names  of  parties  to 
whom  we  have  granted  leases  of  portions  of  the  reserved 
strip  within  the  fiscal  year,  some  of  whom  were  by  our  orders 
compelled  to  enter  into  lease,  while  others  appeared  at  the 
General  Office  and  made  voluntary  application  in  accordance 
with  the  established  rules  of  the  Board,  viz: 


1578 


Canal  Com.  Hep.  1894. — Continued. 


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1579 


5256  (The  same  objection.  The  same  ruling.) 

Counsel  for  Defendant.  I also  present  the  printed  report 
of  the  Canal  Commissioners  of  the  State  of  Illinois  to  the  Gov- 
ernor, made  under  date  of  December  1,  1895,  and  I offer  from 
that  report  a portion  of  it  beginning  on  page  5 and  ending  on  page 
6,  reading  as  follows: 

^‘One  of  the  most  important  acts  of  our  Board  for  the  past 
year  was  the  disposing,  to  Chicago  parties,  of  the  old  spoilbank 
stone  lying  on  both  sides  of  the  canal,  from  Summit  to  Lock- 
port,  at  advantageous  rates  for  the  State.  This  stone  has  been 
lying  on  the  banks  of  the  canal  for  nearly  fifty  years  and 
was  considered  practically  worthless.  Now  that  we  have 
closed  contracts  for  the  sale  of  it,  we  deem  it  worthy  of  notice 
at  this  time,  for  various  reasons: 

First:  Its  sale  will  net  the  State  several  thousand  dollars. 

Second:  Its  removal  will  cause  the  employment  of  many 

boatmen  and  laborers,  besides,  placing  boats  that  are  now 
idle  in  continuous  service. 

5257  Third:  It  will  be  the  means  of  opening  new  territory  of 

the  reserved  90  feet  strip  for  rental,  and  thereby  largely  in- 
crease the  incoihe  realized  from  that  source.’’ 

(Objection  to  this  extract  from  the  report  of  1895,  as  irrele- 
vant, and  for  the  other  reasons.  Objection  overruled.) 

Counsel  for  Defendant.  I also  present  a printed  report  of  the 
Canal  Commissioners  to  the  Governnor,  made  under  date  of  De- 
cember 1,  1898,  and  I offer  in  evidence  that  part  of  the  report  on 
page  12,  being  appendix  to  the  report  entitled  ''D,  Leases  of  ninety- 
foot  strip  and  lots,”  and  I offer  that  from  this  particular  report 
because  in  this  report  wherever  the  ninety-foot  strip  has  been 
leased  it  has  been  stated,  or  at  least  it  has  been  stated  in  a number 
of  cases  that  it  is  the  ninety-foot  strip. 

(The  same  objection  overruled.) 

5258  Said  portion  of  the  appendix  referred  to  is  as  follows : 


1580 


Extract, — Canal  Com.  Rep.  1898. — Continued. 


Leases  of 

^‘Ninety-Foot’’  Stkip 

AND  Lots. 

Date  No,  of 

Eeceipt 

Names  of  Lessee 

Location  Amount 

July  22  97 

Illinois  Steel  Co. 

90  foot  strip 
along  Joliet 
Works  $500.00 

August  12  111 

E.  F.  Pulsifer 

Eent  of  90- 
foot  strip, 

Utica  50.00 

Sept.  15  122 

John  Liker 

Eent  of  90- 

foot  strip, 

west  of  Joliet  5.00 

Counsel  for  defendant  also  presented  the  printed  report  of  the 
Canal  Commissioners  made  to  the  Governor  under  date  of  Decem- 
ber 1,  1896,  and  offered  in  evidence  from  that  report  the  tabular 
statement  appearing  on  pages  8 and  9,  entitled  ^^C,”  leases  of  90 
feet  strip  and  lots. 

(Objection,  as  incompetent,  irrelevant,  immaterial  and  not 
the  best  evidence.) 

Said  tabulation  was  thereupon  admitted  in  evidence  and  is  as 
follows : 


5259  ‘‘C”— LEASES  OF  ‘‘90-FEET  STRIP’’  AND  LOTS. 


1581 


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1582 


Extract, — Canal  Com.  Rep.  IS^Q.—Contimied. 


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1583 


5260  Counsel  for  defendant  read  in  evidence  the  report  of  the 
United  States  Chief  Engineer,  1901,  Part  5,  statements  in 

regard  to  the  Snake  Kiver,  from  pages  3529  to  3512,  as  follows: 

‘‘Description  : — The  Snake  Eiver  is  a long  and  very  crooked 
mountain  stream  flowing  from  upward  of  900  miles  down 
the  western  slope  of  the  Rocky  Mountains.  It  is  extremely 
irregular  in  its  direction  of  flow,  width,  depth,  and  slope,  as 
well  as  in  its  banks  and  bed.  Portions  of  it  are  inclosed  in 
steep,  rocky  canyons  where  the  great  slope  causes  extreme 
velocities,  portions  of  it  include  waterfalls  and  cascades  of 
great  beauty,  but  only  in  its  lower  portions  are  reaches  found 
where  navigation  is  practicable.  It  rises  in  the  mountains 
in  the  southern  part  of  Yellowstone  Park,  flows  southwest 
through  the  southeastern  part  of  Idaho  until  within  about  60 
miles  of  the  Great  Salt  Lake  of  Utah,  and  then  flows  west- 
ward through  southern  Idaho.  It  then  turns  north  and  forms 
for  200  miles  the  boundary  between  the  States  of  Idaho  and 
Oregon.  At  Lewiston,  Idaho,  where  it  receives  the  waters  of 
the  Clearwater  River,  it  again  flows  westward  and  finally 
empties  into  the  Columbia  River  in  the  State  of  Washington 
near  the  town  of  Ainsworth.  It  is  subject  each  summer  to 
very  high  rises,  varying  from  18  to  26  feet,  due  to  melting  of 
snow  in  the  mountains,  and  remains  in  a state  of  flood  for 

5261  several  months,  usually  commencing  early  in  May  and  last- 
ing until  September.  There  is  also  usually  an  autumn  rise 
in  November  varying  from  4 to  10  feet,  due  to  rains  in  the 
areas  drained.  The  low  water  discharge  of  the  Snake  at  its 
mouth  in  the  Columbia  River  is  reported  to  be  26,000  cubic 
feet  per  second.  (See  Annual  Report  of  the  Chief  of  Engi- 
neers for  1889,  p.  2583.) 

The  basin  drained  by  the  Snake  River  and  its  branches  com- 
prises the  greater  part  of  southern  Idaho,  large  parts  of  east- 
ern Oregon  and  southern  Washington,  and  parts  of  Utah, 
Wyoming  and  Nevada.  This  area  is  estimated  to  be  104,000 
square  miles.  (See  House  Doc.  No.  4II,  Fifty-fifth  Congress, 
Second  Session.) 

Geologists  state  that  the  greater  part  of  all  this  area  has 
in  former  geological  periods  been  subject  to  successive  over- 
flows of  volcanic  lava  that  now  form  the  basaltic  cliffs  and 
mountains  found  in  general  over  all  this  region.  The  rivei^ 
banks  are,  therefore,  rocky  and  not  easily  washed,  so  that 
the  Snake  is  not  what  may  be  properly  termed  a sediment- 
bearing stream.  Considerable  sand  and  gravel  are  carried, 
how^ever,  due  mainly  to  the  disintegration  and  wearing  away 
of  the  rock  and  boulders  forming  its  banks  and  bottom.  The 
bottom  also  is  mainly  rock  and  boulders  except  where  the  sand 
and  gravel  have  collected,  due  to  natural  causes,  thus  forming 
bars  and  shoals.  In  its  upper  portions  it  is  said  to  be  a typical 


1584  Snake  River,- — TJ.  S.  Eng.  Rep.  1901. — Continued, 


5262  mountain  stream,  having  a rocky  bed  and  swift  currents  with 
many  picturesque  falls  and  cascades.  Above  Huntington, 
Oreg.,  it  does  not  appear  that  any  special  attempt  at  naviga- 
tion has  ever  been  made,  probably  because  impracticable.  Be- 
low Huntington,  which  is  the  western  terminus  of  the  Oregon 
Short  Line  Kailroad,  and  the  eastern  terminus  of  the  rail  lines 
of  the  Oregon  Kailroad  and  Navigation  Company,  there  is  a 
reach  of  about  50  miles  where  an  effort  was  once  made  at 
navigation  many  years  ago,  in  the  endeavor  to  afford  water 
transportation  from  the  Seven  Devils  mining  regions  to  Hunt- 
ington. 

The  Government  spent  a considerable  sum  of  money  from 
1891  to  1896  in  improving  Snake  River  in  the  vicinity  of  Hunt- 
ington. This  was  of  no  avail,  however,  as  the  only  boat  ever 
built  for  this  section  of  the  river,  the  Norma,  gave  up  trying 
to  run,  after  one  trip,  on  account  of  the  lack  of  paying  business 
and  the  difficulties  of  navigation.  Lower  down  from  near  Bal- 
lards  Landing,  just  below  Pine  Creek,  and  as  far  down  as  the 
mouth  of  the  Salmon  River,  the  Snake  flows  in  a deep,  narrow 
canyon  of  basaltic  rock  for  about  75  miles,  where  the  slope  of 
the  river  surface,  sharp  bends,  and  high  irregular  banks  cause 
high  velocities  and  cross  currents  and  offer  a serious  obstruc- 
tion to  navigation  that  will  always  be  formidable  and  dan- 
gerous, if  not  wholly  unnavigable.  Prom  the  mouth  of  the 

5263  Salmon  River  down  to  the  mouth  of  the  Grande  Ronde  River 
the  difficulties  of  navigation  are  somewhat  less  serious,  - but 
still  probably  render  the  river  impossible  for  practicable  navi- 
gation. The  mouth  of  the  Grande  Ronde  River  may  be  taken 
as  the  present  head  of  practicable  high  water  navigation  in 
the  Snake.  The  lower  139  miles,  however,  from  the  mouth  at 
Ainsworth,  Wash.,  up  as  far  as  Lewiston,  is  the  only  part 
that  has  been  successfully  navigated  at  lower  stages. 

In  former  days,  before  the  construction  of  the  railroads, 
this  lower  section  of  the  river,  in  connection  with  the  Columbia 
River,  formed  the  only  quick  and  safe  means  of  communication 
with  Portland,  Oreg.,  and  the  Pacific  coast,  where  were  located 
the  commercial  centers.  Light-draft  river  boats  plied  from 
Portland  as  early  as  1858  up  the  Willamette  and  Columbia 
Rivers  45  miles  to  the  obstruction  at  ^The  Cascades,’  where 
a portage  railway  6 miles  long,  on  the  Washington  shore, 
passed  the  freight  and  passengers  around  these  obstructions. 
For  about  45  miles  more  steamers  were  operated  in  what  was 
then  called  the  middle  Columbia  River,  or  up  to  the  town  of 
The  Dalles,  Oreg.,  and  there  a second  portage  road,.  13  miles 
long,  on  the  Oregon  shore,  enabled  freight  and  passengers  to 
pass  the  obstructions  between  The  Dalles  and  Celilo,  Oreg., 
and  be  transferred  to  steamers  on  the  ‘upper  river,’  above 
Celilo.  These  latter  steamers  at  most  favorable  stages,  and 


1585 


usually  for  more  than  half  of  each  y^ar,  could  ascend  from 

5264  Celilo  up  the  Columbia  to  the  mouth  of  the  Snake,  and  up 
the  Snake  to  Lewiston,  which  latter  place  thus  became  at  an 
early  date  a center  of  distribution  for  a large  outlying  fertile 
region.  The  opening  of  the  locks  at  ‘The  Cascades’  in  1896, 
by  the  Government  enabled  steamboats  to  pass  around  one  of 
the  worst  obstructions  in  the  Columbia  liiver,  leaving  the  ob- 
structions in  the  12  miles  between  The  Dalles  and  Celilo  the 
only  impassable  ones  to  be  overcome  artificially  in  reaching 
Lewiston  by  water  from  Portland. 

The'  completion  of  the  Portland-Spokane  line  of  the  Ore- 
gon Kailroad  and  Navigation  Company’s  liailroad,  in  1887, 
along  and  adjacent  to  the  Columbia  and  Snake  Livers  as  far 
as  Piparia,  Wash.,  robbed  those  two  waterways  of  much  of 
their  old-time  importance,  so  that  all  river  navigation  and 
portages  on  the  Columbia  above  The  Dalles  and  on  the  Snake 
were  practically  abandoned  in  1888,  except  on  the  73  miles 
of  the  Snake  between  liiparia.  Wash.,  and  Lewiston,  Idaho. 
Between  these  two  points  regular  navigation  has  been  main- 
tained by  the  steamers  of  the  Oregon  Bail  road  and  Navi- 
gation Company  up  to  the  present  time,  and  occasional  trips 
are  also  made  by  boats  belonging  to  the  Northern  Pacific  Kail- 
way Company  and  others.  Occasional  trips  on  the  upper 
Snake  have  been  made  as  far  as  the  Grande  Bonde  Biver, 
about  25  miles  above  Lewiston,  when  the  stage  of  water  was 

5265  favorable,  but  these  trips  are  now  so  few  and  unimportant 
that  the  condition  already  existing,  especially  at  boating  stages, 
is  believed  to  be  sufficient  for  all  the  present  needs  of  com-* 
merce.  The  proposed  improvement  by  the  Government  of  the 
Columbia  Biver  between  The  Dalles  and  Celilo  will,  if  under- 
taken and  finished,  likely  revive  some  of  the  old-time  impor- 
tance of  the  Snake  Biver,  especially  from  Lewiston  down  to  its 
mouth,  providing,  as  it  would,  an  all-water  transportation 
route  during  at  least  a portion  of  each  year  from  Lewiston 
to  Portland. 

A survey  of  the  lower  66  miles  of  the  Snake  Biver  from 
Kiparia  down  to  the  mouth,  made  in  1899  under  direction  of 
Capt.  Harry  Taylor,  Corps  of  Engineers  (report  of  survey 
printed  in  House  Doc..  No.  411,  Fifty-fifth  Congress,  second 
session),  renders  a further  survey  of  this  portion  unnecessary 
at  this  time,  so  that  the  portion  from  Kiparia  to  Lewiston  being 
the  only  portion  now  regularly  used  by  vessels,  the  subject  of 
this  survey  and  report,  is  the  only  remaining  part  believed 
to  be  worthy  of  consideration  at  the  present  time  in  connection 
with  the  improvement  of  the  river  for  navigation. 

In  the  portion  from  Lewiston  to  Kiparia  (73.5  miles),  re- 
cently surveyed,  the  average  width  is  approximately,  750  feet, 
the  discharge  22,000  feet  per  second,  the  total  fall  196.6  feet, 
and  the  slope  an  average  of  2.67  feet  per  mile. 


1586  Snake  River, — U.  S.  Eng.  Rep.  1901. — Continued. 

5266  The  low-water  depth  varies  from  2^  feet  to  25  feet,  with  an 
average  channel  depth  of  about  8 feet,  and  the  velocity  from 
1.3  to  8.8  miles  per  hour.  The  banks  are  about  1,500  feet 
high  and  usually  slope  to  the  water’s  edge.  In  a few  places, 
however,  there  are  found  narrow  and  fertile  ‘bottoms,’  limited 
in  area,  usually  lying  at  the  mouths  of  small  creeks.  These 
‘bottoms’  are  the  only  cultivated  lands  immediately  adjacent 
to  the  river,  but  these  when  irrigated  are  very  fertile  and  yield 
luxuriantly  a fine  quality  of  fruit,  berries,  etc.,  considerable 
quantities  of  which  are  shipped  out  annually. 

The  river  banks  slope  back  to  a height  of  many  hundred  of 
feet,  and  the  bunch  grass  found  thereon  offers  a sparse  but 
fairly  good  grazing  for  sheep  and  cattle.  On  high  plateaus, 
some  miles  back  from  the  river,  are  the  richly  productive  wheat 
fields  of  eastern  Washington  and  Oregon.  Much  of  the  wheat, 
now  amounting  to  many  millions  of  bushels  annually,  raised 
in  the  Camas,  and  Clearwater  basins,  Palouse  and  Big  Bend 
countries,  and  the  Wallawalla  and  Wallowa  regions  now  passes 
down  the  Snake  and  Columbia  Eiver  Valleys  by  rail.  For  a 
further  description  of  the  Snake  River,  including  description 
of  the  rapids  and  bars  and  the  work  done  in  past  years,  at- 
tention is  respectfully  invited  to  Annual  Reports  of  Chief  of 
Engineers  for  1877,  page  1037 ; for  1889,  page  2583,  and  for 
1891,  page  3218. 

5267  Previous  Improvement. — The  Upper  Columbia  and  Snake 
Rivers  having  formed  one  of  the  most  important  highways  of 
travel  in  the  region  in  early  days  before  the  railroads  were 
completed.  Congress,  as  early  as  1872  made  appropriations 
for  the  improvement  of  the  Columbia,  and  in  1876  the  Snake 
was  added  to  the  plan  of  improvement.  From  that  time  up 
the  present  a total  of  $288,500  has  been  appropriated  foV 
both  rivers’,  of  which,  as  near  as  can  be  learned  from  the  rec- 
ords, $117,850.57  haxe  been  applied  to  the  Snake  River  froih 
Lewiston  down  to  its  mouth,  mainly  below  Riparia.  The  orig- 
inal project  was  to  secure  a depth  of  4^  feet  at  low  water  from 
the  mouth  up  to  Lewiston.  The  greater  part  of  this  improve- 
ment was  made  below  Riparia,  as  the  dangers  and  difficulties 
met  with  by  steamboats  were  greatest  there.  The  method  of 
improvement  consisted  mainly  in  blasting  out  obstructing 
boulders,  removing  dangerous  ledges,  scraping  sand  and  gravel 
bars,  and  the  construction  of  dikes  to  concentrate  the  river 
flow  in  selected  channels.  This  work  on  the  lower  Snake 
below  Riparia  was  stopped  in  1888,  as  the  steamboats  had 
abandoned  that  section  upon  completion  of  the  railways  par- 
alleling it,  and  the  expenditures  since  then  being  small  have 
all  been  devoted  to  improving  the  portion  in  actual  use  be- 
tween Riparia  and  Lewiston. 

In  1892  $20,000  and  in  1894  $25,000  were,  as  before  re- 


1587 


5268  ferred  to,  appropriated  for  the  improvement  of  the  Snake 
and  Huntington  bridge  down  to  the  Seven  Devils  mining  dis- 
trict. Considerable  work  was  done  in  freeing  the  river  from 
obstructions  in  this  locality.  Considerable  plant  was  col- 
lected, including  drill  scows,  tools,  etc.,  and  the  work  of  re- 
moving ledge  rock  and  boulders  was  carried  on  for  several 
seasons.  Only  one  steamer,  the  Norma,  was  ever  built  for 
navigating  this  section  of  river,  and  she  made  bui  one  trip, 
and  then  the  owners  abandoned  the  idea  of  running.  In  1896 
all  the  Government  plant  in  this  portion  of  the  river  was  sold 
and  the  river  improvement  abandoned. 

Before  the  improvement  of  the  Lower  Snake  was  com- 
menced there  were  many  shoal  places  where  tliere  was  not 
over  2 feet  depth  at  low  water.  At  many  rapids  the  channel 
besides  being  shoal,  was  rocky  and  thickly  studded  with  out- 
standing boulders,  and  was  very  crooked  and  intricate.  The 
current  was  very  swift  at  ])laces,  and  the  early  attempts  at 
navigation  were  accordingly  attended  with  frequent  delays, 
mucli  risk,  and  occasional  loss.  The  effect  of  the  improve- 
ment has  been  to  remove  ledge  rocks  from  many  places  be- 
low Riparia,  partially  straightening  the  channel,  and  freeing 
the  river  of  many  obstructing  points.  Many  boulders  have 
been  blasted,  and  sand  and  gravel  bars  scraped,  both  above 
and  below  Riparia.  At  several  places  considerable  benefit 

5269  has  been  obtained  by  the  construction  of  dikes,  closing  un- 
desirable channels  and  directing  the  river  flow  into  selected 
places  to  occasion  scour  and  increase  the  depths. 

Above  Riparia  the  present  condition  meets  fairly  well  the 
present  demands  of  navigation  at  all  stages  except  at  and 
near  extreme  low  water.  Extreme  low  water  is  seldom  reached 
and  only  occasionlly  are  boats  prevented  from  using  the  river 
for  this  reason,  and  then  for  only  short  periods.  Much  de- 
lay is  experienced  near  low-water  stages,  however,  by  having 
to  Gine’  the  boats  over  bars  and  by  having  to  run  with  only 
partial  loads. 

Previous  Examinations  and  Surveys. — An  examination  of 
the  Upper  Columbia  and  Snake  Rivers  was  made  in  1866  by 
Lieut,  (now  Lieut.  Col.)  W.  H.  Hener,  Corps  of  En- 
gineers, and  an  estimate  of  cost  of  improvement  made  (See 
Annual  Report,  Chief  of  Engineers,  1866,  Part  IV,  p.  330), 
amounting  to  $166,686,  with  $6,000  annually  for  dredging.  In 
1877  a further  examination,  with  estimate  of  cost  of  improve- 
ment, amounting  to  $132,000,  was  made  by  Map  (now  Brig. 
Gen.)  John  M.  Wilson,  Corps  of  Engineers.  No  continuous  sur- 
vey of  the  Columbia  and  Snake  Rivers  has  ever  been  made  up 
to  the  present  day.  The  plans  of  improvement  proposed  in 
these  projects  were  for  the  benefit  of  the  special  places  found 


1588  Snake  River, — U.  S.  Eng.  Rep.  1901. — Continued. 


most  troublesome  by  steamboats,  and  only  special,  limited  sur- 
veys of  the  localities  to  be  improved  were  made. 

5270  In  1897  a survey  from  Eiparia  to  the  mouth  was  made 
under  direction  of  Capt.  Harry  Taylor,  Corps  of  Engineers, 
and  a project  and  estimate  of  cost  submitted  under  date  of 
January  27,  1898  (House  Hoc.  No.  411,  Fifty-fifth  Congress, 
second  session).  The  project  of  improvement  as  stated  in 
this  report  was  for  securing  at  low  water  at  least  navigable 
depth  of  5 feet  everywhere  from  Eiparia  down  to  the  mouth, 
a distance  of  66  miles.  The  cost  was  estimated  at  $165,000, 
with  $3,000  every  two  years  for  maintenance. 

Present  Survey. — The  present  survey  was  commenced 
July  28,  1900,  and  the  field  work  was  completed  September 
24, -1900.  The  party,  numbering  15,  was  under  charge  of  Mr. 
Prank  Gilliam  and  was  composed  of  a transit  party  and  a 
level  party,  with  the  necessary  boatmen,  cook,  and  laborers. 
The  party,  using  four  batteaux,  commenced  at  Lewiston  and 
drifted  downstream  from  time  to  time  with  the  current  when 
it  was  necessary  to  change  camp  sites.  A line  of  levels, 
checked  by  a duplicate  set  of  readings,  was  carried  through 
the  entire  distance,  the  zero  being  the  level  of  mean  low  water 
at  the  sea,  assuming  as  correct  the  corresponding  elevation 
of  low  water  at  Lewiston  (708.6)  as  observed  by  the  Oregon 
Eailroad  and  Navigation  Company. 

Low-water  level  was  obtained  from  the  zero  of  the  gauge 
at  Lewiston  on  the  Oregon  Eailroad  and  Navigation  Coin- 

5271  pany’s  waterhouse  and  from  that  of  the  gauge  on  the  cent- 
ral pier  of  the  drawspan  of  the  Eiparia  Eailway  bridge.  These 
gauges  were  read  daily  at  noon  during  the  survey,  and  were 
found  to  indicate  fairly  well  the  corresponding  stages  of 
water  at  the  two  places.  These  gauges  were  put  in  place 
by  the  railway  companies  and  have  been  read  for  many  years 
by  them.  The  zeros  give  the  best  information  available  of 
the  level  of  extreme  low  water. 


1589 


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Riparia  and  Lewiston,  where  trouble  in  navigation  is  experienced  at  the  present  time,  is  as  follows: 

LIST  OF  RAPIDS,  SHOALS,  AND  PROMINENT  POINTS  IN  SNAKE  RIVER  FROM  LEWISTON,  IDAHO,  TO  RIPARIA, 

WASH.  (Continued.) 

Elevation 


1590 


Snake  River, — U.  S.  Eng.  Rep.  1901. — Continued. 


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1593 


5274  DETAILED  DESCRIPTION  OF  SHOAL  RAPIDS  AND  PROMINENT  POINTS 

IN  SNAKE  RIVER  FROM  LEWISTON^  IDAHO,  TO  RIP  ARIA,  WASH. 

Beginning  of  the  survey  is  0.25  miles  above  Oregon  Rail- 
road and  Navigation  Company’s  warehouse  at  Lewiston, 
Idaho. 

Lewiston,  a city  of  about  5,000  inhabitants,  is  situated  at 
the  confluence  of  the  Snake  and  Clearwater  Rivers,  on  the 
right  bank  of  former  and  left  bank  of  latter. 

1.  Lewiston  Rapids: — This  rapid  is  opposite  Lewiston. 
It  has  a length  of  0.57  of  a mile  and  a fall  of  4.1  feet,  or  at 
the  rate  of  7.19  feet  per  mile.  The  river  just  above  the  rapid 
has  a low-water  width  of  about  900  feet^  narrowing  down, 
with  an  almost  square-shouldered  gravel  bar  on  the  right, 
to  a width  of  230  feet.  The  gravel  bar  has  a height  of  about 

5 feet  above  low  water,  and  width  of  about  900  feet.  On  the 
left  bank  of  the  river  is  a gravel  bluff  about  40  feet  high. 
This  sudden  narrowing  of  the  river,  together  with  a shoal 
place  extending  across  the  river  just  above  the  head  of  the 
rapids,  causes  a current  of  7.93  miles  per  hour.  The  least 
depth  of  water  is  7 feet.  No  improvement  is  deemed  neces- 
sary at  this  place,  as  the  only  difficulty  experienced  now  is 
caused  by  the  strong  current. 

The  Clearwater  River  empties  into  the  Snake  from  the 

5275  northeast,  0.60  miles  below  Lewiston.  It  has  a low- water 
width  of  about  350  feet  and  a depth  of  about  7 feet.  It  is 
the  only  stream  of  any  importance  emptying  into  the  Snake 
River  between  Lewiston  and  Riparia. 

2.  Riffle  No  1 (1.71  miles  below  Lewiston). — It  is  0.20 
of  a mile  in  length  and  has  a fall  of  15  feet,  or  at  the  rate  of 
7.5  feet  per  mile,  and  at  least  depth  of  water  of  10  feet.  No 
special  impediment  To  navigation  was  found  here  and  no  im- 
provement is  necessary. 

3.  Dead  March  (3.2  miles  between  Lewiston). — It  has  a 
length  of  0.76  of  a mile  and  a fall  of  7.3  feet,  or  at  the  rate 
of  9.3  feet  per  mile.  The  least  depth  of  water  found  was  4 
feet.  The  river,  which  above  the  rapid  is  about  900  feet 
wide,  is  here  divided  by  an  island,  which  throws  the  main 
body  of  water  into  a channel  on  the  south  side  about  450 
feet  wide.  This  sudden  narrowing  produces  a current  of 

6 miles  per  hour.  The  other  channel  to  the  north  of  the 
island  is  about  150  feet  wide,  and  1.2  feet  deep  and  is  blocked 
by  shoals  and  boulders  and  not  available  for  navigation  at 
low  stages.  No  special  difficulty  is  experienced  here  now,  but 
to  secure  a 5-foot  channel  it  will  be  necessary  to  dredge  near 
the  lower  end. 

4.  Dry  Gulch  Shoal. — This  shoal  is  just  above  Dry  Gulch 
Rapid  and  4.45  miles  below  Lewiston.  The  river  at  this 
point  makes  a turn  to  the  left  and  a tongue-shaped  point 


1594  Snake  River, — U.  8.  Eng,  Rep.  19^1.— Continued. 

5276  reaches  out  from  the  left  bank  terminating  in  a shoal  which 
extends  across  the  river.  The  deepest  water  found  on  this 
shoal  was  2.5  feet.  It  is  proposed  to  dredge  a channel  5 feet 
deep  and  120  feet  wide  through  this  shoal. 

5.  Dry  Gulch  Eapid  (4.66  miles  below  Lewiston). — It  has 
a length  of  0.10  of  a mile  and  a fall  of  3.4  feet,  giving  a rate 
of  fall  of  34  feet  per  mile,  and  a current  of  8.8  miles  per 
hour.  A depth  of  8 feet  was  found  at  the  shoalest  place. 
The  swift  water  is  caused  by  insufficient  cross  section,  the 
river  narrowing  from  800  feet  to  230  feet  between  a low 
gravel  bar  on  the  right  bank,  about  500  feet  wide  and  2 feet 
deep  above  low  water,  and  a low  rocky  bluff  on  the  left.  The 
only  impediment  to  navigation  is  the  strong  current.  No 
improvement  is  proposed. 

Alpowa  (9.4  miles  below  Lewiston). — A small  settlement 
on  the  left  bank  of  the  river  at  the  mouth  of  Alpowa  Creek. 
A current  ferry  is  maintained  at  this  point. 

6.  Alpowa  Rapid  (9.42  miles  below  Lewiston). — It  has  a 
length  of  0.19  of  a mile  and  a fall  of  1.1  feet,  giving  a rate 
of  fall  of  5.79  feet  per  mile.  Seven  feet  was  the  shoalest 
water  found  here.  No  special  obstruction  to  navigation  ex- 
ists. 

7.  Steptow  Rapid  (11.06  miles  below  Lewiston). — It  has 
a length  of  0.55  of  a mile  and  a total  fall  of  5.3  feet,  or  a rate 
of  fall  of  9.64  feet  per  mile.  The  difficulty  here  is  the  strong 

5277  current,  7.1  miles  per  hour,  and  the  crooked,  narrow  chan- 
nel. Five  and  five-tenths  feet  depth  at  low  water  was  found 
at  the  shoalest  point.  The  river  at  the  head  of  the  rapid  has 
a width  of  about  750  feet  between  high  banks,  and  is  divided 
by  a low  island  500  feet  wide  and  1.5  feet  above  low  water. 
This  throws  the  main  body  of  water  into  a channel  on  the 
right  about  250  feet  wide,  the  other  channel  on  the  left  being 
only  about  120  feet  wide  and  1 foot  deep.  This  reduction  of 
the  section,  taken  in  connection  with  a shoal  just  above  the 
rapid,  has  a damming  effect,  the  channel  acting  as  a spill- 
way. The  improvement  proposed  at  this  place  includes  the 
deepening  and  straightening  of  the  channel  by  dredging. 

8.  Little  Pine  Tree  Shoal  (13.01  miles  below  Lewiston). 
— It  is  probably  caused  by  the  river  attaining  the  extreme 
width  of  1,000  between  low-water  shore  lines  with  a very 
uniform  cross  section.  The  depth  of  water  varies  from  2 
to  7 feet,  and  falls  at  the  rate  of  4.5  feet  per  mile  with  a 
current  of  about  4 miles  per  hour.  Dredging  is  necessary  at 
this  place. 

9.  Little  Pine  Tree  Rapid  (13.12  miles  below  Lewiston). 
This  rapid  has  a length  of  0.28  of  a mile  and  a fall_of  6.9 
feet,  or  at  the  rate  of  fall  of  24.64  feet  per  mile.  The  only 
special  impediment  to  navigation  is  the  strong  current,  which 
flows  at  the  rate  of  7.5  miles  per  hour.  The  least  depth  of 


1595 


5278  water  found  here  was  8 feet.  The  rapid  is  caused  by  a 
low  gravel  bar  which  extends  out  from  the  right  bank  about 
400  feet.  This  has  the  effect  of  diminishing  the  width  of  the 
river  from  900  feet  just  above  the  bar  to  350  feet  opposite 
it.  No  improvement  is  proposed  at  this  place. 

.10.  Riffle  No.  2 (15.03  miles  below  Lewiston). — No  diffi- 
culty is  nojv  experienced  in  navigating  the  river  at  this  point. 
The  rate  of  fall  per  mile  is  but  1.5  feet,  with  a slow  current; 
4.5  feet  was  the  least  depth  found.  No  improvement  is 
thought  necessary  at  the  present  time. 

11.  Teamway  Rapid  (16.06  miles  below  Lewiston.) — This 
place  offers  now  no  special  difficulties  to  navigation.  The 
rapid  has  a total  fall  of  .8  feet,  or  at  the  rate  of  8 feet  per 
mile.  It  is  but  0.1  of  a mile  in  length.  The  least  depth  found 
was  13  feet. 

Bucket  Tramway  (17.36  miles  below  Lewiston). — Con- 
sists of  a system  of  buckets  hung  on  a wire  rope  for  bring- 
ing wheat  down  from  the  farming  land^  about  1,500  feet  above 
the  river,  to  the  steamer  landing  on  the  south  bank  of  the 
river. 

12.  Rapid  No.  8 (19.73  miles  below  Lewiston). — It  is  1.17 
miles  in  length  and  has  a total  fall  of  5.2  feet,  or  at  the  rate 
of  4.45  feet  per  mile,  with  a current  of  5.2  miles  per  hour.  It 
has  never  been  considered  a difficult  place  to  navigate.  Four 
feet  was  the  least  depth  found.  Several  boulders  should, 

5279  however,  be  removed  at  this  place. 

13.  Rapid  No.  9 (23.73  miles  below  Lewiston). — It  has  a 
length  of  0.17  of  a mile  and  a fall  of  2.4  feet,  or  af  the  rate 
of  14.12  feet  per  mile.  It  has  a current  of  7 miles  per  hour. 
The  only  impediment  offered  to  navigation  is  the  strong 
current,  there  being  5 feet  of  water  at  the  shoalest  places. 

14.  Granite  Pine  Rapid  (25.13  miles  below  Lewiston). — 
It  is  0.41  of  a mile  in  length  and  has  a fall  of  4.9  feet,  or  at 
the  rate  of  11.95  feet  per  mile.  It  has  a current  of  5.35 
miles  per  hour.  The  only  important  obstruction  to  naviga- 
tion at  this  point  consists  of  two  rocks  about  1.5  feet  below 
low  water.  These  rocks  aggregate  about  50  cubic  yards.  The 
rapid  is  caused  by  a sunken  ledge  of  rocks  extending  across 
the  river  which  has  caused  a bar  about  600  feet  wide  to  form 
on  the  right  bank.  The  effect  of  this  is  to  reduce  the  dis- 
tance between  the  water  lines  from  900  feet  above  the  rapid 
to  400  feet  at  its  narrowest  place.  There  are  many  sunken 
rocks  and  boulders  in  this  stretch,  but  a fair  channel  is  open 
near  the  left  bank.  The  soundings  gave  5 feet  of  water  at 
the  shoalest  place.  The  two  boulders  above  mentioned 
should  be  removed. 

Granite  Point  (26.51  miles  below  Lewiston). — A granite 
ledge  cropping  out  about  150  feet  below  the  level  of  the 


1596  Snake  River, — U.  S.  Eng.  Rep.  1901. — Continued. 


water  at  the  north  side  extends  across  the  river,  showing  on 

5280  the  opposite  bank.  The  granite  in  this  quarry  is  of  an 
excellent  quality.  It  has  been  worked  for  about  twenty  years. 
Among  other  structures  built  of  this  stone  might  be  men- 
tioned the  piers  for  the  bridge  across  Snake  Elver  at  Ains- 
worth, and  the  new  Custom  House  at  Portland,  Oreg.  The 
water  at  this  place  has  a depth  of  45  feet,  being  the  deepest 
water  between  Lewiston  and  Riparia. 

Tramway  (28  miles  from  Lewiston). — A tramway  on  the 
left  bank  of  the  river  which  is  operated  by  the  gravity  sys- 
tem, the  loaded  cars  coming  down  pulliug  the  empty  cars  up. 
It  is  for  the  purpose  of  bringing  wheat  down  to  the  river 
from  the  farming  lands  on  the  hisrh  plateaus. 

Wawawa  is  a small  settlement  on  the  right  bank  of  the 
river,  29.3  miles  below  Lewiston.  A current  ferry  is  oper- 
ated at  this  point,  it  being  one  of  the  crossings  of  the  Pome- 
roy-Colfax  wagon  road. 

15.  OriELDs  Bar.  (31.56  miles  below  Lewiston.) — The 
river  at  this  place  has  a low-water  width  of  800  feet,  and  a 
high-water  width  of  about  2,500  feet.  It  has  a fall  of  6.2 
feet  in  0.5  of  a mile,  or  at  the  rate  of  12.4  feet  per  mile,  and 
has  a current  of  6.3  miles  per  hour.  About  100  feet  out  from 
the  right  bank  there  is  a long,  narrow  island  exposed  for  a 
width  of  about  20  feet  at  low  water,  which  parallels  the  shore 
for  about  1,000  feet.  This  terminates  at  the  lower  end  in  a 

5281  bar  which  extends  diagonally  across  the  river,  connecting 
with  a small  island  near  the  right  shore  about  1,200  feet  be- 
low. The  water  on  this  bar  has  a low-water  depth  of  1.5 
feet.  Between  the  upper  end  of  this  narrow  island  and  the 
left  shore  of  the  river  the  water  has  a depth  of  4 feet,  and  a 
point  about  opposite  the  lower  end  of  the  island  and  about 
midway  between  it  and  the  left  shore  the  water  has  a depth 
of  5.5  feet  extending  up  and  down  stream  for  about  400  feet. 
The  method  employed  in  navigating  this  part  of  the  river 
at  low  water  has  been  to  keep  near  the  right  shore,  passing 
through  the  chute-like  channel  between  the  narrow  island 
and  the  right  shore  and  following  the  right  bank  for  about 
400  feet  above  the  head  of  the  island  (see  map).  This  is  nec- 
essary on  account  of  shoal  water  extending  above  the  head 
of  the  island.  The  current  is  very  strong  in  this  narrow 
passage,  necessitating  the  use  of  a line  on  up-stream  boats. 
This  narrow  channel  has  a depth  of  2 feet  at  its  shoalest  place, 
but  owing  to  its  trough-like  shape  the  action  of  the  wheel 
prevents  up-stream  boats  from  getting  full  benefit  of  the 
water.  It  is  proposed  to  improve  this  place  by  cutting 
through  the  bar  below  the  island,  thus  allowing  boats  to  pass 
into  this  deep  water  opposite  its  lower  end.  Between  this 
point  and  the  deep  water  above  the  shoalest  water  found  was 
4 feet. 


1597 


16.  Log  Cabin  Kapid  (32.81  miles  l)elow  Lewiston). — It 
has  a length  of  a mile  and  a fall  of  3.3  feet,  or  at  the  rate  of 

5282  7.33  feet  per  mile,  and  has  a current  of  5.10  miles  per  hour. 
By  following  a tortuous  channel  a depth  of  3 feet  was  found. 
Just  above  the  shoal  the  river,  which  has  a width  of  about  700 
feet,  is  divided  by  a low  island  about  300  feet  wide  and  1,500 
feet  long.  Near  the  right  shore  the  water  passing  to  the 
right  of  this  island  has  a width  of  about  250  feet  and  a depth 
of  about  1.5  feet.  This  island  terminates  at  its  lower  end  in 
a shoal  which  extends  across  the  river,  giving  a depth  of  3 
feet  near  the  left  bank.  A dike,  now  in  bad  repair,  has  been 
built  by  the  United  States  in  previous  years  to  prevent  the 
water  from  passing  behind  this  island  and  by  throwing  all 
the  water  into  the  main  channel  to  increase  its  depth.  The 
method  of  navigation  employed  with  up-stream  boats  has 
been  to  skirt  the  left  shore  until  about  ox>posite  the  lower  end 
of  the  island,  then  turn  abruptly  toward  the  dee}>er  water 
about  midstream.  A crib  tilled  with  rock  has  been  erected 
near  the  left  bank  at  the  point  where  the  turn  is  made  to 
prevent  boats  from  drifting  upon  the  rocky  shore.  As  the 
channel  is  so  near  tlie  shore,  this  has  always  been  a very 
difficult  place  to  navigate,  especially  during  high  winds.  The 
proposed  improvement  contemplated  repairing  the  dike  men- 
tioned and  cutting  a straight  channel  5 feet  deep  through  the 
shoal. 

17.  Altoma  Dead  March  (33.94  miles  below  Lewiston) — 

5283  It  has  a length  of  0.92  of  a mile,  with  a total  fall  of  5 feet. 
It  has  two  pitches,  one  of  which  falls  at  the  rate  of  5 feet  to 
the  mile  with  a current  of  about  5 miles  per  hour,  the  other 
at  the  rat^of  8.33  feet  per  mile  with  a current  of  7 miles  per 
hour.  This  last  pitch  is  about  0.1  of  a mile  in  length.  The 
soundings  showed  a 3.6-foot  channel  at  low  water.  The  river 
has  ^ low-water  width  of  about  600  feet  and  a high-water 
width  of  about  1,500  feet.  No  difficulty  is  generally  ex- 
perienced in  navigating  this  portion  of  the  river,  and  no  im- 
provement is  proposed  at  present. 

Almota  (36.30  miles  below  Lewiston). — A settlement  on 
the  right  bank  of  Snake  River  and  is  the  principal  settlement 
between  Lewiston  and  Riparia.  The  building  of  railroads  on 
the  table-lands  back  from  the  river  on  each  side  has  robbed  it 
of  much  of  its  importance,  but  large  shipments  of  wheat  are 
- still  made  from  this  point.  A current  ferry  is  operated  here, 
it  being  on  the  Pomeroy-Colfax  wagon  road. 

18.  Ilia  Bar  (37.62  miles  below  Lewiston). — The  river 
at  this  point  has  a low-water  width  of  about  1,000  feet  and 
a high-water  width  of  about  1,400  feet.  Opposite  the  lower 

' end  of  the  shoal  the  river  is  divided  by  a large  island,  the 
main  body  of  water  flowing  to  the  left  and  a stream  about 
250  feet  wide  and  1 foot  deep  flowing  to  the  right.  The  shoal 


1598  Snake  River, — U.  S.  Eng.  Rep.  1901. — Continued. 


connects  the  upper  end  of  the  island  with  the  left  shore.  This 
is  not  considered  a difficult  place.  A 4-foot  channel  was  found. 

5284  No  improvement  is  proposed  at  present. 

19.  Ilia  Rapid  (38.13  miles  below  Lewiston). — It  has  a 
length  of  0.59  of  a mile  and  a fall  of  7.4  feet,  or  at  the  rate 
of  12.53  feet  per  mile,  with  a current  of  7.6  miles  per  hour. 
The  least  depth  of  water  found  was  6 feet.  At  about  the  head 
of  the  rapid  the  river  is  divided  by  a large  island  which 
crowds  the  main  body  of  water  into  a channel  on  the  left 
about  330  feet  wide.  The  channel,  which  keeps  to  the  right 
of  the  island,  is  about  250  feet  wide  and  1 foot  in  depth. 
The  only  impediment  to  navigation  at  this  point  is  the  strong 
current.  No  improvement  excepting  the  removal  of  one 
rocky  boulder  is  considered  necessary. 

Ilia  (38.57  miles  below  Lewiston). — A small  settlement  on 
the  left  bank  of  the  river,  and  is  a wheat- shipping  point  of 
considerable  importance. 

20.  Lower  Ilia  Rapid  (40.21  miles  below  Lewiston)- — It 
has  a length  of  0.12  miles  and  a fall  of  1.4  feet,  or  at  the  rate 
of  11.67  feet  per  mile.  Tliere  is  no  impediment  to  navigation 
at  this  place.  The  shoalest  water  found  was  5 feet. 

21.  Wades  Rapids  (42.61  miles  below  Lewiston). — It  has  a 
total  length  of  0.59  of  a mile  and  a total  fall  of  4.5  feet.  The 
upper  half  falls  at  the  rate  of  5.77  miles  and  has  a current  of  7 

5285  miles  per  hour.  The  lower  half  falls  at  the  rate  of  5.77  miles 
per  hour.  The  river,  which  is  about  900  feet  wide  just  above 
the  rapid,  is  divided  by  Atwood  Island,  which  throws  the 
main  body  of  water  into  a channel  on  the  right  side  about 
300  feet  wide.  The  channel  on  the  left  of  the  island  is  about 
100  feet  wide  and  1.5  feet  deep.  The  least  water  found  on  this 
rapid  was  6 feet.  The  only  impediment  to  navigation  is  the 
strong  current.  No  improvement  is  proposed. 

22.  Rapid  No.  16  (46.01  miles  below  Lewiston). — It  has  a 
length  of  0.27  of  a mile  and  a fall  of  2.3  feet,  or  at  the  rate 
of  8.22  feet  per  mile,  with  a current  of  4.50  miles  per  hour. 
The  river  has  a width  of  about  600  feet.  The  least  depth 
found  was  5 feet.  No  obstruction  to  navigation  was  found 
here. 

23.  Upper  Pennewawa  Rapid  (47.93  miles  from  Lewiston) — 
It  has  a length  of  0.36  of  a mile  and  a fall  of  3.3  feet,  or  at  the 
rate  of  9.17  miles  per  hour.  It  has  a current  of  7 miles  per 
hour.  The  shoalest  water  found  was  5 feet.  The  rapid  is 
caused  by  an  insufficient  cross  section,  the  river  narrowing 
down  to  about  400  feet  between  low  water  lines.  No  improve- 
ment is  now  needed  at  this  place. 

24.  Lower  Penewawa  Rapid  (48.72  miles  below  Lewiston). 
— It  has  a fall  of  1.5  feet  in  a distance  of  0.20  of  a mile,  or  at 
the  rate,  of  7.5  feet  per  mile.  The  river  has  a width  of  about 

5286  600  feet  and  a depth  of  6 feet.  No  improvement  is  necessary 


1599 


except  removing  two  rocks,  aggregating  about  40  cubic  yards. 

Penewawa  (49.56  miles  below  Lewiston) — A small  settle- 
ment on  the  right  bank  of  the  river.  It  has  a store,  post  office 
and  hotel.  A current  ferry  is  operated  here. 

25.  Willow  Kapid  (50.74  miles  below  Lewiston). — It  has 
a total  length  of  0.66  of  a mile  divided  into  two  pitches.  The 
first  has  a fall  of  2.5  feet,  or  at  the  rate  of  10  feet  per  mile, 
and  a current  of  8 miles  per  hour;  the  second  has  a fall  of 
2.8  feet,  or  at  the  rate  of  6.83  feet  per  mile,  and  a current  of 
7.4  miles  per  hour.  The  least  depth  of  water  found  was  6.5 
feet.  The  river  just  above  the  rapid  has  a low-water  width 
of  about  800  feet.  It  is  divided  by  an  island  which  contracts 
the  main  channel  to  a width  of  aliout  300  feet.  The  main  body 
of  water  flows  to  the  right  of  the  island.  The  channel  to  the 
left  is  about  30  feet  wide  and  1 foot  deep.  The  only  irn])edi- 
ment  to  navigation  at  this  place  is  the  strong  current,  which, 
setting  toward  the  head  of  the  island  on  the  left,  sometimes 
necessitates  the  use  of  a line.  No  im])rovenient  is  ]iroposed. 

Central  Ferry  (56.57  miles  below  Lewiston)  is  a current 
ferry  at  the  crossing  of  wagon  road. 

26.  Dead  Man  Kapid  and  Bar  (56.86  miles  below  Lewis- 
ton).—It  has  a length  of  0.36  of  a mile  and  a fall  of  4.4  feet, 

5287  or  at  the  rate  of  11.28  feet  per  mile.  It  has  a current  of 
6.10  miles  per  hour.  The  soundings  gave  a depth  of  2.8  feet 
at  the  shoalest  place.  The  river  at  this  point  is  divided  by 
Dead  Man  Island,  the  main  channel,  about  600  feet  wide,  goir>^ 
to  the  right.  The  channel  passing  to  the  left  is  about  200 
feet  wide  and  1.3  feet  deep.  Dredging  to  5 feet  depth  will 
be  necessary. 

27.  Diamond  Crossing  (58.32  miles  below  Lewiston). — It 
is  a long,  diagonal  bar  extending  from  New  York  Bar  on 
the  left  to  the  right  bank.  Three  feet  was  the  least  depth 
found  at  this  shoal.  To  secure  a 5-foot  channel  it  will  be 
necessary  to  dredge. 

28.  New  York  Bar  Kapid  (59.96  miles  below  Lewiston). — 
It  has  a length  of  0.44  of  a mile,  and  a fall  of  3.80  feet,  or 
at  the  rate  of  8.64  feet  per  mile.  It  has  a current  of  7 miles 
per  hour.  The  least  depth  found  here  was  6.5  feet.  The  river 
above  the  rapid  has  a width  of  about  1,200  feet.  It  is  divided 
by  a low  island  about  800  feet  wide,  the  main  body  of  water 
flowing  to  the  right  through  a channel  about  400  feet  wide. 
The  channel  to  the  left  is  about  50  feet  wide.  The  rapid  is 
the  result  of  this  narrowing  of  the  waterway.  The  strong 
current  is  the  only  impediment  to  navigation.  No  improve- 
ment is  proposed. 

29.  Upper  Goose  Island  Kapid  (63.76  miles  below  Lewis- 
ton).— It  has  a length  of  0.47  of  a mile  and  a fall  of  4.3  feet, 
or  at  the  rate  of  9.15  feet  per  mile,  with  a current  of  7 miles 

5288  per  hour.  Three  and  five-tenths  feet  was  the  least  depth 


1600  Snake  River, — TJ.  8.  Eng.  Rep.  1901. — Continued. 


found.  Just  above  the  rapid  the  river  has  a width  of  1,300 
feet  and  is  here  divided  by  the  upper  island  of  the  group 
known  as  Goose  Island,  which  extends  down  the  river  for 
about  4 miles.  These  islands  are  three  in  number,  the  most 
elevated  being  about  16  feet  above  low  water,  the  river  at 
this  point  being  2,000  feet  wide.  The  main  channel  keeps 
near  the  right  bank  and  is  about  400  feet  in  width.  The  chan- 
nel on  the  left  of  this  upper  island  is  about  475  feet  wide  and 
has  a depth  of  5 feet.  This  is  again  divided.  One  branch, 
bearing  to  the  right,  passes  between  the  upper  island  the  sec- 
ond of  the  group.  This  channel  has  a width  of  about  200 
feet  and  a depth  of  1 foot.  The  channel  which  keeps  to  the 
left  has  a width  of  about  250  feet  and  a depth  of  1.5  feet.  It 
has  a very  strong  current  and  is  blocked  with  many  bowlders. 
It  is  not  considered  necessary,  however,  to  make  any  improve- 
ment at  this  place  at  this  time. 

30.  Goose  Island  Bar  (64.60  miles  below  Lewiston). — This 
bar  has  formed  in  the  pool  between  upper  Goose  Island  Rapid 
and  Goose  Island  Rapid  proper  and  near  the  head  of  the 
latter.  The  water  on  the  bar  has  a depth  of  2 feet.  The 
river  here  has  a width  of  about  1,800  feet  and  is  divided 
by  the  lower  island  of  the  Goose  Island  group,  the  upper  end 
of  this  island  being  about  opposite  the  bar.  A shallow  chan- 
nel flows  between  the  second  of  the  group  and  this  low^er  island 

5289  about  400  feet  wide  and  1 foot  deep.  Two  dikes  have  been 
constructed  across  this  channel  for  the  purpose  of  contracting 
the  flow  of  water  over  the  bar.  The  first  built  was  placed 
across  the  channel  at  a point  about  300  feet  back  of  the  should- 
ers of  the  two  islands.  This  dike  is  in  bad  repair.  The  last 
constructed  is  on  a line  between  the  shoulders  of  the  island, 
but  lacks  about  500  feet  of  connecting  them.  The  improve- 
ment proposed  for  this  place  is  to  complete  the  last-men- 
tioned dike  and  cut  a channel  60  feet  wide  and  5 feet  deep 
through  the  bar. 

31.  Goose  Island  Rapid  (64.67  miles  from  Lewiston). — It  has 
a total  length  of  0.38  of  a mile  and  a total  fall  of  5.3  feet  at 
its  steepest  place.  It  falls  at  the  rate  of  29.17  feet  per  mile, 
with  a current  of  8.8  miles  per  hour.  The  shoalest  water  found 
over  this  rapid  was  6 feet.  The  river  is  here  divided  by  the 
lower  island  of  the  Goose  Island  groups,  the  main  body  of 
water  flowing  through  a channel  on  the  right  about  200  feet 
wide.  The  river  at  this  point  has  a high-water  width  of  about 
1,800  feet,  there  being  a low  bar  on  the  right  about  1,100  feet 
wide.  No  improvement  is  contemplated  at  this  rapid. 

32.  Little  Goose  Island  Rapid  (67.75  miles  from  Lewis- 
ton).— It  has  a length  of  0.35  of  a mile  and  a fall  of  3.5  feet, 

5290  or  at  the  rate  of  10.28  feet  per  mile,  and  a current  of  5.3 
miles  per  hour.  The  shoalest  water  found  was  3 feet.  The 
river  at  this  point  has  a width  of  about  1,500  feet  and  is  di- 


1601 


vided  by  Little  Goose  Island,  the  main  body  of  water  flow- 
ing to  the  right  in  a channel  about  550  feet  wide.  The  branch 
flowing  to  the  left  is  about  100  feet  wide  and  1.5  feet  deep. 
Near  the  right  bank  of  the  main  channel  there  are  many 
sunken  rocks.  The  steamer  channel  lies  near  the  right  bank 
of  the  island.  No  improvement  is  considered  necessary  at 
this  place  at  the  present  time. 

33.  Little  Goose  Island  Bar  (68.50  miles  below  Lewis- 
ton).— It  is  a continuation  of  Little  Goose  Island.  It  begins 
at  the  lower  end  of  the  island  and  crosses  the  river  diagonally, 
connecting  with  the  right  bank  of  the  river  about  1,500  feet 
below.  The  river  at  this  place  is  about  1,200  feet  wide.  The 
water  has  a depth  of  3 feet  at  its  shoalest  place.  It  is  pro- 
posed to  improve  at  this  place  by  dredging  a channel  60  feet 
wide  and  5 feet  deep  through  the  bar. 

34.  Rapid  No.  24  (69.01  miles  below  Lewiston). — This  rapid 
has  a length  of  0.47  miles  and  a fall  of  3 feet,  or  at  the  rate 
of  6.38  feet  per  mile,  and  a current  of  6.5  miles  per  hour. 
The  least  depth  found  was  6.5  feet.  The  river  at  this  point  has 
a width  of  about  550  feet.  It  is  flanked  on  the  right  by  a 
low  gravel  bar  about  800  feet  wide.  No  impediment  to  navi- 
gation was  found  at  this  place. 

5291  35.  Upper  Riparia  Rapid  (71.03  miles  from  Lewiston). — 
It  has  a length  of  0.29  of  a mile  and  a fall  of  3 feet,  or  at  the 
rate  of  10.35  feet  per  mile,  and  a current  of  6.10  miles  per 
hour.  The  least  depth  found  was  7 feet.  The  river  is  here 
divided  by  McGuires  Island,  the  main  body  of  water  flowing 
to  the  right  through  a channel  about  400  feet  wide.  The 
channel  is  about  200  feet  wide  and  1 foot  deep.  No  improve- 
ment is  necessary  at  the  present  time. 

Riparian  Bridge  (72.85  miles  from  Lewiston  and  73.5 
miles  from  initial  point  of  survey). — This  is  the  Snake  River 
crossing  of  the  Spokane  Branch  of  the  Oregon  Railroad  and 
Navigation  Company’s  Railroad.  It  has  a length  of  1,008 
feet  and  a drawspan  at  the  south  end  of  350  feet.  Its  grade 
is  38.1  feet  above  low  water  and  13  feet  above  high  water. 
This  is  the  initial  point  of  the  survey  made  of  Snake  River  in 
1897  from  Riparia  to  the  Columbia  River,  total  length  66.7 
miles;  Lewiston  to  this  bridge,  72.85  miles;  Lewiston  to  mouth 
of  river,  139.55  miles. 

Riparia  (end  of  survey,  73.25  miles  from  Lewiston  and  73.5 
miles  from  initial  point  of  survey). — A station  on  the  Spokane 
Branch  of  the  Oregon  Railroad  and  Navigation  Company’s 
Railroad.  At  this  place  all  freight  to  and  from  river  points 
between  Lewiston  and  Riparia  is  transferred  to  rail,  it  being 
the  lower  terminus  of  the  steamboat  line  to  Lewiston. 

5292  The  vessels  now  in  Snake  River,  between  Lewiston  and 
Riparia,  are  all  stern-wheel,  flat-bottomed  boats,  a list  of 
which,  with  their  dimensions  is  as  follows: 


1602  Snake  River, — U..  S.  Eng,  Rep,  1901. — Continued. 


Draft. 


Length.  Beam.  Depth.  Light.  Loaded 


Ft. 

In. 

Ft. 

In. 

Ft. 

In. 

Ft. 

In. 

Ft. 

In. 

Spokane, 

100 

4 

38 

6 

6 

3 

2 

0 

3 

8 

Lewiston 

165 

0 

34 

4 

5 

3 

1 

0 

2 

6 

Almota 

157 

0 

36 

0 

5 

0 

1 

8 

3 

6 

Norma 

160 

0 

32 

6 

5 

6 

1 

11 

3 

4 

191 

0 

36 

4 

6 

0 

27 

3 

9 

The  difficulties  encountered  arise  in  all  cases  from  insuffi- 
cient depths,  occasional  obstructing  bowlders,  and  swift  cur- 
rents. Near  low  water  stages  the  steamers  find  it  necessary  at 
present  to  lay  out  ropes  fastened  to  trees  or  to  posts  conven- 
iently placed  and  haul  themselves  with  steam  windlasses  over 
shoal  places  and  through  rapids  too  swift  to  be  navigated 
otherwise.  The  boats  being  all  flat-bottomed  and  the  bars  in 
this  part  of  the  river  being  all  sand  and  gravel,  this  can  be 
done  without  damage  until  the  depth  of  water  becomes  insuf- 
ficient, when  navigation  ceases.  The  dimensions  of  the  above 
steamers  are  said  to  be  those  found  best  by  experience  for  the 
conditions  to  be  met  in  this  river,  and  will  not  likely  change 
much  in  the  future  unless  the  conditions  are  decidedly  al- 
tered. 

5293  The  comparatively  large  cross  section  of  the  river,  the  large 
discharge  (22,000  feet  per  second),  and  the  relatively  high 
average  slope  (2.67  feet  per  mile)  render  the  effect  of  the  pro- 
posed dredged  channels  unimportant  in  changing  the  area  of 
cross  section  so  as  to  injuriously  alter  the  currents  or  levels 
above,  especially  as  the  depth  of  cut  to  obtain  5 feet  at  low 
water  is  in  most  cases  slight  and  not  over  3 feet  at  the  worst 
places.  The  dikes  proposed  to  not  increase  the  currents  above 
what  can  be  easily  ascertained  by  the  present  boats.  The  river 
bottom  at  all  these  places  is  composed  of  coarse  sand  and 
gravel  and  small  cobblestones  which,  if  not  found  practicable 
to  remove  by  increasing  the  currents  by  contracting  dikes,  can 
probably  be  easily  dredged  with  a grapple  bucket  operated  by 
a hoisting  engine  from  a small  derrick  scow,  especially  if  the 
bottom  should  be  first  loosened  with  small  charges  of  explo- 
sives. In  former  years  a heavy  scraper  towed  by  a steamer 
gave  fairly  satisfactory  results  in  scraping  bars. 

A depth  of  5 feet  at  low  water  has  been  selected  in  the  pro- 
ject for  the  improvement  of  the  river  below  Biparia  (see  House 
Doc.  No.  411,  Fifty-fifth  Congress,  second  session),  and  any 

5294  extensive  improvement  above  Riparia  to  be  effective  should 
provide  no  less  depth  than  this  over  ail  the  above  named 

shoals.  The  thorough  improvement  of  this  section  would  there- 
fore probably  require  a deepening  of  the  channel  through  all 
these  shoal  places,  the  construction  of  a number  of  deflecting 


1G03 


dikes  to  secure  and  maintain  the  depths,  and  the  removal  of 
all  the  boulders  and  rocky  points  likely  to  interfere  with  ves- 
sels at  low  water. 

The  navigation  of  this  section  of  river,  however,  is  at  pres- 
ent limited  to  one  vessel  each  way  daily,  and  it  is  not  deemed 
advisable  to  include  more  points  for  improvement  at  the  pres- 
ent time  than  necessary  to  relieve  the  most  troublesome  places. 
Low  water  periods  are  of  short  duration,  and  present  condi- 
tions are  satisfactory  except  at  low  stages.  For  these  reasons 
the  extent  of  improvement  proposed  in  this  report  provides 
only  for  the  following,  the  dredged  channels  being  5 feet  deep 
at  low  wmter  and  in  most  cases  60  feet  wide.’^ 


5295  James  0.  Heywokth, 

a witness  for  defendant,  testified  as  follows : 

Direct  Examination. 

My  full  name  is  James  0.  Hey  worth.  I am  the  same  Mr.  Hey- 
worth  who  has  given  his  deposition  in  this  case.  In  that  deposi- 
tion this  question  was  asked: — ^‘How  deep  was  it  at  the  time  you 
got  your  coffer  and  levee  inF^  and  the  stenographer  has  this  as 
my  answer:  ‘‘We  had  about  16  feet  gauge,  I think,  at  that  time, 
about  16  feet  of  water. 

If  I did  so  answer,  it  is  not  correct.  The  correct  answer  to 
that  question  would  be  that  coffer  dam  would  hold  out  about  12  feet 
of  water,  a 12-foot  head  of  water  there.  The  water  at  that  time 
was  somewhere  around  6 feet  deep,  I think,  running  all  the  way 
from.  5 to  8 feet  along  the  time  that  we  were  putting  in  the 

5296  coffer-dam,  with  the  exception  of  some  flood  days.  Then 
wherever  it  appears  in  that  deposition  I gave  that  the  water 

was  16  feet  at  the  point  where  the  coffer  dam  was  being  con- 
structed, that  is  an  error.  In  one  or  two  places  where  I was  asked 
about  elevations,  the  deposition  states  that  I gave  Chicago  City 
datum  in  connection  with  my  elevation;  I speak  of  certain  eleva- 
tions there  as  “Chicago  City  datum, that  is  not  correct.  We 
were  speaking  about,  as  I remember  it,  some  glacial  drift,  or  some- 
thing, I don’t  remember  how  that  came  in,  but  the  elevations  on  the 
work  that  we  were  working  by  down  there  are  Hennepin  datum. 

Counsel  foe  Defendant.  That  is  all. 


1604 


0 


J.  W.  WoEEMANN^ 

recalled  for  defendant,  testified  as  follows: 

The  width  of  the  river  where  the  gauge  is  at  Eiverside,  is  very 
much  narrower  than  the  width  of  the  river  say  between  Eomeo  and 
Lockport. 

5297  Q.  If  there  was  15  inches  at  the  gauge  in  Eiverside,  would 
there  be  the  same  depth  all  the  way  down  the  river,  or  would 

it  depend  upon  the  width  of  the  stream! 

(Objected  to;  overruled.) 

It  would  depend  on  the  width  of  the  stream  as  well  as  on  the 
slope. 

Q.  Well,  just  how  would  it  depend  on  the  slope!  I can  under- 
stand about  the  width  of  the  stream,  it  would  be  scattered  over  a 
wider  territory,  but  how  would  it  depend  on  the  slope! 

A.  This  is  in  the  12-mile  level,  wdiere  there  is  little  or  no  slope  and 
frequent  pools  in  places,  so  there  would  be  more  water.  The  water 
would  collect  in  the  pools  and  run  over  the  bars  between  the  pools. 
I was  about  to  add,  if  you  will  permit  me,  that  between  Eomeo  and 
Lockport  the  river  is  spread  out  over  quite  a width,  with  innumer- 
able islands  between  them,  as  well  as  a sharp  slope,  and  there 
would  be  very  much  less  water  in  depth  than  there  would  be  at 
Eiverside  for  the  same  time. 

Q.  How  about  down  below,  the  river  generally  below  Lock- 

5298  port,  how  does  it  compare  in  width  with  the  width  at  Eiver- 
side! 

(Objected  to;  overruled.) 

A.  The  width  in  the  vicinity  of  the  Eiverside  gauge  is  about  150 
feet. 

Counsel  for  Defendant.  Now,  I want  to  show  the  location  of 
certain  lands  with  reference  to  a decision  of  the  Supreme  Court. 
The  property  was  located  in  a canal  section.  I will  say  to  counsel 
that  I am  making  the  proof  with  reference  to  a case  I shall  cite  on 
the  argument.  City  of  Chicago  v.  Fullerton,  in  the  152  111.,  p.  24, 
affecting  the  title  to  an  odd  numbered  section,  a canal  section.  I 


1605 


want  to  show  that  the  land  was  in  an  oft  numbered  section,  a canal 
section,  and  also  that  it  was  sold  after  the  Act  of  1839. 

Counsel  for  defendant  then  offered  in  evidence  a certified  copy 
of  the  entry  of  the  patent  to  Alexander  N.  Fullerton  by  the  State 
of  Illinois,  which  is  dated  March  27,  1848,  certified  by  Abel 
5299  Davis,  Kecorder  of  Deeds,  as  a copy  of  the  record,  and  the  cer- 
tificate is  dated  the  15th  day  of  June,  1908. 

(Objected  to  as  irrelevant,  incompetent  and  immaterial; 
overruled.) 

Said  document  is  as  follows: 

‘‘Defendant's  Exhibit,  Fullerton. 

State  of  Illinois  “to”  Alexander  N.  Fullerton. 

March  1848. 

Mar.  27  Issued  Patent  to  Alexander  N.  Fullerton  for  N.  W. 
i N.  E.  Sec.  31,  T.  40,  N.  E.  14  E.  3d  P.  M.  40  acres,  also 
for  N.  E.  i N.  E.  i Sec.  31,  T.  40  N.  E.  14  E.  3d  P.  M.  40 
acres. 


5300  United  States  of  America 
State  of  Illinois 


Office  of  Secretary 


* I,  George  H.  Harlow,  Secretary  of  the  State  of  Illinois,  do 
hereby  certify  thai  the  foregoing  is  a true  copy  of  an  entry 
in  the  Executive  Eecord  of  the  State  of  Illinois,  under  date  of 
March  27,  1848,  which  record  is  now  on  file  in  this  office. 

In  witness  whereof,  I hereto  set  my  hand  and  affix  the 
Great  Seal  of  State  at  the  City  of  Springfield  this  3rd  day  of 
August  A.  D.  1878. 

Seal  of  the  State  Geo'.  H.  Harlow, 

of  Illinois  Aug.  26th  Secretary  of  State. 

1818. 

No.  190110  Eecorder  Aug.  7,  1878  at  1 P.  M.  Jas.  W.  Brock- 
way, Eecorder. 


State  of  Illinois 
County  of  Cook 


I 


ss. 


I,  Abel  Davis,  Eecorder  of  Deeds  and  Keeper  of  Records 
in  and  for  said  county  in  the  state  aforesaid,  do  hereby  certify 
that  the  foregoing  is  a true  and  correct  copy  of  the  record  of 
a certain  instrument  filed  in  my  office  the  seventh  day  of  Aug- 
ust A.  D.  1878  as  Document  No.  190110  and  recorded  in  Book 
474  of  Eecords  at  page  107. 

In  testimony  whereof,  I have  hereunto  set  my  hand  and 


1606 


affixed  my  official  seal  at 
A.  D.  1908. 

(Seal) 


Chicago,  this  fifteenth  day  of  June 

(Signed)  Abel  Davis, 
Recorder.’^ 


5301  John  A.  Linden, 

a witness  for  defendant,  testified  as  follows: 

Direct  Examination. 

My  name  is  John  A.  Linden.  I reside  at  311  Cuyler  avenue.  1 
am  connected  with  the  office  of  the  recorder  of  deeds  of  Cook 
County,  Illinois,  in  the  employ  of  the  recorder.  I am  familiar 
with  the  location  of  Fullerton  ^s  Third  Addition  to  the  City  of  Chi- 
cago with  reference  to  the  section  in  which  it  is  located. 

Q.  Well,  where  is  it  located? 

(Objected  to  as  incompetent,  irrelevant  and  immaterial; 
overruled.) 

A.  It  is  east  of  the  Chicago  Kiver  and  in  the  north  half  of 
Section  31,  Township  40  North,  Eange  14  East  of  the  Third 

P.  M. 

It  was  considered  as  a canal  section  originally.  It  is  chief- 

5302  ly  in  the  northeast,  that  is,  in  the  northeast  quarter  of  the 
northeast  quarter  of  Section  31.  I have  Plat  Book  No.  12 

from  the  recorder's  office,  and  that  is  kept  in  the  recorder’s  office 
and  one  of  the  books  of  the  office.  On  page  78  of  that  book  ap- 
pears Canal  Trustees’  Subdivision 'of  the  west  half  of  Section  5, 
Township  39  North,  Eange  14  East  of  the  Third  Principal  Merid- 
ian, except  the  southeast  quarter  of  the  northwest  quarter  and 
the  northwest  quarter  of  the  southeast  quarter.  Lot  9 bor- 

5303  ders  on  the  river  to  the  west  of  the  north  branch  of  the  Chi- 
cago Elver. 

(Objected  to  as  not  the  best  evidence  for  the  witness  to  state 
that  it  borders  on  the  river.) 

Counsel  for  defendant  then  offered  in  evidence  the  plat,  a copy 
of  the  plat  to  be  made  and  substituted  afterwards.  Said  copy  of 
said  plat  was  received  in  evidence.  (Atlas,  p.  3990;  Trans.,  p. 
6707;  Abst.,  p.  1937.) 


1607 


5304  On  page  89  of  that  book  appears  Canal  Trustees’  new  sub- 
division of  blocks  in  the  east  fraction  of  the  southeast  frac- 
tional quarter  of  Section  21,  Township  39  North,  liange  14  East. 

(Counsel  for  defendant  offered  that  plat  in  evidence  also; 
objection  as  incompetent,  irrelevant  and  immaterial;  over- 
ruled.) 

(Leave  to  substitute  a copy.) 

Said  copy  of  said  plat  was  received  in  evidence.  (Atlas,  p. 
3991;  Trans.,  p.  6712;  Abst.,  p.  1937.) 

5305  Counsel  for  defendant  now  offered  a certified  copy  of  deed 
by  the  Board  of  Trustees  of  the  Illinois  and  Michigan  Canal 

to  Joseph  Dinet. 

(Objected  to  as  incompetent,  irrelevant  and  immaterial. 
Overruled.) 

Said  copy  of  deed  is  abstracted  as  follows: 

5306  Knovv^  all  men  by  these  peesents,  That  the  Board  of 

Trustees  of  the  Illinois  and  Michigan  Canal  * * * 

sold  to  Joseph  Dinet  the  following  described  lots  of  land,  to- 
wit : 

Lots  number  one  (1),  two  (2),  nine  (9),  ten. (10),  thirteen 
(13),  twenty-four  (24)  and  twenty-five  (25)  in  the  said  Trus- 
tees’ Subdivision  of  the  west  part  of  section  number  five  (5) 
in  Township  number  thirty-nine  (39)  north  of  Range  number 
fourteen  (14)  east  of  the  Third  Principal  Meridian  * * * 

Know  Ye  Also  that  the  said  Joseph  Dinet  paid  to  the  treas- 
urer of  the  said  Board  of  Trustees  the  sum  of  thirty-two  hun- 
dred and  sixty  ($3,260)  dollars  and  cents  being  in 

full  payment  of  the  purchase  money  for  said  land  * * * 

5307  In  consideration  thereof  and  the  premises  the  said  Board 

of  Trustees  of  the  Illinois  and  Michigan  Canal  has  granted, 
bargained  * * * 

To  have  and  to  hold  * * * 

In  witness  whekeof,  * * * this  21st  day  of  October  in 

the  year  of  our  Lord  eighteen  hundred  and  fifty-one. 

The  Boakd  of  Trustees  Illinois  and  Michigan  Canal, 

W.  H.  Swift, 

President. 
Wm.  Gooding, 

Secretary. 


1608 


Deed  to  Dinet. — Continued. 


State  of  Illinois 
Cook  County 


No.  51579  filed  for  record  22  Oct.  1851  & recorded  in  Book 
No.  1 of  Canal  Deeds  on  page  1.  No.  531269. 

L.  D.  Hoaed, 
Recorder. 

Filed  for  re-record  March  15th,  A.  D.  1884,  at  3 o’clock 

P.  M. 

Jas.  W.  Bkockway, 
Recorder.^’ 

5308  (Certificate  of  Abel  Davis,  Eecorder,  that  the  foregoing 
is  a true  copy.) 


5309  Counsel  for  defendant  read  in  evidence  deed  from  the  trus- 
tees of  the  Illinois  and  Michigan  Canal  to  certain  properties 

described  in  plat  appearing  upon  page  89  in  the  book  identified,  the 
deed  being  to  Thomas  Stinson. 

Said  copy  of  deed  was  admitted  in  evidence  and  is  abstracted  as 
follows : 

Know  all  men  by  these  peesents,  That  the  Board  of 
Trustees  of  the  Illinois  and  Michigan  Canal  * * * Pas 
sold  to  Thomas  Stinson,  the  following  described  lots  of  land, 
to-wit : 

Lots  numbered  one  (1)  in  Block  (38),  eight  (8)  and  ten  (10), 
in  Block  thirty-five  (35),  two  (2)  and  three  (3)  in  Block  thirty- 
four  (34),  two  (2)  in  Block  fourteen  (14)  and  one  (1)  and 
seven  (7)  in  Block  thirty-five  (35),  all  of  said  lots  and  blocks 
being  in  the  said  Trustees’  Subdivision  of  lots  and  blocks  in 
the  west  part  of  Section  twenty-one  (21)  in  Township  thirty- 
nine  (39)  North  of  Kange  fourteen  (14)  east  of  the  Third 
Principal  Meridian  * * * 

5310  Know  Ye  also,  that  the  said  Thomas  Stinson,  paid  to  the 
treasurer  of  the  said  Board  of  Trustees  the  sum  of  three 

thousand  one  hundred  and  thirty-five  dollars  and cents, 

being  in  full  payment  of  the  purchase  money  for  said  laud 

* # * 


In  consideration  thereof,  and  the  premises  the  said  Board  of 
Trustees  of  the  Illinois  and  Michigan  Canal,  has  granted,  bar- 
gained * * 

To  have  and  to  hold  * * * 

5311  In  witness  wheeeof  * * * this  27th  day  of  September 

in  the  year  of  our  Lord  eighteen  hundred  and  fifty-two. 

W.  H.  Swift, 

Corporate  seal.  President. 

Wm.  GtOODING, 

Secretary. 


1609 


State  of  Illinois,  ) ..  oroAn 
County  OF  Cook.  [ No.  36849. 

Filed  for  Record  30  Sept.  1852,  and  recorded  in  Book  1 of 
Canal  Deeds,  page  273,  L.  D.  Hoard,  Recorder. 

No.  57981. 

Refiled  for  record  Sept.  24  A.  D.  1872. 

Norman  T.  Cassette, 

Recorder. 

(Certificate  of  Abel  Davis  that  foregoing  is  a true  copy.) 

5312  Counsel  for  defendant  also  offered  certified  cox)y  of  deed 
from  the  Board  of  Trustees  of  the  Illinois  and  Michigan 

Canal  to  William  Greene,  of  property  in  the  plat  contained  on 
page  89  of  this  book. 

Said  cox>y  of  deed  was  admitted  in  evidence  and  is  alistr acted 
as  follows: 

Know  all  men  by  these  presents,  That  the  Board  of 
Trustees  of  the  Illinois  and  Michigan  Canal  * * fias  sold 
to  William  Greene  the  following  described  Lots  of  land,  to- 
wit : 

Lot  number  one  (1)  in  Block  number  fourteen  (14)  Lot  num- 
ber nine  (9)  in  Block  number  thirty-five  (35)  and  Lot  num- 
ber three  (3)  in  Block  number  thirty-seven  (37)  in  the  said 
Trustees  Subdivision  of  the  AAest  half  of  Section  number 
twenty-one  (21)  in  Township  number  thirty-nine  (39)  North, 
of  Range  number  fourteen  (14)  East.  * * 

5313  Know  Ye,  also  that  the  said  Y7illiam  Greene  j3aid  to  the 
Treasurer  of  the  said  Board  of  Trustees  the  sum  of  fourteen 
hundred  and  eighty  dollars  and — cents,  being  in  full  payment 
of  the  purchase  money  for  said  land — 

In  consideration  thereof,  and  the  premises,  the  said  Board 
of  Trustees  of  the  Illinois  and  Michigan  Canal  has  granted, 
bargained.  * * * 

To  have  and  to  hold  the  same.  * * * 

In  witness  whereof  * * * this  22nd  day  of  October,  in 

the  year  of  our  Lord  eighteen  hundred  and  fifty-one. 

The  Board  of  Trustees  of  the  Illinois 
& Michigan  Canal, 

W.  H.  Swift, 
President. 

Wm.  Gooding, 
Secretary. 


1610 


Deed  to  Greene, — Continued, 


5314  State  of  Illinois^ 
Cook  County. 


i 


ss. 


34392. 


Filed  for  record  6 May,  1852  and  recorded  in  Book  No.  1 
of  Canal  Deeds,  page  183. 


No.  183269. 


L.  D.  Hoakd, 

Recorder. 


Be-recorded  Jnn  5,  A.  D.  1878,  at  12  M. 

Jas.  W.  Brock  way, 

Recorder, 

(Certificate  by  Abel  Davis,  Eecorder,  that  foregoing  is  a 
true  copy.) 

5315  Counsel  for  defendant  read  in  evidence  deed  from  the 
Board  of  Trustees  of  the  Illinois  and  Michigan  Canal  to 

Gideon  M^estbrook  of  property  in  the  same  subdivision  contained 

on  page  89  of  Book  12,  and  is  abstracted  as  follows : 

Know  all  men  by  these  presents,  That  the  Board  of 
Trustees  of  the  Illinois  and  Michigan  Canal  * * * has  sold 
to  Gideon  Westbrook,  the  following  described  lot  of  land,  to- 
wit : 

Lot  number  four  (4)  in  Block  number  four  (4)  of  the  said 
Trustees  Subdivision  of  the  west  part  of  Section  number 
twenty-one  (21)  in  Township  number  thirty-nine  (39)  North, 
of  Range  number  fourteen  (14)  East  of  the  Third  Principal 
Meridian.  * * * 

5316  Know  Ye  Also,  that  the  said  Gideon  Westbrook  paid  to  the 
Treasurer  of  the  said  Board  of  Trustees  the  sum  of  Pour  Hun- 
dred and  Ten  Dollars  and — cents,  being  in  full  payment  of  the' 
purchase  money  for  said  land.  * ^ * 

In  consideration  thereof,  and  the  premises,  the  said  Board 
of  Trustees  of  the  Illinois  and  Michigan  Canal,  has  granted, 
bargained.  ^ * 

To  have  and  to  hold.  * * * 

In  witness  whereof,  * * * this  22nd  day  of  October  in 

the  year  of  our  Lord  eighteen  hundred  and -fifty-one. 

The  Board  of  Trustees  of  the  Illinois 
& Michigan  Canal, 

W.  H.  Swift, 
President 
Wm.  Gooding, 
Secretary, 


1611 


5317  State  of  Illinois,  ) ^ 

Cook  County.  j 31724. 

Filed  for  record  3rd  November,  1851,  and  recorded  in  Book 
1 of  Canal  Deeds,  page  9. 

L.  D.  Hoakd, 

RccoTdc't\ 

No.  252022.  Ee-recorded  Jan.  9,  1880,  at  10  A.  M. 

Jas.  W.  Brockway, 

Recorder. 

(Here  follows  certificate  of  Abel  Davis,  Eecorder,  that  the  fore- 
going is  a true  copy.) 

5318  I have  another  book.  Volume  496  of  Tract  Indices,  taken 
from  the  office  of  the  Eecorder  of  Deeds  of  Cook  County, 

Canal  Trustees  Subdivision  of  the  west  half,  21-39-14  appears  in 
that  book  on  the  fly  leaf. 

(Same  objection.) 

Copy  of  said  plat  was  offered  and  received  in  evidence  (Atlas, 
p.  3992;  Trans.,  p.  6718;  Abst.,  p.  1937.) 


5319  Charles  A.  Munroe, 

a witness  for  defendant,  testified  as  follows : 

Direct  Examination. 

My  name  is  Charles  A.  Munroe.  I am  the  Mr.  Munroe,  who  has 
been  referred  to  in  the  testimony  here  quite  frequently.  I am  an 
attorney  by  profession.  I have  not  practiced  my  profession  for 
about  two  or  three  years.  I first  became  identified  with  this  pro- 
ject to  build  a dam  on  the  Desplaines  Eiver,  somewhere  in  the 
neighborhood  of  the  Illinois  in  the  spring  of  1904.  I had  not  any 
connection  at  that  time  of  any  nature  with  the  Economy  Light  & 
Power  CompamL  The  first  time  that  I had  any  negotiations  with 
the  Economy  Light  & Power  Company  in  reference  to  this  project 
was  in  May,  the  latter  part  of  April,  or  the  first  week  in  April, 
1906. 

Q.  In  the  meantime  you  had  acquired  flowage  rights,  or  own- 
ership to  a large  proportion  of  this  property  as  shown  on  Woer- 
mann’s  Exhibit  1,  June  15,  1908,  and  Woermann  Exhibit  2,  June 
15,  1908,  had  you  not? 


1612  Charles  A.  M unroe, — Direct  Exam. — Continued. 

5320  (Objected  to  as  incompetent,  irrelevant  and  immaterial  and 
not  the  best  evidence;  overruled.) 

A.  I had  acquired  title  to  all  of  the  property,  contracts  for 
title  to  all  of  the  property  shown  in  colors  on  those  two  exhibits, 
and  had  made  all  financial  arrangements  for  constructing  the 
power  house  and  dam  at  the  mouth  of  the  Desplaines  Eiver. 

Counsel  for  Complainant.  I move  that  the  latter  part  of  the 
answer  be  stricken  out. 

(Sustained.) 

Counsel  for  Defendant.  I will  ask  another  question. 

Q.  Had  you  made  any  arrangements  with  reference  to  construct- 
ing this  dam  before  you  had  any  negotiations  with  the  Economy 
Light  & Power  Company?  A.  Yes,  sir. 

Q.  Please  state  what  they  are. 

(Objected  to  as  incompetent,  irrelevant  and  immaterial; 
overruled.) 

A.  Yes,  sir;  and  the  arrangements  were  completed  for  con- 
structing, in  the  spring  of  1906,  a power  plant  at  the  mouth  of  the 
Desplaines  Eiver,  at  substantially  the  same  location,  and  of  the 
same  character  as  the  power  house  the  Economy  Light  & Power 
Company  is  now  attempting  to  construct. 

5321  Q.  How  many  acres  of  land  have  you  acquired? 

Counsel  for  Complainant.  Objected  to  as  incompetent, 

irrelevant  and  immaterial  and  as  not  the  best  evidence. 

A.  About  seventeen  hundred. 

Q.  When  did  your  negotiations  with  the  Economy  Light  & 
Power  Company  ripen  into  a definite  contract? 

Counsel  for  Complainant.  I suppose  it  is  not  necessary  to  re- 
peat the  objection. 

The  Court.  No;  your  objection  may  go  to  the  whole  line. 

A.  (Continued.)  The  31st  of  July,  1906,  the  arrangements 
were  made,  subject  to  examination  of  title  and  were  consummated 
by  the  passing  of  the  deeds  on  the  30th  day  of  November,  1906,  and 
contemporaneous  with  the  passing  of  the  deeds,  the  trust 

5322  deeds  were  executed  bearing  date  December  1,  1906,  to  the 


1613 


Eoyal  Trust  Company,  trustees,  to  secure  an  issue  of  three 
millions  of  bonds. 

Counsel  for  Defendant.  • How  many  of  those  bonds  have  been 
sold,  if  any? 

(Objected  to;  overruled.) 

A.  Two  millions  of  the  bonds  have  been  sold. 

Q.  And  the  trust  deed  executed  to  the  Economy  Light  & Power 
Company?  A.  Yes,  sir. 

Q.  Does  the  trust  deed  convey  these  properties?  A.  It  does. 

Q.  Are  those  bonds  now  outstanding?  A.  They  are. 

Counsel  for  Complainant.  I take  it  that  it  is  understood  by  the 
court  and  by  counsel  that  the  objections  I have  made,  that  the 
evidence  is  incompetent,  irrelevant  and  immaterial,  and  not  the 
best  evidence,  is  reserved  to  each  of  these  questions,  and  I make  a 
motion  to  strike  out  all  of  the  testimony  relative  to  the  title  to  the 
property,  and  the  issuing  of  the  bonds' on  the  same  grounds. 

The  Court.  The  contents  of  the  trust  deed  is  not  the  best  evi- 
dence. 

5323  Counsel  for  defendant  offered  the  deed  of  trust  from  the 
Economy  Light  & Power  Company  to  the  Royal  Trust  Com- 
pany. 

(Objected  to  as  incompetent,  irrelevant  and  immaterial ; 

overruled.) 

(Said  deed  of  trust  from  the  Economy  Light  & Power  Company 
to  the  Royal  Trust  Company  was  received  in  evidence.)  (App. 
II,  p.  3906;  Trans.,  p.  6302;  Abst.,  p.  1854.) 


5324  Cross-Examination. 

I did  not  attend  the  taking  of  the  depositions  on  the  part  of 
the  State  at  Joliet  in  the  early  part  of  this  year,  as  the  attorney 
for  the  defendant.  I was  there  at  every  opportunity  that  it  was 
possible  for  me  to  be  there.  I am  not  an  attorney  for  the  defend- 
ant. I am  an  interested  party  in  the  defendant  company.  I am 
not  an  attorney  for  it.  On  two  or  three  occasions,  an  attorney  for 
the  defendant  was  not  there  other  than  myself.  Mr.  Porter  was 
unable  to  attend  the  meeting  which  had  been  arranged  to  take  the 
depositions,  and  he  telephoned  to  me  and  asked  me  if  I would  at- 


1614  Charles  A.  Munroe, — Cross-Exam. — Continued. 

tend  to  it,  and  I did,  to  tlie  best  of  my  ability.  I was  the  only  at- 
torney tliat  was  there  on  the  part  of  the  defendant  acting  for  Mr. 
Porter.  I am  the  same  Mr.  Mnnroe  who  is  shown  to  have  been  in 
attendance  by  the  record  in  the  taking  of  the  depositions.  I will 
not  say  that  when  the  record  shows  that  I made  objections, 

5325  and  asked  questions,  and  made  statements,  there  was  no 
other  attorney  for  the  defendant  present.  I think  I injected 

remarks  once  in  awhile  that  appear  in  the  record  where  I didn’t 
have  any  business  to  do  so.  Well,  leaving  out  the  word  ‘Re- 
marks,” when  the  record  shows  that  ^^Mr.  Munroe”  was  asking 
questions,  I was  that  Mr.  Miinroe,  and  generally  speaking,  I did 
that  only  when  there  was  no  other  lavvwer  for  the  defendant 
there. 

Re-direct  Examination. 

I am  and  was  at  the  time  of  the  taking  of  the  depositions,  the 
General  Manager  and  Treasurer  of  the  company.  I have  not  been 
paid  any  fee,  or  been  retained  and  do  not  expect  any  fee  as  at- 
torney in  this  case.  I learned  when  I was  an  attorney,  that  a party 
in  interest  might  conduct  his  own  suit  if  he  wanted  to,  but 

5326  I learned  it  was  bad  policy  to  attempt  it.  My  connection 
with  the  Economy  Light  & Power  Company  began  when  the 

manager  of  the  Economy  Light  & Power  Company  died  on  the 
12th  of  January,  1907,  and  on  the  16th  of  that  month,  I was  ap^ 
pointed  to  his  position.  It  has  been  testified  here  that  I have  paid 
certain  moneys  to  the  contractor,  and  have  made  certain  con- 
tracts with  him;  in  addition  to  that,  the  Economy  Company  has 
paid  out  moneys  on  account  of  the  construction  of  this  work,  about 
$135,000.  That  is  for  machinery  and  wheels.  In  April  of  1907, 
we  purchased  $142,000  worth  of  hydraulic  machinery  for  this  plant, 
upon  which  we  paid  $55,000,  and  engineers’  expenses  and  pay- 
ments for  work  done  by  the  contractor,  and  to  the  contractor. 

Q.  What  is  your  approximate  estimate  of  the  entire  cost  of 
the  work? 

5327  Counsel  for  Complainant.  I suppose  it  is  understood  that 
my  objections  to  this  as  incompetent,  irrelevant  and  imma- 
terial, stand  to  all  of  this  supplemental  evidence. 

The  Court.  Yes. 


1615 


A.  Nine  linndrecl  thousand  dollars;  that  is  exclusive  of  the 
land. 

5328  Counsel  for  complainant  offered  the  report  of  1886 — the 
annual  report  of  the  Chief  of  Engineers  of  the  United 

States  Army,  part  3,  1886,  the  report  by  Lientenant  Eobert  E. 
Lee,  made  by  him  in  1837,  of  the  Eock  Island  Eapids.  They  were 
not  publishing  the  reports  at  that  time — I guess  the  first  and  only 
time  it  was  published  was  in  the  report  of  1886 — the  Eock  Island 
Eapids  of  the  Mississippi  Eiver.  The  witnesses  were  all  asked 
about  that.  It  occupies  passages  on  pages  1436  and  1437,  with  a 
map  between.  And  the  later  report  on  the  same  rapids,  in  the  an- 
nual report  of  the  Chief  of  Engineers  of  the  United  States  Army 
for  1880,  part  2,  under  date  March  15,  1880,  pages  1537,  1538,  by 
General  McKenzie — he  was  only  a Captain  at  that  time. 

(The  passages  from  said  report  by  Lieutenant  Eobert  E.  Lee, 
contained  on  pages  1436  and  1437  of  said  report  for  1886,  part  3, 
are  in  the  words  and  figures  following)  : 

5329  ^‘SuKVEY  OP  Lieutenant  Eobert  E.  Lee. 

In  1837  Lieut.  Eobert  E.  Lee,  Corps  of  Engineers,  United 
States  Army,  was  assigned  by  order  of  General  Gratiot,  Chief 
Engineer,  to  the  charge  of  operations  under  appropriation 
of  $40,000  made  by  Act  of  Congress  of  March  3,  1837,  for  the 
improvement  of  the  Mississippi  Eiver  above  the  mouth  of 
the  Ohio,  and  of  the  Missouri  Eiver.’  The  funds  appropri- 
ated were  assigned  to  the  Des  Moines  and  Eock  Eiver  Eap- 
ids and  the  Harbor  of  Saint  Louis. 

In  order  to  prepare  the  necessary  plans.  Lieutenant  Lee 
made  examinations  of  the  localities  mentioned  and  submit- 
ted his  reports,  with  maps,  to  General  Gratiot,  December  6, 
1837.  The  report  was  transmitted  to  the  Senate  of  the 
United  States  January  27,  1838. 

Lee’s  report  runs  as  follows: 

^ Saint  Louis,  December  6,  1837. 

Sir: 

Upon  my  arrival  here  in  August  last,  in  obedience  to  your 
orders  assigning  to  my  superintendence  the  application  of  the 
appropriations  made  by  Congress  for  the  improvement  of  the 
Mississippi  Eiver  above  the  mouth  of  the  Ohio  and  the  Mis- 
souri Eiver,  * * * j proceeded  to  make  such  an  examina- 

tion as  would  enable  me  to  submit  for  your  approval  the  neces- 
sary plans;  a report  of  which  I lay  now  before  you. 

. The  only  serious  obstacles  to  the  navigation  of  the 


1616  Rep.  Robert  E.  Lee,  Eng.  Rep.  1886. — C ontinued. 


5330  Mississippi  from  the  mouth  of  the  Ohio  to  the  Falls  of  Saint 
Anthony,  a distance  of  about  1,200  miles  are  the  Des  Moines 

and  Eock  Eiver  Eapids,  and  as  these,  in  my  opinion,  form  the 
first  objects  of  attention,  surveys  have  been  made  of  each, 
the  result  of  which,  with  my  views  as  to  the  best  mode  of  their 

improvement,  will  be  stated  under  each  head. 
***** 

Eock  Eiver  Eapids — The  upper  or  Eock  Eiver  Eapids,  dis- 
tance about  150  miles  from  the  Des  Moines,  commence  14 
mile;-  above  Eock  Island  and  extend  to  its  foot.  Within  this 
distance  the  Mississippi  falls  25,740  feet,  descending  over  a 
rocky  bed,  broken  by  reefs,  which  at  some  points  reach  en- 
tirely across  the  river,  affording  at  low  water  a shallow  chan- 
nel and  projecting  at  others  from  opposite  sides,  interlock  and 
form  a winding,  difficult,  and  dangerous  passage.  The  fall  of 
the  river  is  not  regular,  but  like  that  at  the  lower  rapids,  is 
greater  over  the  reefs,  and  less  in  the  intermediate  pools 
formed  in  like  manner  by  them. 

The  velocity  of  the  current,  varying  with  descent,  and  con- 
tinually checked  by  the  rough  bed  of  the  river,  the  winding 
of  the  channel  and  the  projection  of  the  reefs,  though  not  as 
great  as  the  fall  would  indicate,  is  still  rapid  and  in  many 
places  difficult  to  stem. 

By  an  examination  of  the  map  you  will  see  that  the 

5331  main  channel,  worn  by  the  action  of  the  water,  is  so  dis- 
tinctly marked  that  there  can  be  no  doubt  as  to  the  best 

mode  of  improving  it.  The  depth  of  the  water  is  generally 
sufficient,  and  the  difficulty  consists  in  the  short  turns  and 
narrow  passes  between  reefs,  which  oblige  boats  to  cross  the 
current  obliquely  and  incur  the  danger  of  being  forced  on  the 
rocks.  The  descending  boats,  swept  along  by  the  current, 
run  the  greater  risk,  and  the  turns  ought  to  be  so  regulated 
as  to  relieve  them  as  far  as  possible.  By  cutting  off  the  pro- 
jecting points  of  some  of  the  ledges,  and  excavating  through 
others,  this  danger  will  be  avoided,  and  a safe  passage 
formed. 

In  the  upper  section,  called  the  Sycamore  Chain,  it  will  be 
necessary  to  cut  off  the  sharp  angle  at  A,  excavate  through 
the  ledge  at  B,  and  straighten  the  channel  at  C,  D,  and  E by 
cutting  off  the  points  as  indicated  on  the  drawing. 

From  the  foot  of  this  chain  there  is  a stretch  of  2 miles 
free  from  all  obstructions  to  the  head  of  CampbelFs  Island, 
just  below  which  it  will  be  necessary  to  excavate  through  the 
reef  to  the  depth  of  about  18  inches;  to  cut  offi  the  point  of  the 
reef  at  G,  extending  from  the  western  shore  towards  the  small 
island  at  the  foot  of  Campbell’s;  excavate  through  the  reef 
at  L,  making  out  from  the  eastern  shore  just  above  the  mouth 
of  Duck  Creek,  and  cut  off  the  point  of  that  at  M;  all  of 


1617 


whicli  is  indicated  on  the  map.  This  will  open  a free  passage 
to  the  head  of  Eock  Island,  the  commencement  of  the  lower 

5332  chain,  from  which  a flat  reef  extends  to  the  Wisconsin  shore, 
and  through  which  a channel  200  feet  wide,  25  feet  deep,  and 

400  }mrds  long  will  have  to  be  excavated.  The  only  other  part 
to  be  improved  is  in  the  bend  below,  where  the  channel 
passes  between  two  reefs  projecting  from  opposite  sides  of 
the  river.  By  cutting  otf  the  point  of  that  on  the  west  all  ob- 
structions will  be  removed  to  the  foot  of  Eock  Island.  * * 

The  removal  of  the  obstructions,  in  both  rapids,  at  the  sev- 
eral points  named  will  require  an  excavation  of  172,000  cubic 
yards  through  the  solid  rock. 

The  difficulty  attending  such  an  operation  under  water, 
which  must  be  performed  by  blasting,  is  much  increased  by 
the  rapid  current  of  the  Mississippi;  the  unexpected  rise  to 
which  it  is  subject  and  the  short  season  of  operation.  * * * 
So  much  depends  upon  circumstances  that  can  neither  be  fore- 
seen nor  controlled  that  the  estimate  presented  of  the  prob- 
able cost  of  the  work  must  only  be  considered  conjectural.” 

Said  passage  from  said  report  was  received  in  evidence. 

The  map  accompanying  said  passage  from  said  report  was  also 

received  in  evidence  (Atlas,  p.  3993;  Trans.,  p.  6721;  Abst.,  p. 
1939.) 

5333  (The  passages  above  referred  to,  contained  on  pages  1537 
and  1538  of  said  report  for  the  year  1880,  part  2,  are  in 

words  and  figures  following)  : 

5334  ‘^United  States  Engineer  Office. 

Eock  Island,  111., 
March  15,  1880. 

General:  I have  the  honor  to  acknowledge  the  receipt  of 

a letter  from  your  office,  dated  March  9,  1880,  containing  a 
resolution  of  the  House  of  Eepresentatives  calling  for  cer- 
tain maps  and  reports  in  reference  to  a proposed  widening 
of  the  Eock  Island  Eapids. 

The  accompanying  map,  which  shows  the  present  200-foot 
channel  and  the  work  required  for  increasing  this  width  to 
400  feet,  was  prepared  last  winter,  but  as  yet  no  reports  on 
the  subject  have  been  made.  I would  therefore  submit  the 
following : 

The  Eock  Island  or  Upper  Eapids  of  the  Mississippi  Eiver 
extend  from  Le  Claire,  Iowa,  to  Eock  Island,  111.,  a distance 
of  14  miles.  The  river  over  this  reach  consists  of  a succes- 
sion of  deep  pools  separated  by  chains  of  rocks,  through 


1618  Bock  Island  Rapids, — V.  S.  Eng.  Rep.  Continued. 

which  the  water,  in  the  course  of  centuries,  has  cut  irregular 
channels. 

The  fall  from  the  head  to  the  foot  of  the  rapids  is  about  20 
feet,  giving  a velocity  of  current  of  from  2 to  10  feet  per  sec- 
ond at  the  shoal  places. 

Previous  to  improvement  the  rapids  could  not  be  passed  by 
the  larger  class  of  steamboats  at  a 2-foot  stage,  and  at  medium 
stages  boats  drawing  from  3 to  4 feet  could  only  pass  on 
calm  days  and  by  using  extreme  caution. 

5335  Congress  caused  a survey  and  report  on  the  improvement 
of  the  rapids  to  be  made  in  1866.  In  1867  the  work  of  exca- 
vation was  commenced,  in  accordance  with  the  approved 
plan,  which  was  to  give  a channel  over  the  chains  200  feet  in 
width,  with  a depth  of  4 feet  below  low-water  of  1864.  From 
1867  to  1879,  inclusive,  $1,150,650  were  appropriated,  for 
which  sum  about  90,000  cubic  yards  have  been  removed,  vir- 
tually completed  the  above-mentioned  plan. 

The  work  already  accomplished  has  greatly  benefited  navi- 
gation, but  still  certain  difficulties  are  met  with. 

1.  The  channel  is  so  crooked  that  it  is  not  practicable  in 
its  present  condition  to  provide  a system  of  lights,  and  the 
navigation  of  the  rapids  is  suspended  during  the  night. 

2.  The  width  of  200  feet  is  not  sufficient  to  admit  of  2 
boats  with  barges  passing  each  other,  so  that  either  the 
ascending  or  descending  boat  must  wait  in  one  of  the  deep 
pools  until  the  other  has  passed  through  a cut. 

3.  A fresh  breeze,  acting  against  the  very  long  and  high 
^Mississippi  steamers,  endangers,  and  a strong  wind  prohibits, 
navigation  through  the  narrow  channels. 

4.  A large  steamer  ascending  the  rapids  through  the  com- 
paratively narrow  200-foot  channels  draws  down  the  water 

to  such  an  extent  as  to  materially  reduce  the  depth  in  the 

5336  cuts,  so  that  a 4-foot  channel  is  not  really  available  at  all 
parts  of  the  rapids  during  a low-water  stage  of  the  river. 

The  most  available  plan  that  can  be  suggested  for  over- 
coming these  difficulties,  is,  as  shown  on  the  accompanying 
map,  to  widen  the  present  cuts,  giving  a new  channel  400  feet 
in  width.  By  this  widening,  the  second  and  third  difficulties 
would  be  done  away  with,  the  fourth  would  be  greatly  reduced, 
and  by  so  straightening  the  channel  as  to  obtain  long  reaches, 
lights  could  be  established  which  would  overcome  the  first 
difficulty. 

To  increase  the  width  of  the  channel  to  400  feet  giving  a 
depth  of  4 1/2  feet  below  low-water,  which  will  insure  a grade 
as  low  as  that  of  the  present  cut,  will  require  the  removal  of 
209,811  cubic  vards  of  rock,  and  will  cost  approximately 
$1,258,866. 

Boats  drawing  five  feet  can  pass  through  the  Ties  Moines 
Bapids  Canal  during  extreme  low-water. 


1619 


If  it  is  deemed  advisable  to.,  give  the  same  available  depth 
and  a perfectly  safe  channel  over  the  Eock  Island  Eapids, 
the  cuts  should  be  made  400  feet  wide,  and  excavated  to  a 
. depth  of  at  least  6 feet  below  low-water  of  1864.  This  would 
require  the  removal  of  581,835  cubic  yards  of  rock,  which 
would  cost  approximately  $3,491,010. 

I have  estimated  the  cost  of  removing  rock  at  $6  per 

5337  cubic  yard,  which  would  be  sufficient,  provided  an  appropria- 
tion was  large  enough  to  justify  the  building  of  cotfer-dams 
and  a systematic  method  of  working. 

The  plans  present  could  undoubtedly  be  so  modified  dur- 
ing the  progress  of  the  work  as  to  require  cutting  on  but  one 
side  of  the  channel,  where  it  is  now  supposed  to  require  cut- 
ting on  both  sides;  such  changes,  when  practicable,  will  re- 
duce the  estimated  cost. 

The  interests  of  navigation  of  course  require  that  in  time 
all  the  proposed  work  shall  be  done,  but  as  the  obstructions 
at  the  Eock  Island  Eapids  are  made  up  of  a succession  of 
shoals,  the  improvement  of  each  may  be  considered  as  sep- 
arate, complete  within  itself,  and  benefiting  navigation  just 
so  much.’’ 

Said  map  accompany  said  report  was  also  received  in  evidence 
(Atlas,  p.  3993-A;  Trans.,  p.  6723;  Abst.,  p.  1939). 

(A  copy  of  said  map  is  printed  in  abstract,  p.  1939.) 

5338  Counsel  for  complainant  then  read  in  evidence  in  refer- 
ence to  the  falls  of  the  Ohio,  concerning  which  Captain 

Bewley,  Captain  Prior,  and  Captain  Mason  were  interrogated,  in 
the  report  of  1882,  the  annual  report  of  the  Chief  of  Engineers  of 
the  United  States  Army,  part  2,  for  the  year  1882,  marked  pass- 
ages pages  1881  and  1882,  1886  and  1887  and  1888,  in  words  and 
figures  following: 

5339  Description. 

The  obstructions  to  navigation  in  the  Ohio  Eiver,  known  as 
the  Falls  of  the  Ohio,  are  formed  by  an  irregular  mass  of 
limestone  lying  in  the  bed  of  the  river  about  600  miles  below 
its  head,  and  about  366  above  its  mouth.  The  general  direc- 
tion of  this  mass  of  rock  is  from  southwest  to  northeast.  It 
is  a natural  dam,  which  produces  a deep  pool  just  above,  the 
difference  of  level  between  the  water  surfaces  in  this  and  in 
the  pool  below  being  about  26  feet  in  low  and  about  18  inches 
in  the  highest  stages. 

In  their  natural  condition  these  falls  or  rapids  were  im- 
passable during  the  largest  portion  of  the  year,  and  at  all 
other  times,  excepting  when  the  river  was  very  high,  naviga- 
tion over  them  was  difficult  and  dangerous.  When  the  river 


1620  Falls  of  the  Ohio, — Eng.  Rep.  1882. — Continued. 


was  high,  the  navigation  was  carried  on  in  it  without  any  dif- 
ficulty. 

There  were  three  channels  over  these  obstructions,  known 
as  the  Indians,  Middle,  and  Kentucky  chutes. 

The  former  is  the  main  and  longest  channel,  and  was  the 
one  most  navigated.  It  runs  near  the  Indiana  shore,  between 
it  and  Goose  Island,  and  makes  a large  bend  near  the  foot  of 
the  fall,  called  the  Big  Eddy.  It  was  4,659  yards,  or  about 
2 2/3  miles  long.  At  extreme  low  stages,  about  one-half  of 
its  total  falls,  that  is,  13  feet,  occurred  in  the  first  1253  yards, 

5340  or  about  seven-tenths  of  a mile,  and  about  two-thirds  of  its 
fall,  that  is,  17  1/2  feet,  occurred  in  the  first  1,986  yards,  or 

about  1 1/7  miles.  When  the  water  rose  7 feet  at  the  crest 
of  the  falls  above  extreme  low-water,  it  rose  about  18  1/2 
feet  at  the  foot  of  the  channel,  and  the  difference  of  level  be- 
tween the  water  surfaces  in  the  two  pools  was  about  13  1/2 
feet.  At  this  stage,  the  steamer  Uncle  Sam  barely  made  the 
ascent  on  a trial.  This  steamer  was  owned  by  Mr.  Paul  Ander- 
son. Her  measured  tonnage  was  440;  she  drew  9 1/2  feet  of 
water,  and  was  propelled  by  an  engine  of  250  horse-power. 

The  Middle  chute  begins  about  the  middle  of  the  river  and 
passes  down  between  Goose  and  Eock  Islands.  The  length  of 
this  channel  is  about  3,800  yards,  or  2 1/6  miles  long,  and 
about  22  feet,  or  almost  the  entire  fall  is  in  the  last  500  yards. 
All  boats  could  ascend  it  when  the  water  at  the  head  rose  about 
13  feet.  The  rise  in  the  pool  below  then  amounted  to  about 
29  feet,  and  the  difference  of  level  between  the  water  sur- 
faces of  the  two  pools  was  then  reduced  to  about  9 feet. 

The  Kentucky  chute  lies  nearer  to  the  Kentucky  shore,  and 
passes  down  between  it  and  Eock  Island.  Its  condition  was 
similar  to  the  Middle  chute  and  it  is  navigable  a little  later 
than  the  Middle  chute.  Almost  fhe  entire  fall  is  in  the  last 
185  yards.  The  shortest  line  across  this  natural  dam  is  via 

5341  the  Middle  and  Kentucky  chutes,  and  is  about  3,300  yards 
or  1 11/12  miles  long. 

The  observations  which  were  made  and  recorded  established 
the  fact  that  on  an  average  the  falls  were  not  navigable  ten 
and  a half  months  per  annum. 

The  fact  that  these  obstructions  were  navigable  at  some 
stages  and  not  at  others  arises  from  the  circumstances  (as 
indicated  above)  that  when  the  river  rises  both  pools  rise,  but 
not  equally.  The  lower  one  rises  by  a greater  amount  in  a 
given  time  than  the  upper  one.  A similar  law  exists  as  the 
river  falls;  that  is,  the  lower  pool  falls  more  in  a given  time 
than  the  upper  one. 


1G21 


II.  History. 

I have  recently  come  into  the  possession  of  a tracing  of  an 
engraving  made  for  ^‘Campbell’s  edition  of  Finlay’s  History 
of  Kentucky,  1793.”  This  engraving  hears  the  title,  “A  plan 
of  the  Eapids  of  the  Ohio.”  On  it  is  indicated  the  location 
of  a proposed  canal  around  these  obstructions,  and  there  is 
a note  which  reads,  “From  A to  B a canal  is  intended  to  be 
cut.”  The  point  A is  placed  just  inside  of  the  mouth  of  Bear- 
grass  Creek,  and  B just  around  the  turn  in  the  Kentucky  shore 
below  the  present  mills  of  the  Louisville  Cement  Company. 
The  canal  is  drawn  running  parallel  to  and  but  a short  dis- 
tance inside  of  the  Kentucky  shore  line. 

5342  It  seems,  then,  even  at  that  early  date  the  question  of  con- 
structing a canal  around  these  obstructions  was  agitated.  I 

have  not,  however,  been  able  to  discover  any  records  of  such 
agitation  earlier  than  1802.  Beginning  in  that  year,  various 
plans  were  from  time  to  time  suggested  and  attempted  to  be 
carried  out,  by  individuals,  associations,  appeals  to  Congress, 
and  incorporated  companies,  but  without  success. 

The  Legislature  of  Kentucky  being  impressed  with  the  im- 
portance of  the  subject,  and  finding  the  General  Government 
disinclined  to  prosecute  the  work,  in  1825  granted  a charter 
to  a stock  company,  authorizing  them  to  construct  a canal 
around  the  Falls  of  the  Ohio  within  the  State  of  Kentucky. 
The  act  granting  this  charter  was  approved  January  12,  1825, 
and  fixed  the  time  of  completion  of  the  canal  at  three  years 
from  that  date.  It  becoming  apparent  that  the  company  would 
not  be  able  to  complete  the  work  in  that  time,  the  latter  was 
extended  by  three  subsequent  acts  to  February  6,  1831. 

The  capital  stock  of  the  company  was  fixed  at  $600,000  by 
the  original  charter.  This  was  enlarged  by  two  subsequent 
acts,  and  finally  fixed  at  $1,000,000.  By  the  acts  of  Congress 
approved  May  13,  1826,  and  March  2,  1829,  the  Government 

5343  became  the  owner  of  2,335  of  the  10,000  shares  of  stock  in 
the  company  for  which  it  paid  the  par  value,  $233,500.  Both 

of  these  acts  of  Congress  provided  that  the  Secretary  of  the 
Treasury  should  vote  for  president  and  directors  of  the  com- 
pany according  to  the  number  of  shares  owned  by  the  Govern- 
ment, and  should  receive  upon  this  stock  the  proportion  of 
the  tolls  which  should,  from  time  to  time,  be  due  to  the  United 
States  for  the  shares  aforesaid. 

Thus,  the  Government,  for  the  first  time  in  its  history,  I be- 
lieve, became  a stockholder  in  a private  corporation  chartered 
by  a State,  and  that,  too,  in  one  whose  object  was  to  over- 
come obstructions  to  navigation  in  a national  highway. 

The  company  had  great  difficulties  to  encounter  in  raising 
money  and  otherwise,  but  the  work  was  prosecuted  with  en- 
ergy, and  the  canal  was  opened  and  the  first  boat  passed 


1622  Falls  of  the  Ohio, — Eng.  Rep.  1882. — Continued. 

through  it  on  December  22,  1830,  although  many  improvements 
on  it  weer  subsequently  made.  As  originally  constructed,  it 
was  1.9  miles  long,  64  feet  wide,  and  had  three  combined  lift 
locks  at  its  lower  end,  each  chamber  having  an  available  length 
of  about  185  feet,  and  a length  between  miters  of  about  198 
feet,  a width  of  50  feet,  and  a lift  of  about  8 feet  5^  inchs.  The 
total  cost  of  the  work  was  $1,019.09.  This  includes  the  pur 
chase  of  land. 

5344  When  the  canal  was  completed  its  dimensions  were  thought 
to  be  sufficient  for  all  time,  but  in  a little  over  twenty  years 
(in  1852)  only  fifty-seven  one-hundredths  of  the  tonnage  en- 
gaged in  the  Western  rivers  could  pass  through  the  locks. 


P.  1886 : 

In  the  meantime  the  government  had  ordered  three  surveys 
of  the  Falls  of  the  Ohio.  These  were  made  in  1843,  1845  and 
1853,  by  Captain  Cram,  Corps  of  Topographical  Engineers; 
Lieutenant  Colonel  Long,  Corps  of  Topographical  Engineers, 
and  a board  composed  of  Lieutenant  Colonel  Long  and  Col. 
William  Turnbull,  of  the  Corps  of  Topographical  Engineers, 
and  Mr.  Charles  B.  Fisk,  respectively.  No  action,  however, 
was  taken  upon  their  report. 

They  consisted  in  widening  the  waterway  from  64  to  100 
feet,  by  removing  36  feet  from  the  south  side,  and  lining  both 
sides  with  a vertical  dry  wall,  17  feet  high,  in  fixing  the  depth 
5345  of  water  in  the  canal  at  the  lowest  stage  to  be  6 feet  over 
‘Lniter  sill  and  all,^’  in  removing  the  abrupt  angle  in  the 
old  canal  and  substituting  a regular  easy  curve,  in  providing 
three  passing  places,  in  constructing  a guard-gate  at  the  head, 
in  constructing  a dam  or  crib  protection  of  timber  and  stone, 
about  600  feet  long,  extending  eastwardly  from  the  head  of  the 
canal,  and  removing  all  the  projecting  points  of  rock  inside  of 
it  to  protect  boats  passing  in  and  out  of  the  canal  from  acci- 
dent or  delay,  by  being  carried  with  the  strong  current  that 
sets  out  over  the  falls  against  the  ledge  of  rocks,  and  in  pro- 
viding a floating  boom  at  the  head  of  the  canal  to  exclude  ice 
and  drift;  the  new  locks  to  be  placed  1,500  feet  below  the 
old  locks  and  be  connected  with  the  old  canal  by  a branch 
2,600  feet  long,  the  locks  to  be  two  combined,  each  having 
a lift  of  13  feet,  and  the  rock-s  at  the  foot  of  the  canal  to  be 
blasted  and  removed  to  open  a wide  and  safe  channel  for  going 
in  and  out  of  the  canal. 

To  save  expense  it  was  subsequently  concluded  to  reduce  the 
width  of  waterway  to  90  feet. 


5346  Page  1887 : 

At  the  next  session  of  Congress  a ‘‘joint  resolution  provid- 
' ing  for  the  necessary  surveys  for  a ship-canal  around  the 


1623 


Falls  of  the  Ohio  River,  for  military,  naval  and  commercial 
• purposes,  was  passed.  It  was  approved  March  29,  1867.  It 
authorized  and  directed  the  Secretary  of  War  to  cause  sur- 
veys, with  plans  and  estimates  of  cost,  to  be  made  by  an  officer 
of  Engineers,  for  a ship-canal  around  the  Falls  of  the  Ohio 
River,  on  the  Indiana  side  thereof,  of  suitable  location  and 
dimensions,  for  military,  naval,  and  commercial  purposes,  and 
also  to  cause  said  officer  to  estimate  the  expense  of  completing 
the  Louisville  and  Portland  Canal,  on  the  Kentucky  side  of 
said  falls,  according  to  the  plan  on  which  the  said  canal  com- 
pany was  then  progressing  with  said  work. 

I was  assigned  to  this  duty  and  began  the  survey  in  July, 

1867.  My  report  on  it  is  dated  February  8,  1868,  and  may  be 
found  in  the  report  of  the  Chief  of  Engineers  for  the  year 

1868,  beginning  on  page  528. 

The  bonded  indebtedness  of  the  company  at  this  time  was 
$1,567,000,  payable  in  almost  equal  amounts  in  1871,  1876, 
1881  and  1886,  and  bearing  6 per  cent,  (currency)  interest, 
payable  semi-annually. 

In  my  report  of  the  survey  I recommended  for  the  reasons 
given,  not  only  the  immediate  enlargement  of  the  Louisville 
and  Portland  Canal,  but  also  the  immediate  construction  of  a 
5347  new  canal  on  a proper  route  on  the  Indiana  side,  with  a 
width  of  120  feet  and  new  locks  100  by  400  feet.  I believed 
then,  and  do  now,  that  the  radical  improvement  of  these  ob- 
structions demanded  both,  and  that  the  commerce  of  Ihe  Ohio 
River  was  entitled  to  the  most  generous  treatment  at  this  lo- 
cality. 

In  order  to  reduce  the  expense  of  rock  excavation,  and  the 
delay  attending  it  on  the  two  works,  and  believing  that  with 
these  two  canals  constructed  it  would  be  unnecessary  to  risk 
the  dangers  of  navigating  the  falls,  which  were  just  being  in- 
creased by  the  construction  of  the  piers  for  a railroad  bridge, 
I recommended  the  construction  of  two  low-water  dams;  one 
of  these  across  the  river  at  the  crest  of  the  falls  and  the  other 
below  New  Albany.  ^ The  latter  was  afterward  changed  to  the 
head  of  Sand  Island  to  give  more  water  in  the  Kentucky  chan- 
nel, and  thus  obtain  the  necessary  depth  there  without  expen- 
sive under-water  rock  excavation. 


Page  1888: 

I still  further  reduced  the  width  of  the  canal  to  about  85 
feet  for  the  sake  of  economy.  It  is  now  really  86^  feet  wide. 
I built  a high-water  channel  in  the  river  through  the  outer 
half  of  the  draw  in  the  railroad  bridge,  for  the  accominda- 
tion  of  boats  when  the  river  was  so  high  that  they  could 
5348  not  pass  under  the  bridge  through  the  wide  span  without 
lowering  their  chimneys,  and  I made  the  apron  or  crib  dam 


1624 


at  the  head  of  the  canal  1,800  instead  of  600  feet  long,  and 
raised  it  very  considerably. 


5349  Counsel  for  complainant  read  in  evidence  from  report  of 
the  Chief  of  Engineers,  for  1876,  part  2,  the  passages  of 

pages  201,  205,  206 ; the  map  between  pages  206  and  207 ; the  pas- 
sage on  page  212,  and  the  profile  map  between  pages  296  and  297, 
as  follows:  We  insert  here  other  extracts  from  the  same  report, 
to-wit:  Pages  204,  206,  207  and  234-9  inclusive,  which  extracts 

were  read  in  evidence  and  appear  on  page  3537  to  page  3553  Cer- 
tificate of  Evidence.  For  convenience  we  have  arranged  the  two 
extracts  according  to  the  jDages  of  the  Eeport  of  Engineers. 

5350  Page  201: 

A very  interesting  natural  feature  is  presented  by  the 
courses  of  the  AYisconsin  and  Fox  Eivers.  They  flow  towards 
each  other  to  within  14  miles  of  meeting,  and  then,  turning 
in  opposite  directions  (although  separated  only  by  a low 
plain,  across  which  their  floods  intermingle),  the  waters  of  the 
one  pursue  a southerly  course  to  the  distant  Gulf  of  Mexico, 
and  those  of  the  other  a northerly  direction  to  the  equally  re- 
mote ocean-  receptacle,  the  Gulf  of  Saint  Lawrence.  Each  of 
these  termini  was  a region  beyond  the  bounds  of  the  knowl- 
edge of  the  aboriginals  on  the  banks  of  the  two  rivers. 


Page  205: 

Eeport  of  Major  Long,  United  States  Army, 

1817  and  1819. 

The  AVisconsin  Eiver  was  visited  by  Maj.  S.  H.  Long,  United 
States  Topographical  Engineers,  in  1817,  and  again  in  1823, 
and  he  thus  describes  it : 

‘ ‘ The  MTsconsin  Eiver,  from  its  magnitude  and  importance, 
deserves  a high  rank  among  the  tributaries  of  the  Mississippi. 
MTien  swollen  by  a freshet,  it  affords  an  easy  navigation  for 
boats  of  considerable  burden  through  a distance  of  more  than 
180  miles.  Its  current  is  rapid,  and  like  the  Mississippi,  it 
embosoms  innumerable  islands.  In  a low  stage  of  water  its 
navigation  is  obstructed  by  numerous  shoals  and  sand-banks. 

5351  At  the  distance  from  its  mouth  above  mentioned’^  (too  great 
an  estimate  by  60  miles)  ‘‘there  is  a portage  of  one  mile  and 
a half,  across  a flat  meadow,  which  is  occasionally  subject  to 
inundation,  to  a branch  of  Fox  Eiver  of  Green  Bay,  thus  af- 
fording another  navigable  communication  which  boats  have 
been  known  to  pass.  The  valley  of  the  MTsconsin  is  some- 


1G25 


what  narrower  than  those  of  most  other  rivers  of  this  region, 
but  in  some  respects  is  very  similar  to  them.  The  high  coun- 
try here  assumes  a more  hilly  and  broken  aspect,  and  the  soil 
becomes  more  sandy  and  meager.’’  (See  Long’s  Expedition 
to  the  Source  of  the  Saint  Peter’s  Kiver,  Vol.  2,  Chapter  V.) 

* * * * m * * * * ' * 

Page  206: 

In  1819  the  Fifth  Regiment  of  the  United  States  Infantry 
made  the  voyage  from  Fort  Howard,  near  Green  Bay,  to 
Prairie  du  Chien,  via  the  Fox  and  Wisconsin  Rivers,  and  Capt. 
Henry  Whiting,  of  that  regiment,  prepared  a map  of  the  route 
on  a scale  of  an  inch  to  4 miles,  with  numerous  marginal  notes. 
From  these  the  following  description  is  compiled: 

Fort  Howard  is  on  the  left  bank  of  the  lower  Fox  River, 
about  2 miles  from  its  mouth ; about  3 miles  above  are  rapids 
and  a mill,  and  between  these  and  the  fort  was  a French  set- 
tlement, occupyins-  both  banks  of  the  river,  and  numbering 
about  sixty  families.  From  the  rapids  at  the  mills  to  the 
Grand  Chute  the  current  is  generally  so  rapid  as  to  render 
a tow-line  and  setting-poles  necessary,  and  the  boats  are  for 

5352  the  most  part  moved  up  in  that  way.  In  this  space  were 
passed,  first,  the  Little  Kakalin  Rapids,  one-quarter  of  a mile 

in  length,  easily  surmounted  with  setting  poles  and  oars ; sec- 
ond, the  Great  Kakalin  Rapids,  one  mile  in  length,  very  broken 
and  violent,  where  the  boats  are  unloaded,  and  the  baggage 
transported  1,000  yards  by  land;  third.  La  Petite  Chute,  a 
ledge  stretching  across  the  river,  making  a descent  of  about 
12  inches;  fourth.  La  Crosse  Roche,  which  makes  a perpen- 
dicular fall  of  about  2 feet.  Both  of  these  two  last-men- 
tioned are  surmounted  with  loaded  boats. 

At  La  Grande  Chute  there  is  a perpendicular  fall  of  about 
4 feet  all  across  the  river,  and  the  boats  have  to  unload 
and  the  baggage  is  transported  500  yards.  Above  the  Grande 
Chute  and  below  Lake  Winnebago  there  are  two  or  three  incon- 
siderable rapids  which  are  surmounted  without  much  diffi- 
culty or  delay. 

The  Fox  River  thence  to  the  portage  has  always  a strong 
current  and  is  often  entirely  overgrown  with  grass  and  wild 
rice,  but  presents  no  other  impediments.  It  winds  through  a 
and  narrow  prairie  borders  by  oak  openings,  and  undulating 
lands,  generally  of  a beautiful  appearance,  but  probably  not 
remarkably  rich  in  their  soil,  which,  wherever  the  river  washes 
them,  seems  to  be  a sandy,  reddish  loam. 

The  portage  between  the  Fox  and  Wisconsin  Rivers  is  about 
2,500  yards;  the  road  runs  over  a marshy  prairie.  There  is 

5353  a Frenchman  residing  on  the  rising  ground  between  the 
rivers.  He  keeps  the  proper  transportation  for  boats  and 

baggage. 


1626  Loughs  Rep. — Eng.  Rep.  1876. — Continued. 

Said  maps  accompanying  said  report  were  received  in  evidence 
(Atlas,  pp.  3994-3995;  Trans.,  pp.  6725-27;  Abst.,  pp.  1942-47), 
and  a copy  of  each  of  said  maps  are  shown  in  abstract,  pp.  1942, 
1947. 

5354  Page  212 : 

For  convenience  of  reference  in  the  report  of  operations  fol- 
lowing, I will  give  now  a correct  list  of  the  several  rapids, 
with  their  distance  apart,  and  the  fall  at  each  as  it  was  ascer- 
tained at  the  time  of  the  examination  made  by  Major  Suter,  in 
1866.  It  is  as  well  to  note  here  that  the  map  published  with 
our  report  gives  two  locations  of  Eapids  Croche;  the  upper 
one  is  the  location  of  the  dam,  the  other  is  a mistake. 


List  of  rapids  on  Lower  Fox  Eiver,  with  amount  of  fall 


and  distances  apart  between  head  of  each. 

Fall. 

Distance 

apart. 

Name 

Feet 

’Miles 

Depere 

8 

0 

Little  Kaukana  (or  Kakalin) 

8 

6 

Eapide  Croche 

8 

6 

Grand  Kaukana 

50 

44 

Little  Chute 

38 

24 

Cedar  Eapid 

10 

Of 

Grand  Chute 

38 

4 

Mhnnebago  Eapid 

10 

4f 

Green  Bay  to  Lake  AVinnebago 

170 

28 

5355  Counsel  for  complainant  read  in  evidence  with  reference 
to  the  Tennessee  Eiver,  more  especially  Muscle  Shoals,  in  the 

Tennessee  Eiver,  the  annual  report  of  the  Chief  of  Engineers  of 
the  United  States  Army  for  the  year  1872,  under  date  of  March 
23,  1872,  pages  495,  497,  512  and  513,  and  page  514,  as  follows: 

Tennessee  Eiver — Muscle  Shoals. 

U.  S.  Engineer’s  Eeport  for  1872. 

5356  ‘M  have  the  honor  to  transmit  my  report  upon  the  re- 
survey of  the  Tennessee  Eiver  from  Brown’s  Ferry,  Ala- 
bama, to  Florence,  Alabama,  made  under  your  instructions, 
and  in  compliance  with  the  act  of  Congress  approved  Febru- 
ary, 1871,  relating  to  surveys. 

That  portion  of  the  Tennessee  Eiver  covered  by  this  survey 
is  commonly  known  as  the  Muscle  Shoals,  although  three  dis- 
tinct series  of  shoals,  separated  by  deep  water,  are  included 
within  its  limits,  viz. : 

Elk  Eiver  Shoals,  beginning  two  and  one-half  miles  below 


1627 


Brown’s  Ferry,  and  extending  to  the  mouth  of  the  Elk  River, 
eight  miles  and  one-half,  with  a fall  of  21  feet. 

Big  Muscle  Shoals,  beginning  six  miles  and  one-quarter  be- 
low Elk  River,  and  extending  to  Bainbridge  (formerly  known 
as  Campbell’s)  Ferry,  fourteen  miles  and  one-half,  with  a fall 
of  82  feet.  It  is  around  this  shoal  that  a canal  was  constructed 
in  1832- ’37. 

Little  Muscle  Shoals,  beginning  one  mile  and  one-quarter 
below  the  foot  of  Big  Muscle  Shoals,  and  extending  to  Flor^ 
ence,  Alabama,  five  miles  and  one-third,  with  a fall  of  22 
feet. 

Between  the  foot  of  Elk  River  Shoals  and  the  head  of  Big 
Muscle  Shoals  lies  the  deep  water  of  Lamb’s  Ferry  pool  or 
eddy,  six  miles  and  one-quarter  in  length,  with  a fall  of  5.4 
5357  feet  and  a depth  varying  from  8 feet  to  an  unknown  amount 
over  12  feet,  and  with  one  rocky  bar  about  one  mile  and 
three-quarters  below  the  mouth  of  Elk  River. 

At  the  foot  of  Big  Muscle  Shoals,  and  between  that  and  the 
head  of  Little  Muscle  Shoals,  lies  the  deep  water  of  Bain- 
bridge, or  Campbell’s  Ferry  pool  or  eddy,  one  mile  and  one- 
quarter  in  length,  with  a fall  of  two  feet,  and  a depth  varying 
from  8 to  57  feet. 

The  whole  distance  and  fall,  then,  from  Brown’s  Ferry  to 


Florence,  is  as  follows,  viz: 

Distance 

Fall 

Miles. 

Feet. 

From  Brown’s  Ferry  to  head  of 

Elk 

River  Shoals  (deep) 

2.6 

1.7 

Elk  River  Shoals 

8.6 

21.1 

Lamb’s  Ferry  pool  (deep) 

6.3 

5.4 

Big  Muscle  Shoals 

14.4 

82.1 

Campbell’s,  or  Bainbridge,  Ferry 

pool 

(deep) 

1.25 

1.9 

Little  Muscle  Shoals 

5.35 

22.0 

Total 

38.5 

134.2 

The  object  of  the  survey  was  to  ascertain  what  means  could 
be  found  for  passing  these  obstructions  and  uniting  the  two 
dissevered  branches  of  the  Tennessee,  which  for  two  hun- 
5358  dred  and  sixty  miles  below  and  two  hundred  miles  above  is 
navigable  for  the  largest  class  of  western  river  steamers, 
while  smaller  steamers  are  able  to  pass  two  hundred  miles  still 
further  up  the  stream.  * * * 

As  stated  in  the  earlier  pages  of  this  report,  the  Tennessee 
is  navigable  from  Florence,  Alabama,  to  Paducah,  Kentucky, 
at  its  mouth,  two  hundred  and  sixty  miles  distant,  by  the 
largest  class  of  western  river  steamers  (the  obstacles  at  Col- 


1628  Muscle  Shoals,  Tenn.  R. — Eng,  Rep.  1872. — Continued. 

bert  Shoals  being  nearly  removed),  while  the  same  may  be  said 
of  that  portion  of  the  river  lying  between  Muscle  Shoals  and 
Chattanooga,  two  hundred  miles  in  length.  During  the  high- 
water  season  the  river  rises  at  Chattanooga  40  feet;  at 
Brown’s  Ferry,  12  feet;  on  the  big  Muscle  Shoals,  from  4 
to  5 feet;  and  about  twice  as  much  on  Little  Muscle  Shoals; 
at  Florence,  20  feet;  and  at  Waterlook  twenty-eight  miles 
below  Florence,  30  feet.  This  rise  enables  large  vessels  to 
pass  up  to  Knoxville,  two  hundred  miles  above  Chattanooga, 

5359  and  renders  the  Little  Tennessee,  the  Holston,  and  the  French 
Broad  navigable  for  smaller  steamers  for  some  distance 

farther. 

5360  Tennessee  Division. — From  Paducah,  Kentucky,  at  the 
mouth  of  the  Tennessee,  up  that  river  to  Florence,  Alabama, 

at  the  foot  of  Muscle  Shoals;  distance,  two  hundred  and  fifty- 
five  miles.  Coast  Survey  measurement. 

The  greater  portion  of  this  division  furnishes  depth  enough 
for  the  passage  of  any  boat  that  floats  on  the  western  waters, 
but  scattered  along  the  line  are  numerous  reefs  and  bars  on 
which,  during  the  season  of  lowest  water,  less  than  3 feet  water 
is  to  be  had,  while  the  channel-ways  of  many  others,  though 
sufficiently  deep  at  low  water,  are  so  crooked  and  narrow 
that  it  would  be  impossible  for  tows  to  pass  them,  and,  there- 
fore, need  to  be  improved  before  they  can  be  used  for  the 
purpose  now  under  discussion. 

The  most  serious  of  these  obstructions  is  the  group  of 
reefs  and  bars  known  as  Colbert  Shoals,  about  seventeen  miles 
below  Florence,  Alabama,  which,  next  to  the  Muscle  Shoals, 
constitute  the  most  serious  object  to  be  met  with  on  the  whole 
line  of  the  river. 

In  the  same  vicinity  are  the  obstructions  at  Seven  Mile 
Island  and  Buck  Island,  a few  miles  above  Colbert  Shoals, 
and  those  at  Bee  Tree  Island,  a few  miles  below  Colbert 
Shoals. 

The  water  at  these  obstructions,  during  the  lowest  stage 
of  the  river,  is  from  12  to  20  inches  in  depth,  and  all  com- 
munication by  boat,  between  Florence  and  the  lower  river,  is 

5361  cut-off,  steamers  being  unable  to  ascend  beyond  Eastport 
and  Waterloo,  about  thirty  miles  below  Florence.  Attempts 

have  been  made,  within  the  past  four  years,  under  Congres- 
sional appropriations,  to  improve  the  river  at  these  points 
so  that  3 feet  water  might  be  carried  over  them  at  the  low- 
est stage;  but  the  incompetence  of  the  contractor  who  had 
undertaken  the  work  has,  so  far,  prevented  the  accomplish- 
ment of  this  design.  It  is  hoped,  however,  that  the  balance  yet 
unexpended  will  enable  us  to  get  the  desired  depth  before  the 
beginning  of  the  low- water  season  of  1872.  To  secure  5 feet 
depth  of  water  over  this  obstacle  during  the  remainder  of  the 


1629 


year  may  require  the  construction  of  a short  section  of  canal 
with  a lock,  the  cost  of  which  cannot  be  determined  without 
a minute  survey,  but  which  may  be  set  down  at  not  less  than 
$300,000. 

Descending  the  river,  we  find  that  improvements  of  some 
kind  or  other — removing  rock  or  gravel,  or  constructing  wing- 
dams,  in  order  to  straighten  or  widen  the  channels,  or  to  give 
them  sufficient  depth — will  be  required  at  the  following  points, 
viz:  Bear  Creek  Shoals,  Indian  Creek,  Big  Bend  Shoals. 

Diamond  Island,  Wolf  Island,  Chalk  Bluff,  Beech  Creek 
Shoals,  Buffalo  Shoals,  Armstrong’s  Tow-head  Bridge,  at 
Johnsonville,  Duck  River  Shoals  and  Suck,  Turkey  Island 
Shoals,  White  Oak  Island,  Harrican  Island,  Leatherwood 
53'62  Shoals,  Sandy  Island,  Panther  Creek  Island,  McCullough’s 
Bar,  Blood  River  Island,  Pentecost  Tow-head,  Widow  Rey- 
nold’s Bar,  Grubb’s  Tow-head,  Little  Chain,  and  Grand  Chain. 

At  most  of  these  ])oints  but  a small  amount  of  work 
would  be  required  to  make  the  low-water  channel  sufficiently 
broad  and  deep.  As  an  accurate  estimate  cannot  be  e:iven  with- 
out an  accurate  survey,  I have  roughly  fixed  the  probable  aver- 
age cost  of  improving  these  points  at  $5,000  each,  except  Big 
Bend  Shoals,  which,  being  over  three  miles  in  length,  will  cost 
a large  amount.  This  and  Duck  River  Shoals  are  the  two 
most  troublesome  points  below  Colbert  Shoals.  During  the 
greater  portion  of  the  year  3 feet  water  may  be  carried  over 
either,  but  during  the  low-water  season  they  have  been  known 
to  have  as  little  as  22  inches  over  them,  though  it  seldom  falls 
below  30  inches.  The  entire  cost  of  securing  3 feet  depth  over 
the  whole  distance  during  the  low-water  season,  and  5 feet 
depth  during  the  ordinary  stage  of  water,  may  be  set  down  as 
not  less  than  $500,000. 

Most  of  these  obstructions  are  not  such  as  to  materially 
interfere  with  the  passage  of  the  small  steamers  now  employed 
on  the  Tennessee,  but  they  would  become  serious  obstacles 
to  tows,  which,  in  the  event  of  the  opening  of  this  route,  would 
constantly  pass  up  and  down  the  river;  for,  to  admit  of  the 
5363  passage  and  easy  management  of  a steamer,  with  a barge 
on  each  side  of  her,  the  channel- ways  would  all  have  to  be 
straightened  and  widened  to  not  less  than  150  feet. 

Muscle  Shoals  Division. — Extending  from  Florence,  Ala- 
bama, up  the  Tennessee,  passing  Little  Muscle  Shoals,  Big 
Muscle  Shoals,  and  Elk  River  Shoals,  to  Brown’s  Perry,  Ala- 
bama, a distance  of  thirty-eight  miles  by  survey,  which  would 
have  to  be  passed  entirely  by  canal;  and,  for  reasons  stated 
in  an  earlier  part  of  this  report  this  canal  should  be  con- 
structed for  the  passage  not  only  of  such  boats  as  may  be 
designed  to  pass  over  the  remaining  portions  of  the  route,  but 


1630 


also  for  the  largest  steamers  ever  likely  to  be  employed  in  the 
Tennessee  Eiver  trade. 

The  dimensions  proposed  for  this  canal  were  as  follows,  viz : 
100  feet  wide  at  water-surface  and  6 feet  deep ; lock-chambers, 
60  feet  wide  by  300  feet  between  miter-sills ; and  its  estimated 
cost  was  $3,676,000.  For  fuller  details  see  my  report,  a copy 
of  which  is  appended  hereto. 

Alabama  Division, — Extending  from  Brown’s  Ferry,  at  the 
head  of  Muscle  Shoals,  up  the  Tennessee  to  the  mouth  of 

5364  Short  Creek,  two  miles  and  a half  above  Guntersville,  Ala- 
bama, distance  seventy-five  miles  by  steamboat  measurement. 

This  portion  of  the  river  is  broad,  straight,  and  almost  free 
from  obstructions,  with  abundant  water  except  at  Gunter’s 
Bar,  Gunter’s  Eeef,  Flint  Eiver,  Tow-head,  Wliitesburgh- 
Shoals  and  Eeefs,  and  Limestone  Shoals,  where,  during  the 
lowest  stage  of  the  river,  the  depth  of  water  varies  from  10 
to  20  inches.” 

5365  Counsel  for  complainant  otfered  in  evidence,  in  the  report 
of  1895,  pages  2410,  2411,  2412,  and  the  profile  and  map  be- 
tween pages  2416  and  2417.  (Atlas,  p.  3996;  Trans.,  p.  6729; 

Abst.,  p.  1951.) 

(Objected  to;  sustained.) 

5366  Said  extracts  from  said  report  so  excluded  are  as  fol- 
lows : 

5367  ^‘Dam  at  Heer  Island,  Allegheny  Eiver,  Near  Pittsburg, 

Pennsylvania. 

The  object  of  this  dam  is  to  begin  a system  of  slack- water 
navigation  on  the  Allegheny  Eiver  and  enlarge  the  harbor 
room  at  Pittsburg  to  the  extent  of  the  pool  formed  by  the  dam. 

The  original  project  was  for  a fixed  dam,  but  in  compliance 
with  the  request  of  the  authorities  of  Pittsburg  and  Allegheny 
City,  the  Secretary  of  War  has  ordered  that  the  dam  at  Herr 
Island  be  made  a movable  one.  This  change  in  design  neces- 
sitated a corresponding  change  in  the  estimated  cost  of  the 
work.  The  estimated  cost  of  the  work  under  the  plans  ap* 

proved  July  10,  1894,  is  $600,000.” 

* * * # * # * * 

‘‘During  the  past  fiscal  year,  the  plans  for  this  work  were 
approved  July  10,  1894,  and  the  pumping  out  of  the  coffer-dam 
commenced  July  7,  1894.  The  result  is  shown  in  the  following 
extract  from  the  project  submitted  under  modified  plan  of 
August  27,  1894:” 

********** 

“There  are  some  important  advantages  resulting  from  this 


1631 


type  of  foundation.  The  uncertainties  of  sheet  piling  are  re- 
placed by  the  known  qualities  of  masonry,  resting  upon  a 
foundation  bed  that  is  open  to  inspection.  In  the  first  design, 

5368  the  expensive  concrete  floor  has  been  minimized  in  thickness 
so  as  to  produce  a rupturing  strain  under  possible  conditions 
of  navigation,  and  to  prevent  the  pumping  out  of  the  lock 
chamber  while  the  Herr  Island  Dam  is  up.  With  the  present 
design  there  is  no  rupturing  strain  on  the  floor,  and  the  lock 
chamber  can  be  pumped  out  at  any  stage  of  water  that  the 
lock  walls  will  keep  out.” 

Said  map  accompanying  said  extracts  was  also  excluded  (Atlas 
p.  3996;  Trans.,  p.  6729;  Abst.,  p.  1951). 

5370  Thereupon  counsel  for  defendant  read  in  evidence  extracts 
from  the  report  of  the  Chief  of  Engineers  for  1876,  part  2, 

as  a supplement  to  the  part  theretofore  read  by  counsel  for  com- 
plainant upon  pages  204,  206,  207,  209  and  234  to  239. 

5371  Page  204: 

‘^The  river”  (says  Marquette)  ‘‘on  which  we  embarked  is 
called  Meskousing,”  (Wisconsin).  “It  is  very  broad,  with  a 
sandy  bottom,  forming  many  shallows,  which  render  naviga- 
tion very  difficult.  It  is  full  of  vine-clad  islets.  On  the  banks 
appear  fertile  lands  diversified  with  wood,  prairie  and  hill. 
Here  you  find  oaks,  walnut,  whitewood,  and  another  kind  of 
tree  with  branches  armed  with  long  thorns.  We  saw  no  small 
game  or  fish,  but  deer  and  moose  in  considerable  numbers.” 

5371  Page  206-7 : 

The  limestone  bluffs  and  highlands  begin  on  the  Wiscon- 
sin about  8 miles  below  the  portage.  Just  above  Prairie  du 
Sac  appears  to  be  the  apex  of  the  highland  of  the  Wisconsin 
and  the  head  of  the  great  valley  through  which  that  river 
winds.  The  river  is  full  of  islands,  formed  by  the  sand-bars, 
which  are  constantly  increasing  in  number.  The  general  depth 
of  the  river  is,  at  the  ordinary  height  of  the  water,  4 to  5 
feet,  but  the  sand-bars  often  extend  entirely  across  the  river, 
and  have  not  more  than  8 or  10  inches  of  water;  the  sands, 
however,  are  quick,  and  oppose  but  little  resistance. 

5372  Page  209  : 

The  Wisconsin  may  be  rendered  navigable  by  the  removal 
of  the  timber  from  its  banks  where  it  overhangs  the  channel, 
and  occasionally  contracting  its  waters  by  closing  the  heads 
of  the  sluices  or  shallow  channels  around  the  islands.  * * * 
Its  general  width  is  about  a. mile;  these  improvements,  there- 
fore, will  permit  the  steamboats  which  navigate  the  Upper 


1632  Fox  and  Wisconsin  Rivers, — V.  S.  Eng.  Rep.  1876. — Con. 

Mississippi  to  ascend  this  river  to  the  Great  Bend  nearest  to 
Lake  Michigan. 


5372  Pages  234-9 : 

The  Lower  Fox  forms  the  outlet  of  Lake  Winnebago,  a body 
of  water  35  miles  long,  from  9 to  14  miles  wide,  with  depths 
varying  in  the  deepest  parts  from  12  to  25  feet.  Over  the 
154  miles  of  lake  navigation,  between  the  Upper  and  Lower 
Fox  Eivers,  there  is  a depth  of  over  20  feet.  This  lake  is  a 
great  reservoir,  and  prevents  any  sudden  changes  in  the  vol- 
ume of  the  outlet  from  freshets — the  extreme  fluctuations  in 
the  Lower  Fox  not  exceeding  3 to  4 feet.  The  level  of  the 
lake  does  not  reach  more  than  34  feet  above  the  ordinary  level 
maintained  by  the  dams  at  the  outlets,  but  it  is  occasionally 
drawn  down  by  the  water-power  mills  nearly  24  feet  below 
this  level.  The  total  fall  from  Lake  Winnebago  to  Green  Bay 
is  about  170  feet,  and  the  distance  374  miles.  The  minimum 
volmne  of  the  Lower  Fox  is  given  by  Mr.  Westbrook  at  2,320 
cubic  feet  per  second. 


5373  The  following  table  is  made  up  from  the  figures  of  Major 
Suter’s  report,  as  modified  by  me  in  arrangement  in  the 
foregoing  abstract : 


Table  ix  Eegaed  to  the  Lower  Fox  Eiver  ix  the  Autumx  of 

1867. 


Inter- 

mediate 

Place.  Distance. 

Distance 
from  mouth 
of  river. 

Number 

of 

locks. 

Elevation 

overcome. 

Depere,  dam 

Miles. 

7 

Miles. 

7 

1 

Feet. 

8 

Little  Kaukana,  dam 

6 

13 

1 

8 

Eapid  Croche,  dam 

6 

19 

1 

8 

Grand  Kaukana,  dam 

44 

234 

5 

50 

Little  Chute,  dam 

24 

26 

4 

38 

Cedars,  dam 
Appleton,  lower  dam 

o| 

26f 

1 

10 

3 

29f 

1 

84 

Appleton,  upper  dam 

Of 

304 

3 

294 

Menasha,  dam 

5 

354 

1 

10  ■ 

Lake  Winnebago 

2 

374 

Total 

37i 

18 

170 

(Continued  next  page.) 


1G33 


5374  Table  in  Regard  to  the  Lower  Fox  River  in  the  Autumn  of 

1867. 

(Concluded.) 


Cost  of  making  navigation 
from  one  dam  to  next  above. 

For  4 feet 

For  6 feet 

Height 

draught. 

draught. 

above 

locks 

locks 

Place. 

Green  B 

ay.  160  X 35. 

220  X 35. 

Feet. 

Depere,  dam 

8 

$45,000.00 

$83,300.00 

Little  Kaukana,  dam 

16 

3,000.00 

27,730.00 

Rapide  Croche,  dam 

24 

4,000.00 

41,000.00 

Grand  Kaukana,  dam 

74 

22,800.00 

111,670.00 

Little  Chute,  dam 

112 

17,530.00 

77,200.00 

Cedars,  dam 

122 

3,930.00 

23,400.00 

Appleton,  lower  dam 

1304 

11,000.00 

Appleton,  upper  dam 

160 

18,870.00 

63,870.00 

Menasha,  dam 

170 

13,270.00 

54,200.00 

Lake  Winnebago 

170 

Total 

$118,400.00 

$493,370.00 

5375  Condition  of  the  Upper  Fox  River  and  improvement  in  1866. 
— The  present  traveled  route  between  Oshkosh  and  Fort  Win- 
nebago is  104  miles,  the  air-line  being  54  miles.  As  near  as 
can  be  estimated,  there  have  been  18,000  feet  of  cut-off  by 
dredging  making  a saving  of  about  three-fifths  of  the  dis- 
tance. The  total  fall  is  about  33-1/10  feet.  In  most  places  there 
is  a fall  of  a foot  in  2|  miles,  but  there  are  long  reaches  where 
the  fall  is  scarcely  perceptible.  Several  lakes  occur  on  the 
course  of  the  river,  which  are  generally  shallow  and  full  of 
wild  rice. 

The  mouth  of  the  Fox  River  at  Oshkosh  is  very  deep; 
the  channel  has  upward  of  20  feet  of  water,  which  continues 
along  the  whole  river-front  of  the  town;  thence  to  Lake 
Buttes  des  Morts,  and  through  that  lake  there  is  over  12  feet 
of  water;  the  river  is  broad  and  deep,  with  no  perceptible 
current.  About  10  miles  from  Oshkosh  the  Fox  is  .-joined  by 
the  Wolf  River,  a stream  of  nearly  its  own  size.  This  river 
is  navigable  for  about  50  miles;  it  penetrates  into  the  lumber 
regions  in  the  northern  part  of  the  State,  and  a great  quantity 
of  logs  and  sawed  lumber  is  floated  down  the  river  to  Osh- 
kosh. 

After  passing  the  mouth  of  Wolf  River  6 feet  is  the  least 
depth  until  we  reach  Omro  Bar,  half  a mile  below  the  town 
of  that  name;  thence  to  the  town,  44  feet  of  water.  This 
portion  of  the  river  is  quite  crooked,  but  this  is  of  no  great 


1634  Fox  and  Wisconsin  Rivers, — IJ.  S.  Eng.  Rep.  1876. — Con. 

/ 

5376  importance  to  small  vessels,  on  account  of  the  depth  of  the 
water.  Two  miles  below  Omro  a cut  about  a mile  long,  carry- 
ing the  waters  of  the  Fox  straight  to  Lake  Buttes  des  Morts, 
would  save  7 or  8 miles  of  distance.  From  Omro  to  Delhi 
there  is  about  5 feet  of  water;  never  less,  except  in  small 
spots.  Above  Delhi  there  is  the  same  depth  to  Eureka  Bar. 
From  here  to  the  town  of  Eureka  14  miles,  there  is  only  from 

4 to  4^  feet,  with  occasional  deep  spots.  In  front  of  the 
town  there  is  6 feet  of  water.  At  Eureka  there  is  a perma- 
nent bridge,  the  only  one  between  Berlin  and  Oshkosh.  There 
are  several  floating  bridges,  however,  where  country  roads 
cross  the  river.  From  Eureka  to  Sacramento  there  is  an  aver- 
age depth  of  6 feet.  The  river  is  quite  narrow. 

Above  Sacramento  there  is  an  average  depth  of  5 feet 
half-way  to  Berlin ; then  from  4 to  4J  feet  as  far  as  a floating 
bridge  three-quarters  of  a mile  below  Berlin.  Above  this 
bridge,  and  also  in  front  of  the  town  of  Berlin,  there  is  about 

5 feet  of  water.  Between  Sacramento  and  Berlin  there  is 
not  much  marsh  along  the  river,  and  the  banks  are  generally 
high.  Above  Berlin,  the  average  depth  is  from  5 feet  to  6 
feet  for  8 miles.  At  this  point  there  is  a short  bar  on  which 
the  water  is  only  34  feet  deep.  The  average  depth  above  here 
is  from  5 feet  to  6 feet,  until  the  mouth  of  the  Puckeyan 

5377  Eiver  is  reached.  Just  above  the  mouth  of  this  stream  is  a 
short  bar  with  34  feet  of  water.  At  the  lower  end  of  Willow 
Bend  is  another  short  bar  with  34  feet  of  water.  At  the 
mouth  of  White  River  is  a bad  bar  300  yards  long,  and  hav- 
ing only  3 feet  of  water  on  it.  In  the  west  side  of  the  first 
bend  above  White  River  is  a flat  bar  caused  by  a sudden 
widening  of  the  stream.  It  is  200  yards  long,  and  has  3^ 
feet  of  water  on  it.  (The  lowermost  wing-dam  is  about  2 
miles  below  State  Centre.)  There  is  a bar  below  this  lower 
wing-dam  with  3 feet  of  water.  Above  this  wing-dam  there 
is  from  34  to  44  feet  of  water ; usually  4 feet  and  often  more. 
The  banks  of  the  stream  from  Berlin  to  the  lower  wing-dam 
are  generally  low  and  marshy,  but  above  this  point  they  are 
quite  high,  and  continue  so  to  the  mouth  of  the  Meehan  River. 
There  is  a second  wing-dam  at  State  Centre.  At  Saint  Mary 
are  the  ruins  of  a bridge.  From  Saint  Mary  to  Princeton 
the  river  is  quite  shoal.  The  average  depth  is  4 feet,  but  on 
the  bars  there  is  less  than  3 feet.  There  are  two  more  wing- 
dams  at  Princeton.  There  is  also  at  this  point  a good,  per- 
manent bridge  across  the  Fox. 

Between  Princeton  and  the  mouth  of  Meehan  River  there 
are  three  wing-dams.  In  this  portion  of  the  river  the  water 

5378  is  quite  shoal,  not  more  than  3 feet  deep.  From  Omro  to  the 
mouth  of  Meehan  River  the  fall  is  about  1 foot  in  24  miles, 
and  there  is  quite  a strong  current.  Above  Meehan  there  is 
slack-water  to  Lake  Puckaway.  The  river  is  very  wide, 


1635 


with  6 feet  or  8 feet  depth  of  water  or  more.  Within  the 
Big  Bend,  above  Princeton,  the  ground  is  cjnite  high,  a])Out 
30  feet  above  tlie  level  of  the  river.  If  a canal  could  be 
cut  through  here  about  10  miles  would  be  saved,  as  the  neck  is 
only  a mile  wide. 

Lake  Puckaway  is  a sheet  of  water  8]  miles  long  and  from 
1 to  2 miles  wide.  The  lower  end  of  the  lake  is  very  shallow 
and  full  of  reeds  and  wild  rice.  A channel,  running  north- 
east from  Marcpiette,  has  been  cut  through  for  steamers.  It 
is  from  3 feet  to  31  feet  deep.  A channel,  having  4 feet  of 
water,  leads  along  the  eastern  shore  of  the  lake.  The  bottom  of 
the  lake  is  very  soft,  black  mud,  through  which  a channel  of 
any  depth  can  be  easily  dredged.  For  about  a mile  to  the  west- 
ward of  Marquette  the  lake  is  tilled  with  rushes.  A channel 
exists,  however,  which  has  about  4^  feet  of  water.  After  get- 
ting out  of  the  rushes,  there  is  from  5 feet  to  6 feet  of  water 
to  the  end  of  the  lake. 

At  the  mouth  of  the  Fox,  that  is,  where  it  enters  Lake 

5379  Puckaway,  there  is  a bar  half  a mile  long,  where  there  is  only 
from  3 feet  to  31  feet  of  water;  above  this  there  is  5 feet  or 
6 feet  for  about  3 miles.  Just  below  the  large  bend  there  is 
about  44  feet;  then  for  a mile  from  6 feet  to  7 feet.  The  rest 
of  the  way  to  Montello  the  river  is  shallow.  Three  and  a 
half  feet  is  the  average  depth,  and  3 feet  is  the  least.  There 
are  a good  many  sand-banks  just  below  Montello  which  wash 
into  the  stream  and  cause  bad  bars.  The  current  between  the 
lakes  is  quite  rapid. 

At  Montello,  a lock  and  dam  are  being  constructed  to  raise 
the  water  above  Lake  Buffalo.  As  shown  by  the  ])lan,  it  is 
designed  to  cut  the  canal  through  into  a bayou,  which  has  a 
depth  of  about  7 feet.  The  Montello  River  has  also  been 
turned  into  this  bayou. 

The  dimensions  of  the  lock,  dam,  and  canal  when  finished 
will  be  as  follows:  Dam,  151  feet  long;  canal,  650  feet  long 
and  90  feet  wide;  lock-lift,  3 feet;  depth  on  lower  miter-sill, 
between  8 feet  and  9 feet;  height  of  lock,  15  feet;  length,  160 
feet;  width,  35  feet;  composite  lock,  with  head-walls  of  ma- 
sonry. 

Above  the  mouth  of  Montello  River  there  is  from  4 to  4-J 
feet  of  water  as  far  as  the  lower  end  of  Lake  Buffalo.  Lake 
Buffalo  is  a large  rice-field,  about  134  miles  long  and  half  a 

5380  mile  wide.  The  Fox  crosses  it  in  a very  tortuous  but  deep 
channel.  After  entering  the  lake  there  is  from  6 feet  to  9 
feet  as  far  as  Packwaukee,  and  even  as  deep  as  15  feet.  This 
is  a pile-bridge  across  the  lake  at  Packwaukee.  From  Pack- 
waukee a good  channel  leads  to  the  end  of  Buffalo  Lake.  The 
water  runs  from  7 feet  to  9 feet  in  depth.  Between  Lake  Buf- 
falo and  Lake  Menomin  there  is  a channel  of  about  the  same 
depth,  and  also  through  Lake  Menomin.  This  channel  is  ex- 


1636  Fox  and  Wisconsin  Rivers, — U.  S.  Eng.  Rep.  1876. — Con. 

ceedingly  crooked.  Lake  Menomin  is  a large  wild  rice-field 
like  Lake  Buffalo.  It  is  1^  miles  long  by  half  a mile  wide. 
After  leaving  this  lake,  and  especially  after  passing  Mer- 
ritt’s Landing,  just  above  Moundville,  a series  of  small,  but 
bad,  bars  are  met  with.  They  are  caused  by  the  washing  of 
a high  sand-bluff  on  the  river-bank.  These  bars  have  barely 
3 feet  of  water  on  them.  The  worst  of  them  could  be  avoided 
by  a cut-off.  In  the  last  mile  below  Eoslyn  the  channel  is 
as  a general  rule  quite  deep— from  6 to  8 feet;  but  shoal  spots 
occur,  where  only  4^  feet  is  to  be  found.  The  channel  is  ex- 
ceedingly crooked  and  narrow.  A great  many  cut-offs  should 
be  made  in  this  portion  of  the  river. 

From  Eoslyn  to  the  first  cut-off  there  is  from  54  to  7 feet 
of  water.  Just  below  this  cut-off  is  a short  bar  with  only 
3 feet  of  water.  In  the  cut  itself  there  is  about  4 feet.  Above 

5381  the  cut  is  another  bar  with  3 feet  depth.  This  first  cut-off 
is  only  about  40  feet  long;  but  it  saves  nearly  a mile  of  dis- 
tance. From  the  first  to  the  second  cut-off  the  depth  is  about 
44  feet.  In  the  cut-off  there  is  a bar  with  about  3 feet  of 
water.  The  rest  of  the  cut  has  a depth  of  about  44  feet. 
From  the  second  to  the  long  cut-off  there  is  from  6 to  9 feet  of 
water.  At  the  lower  end  of  the  long  cut-off  there  is  5 feet  of 
water;  at  the  middle,  4 feet;  at  the  upper  end,  3 feet,  with  a 
short  bar  having  from  2 feet  8 inches  to  3 feet.  From  the 
end  of  the  cut-off  to  Governor’s  Bend  lock  there  is  about  5 
feet  of  water.  Between  Governor’s  Bend  lock  and  Eoslyn 
the  stream  is  very  crooked,  and  several  long  cut-offs  should 
be  made.  The  cut-off  just  below  Governor’s  Bend  is  about 
a mile  long,  and  saves  about  3 miles.  Governor’s  Bend  lock, 
dam  about  4 feet  high  and  60  feet  long.  Canal,  570  feet 
long  and  57  feet  wide.  Lock,  composite;  lift  4 feet;  depth  on 
lower  miter-sill,  5 feet  6 inches;  height,  15  feet;  length,  160 
feet;  width,  35  feet;  new  and  in  good  order.  From  this  lock 
to  Winnebago  lock  there  is  slack-water.  The  channel  leads 
almost  entirely  through  cut-offs,  and  is  quite  free  from  sharp 
bends.  The  width  of  these  cut-offs  is  about  60  feet.  The  depth 
will  average  44  feet  to  within  a mile  of  Winnebago  lock.  In  this 
last  distance  the  channel  is  full  of  sand-bars.  The  water 

5382  gradually  shoals  from  44  feet  to  24  feet.  At  the  foot  of 
Winnebago  lock  there  is  8 feet  of  water. 

At  Winnebago  lock  the  lift  is  7 feet;  depth  on  lower  miter- 
sill,  6 feet  1 inch;  height,  17  feet;  length,  160  feet;  width,  35 
feet.  Composite  lock  with  masonry  head-walls;  all  in  good 
order. 

The  canal  which  connects  the  Fox  and  Wisconsin  Eivers 
is  quite  shoal.  At  the  lower  end  it  is  5 feet  deep  for  about 
200  feet;  then  3 feet  deep  to  within  500  feet  of  the  first  rail- 
road-bridge; then  24  feet  deep  to  the  second  railroad-bridge; 
then  2 feet  deep  to  the  town  of  Portage.  At  the  upper  or 


1637 


Wisconsin  end  it  is  about  18  inches  deep.  The  mill  at  the 
lower  end  draws  the  water  down  about  1 foot.  At  the  upper 
end  of  the  canal  is  a guard-lock,  which  is  used  as  a lift-lock 
when  the  Wisconsin  is  high.  It  is  in  a very  dilapidated  con- 
dition, and  should  be  rebuilt.  It  is  21  miles  (12,400  feet)  in 
length,  and  75  feet  in  width.  It  is  cut  through  a flat,  sandy 
plain  which  separates  the  waters  of  the  Fox  from  those  of  the 
Wisconsin.  The  Fox  Fiver  is  about  5 feet  lower  than  the 
Wisconsin  in  ordinary  stage  of  water.  During  high  water 
the  Wisconsin  overflows  this  neck  of  low  ground  at  Portage, 
and  also  5 or  6 miles  above,  and  a large  portion  of  its  waters 
are  thus  diverted  to  Green  Bay.  The  spring  rise  in  the  Fox 

5383  is  principally  owing  to  this  cause,  for  the  Fox  itself  fluc- 
tuates very  little.  About  7 miles  below  Portage  a stream 
called  Big  Slough  comes  into  the  Pox.  During  high  water 
this  connects  with  the  Wisconsin  and  becomes  a very  consider- 
able stream,  bringing  a large  volume  of  water  into  the  Pox. 
In  fact,  the  greater  part  of  the  low  country  between  the  two 
rivers  is  overflowed  by  the  Wisconsin  at  this  time.  It  will  be 
seen  that  the  canal  is  not  straight,  but  makes  a considerable 
bend  to  the  westward.  The  object  of  this  was  to  place  the  mouth 
of  the  canal  on  the  Wisconsin  side,  above  an  island.  It  was 
afterward  proposed  to  give  it  a different  direction,  but  the 
idea  has  never  been  carried  out.  At  present  the  main  bulk 
of  tlie  Wisconsin  runs  through  the  inshore  channel,  and  the 
whole  of  it  can  be  diverted  through  there  if  desirable.  It  is 
also  much  easier  to  protect  in  the  mouth  of  the  canal  in  the 
proposed  position  than  in  the  one  it  occupies  at  present.  But 
the  change  is  not  a matter  of  any  great  importance. 

The  canal  at  present  is  almost  filled  up  with  sand,  but  it  is 
being  dredged  out. 

The  only  plan  of  improvement  of  the  Upper  Fox  River 
which  gives  promise  of  permanency  is  to  create  slack-water 
navigation  throughout  the  whole  length  of  the  stream  by 
means  of  locks  and  dams.  As  a great  deal  of  valuable  prop- 

5384  erty  would  be  overflowed  and  ruined  by  putting  in  high  dams 
and  locks  of  great  lift,  it  appears  preferable  to  use  low  dams, 
say  3 feet  high,  and  then  lower  the  bed  of  the  stream  above 
and  below  the  dam  by  dredging  sufficiently  to  destroy  the 
current.  Further  dredging  will  give  the  requisite  depth  for 
navigation,  and  the  channel  thus  made  will  remain  perma- 
nent. 

Three  locks  appear  necessary  between  the  mouth  of  Meehan 
River  and  Omro.  Above  the  former  and  below  the  latter 
point  there  is  slack-water  already,  or  will  be  when  certain 
improvements  in  progress  are  finished;  notably  the  Montello 
lock  and  dam. 

The  total  fall  between  Meehan  River  and  a point  14  miles 
above  Eureka  is  12.87  feet,  which  it  is  proposed  to  distribute 


1638  Fox  and  Wisconsin  Rivers, — U.  8.  Eng.  Rep.  1876. — Con. 

as  follows;  one  lock  at  Princeton,  4 feet  lift;  one  lock  at 
Fiddler’s  Bend,  4 feet  lift;  and  one  lock  14  miles  above  Eu- 
reka, 5 feet  lift. 

Ten  feet  of  this  total  lift  is  included  in  the  12.87  feet,  the 
remainder  of  that  sum  being  allowed  for  backwater  and  flow-^ 
age. 

Details  from  Winnebago  lock  to  Governor’s  Bend  lock;  dis- 
tance, 54  miles;  fall  not  accurately  known,  as  the  bed  of  the 
stream  has  been  much  lowered  by  dredging  since  the  last 
survey  was  made.  The  lock  has  about  4 feet  lift,  so  that 

5385  the  fall  is  probably  between  4 and  5 feet.  Slack-water  ex- 
ists above  Governor’s  Bend  dam. 

Governor’s  Bend  lock  to  Montello  lock;  distance  21  miles; 
fall,  5.95  feet,  as  nearly  as  can  be  computed.  This  is  thought 
to  be  too  much.  The  Montello  dam  is  to  raise  the  water  3 
feet,  and  it  is  proposed  to  lower  the  bed  below  Governor’s 
Bend  lock  1 foot  by  dredging.  This  will,  it  is  hoped,  give 
slackwater  back  to  Governor’s  Bend  lock;  but,  in  case  it  does 
not,  the  Montello  dam  can  be  raised  1 foot  more.  It  will 
])robably  be  necessary  to  lower  the  bed  of  Governor’s  Bend 
lock  2 feet  to  enable  a vessel  drawing  6 feet  of  water  to  get 
through  it;  but  this  cannot  be  stated  positively  until  a new 
set  of  levels  has  been  run  to  ascertain  the  exact  amount.  The 
Montello  dam  can  be  raised,  if  necessary,  without  overflowing 
a great  extent  of  country. 

From  Montello  lock  to  head  of  Lake  Puckaway:  distance, 
7 miles;  fall,  4.93  feet.  Bed  of  stream  to  be  lowered  4 feet 
by  dredging  below  the  Montello  lock,  leaving  .93  foot  fall  in 
7 miles,  or  about  .13  foot  to  the  mile.  From  the  head  of  Lake 
Puckaway  to  the  mouth  of  Meehan  River  there  is  slack- 
water. 

Prom  mouth  of  Meehan  River  to  Princeton  lock:  distance, 
5J  miles;  fall,  2.57  feet.  "Water  to  be  raised  2 feet  by  a dam, 
and  lowered  below  the  darn  2 feet  by  dredging.  Lock,  4 feet 
lift;  flowage,  .57  foot. 

5386  Princeton  lock  to  Fiddler’s  Bend  lock:  distance,  12  miles; 
fall  from  foot  of  Princeton  lock,  2.92  feet.  4Yater  to  be 
raised  2 feet  by  the  dam,  and  lowered  2 feet  below  the  dam 
by  dredging.  Lock,  4 feet  lift;  flowage,  .92  foot. 

Fiddler’s  Bend  lock  to  Eureka  lock:  distance,  154  miles; 
fall  from  foot  of  Fiddler’s  Bend  lock,  3.38  feet.  "Water  to 
be  raised  2 feet  by  a dam,  and  lowered  below  the  dam  3 feet 
by  dredging.  Lock,  5 feet  lift;  flowage,  1.38  feet. 

From  Eureka  lock  to  Oshkosh:  distance,  24  miles;  fall, 
5.80  feet.  Water  to  be  lowered  3 feet  at  upper  end  of  level 
by  dredging,  as  stated  for  Eureka  lock.  This  will  reduce  the 
fall  2.80  feet  in  24  miles,  or  a little  less  than  .12  foot  to  the 
mile,  which  is  practically  slackwater. 

The  volume  of  the  Upper  Fox  at  low  water  is  not  stated 


1639 


by  Major  Suter,  nor  have  I seen  it  stated  for  any  point  of  its 
course.  At  the  lock  near  Fort  Winnebago  it  is  a very  small 
stream  at  low  water,  merely  sufficing  as  a feeder  to  slackwater 
navigation.  Its  amount  is  of  no  practical  importance  in  this 
view,  for  any  needed  supply  can  be  drawn  from  the  Wiscon- 
sin Eiver,  which  is  the  feeder  for  the  canal  connecting  the 
two  streams. 

Major  Suter  states  the  lift  of  the  lock  at  Fort  Winnebago 
5387  to  be  7 feet,  and  the  height  of  the  Wisconsin  above  the  Fox 
at  this  point  to  be  91  feet.  This  fall  of  21  feet  in  2^  miles  is 
inadmissible  in  a canal  for  navigation,  and  is  only  allowable 
for  supplying  water-power.  The  guard-lock  at  the  head  of 
the  canal  communicating  with  the  Wisconsin  is  also  a lift-lock 
even  at  low  water,  and  enables  vessels  to  pass  into  the  Wis- 
consin. To  the  preceding  amount  of  elevation  between  the 
Wisconsin  and  Lake  Winnebago,  as  stated  by  Major  Suter, 
must  be  added  21  feet  for  the  Portage  Canal  guard-lock,  and 
he  makes  this  allowance  in  his  table  of  total  elevations.” 


5389  Anna  Ida  Schaffe, 

a witness  for  complainant,  testified  as  follows: 


Di rect  Exam u i atio n . 

My  name  is  Anna  Ida  Schatfe.  I was  born  in  Nancy,  France. 
I have  resided  in  America  seven  years.  I was  educated  in  the 
convent  of  the  Retreat  of  the  Sacred  Heart  in  Saumur,  France, 
diploma  Brevet  Superieur  dTnstitutrice,  and  from  the  Academy 
Nancy.  I obtained  this  diploma  in  1898.  My  occupation  now 
is  teacher  at  New  Trier  Township,  high  school.  Cook  County,  Illi- 
nois. I hold  a certificate  from  the  Cook  County  Superintendent 
of  Instruction  as  teacher  of  French. 

In  the  book  now  shown  me,  which  is  entitled  as  follows: 
5390  ‘‘Decouvertes  et  Etablissements  des  Francais,  Dans  L’ouest 
et  Dans  Le  Sud  de  L’Amerique  Septentrionale  (1614-1754) 
Memoires  et  Documents  originaux,  Recueillis  et  Publies,  Par 
Pierre  Margry,  Membre  de  la  Societe  de  PHistoire  de  France, 
Membre  correspondant  des  Societes  historiques  de  Massa- 
chusetts, de  Pennsylvanie  et  de  Butfalo,  Deuxieme  Partie 
(1678-1685)  (Occupa  Portum  lovavst)  Paris,  Imprimerie  D. 
Jouaust,  Rue  Saint-Honore,  338.  M DCCC  LXXVII.” 

The  portion  beginning  on  page  32,  under  the  Roman  heading 
II,  and  ending  on  page  93,  with  the  words  at  the  foot  ^^d’La  Salle,” 


1640 


Scliaffe, — Direct  Exam. — Continued. 


I have  made  a translation  of.  The  paper  now  produced,  which 
is  labeled  ^‘Margry,  Exhibit  June  16,  1908.”  It  is  the  translation 
which  I prepared.  It  is  a correct  translation  to  that  portion 
of  the  book  just  mentioned.  The  character  of  the  French  as  to 
speech,  or  writing  which  is  used  in  this  portion  of  this  book,  is 
old  French,  and  the  words  are  still  spelled  in  old  French.  In 
some  of  the  words  you  will  find  s’s  that  have  been  suppressed 
now,  and  accented  in  the  new  French,  some  of  the  words  end 

5391  in  and  ^4s”  throughout  the  book.  Some  of  the  words 
in  his  letter  are  used  that  don’t  mean  the  same  now.  For 

instance  the  word  “t-e-l-l-e-m-e-n-t  ” is  a French  word.  In  these 
days,  now,  tellement  means  ^‘so  much” — ^^so  much  of  it,”  while  iu 
his  letter  he  really  means  ^^so.  ” If  we  translate  it  in  English  now 
it  means  ‘‘so” — “so  that  I had  to  do  this,”  and  “so  that  this 
happened.”  It  is  an  adverb  of  quantity. 

Counsel  for  complainant  offered  in  evidence  the  translation  of 
the  letter  in  the  2nd  Margry,  pages  32  to  93,  which  is  abstracted 
as  follows: 

5392  “Chevalier  De  La  Salle 
Established  himself  in  Illinois. 

Letter  of  the  Discoverer  to  one  of  his  associates.” 

(Foot-note:  The  beginning  is  missing  but  you  can  go  to 

complete  it  to  the  official  ‘Delation’  of  1679  to  1681,  of  which 
the  writer  has  more  than  inspired  himself  of  this  letter  and 
of  the  following  since  he  copies  them  often,  taking  care,  al- 
ways to  avoid  in  his  description  passages  where  La  Salle 
speaks  of  intrigues  and  names  those  of  whom  he  has  to  com- 
plain.) 

^Marked  Passages  in  LaSalle’s  Letter  of  1860. 

(Margry  Exhibit,  June  16-08,  Pages  1,  27,  28,  29,  31,  32.) 

“1679,  29  September  1680. 

* * * boys,  they  are  prompt,  quick  and  active  much  more 
tlian  the  other  savages  with  which  they  are  alone  subject  to 
quarrel  and  to  fight,  all  those  that  we  have  known  until  now 
never  getting  angry.  * * * They  know  neither  drink,  nor 

the  vices  which  result  from  it.  They  indulge  in  the  same 
superstitions  as  the  rest  of  the  people  of  America,  believing  in 
dreams  and  in  about  the  same  stories  concerning  the  creation 
of  the  world  with  this  exception  that  instead  of  believing,  as 


1641 


some  do  that  a turtle  supports  the  earth,  these  people  believe 
that  the  otter  does. 

5402  Others,  called  Chaa,  who  live  up  the  big  river,  arrived  on 
the  24th  of  February  and  invited  us  to  go  to  their  home  where 
they  said  they  had  a quantity  of  otter  and  furs  and  were 
neighbors  of  the  west  sea. 

One  of  the  three  Reverend  Father  Recollects  who  had  until 
then  accompanied  me  and  offered  himself,  with  two  of  my 
bravest  men  to  take  this  trip  so  as  to  not  lose  the  opportunity 
of  announcing  the  gospel  to  some  people  who  liad  never 
heard  of  it.  They  went  away  the  last  day  of  February  in  a 
canoe,  carrying  with  them  a 'calumet  de  paix’  which  is,  as  I 
have  told  you,  a safeguard  that  these  barbarians  very  seldom 
violate.  I expect  news  from  them  so  as  to  learn  the  success 
of  their  enterprise. 

However,  winter  having  been  much  longer  than  usual  and 
the  ice  stopping  communication  with  the  village  where  the 
India  wheat  was  hidden,  and  the  provisions  getting  short  for 
those  who  were  working  at  the  fort,  T decided  to  go  in  order 
to  find  a way  to  provide  for  them.  I sailed  with  six  French 
people  and  a savage  in  two  canoes,  the  river  being  free  in 
front  of  the  fort;  but  we  hadn’t  gone  an  hour  before  we  found 
it  frozen.  I thought  that  the  little  current  there  was  in  this- 
place  was  the  reason  the  ice  lasted  there  longer,  and,  not 
wishing  to  leave  my  canoes  that  I wanted  to  send  back  loaded 
with  India  wheat  to  the  Fort  as  soon  as  I arrived  at  the  vil- 
lage, I made  my  people  hope  that  at  the  end  of  this  frozen 
lake  the  current  would  have  melted  the  ice,  and  that  we  would 
have  free  passage.  We  made  two  sleds  and  we  put  our  equip- 
ment and  our  canoes  on  them  and  we  dragged  the  whole  thing 
to  the  end  of  the  lake  which  is  seven  or  eight  leagues  long. 
The  river  the  next  day  was  covered  with  ice  for  about  four 
leagues  below  the  lake  some  of  it  being  too  thin  to  walk  on 
and  some  of  it  too  thick  to  be  able  to  break  it  and  get  through 
bark  canoes.  We  then  passed  that  day,  the  second  of  March, 
carrying  everything  by  way  of  the  land  in  the  snow  up  to  the 
middle  of  our  legs  and  through  some  woods,  and  we  ar- 
rived that  evening  at  some  cabins  of  savages  where  we  ob- 
tained shelter  from  the  rain  which  fell  all  night  in  great  quan- 
tity. The  third  we  navigated  in  a canoe  along  the  river, 
which  we  found  frozen  in  seven  or  eight  places,  and  we  made 
the  passage  by  striking  with  poles  until  about  four  o’clock 
when  we  saw  the  river  frozen  more  than  a foot  thick,  but  so 
uneven  that  on  account  of  the  great  quantity  of  holes  that  were 
in  it  we  could  not  walk  on  it  and  were  obliged  to  take  a circuit 
of  almost  two  leagues  to  drag  our  canoe  through  some  frozen 
marshes,  at  the  end  of  which  the  river  was  free.  We  moved 

5403  forward  until  noon  when  we  began  to  fight  great  banks  of 


1642  Extract, — LaSalle’s  Letter. — Continued. 

ice  which  flowed  in  the  direction  of  the  current  and  covered 
all  the  river.  We  were  waiting  for  an  open  space  to  slide  be- 
tween and  continued  thus  onr  way  until  evening,  when  we 
were  again  obliged  to  stop,  and  to  carry  the  next  day  all  onr 
baggage  for  about  one-half  a league,  at  the  end  of  which  we 
found  a little  canal  which  we  followed  in  the  canoe,  sometimes 
dragging  it  in  the  water  which  was  up  to  onr  knees,  some- 
times making  a passage  for  it  and  breaking  the  ice  with  flail 
and  hatchet.  That  lasted  about  two  leagues,  at  the  end  of 
which  we  had  to  drag  on  the  snow  and  through  the  woods  un- 
til the  next  evening,  the  snow,  which  was  falling  being  too 
soft  to  continue  our  journey,  obliged  us  to  stop  until  the  night 
of  the  9th  when  it  froze  quite  hard  and  the  snow  could  sup- 
port our  snow  shoes,  which  we  used  to  walk  on  it,  without 
going  through.  IVe  made  that  day  7 to  8 leagues  with  this 
equipment,  and  the  next  day  after  having  made  six  or  more 
we  arrived  at  a village  where  we  remained  two  days,  detained 
by  a great  rain  which  brought  down  from  the  top  of  the 
river  such  a great  quantity  of  ice  that  it  broke  up  the  ice  in 
front  of  the  village;  but  being  stopped  by  some  islands  and 
strips  of  sand  which  they  encountered,  a great  mass  of  ice 
collected  and  piled  up  with  such  extraordinary  violence,  that 
we  lost  all  hope  of  being  able  to  send  provision  to  the  fort  for 
a long  time,  not  only  because  there  was  no  appearance  of  the 
navigation  being  open  soon,  but  because  there  was  still  less 
hope  that  some  savages  would  arrive  in  the  village  to  sell  us 
some. 

* * * * * 

During  that  time,  the  four  men  who  were  to  accompany  me 
carried  my  canoe  and  our  baggage  from  the  village  to  a rapid 
which  is  four  leagues  higher  up,  above  which  the  river  seemed 
to  be  beautiful.  We  sailed  the  16th  and  continued  our  way 
5404  the  17th;  but  the  ice  banks  obliged  us  to  set  foot  on  ground 
at  any  moment.  We  made  only  ten  or  12  leagues  these  two 
days,  and  the  morning  of  the  18th  found  the  river  all  frozen 
without  hope  of  navigating  any  more.  We  then  hid  our  canoe 
on  a small  island  to  preserve  it  from  fire  and  began  to  walk, 
loaded  with  our  equipment.  In  two  days  we  went  through  a 
country  25  leagues  wide,  and  as  the  sun  was  very  hot  we 
were  continually  walking  in  the  water  of  the  melting  snow. 
The  21st  and  the  22nd  until  noon  we  walked  always  across 
big  marshes  which  led  to  a very  rapid  river,  too  deep  to  cross 
it  on  foot,  we  were  obliged  to  make  a raft  with  much  trouble, 
because  around  there  there  were  only  small  oak  trees  which 
were  not  good  for  that  and  cannot  float.  We  looked,  how- 
ever, for  some  dry  ones  and,  mixing  them  with  reeds  and 
tving  the  whole  thing  with  rushes,  we  crossed  this  river  on 
this  raft  which,  not  being  strong  enough  was  always  between 
two  waters. 


1643 


The  next  day,  we  arrived  on  the  shore  of  the  Lake  of  the 
Illinois,  after  having  passed  three  other  rivers  in  the  same 
way;  we  arrived  at  last  on  the  24th  at  the  river  of  the  Miamis, 
where  I had  made  in  the  autumn  a redoubt  that  T found  still 
intact  at  120  leagues  from  the  village  of  the  Illinois.  I met 
two  men  that  I had  sent  ahead  to  get  my  barque  who  increased 
my  anxiety  because  they  told  me  that  they  had  not  heard  any 
news  from  it  at  Missilimakinak  where  it  was  to  pass,  and  from 
which  place  they  had  departed  the  28th  of  December  more 
than  three  months  after  the  time  set  for  the  l)arque  to  be 
there;  but  what  made  them  hope  that  it  was  not  lost,  was 
that  in  going  around  the  lake,  they  had  not  seen  any  debris 
and  that  several  savages  and  French  people  who  had  arrived 
from  the  different  places  on  the  lakes,  had  not  seen  any  mark 
of  a wreck,  and  that  some  savages  said  they  had  heard  two 
or  three  canon  discharged  in  the  night,  on  account  of  great 
southwest  winds  which  were  favorable  for  a boat  to  pass  on 
from  there,  and  unfavorable  for  landing  at  Afissilimakinak.’^ 

(Pages  50,  51,  52,  53,  54,  60,  61,  64,  67,  68.) 

5411  Third,  you  complain  that  in  my  letters  T do  not  tell  you 
anything  special  of  the  Illinois  and  of  the  riches  to  be  found 
there.  It  doesn’t  seem  to  me  conceivable  that  you  have  hoped 
for  some,  or  you  do  not  think  of  the  distance  of  the  places  of 
which  it  has  been  impossible  for  me  to  gain  much  knowledge 
in  six  weeks,  that  I have  remained  sick  in  Quebec,  six  hundred 
leagues  from  that  country.  I have  well  received  a letter  of  the 
name  Michel  Ako  and  of  his  comrades  who  went  there  last 
spring,  which  was  brought  to  me  by  a canoe,  which  I sent  on 

purpose  to  the  Fort  on  my  arrival,  by  which  I learned  what 

5412  I told  you  of  the  copper  and  that  they  had  traded  the  quan- 
tity of  oxen  skins  that  I have  spoken  of  to  you.  But  that  was 

done  before  my  arrival  and  I did  not  know  more  except  for 
that  in  leaving  Quebec  than  I knew  in  leaving  France.  The 
Fort  and  the  little  boat  that  I said  had  been  begun  were  at 
the  Sault  de  Conty.  The  barque  was  finished  the  following 
month  of  May,  and  sailed  the  7th  of  August,  1679,  and  has 
been  lost  on  coming  back  from  the  Lake  of  the  Illinois  where 
I had  taken  it  fortunately.  I have  not  been  able  to  have  any 
news  from  it,  nor  see  any  other  debris  than  a hatchway,  a door 
of  the  room,  and  the  ball  of  the  pa\dlion  stick.  On  this  barque 
I had  three  remarks  to  make  you  to  answer  all  that  any  one 
could  say  on  that. 

First  that  it  only  got  lost  in  coming  back  from  where  I had 
taken  it  fortunately,  and  consequently  it  has  not  been  by 
lack  of  precaution  nor  knowledge  of  the  road,  but  by  inevitable 
effort  of  the  storm  which  became  terrible  two  days  after  its 
departure  and  lasted  five  days: 


Ext  met, — LaS  alle  L etter. — C o ntinued. 


Second,  that  there  was  neither  any  lack  of  capacity  in  the 
pilot  who  had  held  this  position  in  the-  greatest  vessels  of 
Canada  and  of  the  Islands,  nor  of  sailors,  the  custom  being 
to  put  no  more  than  six  on  a boat  of  fifty  tons. 

Third,  the  season  was  not  too  much  advanced,  navigation 
continuing  ordinarily  until  the  end  of  November,  and  it  was 
wrecked  on  the  20th  of  September; 

Fourth,  I think  it  is  impossible  to  do  what  Monsieur  L’abbe 
Bernou  asked  me,  to  send  some  one  to  learn  if  the  lakes  and 
the  great  river  were  navigable  otherwise  than  by  barque, 
which  must  take  a road  very  different  from  that  canoes  take, 
which  are  obliged  to  always  go  along  as  near  the  shore  as  they 
can  in  order  to  land  at  the  first  wind  of  which  they  could  not 
stand  the  least  squall  in  the  middle  of  these  lakes  forty  or 
fifty  leagues  large,  and  the  barques  could  not  keep  too  near  the. 
middle  of  the  water  in  order  not  to  be  thrown  on  the  shore, 
so  that  it  is  necessary  to  go  in  a barque  to  discover  the 
difficulties  of  navigation,  or  it  will  be  necesary  to  blame  those 
who  have  crossed  the  unknown  sea  for  not  having  tried  them 
with  launches  in  order  not  to  risk  their  boats. 

Fifth,  if  that  had  been  possible  it  would  have  taken  three 
years  to  go  around  the  lakes  which  is  more  than  fifteen  hun- 
dred leagues  and  where  the  least  wind  sometimes  holds  a 
canoe  8,  10,  15,  20  days  in  a place  without  advancing. 

Sixth,  this  barque  was  absolutely  necessary  and  no  one  can 
get  along  without  it  for  this  enterprise. 

Seventh,  for  the  transportation  of  big  loads,  as  rigging  up 
and  apparatus  for  the  boat  that  I had  ordered  to  be  made 
in  the  Eiver  of  the  Illinois,  that  being  impossible  in  a canoe, 
for  although  they  have  used  a canoe  to  bring  to  the  Sault 
of  the  Kapids  the  apparatus  of  the  barques  that  I have  con- 
structed on  it,  it  does  not  follow  that  one  could  do  it  for  this 
boat  in  these  lakes,  because  I am  the  only  one  who  succeeded 
along  the  rapids  against  the  hope  of  all  those  who  saw  me 
undertake  it,  but  I did  not  have  two  of  the  difficulties  which 
are  insurmountable  in  the  lakes: 

One,  the  big  winds  which  oblige  me  to  land  sometimes  in 
difficult  and  steep  places  and  in  the  waves  which  come  up  all 
of  a sudden,  so  that  it  would  be  impossible  to  load  these 
canoes  and  to  prevent  them  from  breaking,  if,  as  three  men  at 
the  most  conduct  them,  two  of  them  are  obliged  in  this  hap- 
pening to  hold  the  canoes  while  the  other  carries  the  pack- 
ages on  land,  the  third  one  happened  to  encounter  loads  that 
he  could  not  move  such  as  cables,  anchors,  and  iron  for  the 
rudder  would  be. 

The  second  difficulty  comes  from  the  length  of  these  voyages 
in  canoe  by  these  lakes  on  accoimt  of  their  size,  which  give 
rise  to  some  frequent  storms  which  stop  the  canoes,  that  are 


1645 


never  found  in  the  rapids  where  one  is  never  inconvenienced 
by  the  winds  and  which  stretch  only  forty  leagues; 

Second,  concerning  first,  pecans,  and  originals,  if  there 

5413  were  some,  and  that  you  wish  to  have  some  returns,  as  you 
notify  me  by  way  of  Canada,  it  is  impossible  for  that  to  use 
canoes  in  which  you  get  everything  in  three  times  only  sixty 
oxen  skins  at  the  most  by  these  lakes ; 

Third,  for  the  safety  of  the  effects  that  you  cannot  prevent 
from  being  at  the  discretion  of  the  teamsters,  the  waves  and 
the  rain  wetting  often,  what  there  is  in  it,  that  oblige  one  to 
remove  to  a dry  place  from  time  to  time  what  is  in  the  canoe 
where  nothing  is  enclosed  and  covered,  and  without  mention- 
ing the  fact  that  one  cannot  do  anything  secretly ; 

Fourth,  because  having  to  lead  several  men  incapable  of  go- 
ing in  a canoe,  as  some  of  the  new  ones  that  have  come  from 
France,  the  expense  of  their  passage  would  be  great  for  this 
reason,  there  not  being  any  teamster  who  would  drive  them 
less  than  two  or  three  hundred  pounds  a man ; 

Fifth,  for  the  safety  of  the  men  and  of  the  effects  which 
would  be  much  more  exposed  in  canoes,  not  only  on  account 
of  the  peril  of  the  waters  which  is  continuous,  but  to  be  killed 
by  the  savages  as  it  happened  to  two  men  of  the  Jesuits  last 
autumn,  and  to  suffer  hunger,  it  being  impossible  to  carry 
enough  food  in  some  canoes  for  a long  trip  and  very  diffi- 
cult to  supply  by  hunting  for  a great  number  of  people. 

5415  * * * I not  have  any  trouble  in  giving  you  all  the  in- 
formation that  you  will  ask  me  as  you  will  not  have  any 
trouble  to  answer  me  the  things  which  I will  ask  you  to  ex- 
plain; but  also  I must  expect  that  you  will  not  believe  every- 
thing, and  that  I will  not  have  to  prove  to  you  that  I am  not 
crazy.  It  is  the  first  thing  that  you  must  have  observed  be- 
fore you  did  business  with  me,  and  for  the  long  time  that  we 
have  seen  each  other  you  have  been  able  to  know  me,  or  I must 

have  good  spells  which  last  a long  time. 

5416  ^ ^ ^ ^ 

After  all.  Sir,  it  is  only  a little  delay  that  you  must  not 

find  strange  after  such  great  adversities  which  have  not  hap- 
pened because  of  my  fault.  You  could  blame  me  perhaps  for 
not  having  given  necessary  orders  for  the  reception  of  what 
came  last  year,  if  I had  had  notices  by  the  first  boat  and  if 
the  protested  letter  had  not  made  me  believe  what  had  been 
written  to  me,  that  nothing  would  be  sent  to  me  that  year; 
and  moreover  nothing  has  been  lost. 

5417  ^ ^ \ ^ 

I have  an  idea  that  you  will  probably  not  agree  to  and 

5418  which  I propose  to  you  to  do  only  what  you  want.  It  is  that 
if  the  distance  of  this  affair  and  the  little  usage  that  you 
have  for  it  caused  you  to  mistrust  the  success  or  that  you 


1646 


Extract, — LaSalle’s  Letter. — Continued. 


suspect  that  there  is  some  confusion  between  the  Fort  and 
the  Illinois,  I offer  you  for  the  past  to  send  to  you  as  soon  as 
I can  the  money  that  you  have  advanced,  as  well  what  I have 
received  as  what  has  been  lost;  and  the  following  year  I will 
send  you  fifty  per  cent,  profit,  on  the  condition  that  after 
having  received  the  principal  of  1682  you  wall  send  me  in 
1683  by  the  first  boat  the  fulfilment  of  the  memorandum  that 
I will  furnish  you  at  your  risk  as  far  as  Quebec;  that  in  1683 
I will  send  you  back  the  fifty  per  cent,  of  the  principal  that 
you  have  already  furnished,  with  a memorandum  that  you 
will  fulfill  in  1684,  which  will  come  also  at  your  risk  by  the 
first  boat  where  I will  be  obliged  to  keep  ready  for  you  the 
same  profit  for  the  part  of  the  profit  that  you  can  claim  from 
the  Illinois;  and  thus  consecutively  every  year  to  send  you 
the  amount  of  the  memrandiim  that  you  have  furnished  the 
year  before,  the  profit  payable  in  Quebec  in  furs  at  the  cur- 
rent price  or  in  a draft  on  farmers  on  the  condition  that  the 
prices  of  the  things  will  be  in  cash  in  France  during  the  ten 
years  of  our  treaty;  as  also  I will  oblige  myself  to  furnish 
you  the  copper,  if  there  are  some  mines,  and  the  oxen  skins 
at  a price  that  we  will  settle  for  Quebec  or  for  the  Gulf  of 
Mexico,  and  for  all  the  other  merchandise  of  which  I will  send 
you  samples.  That  being  done,  I will  close  my  affairs  with 
everybody  and  will  do  business  only  with  the  Illinois  for 
you,  not  even  for  the  Fort  Frontenac  as  soon  as  the  Sieur  Piet 
will  have  gotten  some  advantage  to  repay  him  for  the  losses 
that  he  has  suffered.  It  is  not  that  I do  not  persist  in  the 
resolution  to  leave  the  direction  of  this  affair  to  another,  but 
it  is  that  I have  a person  on  whom  I can  depend.” 

5420  Counsel  fok  Complainant.  From  Volume  2,  Magazine  of 
American  History,  the  second  paragraph  of  the  article  read 
by  counsel  for  defendant,  I offered  the  heading  and  the  first 
paragraph  in  connection  with  ^^The  reason  for  offering  it  is  sim- 
ply to  piece  it  together.  This  is  the  3d  of  January,  1682,  fixing  the 
period  he  was  speaking  of.” 

Said  passages  from  said  book  were  received  and  read  in  evi- 
dence, as  follows : 

‘Werival  of  LaSalle  at  the  Illinois. 

Description  of  the  Country  as  far  as  the  Junction  of  the 
Missouri  with  this  River,  which  the  Discoverer  Named  Col- 
bert River. 

(From  some  detached  leaves  of  a letter  of  LaSalle,  the  re- 
mainder of  which  are  missing.)  ” 

* * * little  before  Christmas,  and  I found  that  five  of 


1647 


my  people,  and  among  others  the  interpreters,  had  run  away 
and  hidden  themselves  in  a river,  fearing  the  difficulties  which 
my  enemies  had  depicted  to  them  in  this  voyage.  Others 
were  fifty  leagues  distant  on  a hunting  expedition,  by  order 
of  M.  de  Tonty,  who  remained  with  two  men  and  Father 
Zenobi.  I took  ten  with  me  and  four  savages  hired  for  the 
voyage;  hut  finding  my  people  so  scattered,  and  fearing  that 
I should  not  be  able  to  regain  those  wdio  were  absent,  as  in- 
deed I could  not  find  the  first  five,  I hired  fourteen  savages, 
who  belonged  to  New  England,  and  had  come  to  this  quarter 
on  a trading  expedition,  to  carry  to  their  country  the  heaver 
skins  of  these  people.  I promised  them  one  hundred  each, 
which  are  worth  here  400  livres,  payable  partly  in  advance, 
and  finding  that  I should  not  have  enough  Frenchmen  to  be 
able  to  separate  them,  leaving  a part  in  charge  of  the  mer- 
chandise and  other  goods  which  were  there,  and  taking  off 
the  rest,  I sent  M.  de  Tonty  in  advance  with  all  my  people, 
who,  after  marching  three  days  along  the  lake,  and  reaching 
the  division  line  called  Checagou,  were  stopped,  after  a day’s 
march  along  the  river  of  the  same  name  which  falls  into  the 
Illinois,  by  the  ice,  which  entirely  prevented  further  navi- 
5421  gation.  This  was  the  2d  and  3d  of  January,  1682.  I re- 
mained behind  to  direct  the  making  of  some  caches  in  the 
earth,  the  things  I left  behind,  wdiich  were  arranged  in  the 
following  manner;  the  ridge  of  a sand  hill  is  selected,  and  a 
hole  made  in  it  capable  of  containing  the  things  which  it  is~ 
proposed  to  conceal;  a sort  of  wooden  box  of  the  same  size  is 
then  prepared,  which  is  covered  and  lined  with  large  pieces 
of  bark,  raised  upon  five  or  six  logs,  to  prevent  it  from  touch- 
ing the  sand;  when  full,  it  is  covered  with  large  pieces  of 
bark  and  bits  of  birch  bark ; then  it  is  laden  with  heavy  pieces 
of  wood,  which  are  covered  with  sand,  and  hard  pressed  until 
no  trace  of  it  remains.  Having  finished  my  caches,  I left  the 
28th  of  December,  and  went  on  foot  to  join  the  Sieur  de 
Tonty,  which  I did  the  7th  January,  the  snows  having  de- 
tained me  some  days  at  the  portage  of  Checagou.” 

Counsel  for  complainant  in  rebuttal  of  passages  from  Winsor, 
and  also  from  Parkman’s  ''LaSalle,”  and  Chamber’s  Encyclo- 
pedia, article  entitled  "Joliet,”  and  the  article  entitled  "La 
Salle,”  offered  the  passages  marked. 

Said  passages  from  said  books  were  received  and  read  in  evi- 
dence as  follows: 

From  Parkman’s  "LaSalle,”  page  2. 

"At  an  early  age,  it  is  said,  he  became  connected  with  the 
Jesuits;  and,  though  doubt  has  been  expressed  of  the  state- 
ment, it  is  probably  true.” 


1648 


Extract, — Parkman’s  LaSalle. — Continued. 


Foot-note : 

''Margry,  after  investigations  at  Eonen,  is  satisfied  of  its 
truth  Journal  General  de  PInstruction  Pnblique,  xxxi,  571. 
Family  papers  of  the  Caveliers,  examined  by  the  Abbe  Fail- 
lon,  and  copies  of  some  of  which  he  has  sent  to  me,  lead  to  the 
same  conclusion.  We  shall  find  several  allusions  hereafter  to 
LaSalle’s  having  in  his  youth  taught  in  a school,  which,  in 
his  position,  could  only  have  been  in  connection  c^ith  some 
5422  religious  community.  The  doubts  alluded  to  have  proceeded 
from  the  failure  of  Father  Felix  Martin,  S.  J.,  to  find  the 
name  of  La  Salle  on  the  list  of  novices.  If  he  had  looked  for 
the  name  of  Bobert  Cavelier,  he  would  probably  have  found  it. 
The  companion  of  La  Salle,  Hennepin,  is  very  explicit  with  re- 
gard to  this  connection  with  the  Jesuits,  a point  on  which  he 
had  no  motive  for  falsehood.” 

On  page  3 : 

‘^His  connection  with  the  Jesuits  had  deprived  him,  under  the 
French  law,  of  the  inheritance  of  his  father,  who  had  died 
not  long  before.” 

On  pages  18-21 : 

‘‘On  the  last  day  of  September,  the  priests  made  an  altar, 
supported  by  the  paddles  of  the  canoes  laid  on  forked  sticks. 
Dollier  said  mass ; La  Salle  and  his  followers . received  the 
sacrament,  as  did  also  those  of  his  late  colleagues;  and  thus 
they  parted,  the  Sulpitians  and  their  party  descending  the 
Grand  Biver  towards  Lake  Erie,  while  La  Salle,  as  they  sup- 
posed, began  his  return  to  Montreal.  What  course  he  act- 
ually took  we  shall  soon  inquire;  and  meanwhile,  for  a few 
moments,  we  will  follow  the  priests.”  * * * 

5424  “We  return  now  to  La  Salle,  only  to  find  ourselves  in- 
volved in  mist  and  obscurity.  What  did  he  do  after  he  left 
the  two  priests!  Unfortunately,  a definite  answer  is  not  pos- 
sible ; and  the  next  two  years  of  his  life  remain  in  some  meas- 
ure an  enigma.  That  he  was  busied  in  active  exploration,  and 
that  he  made  important  discoveries,  is  certain;  but  the  extent 
and  character  of  these  discoveries  remain  wrapped  in  doubt. 
He  is  known  to  have  kept  journals  and  made  maps;  and  these 
were  in  existence,  and  in  possession  of  his  niece,  Madeleine 
Cavelier,  then  in  advanced  age,  as  late  as  the  year  1756;  be- 
yond which  time  the  most  diligent  inquiry  has  failed  to  trace 
them.  ’ ’ 

Page  106: 

“He  is  also  stated  to  have  declared  that  Louis  Joliet  was  an 
impostor,  and  a donne  of  the  Jesuits, — that  is,  a man  who 
worked  for  them  without  pay.” 


1649 


5425  Parkman’s  LaSalle,  page  106. 

Foot-note : 

^‘This  agrees  with  expressions  used  by  La  Salle  in  a memoir 
' addressed  by  him  to  Frontenac  in  November,  1680.  In  this, 
he  intimates  his  belief  that  Joliet  went  but  little  below  the 
mouth  of  the  Illinois,  thus  doing  flagrant  injustice  to  that 
brave  explorer.’^ 

From  Chamber’s  Encyclopedia,  Volume  8,  pages  689-691,  Article, 
LaSalle : 

^‘LaSalle,  liene  Robert  Cavelier,  Sieur  de,  1643-87;  b.  in 
Rouen,  France,  of  a wealthy  merchant  family;  discoverer  of 
the  Ohio  and  the  main  part  of  the  Mississippi  river.  Studious 
• and  grave  in  youth,  he  entered  a school  of  the  Roman  church 
and  became  a Jesuit  priest.  About  his  twenty-third  year  he 
withdrew  from  this  service  wdth  the  good-will  of  his  superiors, 
and  sailed  for  Canada,  where  an  older  brother  was  priest  at 
Montreal  in  the  seminary  of  St.  Sulpice.  This  seminary  was 
a religious  corporation  to  which  had  been  given  a sort  of  feudal 
proprietorship  of  Montreal  and  its  vicinage.  The  superior, 
seeing  in  LaSalle  a youth  of  high  character,  granted  him  a 
tract  of  land  with  seignorial  rights,  where  the  village  of  La 
Chine  now  stands,  near  the  rapids  of  the  St.  Lawrence.  The 
youthful  lord  built  a fort  band  of  the  Senecas 

5426  spent  the  winter  at  LaSalle’s  fort  and  told  him  of  the  great 
Ohio  rising  in  their  country  and  flowing  to  the  sea,  but  so 

long  that  eight  or  nine  months  were  required  to  paddle  to 
its  mouth.  La  Salle  believed  that  this  stream  must  empty 
into  the  gulf  of  California  on  the  Pacific.  He  quietly  formed 
his  plans  to  be  its  Columbus,  obtained  the  governor’s  consent, 
and  letters  patent  authorizing  the  exploration,  hut  at  his  oitii 
expense.  He  sold  his  seignory  and  all  improvements  to  get 
the  means.  July  6,  1669,  with  14  men  and  four  canoes  the 
expedition  started  up  the  St.  Lawrence.  It  took  them  30  days 
to  pass  the  rapids,  the  Thousand  Islands,  and  to  reach  Lake 
Ontario.  Thence  they  skirted  the  s.  shore  to  the  mouth  of 
the  Gfenesee,  where  they  remained  a month,  seeking  informa- 
tion and  friendship  among  the  Indians.  Then  coasting  west- 
ward they  passed  the  mouth  of  the  Niagara,  heard  the'  far 
roar  of  the  cataract,  and  reached  the  w.  end  of  Lake  Ontario. 
There  he  found  a Shawnee  prisoner  who  promised  to  con- 
duct him  to  the  Ohio  river  in  six  weeks.  Here  he  met  Joliet, 
afterwards  with  Marquette,  discoverer  of  the  upper  Missis- 
sippi, returning  from  a futile  search  for  copper  mines  on  Lake 
Superior.  From  him  he  procured  a map  of  the  lake  coun- 
try which  he  had  visited.  From  this  point  the  records  of  La 
Salle’s  movements  are  not  full.  It  is  known,  however,  that 
he  went  southward  and  embarked  on  the  head  stream  of  the 


1650  Extract Chamber’ s Ency.,  LaSalle. — Continued, 

Allegheny  River  e.  of  Lake  Erie  and  followed  it  down  to  the 
Ohio,  which  he  explored  to  the  rapids  at  Louisville.  There  he 
learned  from  the  natives  that,  far  beyond,  this  stream  joined 
the  bed  of  that  great  river  which  lost  itself  in  the  vast  low- 
lands of  the  south.  Here  his  men  deserted  in  a body.  La  Salle 
returned  ^‘400  lieues’’  to  Canada  alone,  living  upon  the  chase, 
herbs,  and  the  hospitality  of  the  natives.  Nicholas  Perror, 
a famous  early  voyageur  states  that  he  met  La  Salle  in  the 
summer  of  1670  hunting  on  the  Ottawa  with  a party  of  Iro- 
quois. This  gives  the  required  time  for  his  return,  and  indi- 
cates both  his  reduced  circumstances  and  that  he  was  ener- 
getically at  work  to  get  the  means  for  another  expedition. 
The  season  of  1671  finds  him  embarked  on  Lake  Erie,  which 
he  skirted  in  canoes  to  the  mouth  of  the  Detroit  river;  thence 
through  Lake  Huron  to  Mackinac  and  Lake  Michigan.  Be- 
5427  yond  Green  bay  he  explored  the  western  shore  of  the  lake,  not 
known  to  have  been  visited  before  by  white  men,  and  made 
the  portage  to  the  Illinois  river  either  where  Chicago  now 
stands,  or  by  the  way  of  the  St.  Joseph  and  the  Kankakee  on 
the  s.  e.  shore  of  the  lake.  He  followed  down  the  Illinois  to, 
or  nearly  to,  the  Mississippi,  and  made  a map  of  its  course 
and  tributary  streams.  This  map  indicates  that  he  made  the 
Chicago  portage,  though  his  subsequent  explorations  via  the 
St.  Joseph  and  Kankakee  portage  indicate  that  he  did  not  so 
early  learn  of  the  Chicago  trail  to  the  Illinois.  He  returned  to 
Montreal  and  reported  his  discoveries.  * * * season 

of  1675  finds  LaSalle  back  at  Fort  Frontenac  and  in  a posi- 
tion of  great  power,  where  his  trading  plans  could  hardly 
fail  to  realize  great  profits  and  ample  facilities  for  his  ex- 
plorations. Wealthy  relations  at  Rouen,  now  very  proud  of 
him,  furnished  him  with  ample  means  to  make  the  improve- 
ments and  maintain  the  garrison  required  by  the  terms  of  his 
grant ; which  he  fulfilled. 

About  this  time  a bitter  feeling  between  LaSalle  and  the 
Jesuits  threatened  to  endanger  the  success  of  his  enterprises. 
Evidently  a man  of  settled  religious  belief  in  the  Catholic 
faith,  he  was  at  the  same  time  advanced  in  his  views  of 
what  tends  to  a people’s  development,  and  of  the  controlling 
power  of  commerce.  He  saw  little  advantage  to  France  or  the 
Indians  in  missions  merely  to  induce  an  outward  worship  of 
the  cross  by  the  savages.  The  Jesuits  could  retain  their  con- 
trol over  the  Indians  only  by  excluding  traders  from  among 
them.  They  were  therefore  enemies  of  any  trading  around 
their  distant  missions  which  they  could  not  control  for  the  sup- 
port of  their  order.  The  profits  derived  from  the  fur  trade 
under  their  direction  at  the  missions  was  an  important  part  of 
their  revenue.  Thus  a monopoly  of  trade  as  well  as  of  re- 
ligion grew  up  in  their  hands,  and  divided  Canada  into  two 


1651 


parties.  The  imperious  and  clear-headed  Frontenac  and  La 
Salle,  with  the  power  of  the  temporal  government,  and  one 
branch  of  the  church,  were  on  one  side,  and  the  solid  Jesuit 

5428  power  was  on  the  other.  With  the  latter  were  numerous 
traders  who  thrived  by  their  favor  at  the  missions.  LaSalle 

was  considered  the  head  of  the  former  party,  and  no  means 
were  spared  to  break  his  influence  and  injure  his  good  name. 
The  Jesuits  procured  an  order  from  the  supreme  council  pro- 
hibiting traders  from  going  into  the  country  of  the  Indians  to 
trade,  thus  giving  their  missions  the  monopoly.  LaSalle  cir- 
cumvented this  by  inducing  a large  settlement  of  Iroquois 
around  his  fort,  who  could  range  the  country  for  him  as  hunt- 
ers and  trappers  without  being  considered  traders.  Besides  a 
new  fort  and  barracks,  he  built  a flouring  mill,  a bakery,  and 
groups  of  houses  for  French  settlers.  His  fort  was  sur- 
rounded by  Indian  villages.  Absolute  lord  of  the  colony,  he 
seemed  to  lay  the  foundation  of  his  own  fortune  by  multiplying 
the  means  and  incentives  to  industry  for  others. 

Early  in  1678  he  again  visited  France  to  secure  confirmation 
and  extension  of  the  privileges  of  discovery  before  granted. 
* * * In  November  the  several  parts  of  the  expedition  as- 

sembled at  Fort  Frontenac.  Father  Hennepin  had  a com- 
mission under  him.  On  Nov.  8,  1678,  disregarding  the  late- 
ness of  the  season,  he  embarked  to  begin  the  great  journey  to 
the  sea.  Winter  frowned  upon  the  lake,  but  in  eight  days 
the  vessel  anchored  in  Toronto  bay.  On  Dec.  5 they  crossed 
to  the  mouth  of  the  Niagara,  and  commenced  a palisade  fort. 
The  vessel  was  wrecked  soon  after,  and  the  stores  saved  from 
her  were  carried  up  the  cliffs  of  Niagara,  and  thence  by  sledgo 
to  the  shore  of  Lake  Erie.  There,  at  the  mouth  of  Cayuga 
creek,  they  laid  the  keel  of  the  first  vessel  built  above  the  falls 
— the  Griffin,  a bark  of  45  tons.  A hard  winter,  scant  supply 
of  provisions,  the  loss  of  the  vessel  and  stores  in  Lake  On- 
tario, hostile  Indians  all  around  them,  made  the  settlement 
a dreary  one.  LaSalle  made  his  way  back  to  Fort  Frontenac, 
250  m.,  on  foot,  through  the  snows  of  tangled  forests,  with 
two  men,  a dog  and  sledge.  On  his  arrival  he  found  his 
property  seized  by  creditors.  He  sacrificed  it  and  adhered 

5429  to  the  enterprise;  returned  with  equipment  for  the  Griffin, 
which  was  completed  in  the  spring  and  summer  of  1679.  On 

Aug.  7,  LaSalle  and  34  voyageiirs  embarked.  A favoring 
breeze  carried  them  to  the  mouth  of  the  Detroit  in  four  days. 
Nearly  wrecked  by  a storm  on  Lake  Huron,  they  reached 
Mackinac  and  anchored  behind  the  point  St.  Ignace,  where  the 
Jesuits  had  a settlement  already  strong  in  numbers  and 
trade.  In  September  the  voyage  was  continued  to  Green  bay. 
Here  he  found  his  advance  party  had  collected  a quantity  of 
rich  furs.  He  at  once  loaded  them  on  the  Griffin  and  sent 


1652  Extract,— Chamber’s  Ency.,  LaSalle. — Continued. 

them  back  to  liis  creditors,  but  the  vessel  was  never  again 
beard  from.  LaSalle  now  continued  bis  voyage  in  canoes 
along  the  western  shore  of  Lake  Michigan.  Storms  kept  them 
company. , Through  weeks  of  constant  danger  in  the  surf  that 
lashed  the  coast,  they  reached  the  bay  of  Milwaukee.  South 
of  that,  fairer  weather,  game,  and  fruit  welcomed  them;  and 
reaching  the  mouth  of  the  St.  Joseph  river  he  erected  fort 
Miamis.  December  3,  1679,  with  a party  of  32  men  and  8 canoes 
they  ascended  the  St.  Joseph  to  where  South  Bend  now  is, 
were  shown  trails  leading  to  the  Kankakee,  and  carrying  their 
canoes  over  the  portage,  launched  them  in  a stream  little  more 
than  their  own  width,  hut  growing  hourly  in  volume  as  they 
floated  down.  Near  the  present  village  of  Utica  they  found 
an  Indian  town  of  460  lodges.  Here,  on  New  Year’s  day, 
1680,  they  landed  and  said  mass.  A few  days  later  they  were 
at  the  present  site  of  the  city  of  Peoria,  below  which  they 
came  upon  an  Indian  town  occupying  both  banks  of  the  river.” 
* # * built  a fort  near  the  Indian  town  called  Creve- 

coeur.  That  done,  he  began  a vessel  of  40  tons  on  the  hank  of 
the  Illinois ; and  then,  with  four  Frenchmen,  a Mohican  guide, 
and  a canoe,  started  back  to  Montreal  via  his  fort  at  the  mouth 
of  the  St.  Joseph,  where  they  arrived  Mar.  24;  thence  e.  on 
foot  to  the  Detroit  river,  which  they  crossed  by  raft  and  on  to 
the  fort  of  the  Niagara  river.  * * * jje  traveled  by  the 

eastern  shore  of  Georgia  bay  to  Mackinac.  It  was  Nov.  4 when 
he  reached  the  ruined  fort  at  the  mouth  of  the  St.  Joseph. 
Leaving  his  stores  there,  he  went  on  to  fort  Crevecoeur. 

5430  There  not  only  was  the  fort  destroyed,  but  where  he  had 
left  a populous  Indian  village  the  blackened  remains  of  lodges 
and  human  bodies  half-burned  told  of  the  bloody  visit  of  the 
Iroquois.  He  followed  the  river  to  the  Mississippi,  seeing 
along  that  whole  valley  the  horrible  evidences  of  the  retreat 
of  the  whole  tribe  of  the  Illinois  under  the  murderous  attacks 
of  their  powerful  enemy.  Leaving  a mark  on  the  shore  of 
the  Mississippi  to  show  that  he  had  been  there,  his  party 
returned  to  the  mouth  to  recommence  preparations  for  the 
great  voyage.  It  was  Jan.  6,  1681,  when  he  reached  the  Kan- 
kakee, and  soon  after  the  St.  Joseph.  The  horrors  of  the  Iro- 
quois invasion  of  the  Illinois  country  had  made  a great  impres- 
sion upon  him.  He  conceived  the  idea,  and  at  once  put  it  in 
execution,  to  unite  the  western  tribes  in  self-defense  by  rally- 
ing them  around  the  French  flag  by  his  forts.  His  tact,  noble 
presence,  and  oratory  had  always  given  him  a wonderful  in- 
fluence among  the  Indians,  swa^dng  them  to  his  will.  Soon  the 
discords  of  warring  tribes  were  made  to  yield  to  his  plan.  Late 
in  May  he  went  to  Michilimackinac ; thence  1,000  m.  by  canoes 
to  Fort  Frontenac.  This  time  the  great  governor  had  kept  La 
Salle’s  enemies  at  bay.  Before  winter  he  was  again  at  the 


1G53 


head  of  a strong  party  pushing  in  canoes  all  around  the  lakes 
to  the  St.  Joseph,  where  he  arrived  early  in  Deceml)er. 

On  Dec.  21,  1861,  the  party  of  54  men  in  all  crossed  the  lake 
in  canoes  to  the  mouth  of  the  Chicago  to  find  that  portage  to 
the  Illinois.  The  streams  were  frozen.  The  canoes  were  put 
on  sledges  and  dragged  over  prairie  and  woodlands  of  the 
river  margin  till  they  came  to  open  water  below  Lake  Peoria. 
Thence  they  floated  down  the  Illinois,  and  on  Feb.  6,  1682, 
emerged  on  the  Mississippi.  Floating  ice  delayed  them,  but 
a week  later,  safely  on  its  rapid  current,  they  were  borne 
toward  the  gulf.”  * * 

From  same  book,  page  358,  article  Joliet: 

‘Moliet,  Louis,  1645-1700,  b.  Quebec  ; educated  at  the  Jesuits’ 
college  for  the  priesthood,  but  abandoned  thej  design,  and 
going  west  engaged  in  the  fur  trade.  In  1672  he  was  ap- 

5431  pointed  by  Frontenac  governor  of  Canada,  to  explore  the 
Mississippi.  He  and  Pere  Marquette,  starting  from  Michili- 

mackinac.  May  17,  1673,  proceeded  to  Green  Bay,  ascended  the 
Fox  River,  obtained  Indian  guides  to  the  Wisconsin,  entered 
the  Mississippi,  June  17,  1673,  and  passing  down,  reached  the 
Arkansas.  Satisfied  that  the  river  flowed  into  the  gulf  of  Mex- 
ico, and  not  into  the  Pacific  ocean,  they  returned  to  Lake  Mich- 
igan, by  the  way  of  the  Illinois  River.  Joliet  preceding  along 
to  Quebec,  his  canoe  upset  in  the  Lachine  Rapids,  and  he  lost 
his  maps  and  manuscripts.  From  memory  he  prepared  a map 
and  report  of  the  expedition.  He  was  appointed  royal  hydro- 
grapher  at  Quebec.  In  1680  he  received  the  grant  of  the  seig- 
neury  of  Anticosti  Island,  to  the  development  of  whose  fisheries 
and  trade  he  devoted  himself.  In  1697  he  obtained  the  seig- 
neury  of  Joliette,  which  still  belongs  to  his  family.” 

5432  Counsel  for  complainant  also  read  in  evidence  from  the  4tb 
Volume  of  Winsor’s  ^‘Narrative  and  Critical  History  of 

America,”  Part  I,  passages  on  pages  206  and  207,  and  the  foot- 
note to  that  passage; 

And  the  passages  from  Hurlbut’s  ‘^Chicago  Antiquities;” 

And  Shea’s  Early  Voyages  Up  and  Down  the  Mississippi,” 
referred  to  in  said  foot-note ; 

Also  passage  on  p.  179  of  Winsor’s;  also  the  passage  on  pages 
222,  223,  224,  225,  226,  234,  235,  236,  237,  238— as  follows: 

‘‘Narrative  and  Critical  History  of  America”,  pp.  206-7: 

• 5433  What  LaSalle  did  after  parting  with  the  Sulpitians  in 
1669  is  a question  over  which  there  has  been  much  dispute. 
The  absence  of  any  definite  knowledge  of  his  movements  for 
the  next  two  years  leaves  ample  room  for  conjecture,  and 


1654  Extract, — Narrative  and  Critical  Hist.,  LaSalle.— Con. 

Margry  believes  that  maps  which  he  made  of  his  wanderings 
in  this  interval  were  in  existence  np  to  the  middle  of  tlie  last 
century.  It  is  from  statements  regarding  such  maps  given 
in  a letter  of  an  aged  niece  of  LaSalle  in  1756,  as  well  as  from 
other  data,  that  Margry  has  endeavored  to  place  within  these 
two  years  what  he  supposes  to  have  been  a successful  attempt 
on  LaSalle’s  part  to  reach  the  Great  River  of  the  West.  If 
an  anonymous  paper  (‘‘Histoire  de  Monsieur  de  la  Salle”) 
published  by  Margry  is  to  be  believed,  LaSalle  told  the  writer 
of  it  in  Paris, — seemingly  in  1678, — that  after  leaving  Galinee 
he  went  to  Onondaga  ( ?),  where  he  got  guides,  and  descending 
a stream,  reached  the  Ohio  (?),  and  went  down  that  river. 
How  far?  Margry  thinks  that  he  reached  the  Mississippi: 
Parkman  demurs  and  claims  that  the  story  will  not  bear  out 
the  theory  that  he  ever  reached  the  mouth  of  the  Ohio ; but  it 
seems  probable  that  he  reached  the  rapids  at  Louisville,  and 
that  from  this  point  he  retraced  his  steps  alone,  his  men 
having  abandoned  him  to  seek  the  Dutch  and  English  settle- 
ments. Parkman  finds  enough  amid  the  geographical  con- 
fusions of  this  ‘Histoire’  to  think  that  upon  the  whole  the 

5434  paper  agrees  with  LaSalle’s  memorial  to  Frontenac  in  1677, 
in  which  he  claimed  to  have  discovered  the  Ohio  and  to  have 

coursed  it  to  the  rapids,  and  that  it  confirms  the  statements 
which  Joliet  has  attached  to  the  Ohio  in  his  maps,  to  the 
effect  that  it  was  by  this  stream  LaSalle  went,  ’pour  aller 
dans  le  Mexique.’ 

The  same  ‘Histoire’  also  represents  that  in  the  following 
year  (1671)  LaSalle  took  the  course  in  which  he  had  re- 
fused to  follow  Gallinee,  and  entering  Lake  Michigan,  found 
the  Chicago  portage,  and  descending  the  Illinois,  reached  the 
Mississippi.  This  descent  Parkman  is  constrained  to  reject, 
mainly  for  the  reason  that  from  1673  to  1678  Joliet’s  claim 
to  the  discovery  of  the  Mississippi  was  a notorious  one,  be- 
lieved by  Frontenac  and  by  all  others,  and  that  there  was 
no  reason  why  LaSalle  for  eight  years  should  have  concealed 
any  prior  knowledge.  The  discrediting  of  this  claim  is  made 
almost,  if  not  quite,  conclusive  by  no  mention  being  made 
of  such  discovery  in  the  memorial  of  LaSalle’s  kindred  to 
the  King  for  compensation  for  his  services,  and  by  the  virtual 
admission  of  LaSalle’s  friends  of  the  priority  of  Joliet’s  dis- 
covery in  a memorial  to  Seignelay,  which  Margry  also  prints. 

(See  foot-note.) 

5435  Foot-note: 

“The  literature  of  this  controversy  is  reviewed  on  a later 
page.  Parkman  thinks  that  LaSalle  crossed  the  Chicago 
portage  and  struck  the  upper  waters  of  the  Illinois,  but  did 
not  descend  that  river,  and  suggests  that  the  map  called 
in  a later  sketch  ‘The  Basin  of  the  Great  Lakes’  is  indica- 


1655 


tive  of  this  extent  of  LaSalle’s  exploration  in  the  mere  be- 
ginning of  the  Illinois  River  which  it  gives.  Others  reject  the 
‘Histoire’  altogether,  as  Hurlbut  does  in  his  ‘Chicago  Antiqui- 
ties,’ p.  251),  not  accepting  Parkman’s  view  that  La  Salle  was 
at  Chicago  in  1669  and  1670.  Dr.  Shea  holds  it  was  the  St. 
Joseph’s  River  which  LaSalle  entered.” 

Thereupon  counsel  for  complainant  read  from  Hurlbut ’s  ‘Chi- 
cago Antiquities,’  p.  250: 

5436  ‘‘Early  Maps,  and  the  Locality  of  Chicago. 

Whatever  may  be  said  of  early  maps,  suggested,  planned 

or  drawn,  the  map  of  Father  Marquette,  a copy  of  which  ap- 
pears opposite  page  149,  is  no  doubt  the  earliest  one  pre- 
served which  exhibits  definitely  the  features  of  this  part  of  the 
country.  Yet  Marquette,  though  he  presented  the  line  of  a 
stream  intended  for  the  Chicago  from  the  Lake  to  the  Des- 
plaines  River,  he  did  not  append  to  it  its  name,  by  which  it 
was  then  known  as  well  as  since,  in  any  of  its  varied  ortho- 
graphy. 

Inasmuch  as  two  early  maps  at  least  are  involved  in  the 
extracts  or  remarks  which  follow,  we  will  take  advantage  of 
the  occasion  here  to  say,  that  in  entertaining  several  ques- 
tions regarding  facts  of  history,  we  shall  step  outside  the 
strict  line  implied  in  the  title  of  this  chapter.  We  therefore 
will  here  confess  our  incredulity  where,  in  the  2d  chapter  of 
‘LaSalle  and  the  Discovery  of  the  Great  West,’  the  noted 
historian  Francis  Parkman,  quotes  the  authority  of  an  un- 
known writer,  at  a date  equally  mysterious,  of  a paper  or  his- 
torical sketch  of  LaSalle,  and  claims  or  gives  credit  to  the 
statement,  that  LaSalle  visited  the  south  end  of  Lake  Mich- 
igan, and  the  upper  Illinois  River  or  its  tributaries,  previous 
to  the  journey  of  Joliet  and  Marquette.  We  have  previous- 
ly suggested  (see  p.  145  of  this  vol.)  that  white  men  may 
have  been  here  before  the  last-named  gentlemen;  but  the  evi- 
dence which  Mr.  Parkman  presents,  to  prove  that  I^aSalle 
was  the  individual  who  did  so,  is  what  we  object  to,  and  be- 
lieve we  have  good  reason  to  discredit  the  testimony.  The 
other  statement,  that  of  reaching  the  Mississippi  River  like- 
wise earlier  than  Joliet,  we  leave  to  Mr.  Parkman  himself  to 
combat,  which  he  does  while  allowing  the  improbable  other 
half  of  the  story.  We  copy  the  following  from  Mr.  Park- 
man’s  book.  Speaking  of  LaSalle,  he  says  : 

Page  21. — ‘As  for  himself,  the  only  distinct  record  of  his 
movements  is  that  contained  in  a paper  entitled  “Histoire  de 
Monsieur  de  la  Salle.”  It  is  an  account  of  his  explorations 

5437  and  of  the  state  of  parties  in  Canada  previous  to  the  year 
1678,  taken  from  the  lips  of  LaSalle  himself,  by  a person 

whose  name  does  not  appear,  but  who  declares  that  he  had 
ten  or  twelve  conversations  with  him  at  Paris,  whither  he 


1656 


had  come  with  a petition  to  the  Court.  The  writer  himself 
had  never  been  in  America,  and  was  ignorant  of  its  geography ; 
hence,  blunders  on  his  part  might  reasonably  be  expected.  His 
statements,  however,  are  in  some  measure  intelligible,  and 
the  following  is  the  substance  of  them.  ” 

(We  omit  what  is  said  of  LaSalle’s  journey  to  Central 
New  York,  Lake  Erie,  and  the  Ohio  River.  The  date  sug- 
gested by  Mr.  Parkman  was  1669- ’70.) 

Mr.  Parkman  continues : 

‘^But  how  was  LaSalle  employed  in  the  following  year? 
The  same  memoir  has  its  solution  to  the  problem.  By  this, 
it  appears  that  the  indefatigable  explorer  embarked  on  Lake 
Erie,  ascended  the  Detroit  to  Lake  Huron,  coasted  the  un- 
known shores  of  Michigan,  passed  the  Straits  of  Michilli- 
mackinac,  and,  leaving  Green  Bay  behind  him,  entered  what 
is  described  as  an  incomparably  large  bay,  but  which  was 
evidently  the  southern  portion  of  Lake  Michigan.  Thence  he 
crossed  to  a river  flowing  westward, — evidently  the  Illinois, — 
and  followed  it  until  it  was  joined  by  another  river  flowing 
from  the  northwest  to  the  southeast.  By  this,  the  Mississippi 
only  can  be  meant;  and  he  is  reported  to  have  said  that  he 
descended  it  to  the  thirty-sixth  degree  of  latitude,  where  he 
stopped,  assured  that  it  discharged  itself  not  into  the  Gulf  of 
California,  but  into  the  Gulf  of  Mexico ; and  resolved  to  follow 
it  thither,  at  a future  day,  when  better  provided  with  men 
and  supplies.’ 

After  endeavoring  to  enlighten  us,  and  to  make  clear  some 
part  of  the  ‘Histoire,’  as  well  as  to  adjust  supposable  dates 
to  an  indefinite  relation,  Mr.  Parkman  closes  the  chapter  as 
follows:  ‘LaSalle  discovered  the  Ohio,  and  in  all  probability 

the  Illinois  also;  but  that  he  discovered  the  Mississippi  has 
not  been  proved;  nor,  in  the  light  of  the  evidence  we  have, 
is  it  likely.’ 

It  is  not  without  considerable  misgiving  on  Mr.  Parkman ’s 
account,  regarding  that  ‘Historie  de  Monsieur  de  la  Salle,’ 
that  we  read  his  serious  consideration  and  discussion  of  the 
merits  of  that  paper,  and  the  amount  of  credit  awarded  to  it 
by  him.  Of  course,  we  must  esteem  it  an  error  and  a defect 
in  his  interesting  and  valuable  volume.  We  can  scarcely  avoid 
the  conclusion  arrived  at  in  some  other  cases;  and  that  the 
document  spoken  of  must  be  classed  with  those  of  a quality 
5438  to  which  we  have  alluded  on  a previous  page  (see  ante,  p. 
155).  Indeed  Mr.  Parkman,  speaking,  we  suppose,  of  the 
writer  of  the  ‘Histoire,’  says:  ‘But  it  comes  to  us  through 

the  medium  of  a ])erson  strongly  biased  in  favor  of  LaSalle, 
and  against  Marquette  and  the  Jesuits.’ 

Before  giving  our  own  reasons  for  placing  no  faith  in  the 


1657 


above  named  ‘Histoire,’  or  in  Mr.  Parkman’s  definition  of 
its  meaning,  we  will  here  quote  what  Mr.  P.  says  of  two  maps 
in  the  appendix  of  his  book,  where  appear  notices,  also,  of  va- 
rious other  maps,  mostly  unpublished,  of  the  lake  region  of 
the  West. 

‘Three  years  or  more  after  Galinee  made  the  map  mentioned 
above,  another,  indicating  a greatly  increased  knowledge  of 
the  country,  was  made  by  some  person  whose  name  does  not 
appear.  This  map,  which  is  somewhat  more  than  four  feet 
long  and  about  two  feet  and  a half  wide,  has  no  title.  All  the 
Great  Lakes,  through  the  entire  extent,  are  laid  down  on  it 
with  considerable  accuracy.  Lake  Ontario  is  called  “Lac 
Ontario,  ou  de  Frontenac.’’  For  Frontenac  is  indicated,  as 
well  as  the  Iroquois  colonies  of  the  north  shore.  Niagara  is 
‘^Chute  haute  de  120  toises  par  ou  le  Lac  Erie  tombe  dans  le 
lac  Frontenac.^’  Lake  Erie  is  “Lac  Teiocharontiong,  dit  com- 
munement  Lac  Erie.’^  Lake  St.  Clair  is  “Tsiketo,  ou  Lac  de 
la  Chaudiere.”  Lake  Huron  is  “Lac  Huron,  ou  Mer  Douce 
des  Hurons.’^  Lake  Superior  is  “Lac  Superieur.”  Lake 
Michigan  is  “Lac  Mitchiganong,  ou  des  Illinois.”  On  Lake 
Michigan  immediately  opposite  the  site  of  Chicago,  are  writ- 
ten the  words,  of  which  the  following  is  the  literal  translation : 
“The  largest  vessels  can  come  to  this  place  from  the  outlet  of 
Lake  Erie,  where  it  discharges  into  Lake  Frontenac  (On- 
tario) ; and  from  this  marsh  into  which  they  can  enter,  there 
is  only  a distance  of  a thousand  paces  to  the  Biver  La  Divine 
(Des  Plaines),  which  can  lead  them  to  the  river  Colbert  (Mis- 
sissippi) and  thence  to  the  Gulf  of  Mexico.”  This  map  was 
evidently  made  after  that  voyage  of  La  Salle  in  which  he  dis 
covered  the  Illinois,  or  at  least  the  Desplaines  branch  of  it. 
The  Ohio  is  laid  down  with  the  inscription,  “River  Ohio,  so 
called  by  the  Iroquois  on  account  of  its  beautv.  +he  Sieur 

de  la  Salle  descended.” 

(After  noticing  the  map  of  Marquette,  as  well  as  two  other 
maps  which  Mr.  Parkman  says  were  made  by  the  Jesuits,  he 
presents  the  following,  which  we  copy)  : 

“Of  far  greater  interest  is  the  small  map  of  Louis  Joliet, 
made  and  presented  to  Count  Frontenac  after  the  discoverer’s 
return  from  the  Mississippi.  It  is  entitled  Carte  de  la  decou- 
uerte  du  Sr.  Jolliet  ou  Pon  voit  La  Communication  due  fleuue 
St.  Laurens  auec  les  lacs  Frontenac,  Erie,  Lac  des  Hurons  et 
Illinois.  Then  succeeds  the  following,  written  in  the  same 
antiquated  French,  as  if  it  were  a part  of  the  title:  “Lake 
Frontenac  (Ontario)  is  separated  by  a fall  of  half  a league 
from  Lake  Erie,  from  which  one  enters  that  of  the  Hurons, 
and  by  the  same  navigation,  into  that  of  the  Illinois  (Mich- 
5439  igan),  from  the  head  of  which  one  crosses  to  the  Divine  River 
(Riviere  Divine;  i.  c.,  the  Desplaines  branch  of  the  river  Illi- 


1658  Extract, — Parkman ’s  LaSalle, — Continued. 

nois),  by  a portage  of  a thousand  paces.  This  river  falls 
into  the  river  Colbert  (Mississippi),  which  discharges  itself 
into  the  Gulf  of  Mexico.’’  A part  of  this  map  is  based  on 
the  Jesuit  map  of  Lake  Superior,  the  legends  being  here 
for  the  most  part  identical,  though  the  shape  of  the  lake  is 
better  given  by  Joliet.  The  Mississippi,  or  ‘^Riuiere  Colbert,” 
is  made  to  flow  from  three  lakes  in  latitude  47  degrees,  and 
it  ends  in  latitude  37  degrees,  a little  below  the  mouth  of  the 
Ohio,  the  rest  being  apparently  cut  otf  to  make  room  for 
Joliet’s  letter  to  Frontenac,  which  is  written  on  the  lower 
part  of  the  map.  The  valley  of  the  Mississippi  is  called  on 
the  map  ‘^Colbertie,  ou  Amerique  Occidentale.”  The  Mis- 
souri is  represented  without  name,  and  against  it  is  a legend,  of 
which  the  following  is  the  literal  translation:  ‘‘By  one  of 

these  great  rivers  which  come  from  the  west  and  discharge 
themselves  into  the  river  Colbert,  one  will  find  a way  to  enter 
the  Vermillion  Sea  (Gulf  of  California).  I have  seen  a vil- 
lage which  was  not  more  than  twenty  days’  journey  by  land 
from  a nation  which  has  commerce  with  those  of  California. 
If  I had  come  two  days  sooner,  I should  have  spoken  with 
those  who  had  come  from  thence,  and  had  brought  four 
hatchets  as  a present.”  The  Ohio  has  no  name,  but  a legend 
over  it  states  that  LaSalle  had  descended  it.’ 

The  ‘Histoire’  as  we  have  seen,  or- by  the  assurance  of  Mr. 
Parkman,  professes  to  give  particulars  of  LaSalle’s  explora- 
tions, as  well,  also,  to  treat  of  the  condition  of  parties  in 
Canada,  personally  known  to  him,  down  to  the  year  1678. 

LaSalle,  as  we  understand,  went  to  France  in  1677,  and 
sailed  the  following  summer  for  Canada.  He  did  not  visit 
France  again  until  1683. 

Now,  we  are  informed  by  the  interpretation  of  Mr.  P.  that 
it  was  in  1671,  two  years  before  Joliet  and  Marquette’s  voy- 
age, which  voyage  the  Government  of  Canada  had  taken  con- 
siderable pains  to  set  afoot,  or  rather  afloat,  that  LaSalle, 
according  to  the  writer  of  the  ‘Histoire’  had  half  or  wholly 
accomplished  the  work ; yet  nobody  in  America  seems  to  have 
known  it.  Frontenac,  the  Governor,  however,  was  a particular 
friend  of  LaSalle. 

But  how  had  ‘the  indefatigable  explorer  embarked  on  Lake 
Erie,  ascended  the  Detroit  to  Lake  Huron,  coasted  the  un- 
known shores  of  Michigan,  passed  the  Straits  of  Michillimack- 
inac,  and,  leaving  Green  Bay  behind  him,  entered  what  is 
described  as  an  incomparable  larger  bay,  but  which  was  evi- 
dently the  southern  portion  of  Lake  Michigan!’  Had  he  con- 
5440  structed  an  earlier  Griffon  than  the  one  of  which  we  have  pre- 
viously read,  which  made  the  passage  of  the  lakes  in  1679, 
eight  years  afterward!  If  so,  is  it  not  strange  that  none 
ever  told  of  it!*  But  possibly  he  came  by  canoe;  if  so,  that 


1G59 


voyage  ought  not  to  have  been  forgotten.  That  journey,  if  in 
the  frail  bark,  was  of  necessity  greatly  lengthened  by  hav- 
ing to  follow  and  keep  near  shore  all  the  way ; no  long  traverse 
could  be  made  in  canoe.  We  are  quite  well  aware  that  LaSalle 
was  equal  to  these  tours,  and  greater ; but  we  are  considering 
the  subject  in  connection  with  the  evidence  presented. 

Mr.  Parkman  suggests  that  ‘the  southern  portion  of  Lake 
Michigan^  was  reached,  and  then  the  ‘Tresbeau  havre,’  which 
he  supposes  ‘may  have  been  the  entrance  to  the  Eiver  Chi- 
cago.’ (In  November,  1680,  when  taking  Joliet  to  task,  he  did 
not  call  it  tresbeau  havre.)  But  why  not  let  Green  Bay,  Fox 
River,  Lake  Winnebago,  and  the  Wisconsin  fill  the  description 
as  well? 

We  might,  however,  propose  a theory  if  indeed  the  ‘His- 
toire’  was  worthy  of  a theory;  that  would  be  this:  Inasmuch 
as  the  ‘Histoire’  presents  no  very  rigid  or  precise  dates,  we 
are  at  liberty,  in  opposition  to  Mr.  Parkman ’s  ideas,  to  choose 
very  reasonable  ones  if  we  please.  We  propose  then  that  we 
adopt  the  year  of  1683  or  4,  a part  of  both  of  which  years 
LaSalle  passed  in  France  during  his  last  visit;  and  it  was 
then  that  the  information  so  loosely  recorded  was  imparted  to 
the  writer  of  the  ‘Histoire.’  Therefore,  we  would  hint  that 
we  are  saved  further  speculation  as  to  the  above-named  jour- 
ney, which  began  when  ‘the  indefatigable  explorer  embarked 
on  Lake  Erie,’  for  that  was  when  he  went  on  board  the  iden- 
tical Griffon,  in  the  year  1679.  The  reader  will  please  com- 
pare the  two  stories,  and  see  how  similar  they  are. 

But  if  LaSalle  had  discovered  and  was  really  familiar  with 
the  route  from  Lake  Michigan  via  the  Chicago  or  other  chan- 
nel to  the  Mississippi  in  1671,  would  he  not  very  likely  have 
5441  somewhere  told  of  it,  intelligently  and  definitely,  in  some  of 
his  communications?  His  letter  to  Frontenac,  dated  Novem- 
ber, 1680,  is  a long  one;  and  he  discusses  the  subject  of  the 
Chicago  route,  which  had  been  first  communicated  by  Joliet, 
but  he  says  nothing  of  his  own  earlier  acquaintance  with  this 
locality  in  that  letter  or  any  other.  Neither  does  Frontenac 
see  ante,  p.  147) ; nowhere  does  he  give  him  precedence  in  the 
matter  before  Joliet,  and  nothing  appears  in  the  publications 
of  Shea,  French,  or  Margry,  that  can  be  tortured  into  a mean- 
ing to  the  contrary. 

Mr.  Parkman,  as  we  have  seen,  says : ‘Three  years  or  more 
after  Galinee  made  the  map  mentioned  above,  another,  indicat- 
ing a greatly  increased  knowledge  of  the  country,  was  made 
by  some  person  whose  name  does  not  appear.’ 

Galinee  made  his  map  in  1670;  adding  the  'three  years* 
would  make  it  the  same  year  that  Joliet  returned  from  the 
Mississippi.  But  the  convenient  ‘or  more’  ivliich  Mr.  Park- 
man  appends,  while  it  implies  a doubt  in  his  own  mind  as  to 


Extract, — Parhman’ s LaSalle. — Continued. 

ivlien  it  was  made,  yet  takes  away  the  force  of  any  suggestion 
which  he  appears  to  urge,  that  it  was  made  from  LaSalle’s 
information  and  not  that  of  the  well-known  tour  of  Joliet  and 
Marquette.  We  are  forced  to  assert  that  it  seems  an  error, 
illy  insisted  on  by  Mr.  Parkman ; when  speaking  of  this  map,  he 
says:  ‘This  map  was  evidently  made  after  that  voyage  of 

LaSalle  in  which  he  discovered  the  Illinois,  or  at  least  the 
Desplaines  branch  of  it.’ 

The  above  quoted  notices  of  the  two  maps  are  placed  in  the 
order  as  given  by  Mr.  Parkman  in  the  appendix  of  his  book; 
but  we  beg  the  reader  to  compare  the  descriptions,  as  they 
were  evidently  by  the  same  person,  who  was  Louis  Joliet.  Cer- 
tainly, Joliet  compiled  these  maps  after  his  voyage  of  1673^ 
mainly  from  what  he  had  personal  knowledge  of ; and  the 
first-named  (by  Mr.  Parkman) ; or  the  lalger  one  of  the  two, 
was  probably  the  latest  made.” 

5442  Shea’s  “Early  Voyages  Up  and  Down  the  Mississippi/ 
p.  16,  footnote: 

“He  (speaking  of  LaSalle)  came  to  Canada  about  1668, 
and  an  apparently  apocryphal  account  makes  him  soon  after 
discover  and  descend  the  Ohio  (see  Dussieux,  Le  Canada  sous 
le  domination  Francaise).  As  a trader  he  voyaged  extensive- 
ly on  the  Lakes,  and  built  a trading  house  at  La  Chine,  which 
owes  its  name  to  him,  an  index  of  his  desires.  His  first  official 
employment  was  to  visit  the  Senecas,  and  invite  them  to  a gen- 
eral Congress  of  the  tribes.  He  had  gained  the  good  will  of 
Frontenac  and  proposed  to  him  vast  plans  of  discovery  and 
trade,  which  received  his  sanction.  The  French  Court  in  1675, 
granted  him  Fort  Frontenac  and  the  seigneury,  on  condition 
of  keeping  it  in  repair,  maintaining  a garrison  and  clearing 
the  land.  He  obtained  also  a patent  of  noblesse.  For  a time 
he  pushed  forward  trade  and  colonization  at  Fort  Frontenac 
(now  Kingston)  and  built  the  first  vessel  that  ever  ploughed 
the  surface  of  Lake  Ontario.  Obtaining  new  grants  in  1678, 
he  pushed  on  to  Niagara,  built  a vessel  there,  and  again  the 
pioneer  of  western  navigation,  sailed  through  Lakes  Erie,  St. 
Clair  and  Huron  to  Mackinac.  Sending  back  his  vessel  with 
a load  of  furs,  he  proceeded  in  canoes  to  the  Illinois  country-, 
building  a fort  on  the  St.  Joseph’s  River,  and  another  on  the 
Illinois,  whose  name  Crevecoeur,  records  his  despondency  at 
receiving  no  tidings  of  his  bark  or  supplies  from  Frontenac. 
Left  unsupported,  he  returned  by  land  to  his  fort  on  Lake  On- 
tario ; but  while  absent  his  party  were  driven  from  the  Illinois 
by  the  Senecas,  and  LaSalle  on  his  arrival  at  Fort  Crevecoeur 
found  it  deserted.  After  some  search  he  joined  Tonty  at 
Mackinaw.  Here  reorganizing  his  party  he  descended  the 
Illinois  to  the  Mississippi,  and  followed  that  river  to  its  mouth, 
which  he  reached  April  9,  1682.  Returning  to  France,  he 


1661 


sought  to  make  the  mouth  of  the  river  by  sea.  lie  failed  to 

5443  discover  it,  was  abandoned  in  Texas,  and  in  an  attempt  to 
reach  Canada,  was  killed  by  his  own  men,  March  19,  1687. 

See  his  life  by  Sparks,  Vol.  I.  N.  S.  American  Biography, 
‘The  Discovery  and  Exploration  of  the  Mississippi,’  &c. 

5444  “Narrative  and  Critical  History  of  America,”  p.  179: 

“It  was  not  until  about  the  middle  of  August,  1674,  that 

he  returned  to  Quebec,  and  Governor  Frontenac,  on  the  14th 
of  November,  writes  to  the  French  Government : 

‘Sieur  Joliet,  whom  Monsieur  Talon  advised  me  on  my 
arrival  from  France,  to  despatch  for  the  discovery  of  the 
South  Sea,  returned  three  months  ago,  and  found  some  very 
tine  countries,  and  a navigation  so  easy  through  the  beauti- 
ful rivers,  that  a person  can  go  from  Lake  Ontario  and  Fort 
Frontenac  in  a bark  to  the  Gulf  of  Mexico,  there  being  only 
one  carrying  place,  half  a league  in  length,  where  Lake  Ontario 
communicates  with  Lake  Erie.  A settlement  could  be  made  at 
this  post,  and  another  bark  built  on  Lake  Erie.  * * * jje 

has  been  within  ten  days’  journey  of  the  Gulf  of  Mexico,  and 
believes  that  water  communication  could  be  found  leading  to 
the  Vermillion  and  California  Seas,  by  means  of  the  river 
that  flows  from  the  west,  with  the  Grand  River  that  he  discov- 
ered, which  rises  from  north  to  south,  and  is  as  large  as  the 
St.  Lawrence  opposite  Quebec. 

I send  you,  by  my  secretary,  the  map  he  has  made  of  it, 
and  the  observations  he  has  been  able  to  recollect,  as  he  lost 
all  his  minutes  and  journals  in  the  wreck  he  suffered  within 

5445  sight  of  Montreal,  where,  after  having  completed  a voyage 
of  twelve  hundred  leagues,  he  was  near  being  drowned,  and 

lost  all  his  papers,  and  a little  Indian  whom  he  brought  from 
those  countries.’ 

Governor  Frontenac  was  satisfied  with  the  importance  of 
establishing  a post  on  Lake  Ontario,  as  Courcelles  had  sug- 
gested, and  in  the  summer  of  1673  visited  the  region.  On  the 
3rd  of  June  he  departed  from  Quebec,  and  at  five  o’clock 
in  the  afternoon  of  the  15th  was  received  at  Montreal  amid  the 
roar  of  cannon  and  the  discharge  of  musketry.” 

5446  “Narrative  and  Critical  History  of  America,”  pp.  222-6: 
“New  complications  were  now  forming.  The  new  gover- 
nor, Frontenac,  was  needy  in  purse,  expedient  in  devices, 
and  on  terms  of  confidence  with  a man  destined  to  gain  a name 
in  this  western  discovery.  This  was  LaSalle.  Parkman  pic- 
tures him  with  having  a certain  robust  ambition  to  conquer 
the  great  valley  for  France  and  himself,  and  to  outdo  the 
Jesuits.  Shea  sees  in  him  little  of  the  hero,  and  few  traces 
of  a powerful  purpose.  Whatever  his  character,  he  was  soon 
embarked  with  Frontenac  on  a far-reaching  scheme.  It  has 
been  explained  in  the  preceding  chapter  how  the  erection  of  a 
fort  had  been  begun  by  Frontenac  near  the  present  town  of 


1662  Extract, — Parkman  LaSalle. — Continued. 

Kingston  on  Lake  Ontario.  By  means  of  such  a post  lie  hoped 
to  intercept  the  trafficking  of  the  Dutch  and  English,  and  turn 
an  uninterrupted  peltry  trade  to  the  French.  The  Jesuits  at 
least  neglected  the  scheme,  but  neither  Frontenac  nor  LaSalle 
cared  much  for  them.  Fort  Frontenac  was  the  first  stage  in 
LaSalle’s  westward  progress,  and  he  was  politic  enough  to  es- 
pouse the  Governor’s  side  in  all  things  when  disputes  occa- 
sionally ran  high?  His  becoming  the  proprietor  of  the  seig- 
niory, which  included  the  new  fort,  meant  the  exclusion  of  oth- 
ers from  the  trade  In  furs,  and  such  exclusion  made  enemies 
of  the  merchants.  It  meant  also  colonization  and  settlements ; 
and  that  interfered  with  the  labors  of  the  Jesuits  among  the 

5447  savages,  and  made  them  look  to  the  great  western  valley,  of 
which  so  much  has  been  said;  but  LaSalle  was  looking  there, 

too. 

In  the  first  place  he  had  strengthened  his  fort.  He  had 
pulled  down  the  wooden  structure,  and  built  another  of  stones 
and  palisades,  of  which  a plan  is  preserved  to  us.  He  had 
drawn  communities  of  French  and  natives  about  him,  and 
maintained  a mission,  with  which  Louis  Hennepin  was  con- 
nected. We  have  seen  how  in  the  autumn  of  1677  he  went  once 
more  to  France,  securing  the  right  of  seigniory  over  other 
posts  as  he  might  establish  them  south  and  west  during  the 
next  five  years.  This  was  by  a patent  dated  at  St.  Gennain- 
en-Laye,  May  12,  1678.  With  dreams  of  Mexico  and  of  a 
clime  sunnier  than  that  of  Canada,  LaSalle  returned  to 
Quebec  to  make  new  leagues  with  the  merchants,  and  to 
listen  to  Hennepin,  who  had  come  down  from  Fort  Frontenac 
to  meet  him.  Mr.  Neill  (in  the  previous  chapter)  has  followed 
his  fortunes  from  this  point,  and  we  have  seen  him  laying 
the  keel  of  a vessel  above  the  cataract. 

While  this  was  going  on  LaSalle  returned  below  the  Falls, 
and  having  begun  two  blockhouses  on  the  site  of  the  later 
Fort  Niagara,  proceeded  to  Fort  Frontenac.  By  spring 
Tonty  had  the  ‘Griffin’  ready  for  launching.  She  was  of 
forty-five  or  fifty  tons,  and  when  she  had  her  equipment  on 

5448  board,  five  cannon  looked  from  her  port-holes.  The  build- 
ers made  all  ready  for  a voyage  in  her,  but  grew  weary  in 
waiting  for  LaSalle,  who  did  not  return  till  August,  when  he 
brought  with  him  Membre,  the  priest,  whose  Journal  we  are 
to  depend  on  later,  and  the  vessel  departed  on  the  voyage 
which  Mr.  Neill  has  sketched. 

After  the  ‘Griffin’  had  departed  homeward  from  this  re- 
gion, LaSalle  and  his  canoes  followed  up  the  western  shores 
of  the  lake,  while  Tonty  and  another  party  took  the  eastern. 
The  two  finally  met  at  the  Miami s,  or  St.  Joseph  River,  near 
the  southeastern  corner  of  Lake  Michigan. 

They  now  together  went  up  the  St.  Joseph,  and  crossing 
the  portage  launched  their  canoes  on  the  Kankakee,  an  upper 


1663 


tributary  of  the  Illinois  River,  and  passed  on  to  the  great 
town  of  the  tribe  of  that  name,  where  Marquette  had  been 
before  them,  near  the  present  town  of  Utica.  They  found 
the  place  deserted,  for  the  people  were  on  their  winter  hunt. 
They  discovered,  however,  pits  of  corn,  and  got  much  -needed 
food.  Passing  on,  a little  distance  below  Peoria  Lake  they 
came  upon  some  inhabited  wigwams.  Among  these  people 
LaSalle  learned  how  his  enemies  in  Canada  were  inciting  them 
to  thwart  his  progress ; and  there  were  those  under  this  incite- 
ment who  pictured  so  vividly  the  terrors  of  the  southern  re- 

5449  gions,  that  several  of  LaSalle’s  men  deserted. 

In  January  (1680)  LaSalle  began  a fortified  camp  near  at 
hand,  and  called  it  Fort  Crevecoeur,  and  soon  after  he  was  at 
work  building  another  vessel  of  forty  tons.  He  also  sent  off 
Michael  Accau,  or  AccauTt,  and  Hennepin  on  the  expedition, 
of  which  some  account  is  given  by  Mr.  Neill,  and  also  by  the 
Editor  in  a subsequent  note.  Leaving  Tonty  in  command  of 
the  fort,  LaSalle,  in  March,  started  to  return  to  Fort  Fronte- 
nac,  his  object  being  to  get  equipments  for  his  vessel;  for  he 
had  by  this  time  made  up  his  mind  that  nothing  more  would 
be  seen  of  the  ‘Griffin’  and  her  return  lading  of  anchors  and 
supplies.  For  sixty-five  days  he  coursed  a wild  country  and 
braved  floods.  He  made,  however,  the  passage  of  a thousand 
miles  in  safety  to  Fort  Frontenac,  only  to  become  aware  of 
Jhe  disastrous  state  of  his  affairs, — the  loss  of  supplies.  A little 
later  the  same  sort  of  news  followed  him  from  Tonty,  whose 
men  had  mutinied  and  scattered.  His  first  thought  was  to 
succor  Tonty  and  the  faithful  few  who  remained  with  him; 
and  accordingly  he  started  again  for  the  Illinois  country, 
which  he  found  desolate  and  tei'rible  with  the  devastations  of 
the  Iroquois.  He  passed  the  ruins  of  Crevecoeur,  and  went 
even  to  the  mouth  of  the  Illinois ; and  under  these  distress- 

5450  ing  circumstances  he  saw  the  Mississippi  for  the  first  time. 
Then  he  retraced  his  way,  and  was  once  again  at  Fort  Miami. 
Not  a sign  had  been  seen  of  Tonty,  who  had  escaped  from  the 
feud  of  the  Iroquois  and  Illinois,  not  knowing  which  side  to 
trust,  and  had  made  his  way  down  the  western  side  of  Lake 
Michigan  toward  Green  Bay. 

LaSalle  meanwhile  at  Fort  Miami  was  making  new  plans 
and  resolutions.  He  had  an  idea  of  banding  together  under 
his  leadership  all  the  western  tribes,  and  by  this  means  to 
keep  the  Iroquois  in  check  while  he  perfected  his  explorations 
southward.  So  in  the  spring  (1681)  he  returned  to  the  Illi- 
nois country  to  try  to  form  the  league;  and  while  there  first 
heard  from  some  wandering  Outagamies  of  the  safe  arrival 
of  Tonty  at  Green  Bay,  and  of  the  passage  through  that  re- 
gion of  Hennepin  eastward.  Among  the  Illinois  and  on  the 
St.  Joseph  he  was  listened  to,  and  everything  promised  well 
for  his  intended  league.  In  May  he  went  to  Michillimackinac, 


1664  Extract, — Parkman’s  LaSalle. — Continued. 

where  he  found  Tonty  and  Membre,  and  with  them  he  pro- 
ceeded to  Fort  Frontenac.  Here  once  more  his  address  got 
him  new  supplies,  and  in  the  autumn  (1681)' he  was  again  on 
his  westward  way.  In  the  latter  part  of  December,  with  a 
company  of  fifty-four  souls, — French  and  savage,  including 
some  squaws, — he  crossed  the  Chicago  portage;  and  sledding 
and  floating  down  the  Illinois,  on  the  6th  of  February  he  and 

5451  his  companions  glided  out  upon  the  Mississippi  among  cakes 
of  swimming  ice.  Stopping  at  one  of  the  Chickasaw  bluffs, 
they  built  a small  stockade  and  called  it  after  Prudhomme, 
who  was  left  in  charge  of  it.  Again  they  stopped  for  a con- 
ference of  three  days  with  a band  of  Indians  near  the  month 
of  the  Arkansas,  where,  on  the  14th  of  March,  in  due  form, 
LaSalle  took  possession  of  the  neighboring  country  in  the 
name  of  his  King.  On  still  they  went,  stopping  at  various 
villages  and  towns,  securing  a welcome  by  the  peace-pipe,  and 
erecting  crosses  bearing  the  arms  of  France  in  the  open 
squares  of  the  Indian  settlements.  On  the  6th  of  April  La 
Salle  divided  his  party  into  three,  and  each  took  one  of  the 
three  arms  which  led  to  the  Gulf.  On  the  9th  they  reunited, 
and  erecting  a column  just  within  one  of  the  mouths  of  the 
river,  LaSalle  formally  took  possession  of  the  Great  Missis- 
sippi basin  in  the  name  of  the  French  monarch,  whom  he  com- 
memorated in  applying  the  name  of  Louisiana  to  the  valley. 

Fp  the  stream  their  canoes  were  now  turned.  On  reach- 
ing Fort  Prudhomme  LaSalle  was  prostrated  with  a fever. 
Here  he  stayed,  nursed  by  Membre;  while  Tonty  went  on  to 
carry  the  news  of  their  success  to  Michillimackinac,  whence 
to  despatch  messengers  to  the  lower  settlements.  At  St.  Ig- 
nace, LaSalle  joined  his  lieutenant. 

5452  For  the  events  of  these  two  years  we  have  two  main 
sources  of  information.  First,  the  ‘Belation  de  la  descouverte 
de  Pembouchure  de  la  Eiviere  Mississippi  dans  le  Golfe  de 
Mexique,  faite  par  le  Sieur  de  la  Salle,  Pannee  passee,  1682.’’ 
which  was  first  published  by  Thomassy;  the  original  is  pre- 
served in  the  Archives  Scientifiques  de  la  Marine,  and  though 
written  in  the  third  person  it  is  held  to  constitute  LaSalle’s 
Official  Report,  though  perhaps  written  for  him  by  Membre. 
Second,  the  narrative  ascribed  to  Membre  which  is  printed  in 
Le  Clercq’s  Etablissement  de  la  Foi,  ii.  214,  and  which  seems 
to  be  based  on  the  document  already  named. 

In  addition  to  this  there  is  tlie  paper  of  Nicolas  de  la  Salle 
(no  kinsman  of  the  explorer),  who  wrote  for  Iberville’s 
guidance,  in  1699,  his  Recit  de  la  decouverte  que  M.  de  la  Salle 
a faite  de  la  Riviere  de  Mississippi  en  1682. 


LaSalle’s  future  plans  were  now  clearly  fixed  in  his  own 
mind,  which  were  to  reach  from  Europe  the  Mississippi  by 


16G5 


sea,  and  to  make  it  the  avenue  of  approach  to  the  destined 
colonies,  which  he  now  sent  Tonty  to  establish  on  the  Illinois. 
With  as  little  delay  as  possible,  he  went  himself  to  join  his 
deputy.  In  December  they  selected  the  level  summit  of  the 
5453  scarped  rock  (Starved  Rock),  on  the  river  near  the  great 
Illinois  town,  and  there  intrenched  themselves,  calling  their 
fort  ‘St.  Louis. ^ Around  it  were  the  villages  and  lodges  of 
near  twenty  thousand  savages,  including,  it  is  estimated,  about 
four  thousand  warriors.  To  this  projected  colony  LaSalle 
was  under  the  necessity  of  trying  to  bring  his  supplies  from 
Canada  till  the  route  by  the  Gulf  could  be  secured, — that  Can- 
ada in  which  he  had  many  enemies,  and  whose  new  governor, 
De  La  Barre,  was  hostile  to  him,  writing  letters  of  disparage- 
ment respecting  him  to  the  Court  in  Paris,  and  seizing  his 
seigniory  at  Fort  Frontenac  on  shallow  pretexts.  Thwarted 
in  all  efforts  for  succor  from  below,  LaSalle  left  Tonty  in 
charge  of  the  new  fort,  and  started  for  Quebec,  meeting  on 
the  way  an  officer  sent  to  supersede  him  in  command.  From 
Quebec  LaSalle  sailed  for  France. 


5454  Pages  234-8  Narrative  and  Critical  History  of  America. 


There  was  not  a little  in  all  this  to  point  to  a state  of 
mental  unsoundness  in  LaSalle.  At  a late  day  Joutel,  a fel- 
low-townsman of  LaSalle,  destined  to  become  the  expedition’s 
historian,  joined  the  fleet  at  Rochelle,  and  on  the  24th  day  of 
July  (1684)  it  sailed,  only  to  put  back,  four  days  later,  to  re- 
pair a broken  bowsprit  of  the  ‘ Joly.’  Once  again  they  put  to 
sea.  Everything  still  went  wrong.  The  leaders  chafed  and 
quarreled  as  on  land.  The  Spaniards  captured  their  smallest 
vessel.  At  Santo  Domingo  the  Governor  of  the  island  and 
his  officers  joined  in  the  quarrel  on  the  side  of  LaSalle,  who 
now  fell  prostrate  with  disease.  When  he  recovered  he  set 
sail  again  with  his  three  remaining  ships  on  the  25th  of 
November,  coasted  the  southern  shore  of  Cuba,  and  on  New 
Year’s  Day  (1685)  sighted  land  somewhere  near  the  River 
Sabine.  He  supposed  himself  east  of  the  Mississippi  mouths, 
when  in  fact  he  was  far  to  the  west  of  them.  He  knew  their 
latitude,  for  he  had  taken  the  sun  when  there  on  his  canoe 
voyage  in  1682;  but  he  had  at  that  time  no  means  of  ascer- 
taining their  longitude.  The  Moly’  next  disappeared  in  a 
fog,  and  LaSalle  waited  for  her  four  or  five  days,  but  in  vain. 
So  he  sailed  on  farther  till  he  found  the  coast  trending  south- 
erly, when  he  turned,  and  shortly  after  met  the  Moly.’  Pas- 
sages of  crimination  and  recrimination  between  the  leaders  of 
5455  course  followed.  LaSalle  all  the  while  was  trying  to  make 
out  that  the  numerous  lagoons  along  the  coast  were  somehow 
connected  with  the  mouths  of  the  Mississippi,  while  Beaujeu, 


1666  Extract, — Narrative  and  Critical  Hist.,  LaSalle. — Con. 

vexed  at  the  confusion  and  indecision  of  LaSalle’s  mind,  did 
little  to  make  matters  clearer.  They  were  in  reality  at  Mata- 
gorda Bay.  Trying  to  make  an  anchorage  within,  one  of 
the  vessels  struck  a reef  and  became  a total  wreck,  and  only 
a small  part  of  her  cargo  was  saved.  LaSalle  suspected  it  was 
done  to  embarrass  him;  and  landing  his  men,  he  barricaded 
himself  on  the  unhealthy  ground,  amid  a confusion  of  camp 
equi^jage.  including  what  was  saved  from  the  wreck.  A 
swarm  of  squalid  savages  looked  on,  and  saw  a half-dozen  of 
the  Frenchmen  buried  daily.  The  Indians  contrived  to  pilfer 
some  blankets,  and  when  a force  was  sent  to  punish  them, 
they  killed  several  of  the  French.  Beaujeu  offered  some  good 
advice,  but  LaSalle  rejected  il;  and  finally,  on  the  12th  of 
March  the  Moly’  sailed,  and  LaSalle  was  left  with  his  forlorn 
colony.  Beaujeu  steered,  as  he  thought^  for  the  Baye  du  St. 
Esprit  (Mobile  Bay  (?))  ; but  his  belief  that  he  was  leaving 
the  mouths  of  the  Mississippi  made  him  miss  that  harbor, 
and  after  various  adventures  he  bore  away  for  France,  and 
reached  Bochelle  about  the  1st  of  July.  With  him  returned 
the  engineer,  Minet,  who  made  on  the  voyage  a map  of  the 

5456  mouths  of  the  Mississippi  doubly  interpreted, — one  sketch 
being  based  on  the  Franquelin  map  of  1684,  as  LaSalle  had 
found  it  in  1682 ; and  the  other  conformed  to  their  recent  ob- 
servations about  Matagorda,  into  whose  lagoons  he  made  this 
great  river  discharge. 

It  soon  dawned  upon  LaSalle  that  he  was  not  at  the  Missis- 
sippi delta;  and  it  was  imperative  that  he  should  establish  a 
base  for  future  movements.  So  he  projected  a settlement  on 
the  Lavaca  Biver,  which  flowed  into  the  head  of  the  bay ; 
and  thither  all  went,  and  essayed  the  rough  beginnings  of  a 
post,  which  he  called  Fort  St.  Louis.  He  was  also  constrained 
to  lay  out  a graveyard,  which  received  its  tenants  rapidly. 
As  soon  as  housing  and  stockades  were  finished,  LaSalle,  on 
the  last  day  of  October  (1685),  leaving  Joutel  in  command, 
started  with  fifty  men  to  search  for  the  Mississippi. 

The  first  tidings  Joutel  got  of  his  absent  chief  was  in  Jan- 
uary (1686),  when  a straggler  from  LaSalle’s  party  appeared, 
and  told  a woeful  story  of  his  mishaps.  By  the  end  of  March 
LaSalle  himself  returned  with  some  of  his  companions;  others 
he  had  left  in  a palisaded  fort  which  he  had  built  on  a great 
river  somewhere  away.  While  on  his  return  he  detached 
some  of  his  men  to  find  his  little  frigate,  the  ‘Belle,’  which 
he  had  left  at  a certain  place  on  the  coast.  These  men  also 

5457  soon  appeared,  but  they  brought  no  tidings  of  the  vessel.  The 
loss  of  her  and  of  what  she  had  on  board  made  matters  very 
desperate,  and  LaSalle  determined  on  another  expedition,  this 
time  to  the  Illinois  country  and  to  Canada,  whence  he  could 
send  word  to  France  for  succor.  On  the  22d  of  April  they 


1667 


started, — LaSalle,  liis  brother  Cavelier,  the  Friar  Douay,  and 
a score  or  so  others. 

Joutel  was  still  left  in  command;  and  a few  days  later  the 
appearance  of  six  men,  who  alone  had  been  saved  from  the 
wreck  of  the  ^ Belle,’  and  reached  the  fort,  confirmed  the 
worst  fears  of  that  vessel’s  fate.  Meanwhile  LaSalle  was  ex- 
periencing dangers  and  evils  of  all  kinds,— the  desertion  and 
death  of  his  men,  and  delays  by  sickness,  and  the  spending  of 
ammunition.  Once  again  there  was  nothing  for  him  to  do 
but  to  return  to  Joutel,  ad  so  with  eight  out  of  his  twenty 
men  he  came  back  to  the  fort.  The  colony  had  dwindled  from 
one  hundred  and  eighty  to  forty-five  souls,  and  another  at- 
tempt to  secure  succor  was  imperative.  So  in  January  (1687) 
a new  cheerless  party  set  out,  Joutel  this  time  accompanying 
LaSalle ; and  with  the  rest  were  Duhaut,  a sinister  man,  and 
Liotot  the  surgeon.  For  two  months  it  was  the  same  story 
of  sutfering  on  the  march  and  of  danger  in  the  camp.  Then 
quarrels  ensued;  and  the  murder  of  LaSalle’s  nephew  and 
two  others  who  were  devoted  to  him  compelled  the  assassins 
to  save  themselves  by  killing  LaSalle  himself;  and  from  an 
ambuscade  Duhaut  and  Liotot  shot  their  chief. 

5458  Counsel  for  Complainant.  With  reference  to  the  Cooley 
profiles,  wlien  we  offered  those  in  evidence,  the  defendants 

insisted  upon  the  documents  from  which  they  were  compiled  being 
put  in  evidence.  We  spent  a few  days  assembling  them,  put- 
ting them  together,  and  then  it  was  suggested  that  the  other  side 
would  concede  the  correctness  of  Mr.  Cooley’s  profile  so  as  to  make 
it  unnecessary  to  put  them  in  evidence;  they  have  only  found  two 
criticisms,  and  I am  about  to  take  them  up  and  make  clear  what- 
ever there  is  in  that;  but  we  submit,  your  Honor,  as  they  insist 
upon  these  documents  being  assembled  and  put  in  evidence — that 
is,  they  have  not  admitted  the  correctness  of  the  profiles;  it  is 
proper  now  that  they  should  go  in  evidence,  if  they  have  not  al- 
ready—that  is,  Cooley  Exhibit  21  to  about  40,  I think. 

5459  Counsel  for  Defendant.  We  objected  to  them.  Mr. 
Cooley  testified  that  this  profile  was  correct.  Then,  subse- 
quently they  offered  all  of  the  data  from  which  the  profile  was 
made,  and  your  Honor  said  we  would  save  time  if  we  looked  it 
over. 

The  Court.  I remember.  You  were  to  say  whether  the  profile 
corresponded  with  the  data  evidence,  but  there  was  no  need  for  the 
data. 


1668 


Counsel  for  Defendant.  Mr.  IVoermann  calls  my  attention  to 
the  fact  that  he  Avishes  to  correct  his  testimony,  and  it- may  obviate 
some  difficulty  if  he  does.  Mr.  Woermann  pointed  out  one  dis- 
crepancy in  the  Cooley  profile,  and  he  wants  to  explain  that.  He 
calls  my  attention  to  the  fact  that  he  thinks  he  was  in  error  and 
desires  an  opportunity  to  correct  it. 

The  Court.  Very  well. 

Counsel  for  Defendant.  Will  you  take  the  stand  and  make  any 
statement  you  wish  on  the  matter. 

5460  J.  AV.  Woermann, 
recalled,  further  testified  as  follows : 

I was  familiar  with  the  fact  that  Mr.  AVheeler  in  his  1889  survey, 
located  his  lock  and  dam  in  the  left  baud  channel,  and  this  profile, 
which  we  introduced,  from  his  published  report,  showing  a foot 
of  water  at  the  head  of  Treat’s  Island — I put  those  things  together 
and  drew  the  conclusion  that  that  profile  was  in  the  left  hand  chan- 
nel, and  on  this  basis  I criticised  Mr.  Cooley’s  depth  in  the  left 
hand  channel,  I find,  by  going  farther  back  to  the  1883  profile, 
that  that  was  down  in  the  right  hand  channel. 

The  Court.  Not  the  left  hand? 

Mr.  MMermann.  Not  the  left  hand. 

The  Court.  So  you  don’t  criticise  his  depth! 

Mr.  Woermann.  No,  sir.  I knew  the  lock  and  dam  were  located 
in  the  left  hand  channel,  and  there  is  a discrepancy  in  respect  to 
that  in  Mr.  AVheeler’s  profile,  which  misled  me. 

Counsel  for  Complainant.  I call  your  attention  to  Cooley’s 

5461  Exhibit  2,  which  is  a smaller  exhibit  of  the  same  thing,  at 
Treat’s  Island,  the  profile  shoAvs  the  west  channel,  the  greater 

depth  in  the  east  channel. 

The  Court.  The  profile  shows  the  Avest  channel,  that  is,  the 
right  hand,  the  greater  depth  than  the  east  channel.  That,  ac- 
<!ording  to  Mr.  Woermann  now,  is  not  correct.  The  greater  depth 
is  the  one  that  is  shown — 

Counsel  for  Complainant.  We  think  that  probably  Mr.  Cooley 
knows  what  he  is  talking  about  in  that  particular. 


1669 


Counsel,  for  Defendant.  I don’t  know  that  that  remark  has 
anything  to  do  on  tlie  bearing  of  the  evidence.  I suppose  the 
witnesses  generally  know  what  they  are  talking  about. 

Counsel  for  Complainant.  That  is  to  say,  there  is  a difference 
that  still  seems  to  persist  between  Mr.  Woermann  and  Mr.  Cooley. 

The  Court.  Yes,  there  is  a difference  in  this  statement.  Mr. 
Woermann  says  that  the  greater  depth  is  in  the  west  channel, 
which  is  shown  on  the  profile,  and  Mr.  Cooley  says  in  his  memo- 
randum, the  greater  depth  is  in  the  east  channel.  Will — 

Counsel  for  Complainant.  Will  you  take  the  stand  please,  Mr. 
Cooley. 

5462  Lyman  E.  Cooley, 

a witness  for  complainant,  recalled,  further  testified  as  fol- 
lows : 

Direct  Examination. 

Q.  I direct  your  attention  to  the  statement  by  Mr.  AVoermann 
that  the  profile  of  1883  went  down  one  of  the  channels  next  to 
Treat’s  Island;  and  I direct  your  attention  to  Cooley  Exhibit  25, 
and  Cooley  Exhibit  26  (Trans.,  pp.  6608-10;  Abst.,  pp.  1931-2), 
respectively,  sheets  13  and  15,  from  the  Marshall  report,  and  cer- 
tified, both  of  them,  by  L.  Marshall,  Captain  of  Engineers,  Feb- 
ruary 28,  1890;  and  I ask  you  to  state  what  they  are?  A.  These 
sheets  represent  the  river  and  the  findings  as  surveyed  in  1883. 

That  survey  was  made  under  Major  Benyaurd,  by  G.  Y.  Wizner. 
A report  was  published,  but  no  maps  and  profiles  were  published 
at  that  time.  They  were  published  in  the  Marshall  collection 

5463  in  1890.  These  two  sheets,  both,  come  from  that  collection. 
Both  contain  representations  of  Treat’s  Island;  sheet  13  is 

on  a larger  scale,  with  some  additional  data  by  Captain  Marshall 
of  borings  and  the  soundings  platted  more  fully  than  on  the  smaller 
scale.  They  both  are  1883  surveys,  the  soundings  were  all  taken 
in  1883. 

Q.  Now,  directing  your  attention  for  a moment  to  Cooley  Ex- 
hibit 26,  sheet  15,  which  gives  the  island  on  the  smaller  scale,  I 
will  call  your  attention  to  a dotted  line  which  extends  from  one 
side  of  the  map  to  the  other  along  the  green  strip  representing  the 


1670 


Cooley, — Direct  Exam.— Continued. 


Desplaines  River,  and  when  we  come  to  Treat’s  Island  on  this 
sheet,  on  which  side  of  the  island  does  the  dotted  line  pass?  A. 
North  or  right  hand  side. 

The  Court.  The  map  speaks  for  itself.  I understood  it  was  in. 

Counsel  for  Complainant.  I supposed  it  was  in  long  ago ; but  it 
certainly  is  rebuttal  to  explain  precisely  how  this  profile  was  made 
and  along  what  figures  it  was  compiled. 

The  Court.  You  can  use  the  discrepancy  in  the  statements  of 
the  two  witnesses. 

5464-  Q.  Now,  I call  your  attention  to  the  figures  2.8,  in  the 
first  line  of  soundings  on  the  left  hand  of  the  channel,  going 
down,  touching  the  island;  the  head  of  the  island;  the  first  one  that 
does  not  go  clear  across;  what  does  that  2.8  mean?  A.  2.8  feet 
below  the  low  water  plane  of  1883. 

The  Court.  The  actual  depth  of  the  water  at  that  time? 

The  AVitness.  Yes,  sir. 

Counsel  for  Complainant.  That  does  not  mean  it  was  that 
much  lower  down  than  the  plane  of  1883? 

The  Court.  He  means  that  was  the  depth  of  the  water  at  that 
spot  at  that  time? 

The  AVitness.  That  is  correct. 

Counsel  for  Complainant.  Then,  I direct  your  attention  to  the 
other  sheet,  Cooley  Exhibit  25,  sheet  13  (Trans.,  p.  6608;  Abst.,  p. 
1931),  and  call  your  attention  to  the  dotted  line  running  down  the 
left  hand  channel  along  towards  Treat’s  Island;  what  is  that? 

5465  A.  Plane  of  the  profile. 

Q.  Then  on  these  two  sheets,  respectively,  for  the  profile 
of  1883,  one  of  them  carries  the  line  of  profile  down  the  right 
hand  channel,  and  one  carries  the  line  of  profile  down  the  left  hand 
channel,  does  it?  A.  Yes,  sir. 

Q.  I direct  your  attention  to  the  figures  in  the  right  hand  chan- 
nel, at  the  foot  and  near  the  center  of  the  channel,  1.7,  what  is  that? 
A.  1.7  feet  depth  of  water. 

Q.  I find  very  nearly  the  exact  center  of  the  stream,  just  at 
the  head  of  the  island,  but  very  nearly  touching  the  island  in  the 


1671 


right  hand  channel,  near  the  head,  on  sheet  16,  1.0,  what  is  that!  A. 
One  foot  in  depth  at  the  time  of  the  survey. 

Q.  And  I call  5^onr  attention  on  the  same  sheet,  13,  to  the  fig- 
ures 2.0,  just  below  the  terminus  or  lower  point  of  the  island, 
and  in  the  left  hand  channel  continued,  what  does  that  mean!  A. 
Two  feet  in  depth,  lower  plane. 

Q.  Then  out  of  the  maps,  the  2.8  at  the  head  and  the  2.0  at  the 
foot,  will  be  found  on  the  left  hand  channel  going  down!  A.  Yes, 
sir. 

Q.  And  the  1.0  at  the  head  and  the  1.7  at  the  foot  will  be  found 
on  the  right  hand  going  down!  A.  Yes,  sir. 

After  colloquy  between  court  and  counsel  the  witness  further  tes- 
tified : 

5470  Cooley  Exhibit  3 is  down  the  south  or  left  hand  channel. 
In  the  profile — Cooley  Exhibit  2 was  a map  made  up  in  No- 
vember last,  and  duplicated,  the  official  profile  as  reported  by  the 
Board  of  Engineers  for  1905.  And  Cooley  Exhibit  3 is  my  com- 
bined profile,  following  the  line  of  the  channel  at  deepest  water, 

left  hand  or  east.  After  that  exhibit  was  made  up — re- 

5471  f erring  to  Exhibit  2,  I noticed  the  discrepancy  in  the  two 
channels,  and  put  that  note  upon  it  in  order  to  identfy  the 

location.  I looked  that  matter  up  at  that  time.  I noticed  a dis- 
crepancy in  the  depth  in  the  two  channels,  a difference  in  the 
depth,  and  the  fact  also  that  the  official  profile  reported  in 
1905,  went  down  by  the  large  channel,  the  right  hand.  I refer  to 
the  fact  that  the  profile  does  not  follow  the  line  of  the  channel. 
That  is  the  profile  reported  in  1905,  shown  on  Exhibit  2,  did 

5472  not  follow  the  line  of  deep  water,  we  call  it  channel,  on  the 
left  hand  side  of  the  island.  I mean  there  is  deeper  water 

on  the  left  hand  side  of  the  island  than  the  Grovernment  profile 
showed.  I want  to  explain  that  and  make  that,  possibly,  clear; 
that  in  the  Benyaurd  profile,  and  the  profile  of  1905,  they  lo- 
cated the  channel  for  improvement  by  the  north  route,  and  the 
profiles  do  not  necessarily  show  the  line  of  the  channel  at  deep- 
est water,  but  are  intended  to  show  a line  marked  on  the  map, 
which  is  a line  marked  for  improvement.  Major  Benyaurd  pro- 
posed an  improvement  to  the  right  hand  channel.  Captain  Mar- 


1672 


Cooley, — Direct  Exam. — Continued. 


shall  proposed  to  improve  the  left  hand  channel.  The  soundings 
recorded  on  these  two  maps  were  made  in  1883.  That  is,  Cap- 
tain Benyaiird,  although  he  did  not  propose  to  improve  the 

5473  left  hand  channel,  nevertheless  made  the  soundings.  He 
made  no  borings ; borings  were  made  by  Marshall.  But  they 

made  complete  soundings  of  the  river  on  both  sides.  And  these 
maps,  which  were  published  in  connection  with  the  Marshall  report, 
represent,  as  well  in  the  soundings  of  the  east  as  of  the  west  chan- 
nel, the  work  of  Benyaurd’s  survey. 

Mr.  WoERMANN.  Allow  me  to  interrupt  there,  to  save  some  time 
and  clear  up  the  situation ; I know  that  this  map — 

Counsel  for  Complainant.  Pointing  to  sheet  13,  Cooley  25. 

Mr.  WoERMANN.  (Continuing) — this  is  a survey  and  map  pre- 
pared by  L.  L.  Wheeler  in  1889,  so  that  in  that  respect  you  are 
both  mistaken.  I know  that  from  personal  knowledge  and  if  the 
title  is  read  it  will  bear  me  out  in  my  statement. 

Counsel  for  Complainant.  I will  read  the  title  now.  (Bead- 
ing as  follows) : 

‘‘Map  of  Treat’s  Island  and  vicinity,  surveyed  in  accord- 
ance with  an  Act  of  Congress,  August  11,  1888,  under  the  di- 
rection of  Captain  W.  L.  Marshall,  corps  of  engineers,  U. 

5474  S.  A.,  by  L.  L.  Wheeler,  U.  S.  Assistant  Engineer,  1888-89. 
Scale  of  map  1 inch — 300  feet.  Widths  for  profile,  hori- 
zontal 1 inch — 750  feet;  verticals  1 inch,  9 feet.” 

(Scale  of  18  miles  is  then  graphically  portrayed.) 

“Note:  The  projection  of  this  map  is  based  upon  chained 
transit  lines,  referred  to  true  meridian;  elevations  are  based 
upon  lines  of  ordinary  levels  and  in  feet  above  Hennepin 
datum.  Height  15.15  feet  below  low  water  of  Lake  Michigan. 

(Chicago  City  datum.) 

“Soundings  have  been  transferred  from  map  of  survey 
made  in  1883.  Borings,  numbers  17,  20,  21  and  21-A  are  from 
3 to  5 feet  in  gravel  and  boulders.  To  accompany  my  report 
of  this  date  upon  the  proposed  waterway  between  Lake  Michi- 
gan and  the  Mississippi  Eiver.  W.  L.  Marshall,  Captain  of 
Engineers,  Chicago,  Illinois,  February  28,  1890.” 

Counsel  for  Complainant.  Q.  Now,  Mr.  Cooley,  another  point. 
Judge  Mack  has  remarked  that  while  you  have  stated  in  your 
memorandum  on  Cooley  Exhibit  2,  the  following,  “at  Treat’s 
Island  the  profile  shows  the  west  channel,  greater  depth  in  east 
channel.”  Judge  Mack  has  remarked  that  from  a casual  inspec- 


1673 


tion  of  the  maps,  he  finds  quite  a number  of  depths  on  the  right 
hand,  or  west  channel,  which  are  apparently  greater  than  those 
on  the  left  hand,  or  east  channel.  Now,  please  explain  to  ns  all 
how  you  reached  the  result  that  greater  depths  are  in  the  east 
channel?  A.  That  refers  to  the  depth  which  a boat  could  carry 
through  the  channel. 

5475  That  is,  the  greatest  minimum  depth  was  on  the  left  hand 
channel,  is  what  that  means,  a boat  running  down  the  stream 

could  carry  a greater  depth  by  the  east  than  by  the  north  chan- 
nel. 

The  CouET.  Let  me-  call  your  attention  to  this : 2.8  at  the  head. 
That  is  a mistake  too.  In  this  map  on  the  smaller  scale,  there 
are  some  discrepancies  in  the  lithographic  work,  in  the  reproduc- 
tion, because  of  the  smallness  of  the  figures,  and  a zero  appears 
sometimes  for  a 6,  and  that  which  looks  like  an  8 appears  some- 
times for  a 5 — in  the  large  scale  it  is  a 5.  Here  is  one — 6,  and 
there  is  one  zero.  (Indicating  upon  map.) 

Counsel  for  Complainant.  I have  noticed  that  too  your  Honor, 
doubtless  in  the  total  examination  of  the  figures  this  would  be 
discovered,  when  the  two  maps  are  supposed  to  bring  forward 
the  same  things.  If  there  was  some  doubt  between  two  figures 
which  purport  to  represent  the  same  things,  it  could  be  corrected 
by  going  to  the  field  notes  themselves.  I will  ask  your  Honor  now 
whether  the  answer  of  the  witness,  stating  the  greatest  depth  is 
found  on  the  left  hand  channel — 

The  Court.  He  has  explained  what  he  means  by  that 
statement  and  his  explanation  will  go  in  in  connection  with 

5476  the  statement.  If  they  don’t  dispute  the  correctness  in  any 
other  part  of  these  two  profiles,  then  I see  no  need  in  put- 
ting in  all  of  the  evidence.  It  is  only  to  serve  as  a basis  for  it. 
As  I understand  it  they  will  withdraw  one  correction  they  have 
attempted  to  make,  and  as  I understand  also,  they  have  attempted 
to  make  no  other.  As  I understand  it  the  profiles  will  be  ad- 
mitted, and  the  data  back  of  it  will  become  unnecessary. 

Counsel  for  Complainant.  Mr.  Cooley,  what  will  be  the  maxi- 
mum flood  volume  of  the  Hesplaines  River,  at  the  location  of  this 
dam  when  the  works  of  the  Sanitary  District  will  be  completed? 


1674  Cooley, — Direct  Exam. — Continued. 

Counsel  for  Defendant.  I object  to  that  as  not  rebuttal. 

5478  The  Court.  I think  it  is  part  of  yonr  direct  case.  I sus- 
tain the  objection. 

5479  Counsel  for  Complainant.  We  offer  to  show  by  Mr. 
Cooley  that  the  maximum  flood  volume  of  the  Desplaines 

Eiver  at  this  point,  when  the  channel  is  completed  throughout  its 
length  to  its  width  at  its  widest  part,  plus  high  water  flood  of 
nature,  will  aggregate  40,000  cubic  feet  per  second. 

The  Court.  Very  well.  I will  exclude  it. 

5481  Counsel  for  Complainant.  Q.  Mr.  Cooley,  something 
has  been  said  here  about  the  period  of  navigation  on  the 

Illinois  and  Michigan  Canal  as  beginning  about  the  1st  of  April 
and  ending  about  the  15th  of  November.  You  may  tell  us  if  you 
know  whether  or  not  the  period  of  navigation  on  the  I.  & M. 
Canal  is  made  to  correspond  to  that  of  navigation  on  the  Great 
Lakes. 

(Objection.) 

The  Court.  I will  sustain  the  objection.  I held  that  Woer- 
mann’s  testimony  does  not  contain  those  dates.  It  may  be  stricken 
out  on  that  ground. 

5482  Counsel  for  Complainant.  In  order  to  make  the  record 
complete  on  our  side,  I now  offer  to  prove  by  Mr.  Cooley 

that  the  period  of  navigation  on  the  Illinois  and  Michigan  Canal 
is  made  to  correspond  to  that  of  navigation  on  the  Great  Lakes 
and  that  the  period  of  navigation  on  the  Great  Lakes  is  con- 
trolled by  the  date  of  the  practical  navigation  at  Mackinaw  and 
the  Soo,  and  that  at  Mackinaw  and  the  Soo  the  period  of  navi- 
gation is  limited  by  ice  conditions  and  winter  to  an  extent  amount- 
ing to  about  135  days  out  of  the  year,  while  in  the  Desplaines 
River,  and  from  Chicago  to  the  mouth  of  the  Desplaines  River, 
the  period  of  winter  and  of  ice  upon  the  navigable  waters  is  an 
obstruction  to  navigation  of  from  sixty  to  seventy  days. 

The  Court.  The  objection  is  sustained. 

Counsel  for  Complainant.  Q.  I will  ask  you  to  state,  Mr. 
Cooley,  if  you  as  an  engineer,  from  your  experience,  observation 
and  practice,  are  able  to  state  how  the  obstructions  and  diffi- 
culties of  navigation  upon  the  Desplaines  River,  which  has  been 


1675 


referred  to  in  the  testimony  of  the  witnesses  for  the  defense, 
which  you  have  heard— I believe  you  have  been  present  and  heard 
all  the  testimony  of  the  witnesses  for  the  defense  as  to  that — 
compare  with  difficulties  of  navigation  upon  streams  through  the 
United  States  which  are  the  subject  of  regulation  and  im- 

5483  provement  as  navigable  streams  by  the  Government  of  the 
United  States? 

Counsel  for  Defendant.  I object  to  the  question. 

The  Court.  The  objection  is  sustained. 

Counsel  for  Complainant.  Q.  It  is  a fact  that  you  have  heard 
all  of  this  testimony  for  the  defense,  is  it  not?  A.  Yes,  sir. 

Counsel  for  Complainant.  We  offer  to  prove  by  Mr.  Cooley 
that  the  difficulties  of  navigation  which  have  been  referred  to 
by  the  witnesses  for  the  defense,  in  the  Desplaines  Kiver,  are 
as  compared  with  the  bodv  of  streams  reported  on  in  the  reports 
of  United  States  engineers,  and  improved  by  the  United  States 
Government  less  than  the  average  upon  such  streams. 

Counsel  for  Defendant.  The  objection  is  insisted  upon. 

The  Court.  Objection  sustained. 

5484  Cross-Examination. 

The  Witness.  In  speaking  of  the  depths  of  the  channel  at 
Treat’s  Island,  the  profiles  show  the  actual  depths  of  water  along 
the  channel  line,  and  the  soundings  in  the  channel  show  the  actual 
depth.  I referred  to  the  profiles  that  have  been  published,  the 
profiles  along  the  line  of  the  proposed  improvement,  for  locks  and 
dams. 

Q.  The  line  of  the  proposed  improvement  was,  therefore,  the 
whole  channel  of  the  river,  was  it  not? 

(Objected  to.  Overruled.) 

5485  The  Witness.  No,  sir,  only  a portion  of  the  channel  of 
the  river. 

The  channel  on  either  side  of  Treat’s  Island  I think  by  the 

5486  proposed  improvement  covered  a width  of  200  feet,  I think:. 

The  south  fork  is,  I think,  over  200  feet  for  a part  of  the 
distance.  I think  it  is  shown  on  the  map  13.  I haven’t  scaled  it 
definitely. 


1676 


Thereupon  counsel  for  complainant  offered  in  evidence  a certi- 
fied copy  of  the  lease  of  Dam  No.  1 together  with  the  consent  de- 
cree under  which  the  dam  was  reconstructed. 

(Counsel  for  defendant  objected  to  these  documents,  first, 
because  the  case  had  been  closed,  and  second,  because  the 
lease  had  no  bearing  upon  the  controversy  here. 

5487  The  court  overruled  the  first  objection  and  sustained  the 
second  objection.) 

5488  Said  lease  so  otfered  and  excluded  was  marked  June  20th, 
Exhibit  1,  and  is  abstracted  as  follows: 


Lease  dated  July  17th,  1855.  No  Eecorders  Certificate. 
Consideration,  a yearly  rental  of  $500.00,  upon  conditions. 

Term  of  Lease:  ‘‘20  years  from  and  after  the  17th  of 

July,  1856,’^  viz.  term  expires  July  17,  1876. 

Lease  of  the  use  and  occupation  of  all  water  power  at 
Dam  No.  One  (1)  on  the  Illinois  and  Michigan  Canal  at 
Joliet  in  said  county.  The  water  hereby  leased  is  to  be  taken 
out  of  the  canal  basin  above  and  adjoining  said  Dam  No. 
One  (1)  at  Lots  Nos.  Eleven  (11),  Twelve,  (12),  Thirteen 
(13),  Fourteen  (14),  Fifteen  (15)  and  Sixteen  (16)  in  Block 
Thirty-seven  (37)  in  North  Joliet,  through  openings  in  the 
wall  of  said  basin  left  for  the  purpose,  (etc.) 

5490  It  is  further  agreed  that  on  the  expiration  of  this  lease, 
the  parties  of  the  second  part,  shall  be  entitled  to  a renewal 
for  a like  term  of  years,  for  such  rent  as  may  be  offered  by 
the  highest  bidder 

(who  shall  also  agree  to  purchase  of  the  said  party  of 
the  second  part  all  their  permanent  and  valuable  build- 
ings & structures,  necessarily  erected  by  the  parties  of 
the  second  part,  for  the  use  of  the  water  hereby  leased 
at  such  price  as  such  buildings  & improvements  shall  be 
adjudged  to  be  worth,  by  three  judicious,  disinterested 
freeholders  to  be  chosen  as  hereinbefore  specified.) 

And  if  no  such  bid  shall  be  made,  on  the  terms  aforesaid, 
at  a higher  rate  than  herein  specified,  said  party  of  the  sec- 
ond part  shall  be  entitled  to  such  renewal  on  the  terms  of  this* 
lease,  for  the  further  term  of  twenty  years. 

5491  And  it  is  further  agreed  that  at  the  expiration  of  the  second 
torm  of  twenty  years  above  rel'cvred  ^o,  tlie  parries  of  the 


5489  Trustees  of  the  Illinois  & Michigan 
Canal 
to 

Henderson  'Howk  and  John  B. 
Preston. 


1677 


second  part  shall  be  entitled  to  lease  the  said  water  power  & 
lots  for  a further  term  of  twenty  years,  (if  the  said  Trustees 
shall  not  determine  to  discontinue  to  rent  the  same)  upon 
the  same  terms  and  conditions  as  last  above  referred  to,  or  if 
other  parties  shall  offer  to  pay  more  than  the  parties  of  the 
second  part  will  pay,  the  person  or  persons  so  biddin*g  more 
than  the  parties  of  the  second  part,  shall  be  entitled  to  the 
same  upon  com])lying  with  the  terms  and  conditions  herein- 
before presented  in  case  of  renewal  after  the  expiration  of  the 
first  twenty  years. 

And  if  after  the  expiration  of  the  first  forty  years  herein 
provided  for,  the  party  of  the  first  part  shall  determine  to 
discontinue  the  leasing  of  said  water  power  the  owner  or 
owners  of  any  substantiaT  improvements  on  the  lots  hereby 
leased,  shall  be  entitled  to  purchase  the  said  lots  upon  which 
such  substantial  improvements  are  actually  located,  if  offered 
for  sale  by  the  Trustees,  or  the  use  of  the  same,  if  not  sold, — 
upon  such  terms  as  may  be  determined  upon  between  the 
parties,  in  either  case,  or  in  case  of  disagreement  between 
said  parties,  then  upon  such  terms  as  may  be  determined  by 
three  disinterested  persons  chosen  as  aforesaid. 

And  it  is  further  agreed  that  the  said  parties  of  the  -second 
part,  shall  by  the  written  consent  of  the  said  trustees,  have 
the  right  hereafter  to  draw  water,  for  propelling  machinery, 
at  any  other  point  on  said  Canal  Basin  above  dam  number 
one  (1). 

In  testimony  whereof  the  parties  of  the  first  part  have 
caused  this  instrument  to  be  signed  by  its  president  and  secre- 
tary and  their  corporate  seal  to  be  affixed  hereto.  And  the  said 
parties  of  the  second  part  have  hereto  set  their  names  and 
affixed  their  seals  the  day  & year  first  above  written. 

Henderson  Howk”  (Seal) 

^^Jno.  H.  Preston”  (Seal) 

In  presence  of 

‘M.  0.  Norton” 

McBoberts” 

The  Board  of  Trustees  of  the  Illinois  & Michigan 
Canal 

by 

‘AV.  H.  Swift,”  President. 

‘AVm.  Gooding,”  Sec’y. 

Seal  of 

Board  of  Trustees 
of  the 

I.  & M.  Canal. 

To  said  copy  of  said  original  lease  are  also  appended  the  follow- 
ing documents,  which  are  abstracted  as  follows : 


1678 


Lease, — Barn  No.  1. — Continued. 


(No  Assignment 

by  Howk  & Preston.) 

5492  Commissioners  of  the  Illinois  '' 

& Michigan  Canal 
to 

G.  W.  Hyde,  Assignee. 

Requiring  assignee  to  pay  $720.00  per  annum  for  additional 
water  power,  making  total  rental  of  $1220.00  per  annum. 

Agreement  to  abide  by  the  terms  of  the  foregoing  resolution 
by  said  G.  W.  Hyde. 


^Resolution, 

Dated  July  12th,  1872. 


Commissioners  of  the  Illinois 
& Michigan  Canal 
to 

G.  W.  Hyde,  Assignee. 


^ Purported  Renewal 
Agreement  of  Lease, 
dated  August  10th, 

^ 1876. 

Term  of  Renewal : 

20  years  from 
^ Jnly  17  th,  1876. 


5493  G!  AY.  Hyde  ) xAssignment  of  Lease, 
to  I*  Dated  July  1st,  1890. 

J.  L.  Norton  ) Consideration,  $1.00. 


Assignment  is  subject  to  all  leases  made  by  said  Hyde. 


5494  John  L.  Norton 
to 

Economy  Light  & Power  Com- 
pany. 


Assignment  of  Lease, 
^Dated  September  1st,  1890. 
I Consideration,  $1.00. 


5495  Commissioners  of  the  Illinois 
& Michigan  Canal 
to 

Economy  Light  & Power  Com- 
pany. 


> 


Renewal  of  Lease, 

October  3rd,  1896, 
for  a further  term 
of  twenty  years 
from  July  17,  1896. 


Said  renewal  of  lease  agreement  is  in  the  following  words: 
‘Hn  pursuance  of  the  stipulations  in  the  foregoing  lease 
in  regard  to  the  renewal  thereof  (and  in  accordance  with  a 
resolution  adopted  by  the  Board  of  Canal  Commissioners  of 
the  State  of  Illinois  on  June  30th  A.  D.  1896),  the  same  is 
hereby  renewed  with  the  Economy  Light  & Power  Company 
of  Joliet,  Illinois,  for  a further  term  of  twenty  (20)  years, 
including  the  right  of  renewal. 

AYitness  the  signature  of  the  President  and  Secretary  of  the 
Board  of  Canal  Commissioners  of  the  State  of  Illinois  and 


1679 


the  official  seal  of  the  same  this  Third  day  of  October,  A.  D. 
1896. 

Alt.  Gerdes, 

President. 

Thomas  H.  Cannon, 

Secretary. 

The  Seal  of  the  Canal 
Commissioners  of  the 
State  of  Illinois. 

And  also  the  signatures  of  the  President  and  Secretary  of 
the  Economy  Light  & Power  Company,  and  the  corporate  seal 
of  the  same  the  day  and  year  above. 

Economy  LiCxHt  & Power 
By  J.  L.  Norton, 

President. 
E.  B.  McMulltn, 

Secretary. 


Eesolution  passed  April 
4th,  1901,  increasing 
Water  Power  Eental, 
amount,  $1525.00,  time, 
October,  November,  De- 
cember, 1900. 


The  Seal  of  the  Economy 
Light  & Power  Company, 
of  Chicago,  Illinois.’^ 


5496  Commissioners  of  the  Illinois 
& Michigan  Canal 
to 

Economy  Light  & Power  Com- 
pany. 


5497  Commissioners  of  the  Illinois 
& Michigan  Canal 
to 

Economy  Light  & Power  Com- 
pany. 


Eesolution,  October  1st, 
1900,  increasing  Annual 
^ Eental,  place,  Water 
Power  Dam  No.  1. 
Amount,  $10,457.00  per 
. year. 


Economy  Light  & Power  Com- 
pany 
to 

Commissioners  of  the  Illinois 
& Michigan  Canal. 


^Acceptance  of  the  fore- 
g(  ing  resolution. 


5498  Certificate  by  John  M.  Snyder,  Acting  Secretary  of  the 
Board  of  Canal  Commissioners  that  the  foregoing  is  a true 
copy. 


5499  Said  copy  of  said  decree  so  offered  and  excluded  marked 
June  20th  Exhibit  2,  is  in  the  words  and  figures  following: 


1680 


Consent  ^Decree. 


*'  -•  .T.' 


The  Canal  Commissioners. 
17312.  V. 

The  Sanitary  District  of  Chi- 
cago. 


^Bill  for  Injunction. 


And  now  on  this  28th  day  of  October,  A.  D.  1898,  again 
come  the  respective  parties  "to  this  suit,  complainant  and  de- 
fendant, by  their  solicitors,  and  the  court  having  had  this 
case  under  advisement  since  the  conclusion  of  the  argument 
herein  and  being  now  fully  advised  in  the  premises  doth  find 
as  follows : 


(Duty  of  the  Canal  Commissioners.) 

First:  That  the  complainants,  ‘^Tlie  Canal  Commissioners^^ 
are  The  Canal  Commissioners  of  the  State  of  Illinois,  duly 
appointed  and  acting  as  such  Canal  Commissioners  under  the 
statutes  of  this  State,  and  that  the  Illinois  S Michigan  Canal 
with  its  bed,  banks,  basins,  dams,  locks,  ivater  poiver 
rights,  lands,  lots  and  all  other  property,  real  or  personal,  be- 
longing to  it  or  used  in  connection  therewith,  are  by  virtue  of 
the  statutes  of  this  State  under  the  exclusive  care,  manage- 
ment and  control  of  said  Canal  Commissioners,  and  that  it  is 
their  duty  to  maintain  and  preesrve  the  structures  of  the  said 
Illinois  & Michigan  Canal,  and  navigation  on  the  same  and  all 
its  basins,  and  its  locks,  dams  and  all  existing  water  power 
rights  for  the  benefit  of  the  People  of  the  State  of  Illinois,  as 
prescribed  by  the  statute  of  this  State. 

(Location  of  Canal.) 

Second : That  said  canal  passes  through  Will  County  in  the 

State  of  Illinois,  and  through  the  Village  of  Lockport  and  the 
City  of  Joliet,  in  said  County.  That  the  level  of  said  canal 
from  where  it  enters  the  Chicago  Eiver,  in  Cook  County,  Illi- 
nois, extending  Southerly  to  the  Village  of  Lockport,  on  Sec- 
tion 23,  Township  36,  North,  Range  10,  East  of  the  Third 
Principal  Meridian,  constitutes  one  level,  which  is  fed  from 
the  waters  of  Lake  Michigan  by  means  of  pumps  maintained 
and  operated  by  the  City  of  Chicago  at  what  is  known  as 
Bridgeport  in  said  City  of  Chicago,  and  at  the  south  end  of 
said  level  and  in  the  Village  of  Lockport  aforesaid  is  situated 
what  is  known  as  Lock  No.  1;  that  the  second  level  of  said 
canal  commences  at  Lock  No.  1,  proceeding  in  a southerly  di- 
rection until  it  reaches  Lock  No.  2,  in  the  Town  of  Lockport 
aforesaid;  that  from  Lock  No.  2 southerly  said  canal  proceeds 
until  it  reaches  Lock  No.  3,  which  is  near  to  the  dividing  line 
between  the  Town  of  Lockport  and  the  Town  of  Joliet,  in  Will 
County,  aforesaid;  that  from  said  Lock  No.  3,  said  canal  pro- 


1G81 


ceeds  southerly  and  enters  Section  3,  Township  35,  North, 
Range  10,  East  of  the  Third  Principal  Meridian,  on  the  North 
line  of  said  section  running  to  Lock  No.  4 at  a point  about 
300  feet  south  of  the  north  line  of  said  Section  3 where  is  situ- 
ated a lock  known  as  Lock  No.  4,  and  that  from  Lock  No.  4, 
said  canal  proceeds  through  Section  3 aforesaid,  until  it 
reaches  what  is  termed  the  upper  basin  of  the  canal,  which 
embraces  substantially  the  bed  and  banks  of  the  Lesplaines 
River,  said  upper  basin  commencing  on  Section  3 aforesaid 
about  1,500  feet  north  of  the  south  line  of  said  Section  3,  and 
said  basin  continuing  over  and  including  a small  portion  of 
Section  4,  Town  35,  North,  Range  10,  East  of  the  Third  Prin- 
cipal Meridian,  and  a small  portion  of  Section  10  in  the  same 
town  and  range,  and  entering  Section  9 in  the  same  town  and 
range,  near  the  north  line  of  said  section,  following  the  course 
5500  of  the  Desplaines  River,  to  a lock  situated  near  to  the  center 
line  of  Section  9,  Town  35,  North,  Range  10,  East  of  the  Third 
Principal  Meridian,  and  near  to  a street  in  the  City  of  Joliet, 
sometimes  called  Jackson  street,  said  lock  being  knowm  as 
Lock  No.  5,  and  it  being  situated  on  the  west  side  of  said 
basin,  and  at  said  point  said  basin  is  terminated  by  a dam 
known  as  Dam  No.  1 extending  clear  across  said  basin  at  its 
south  end;  that  at  the  east  end  of  said  dam  is  located  and 
situate  Lots  11,  12,  13,  14,  15  and  16  of  Block  37,  of  the  Canal 
Trustees  Subdivision  of  the  North  East  quarter  of  Section  9, 
Town  35,  North,  Range  10,  East  aforesaid,  v/nich  said  lots  are 
the  property  of  the  State  of  Illinois ; that  said  canal  continues 
its  course  from  Lock  No.  5 through  the  lower  basin  to  Dam 
No.  2,  and  that  said  canal  occupies  from  the  north  end  of 
said  upper  basin  to  the  said  Dam  No.  2 at  the  end  of  said 
lower  basin,  substantially  the  original  bed  and  banks  of  the 
Desplaines  River;  that  at  said  Dam  No.  2 an  inlet  is  formed 
whereby  water  from  the  lower  basin,  aforesaid,  is  transferred 
to  the  level  of  the  canal,  known  as  the  Channahon  level,  said 
level  commencing  about  300  feet  above  said  inlet,  and  being 
protected  by  a Guard  Lock  at  the  north  end  thereof;  that 
said  Channahon  level  of  said  Illinois  & Michigan  Canal  is  con- 
tinued through  the  City  of  Joliet,  leaving  Section  9 at  or  near 
a street  known  as  Washington  street  in  said  City,  and  pass- 
ing in  a southerly  direction  nearly  parallel  with  the  Desplaines 
River  through  Section  16,  Town  35,  North,  Range  10,  and  leav- 
ing said  Section  16  at  a point  on  the  south  line  of  said  sec- 
tion, and  west  of  the  course  of  the  River  Desplaines,  which 
river  runs  from  Dam  No.  2,  southerly,  through  said  City  of 
Joliet. 


1682 


Consent  Decree. — Continued. 


(Sections  3 and  9 Exclusive  Peopeety  of  Canal  Com- 

MISSIONEES.) 

Third : That  said  Sections  3 and  9 are  sections  which  were 

selected  by  the  Canal  Commissioners  of  the  State  of  Illinois, 
and  conceded  to  said  State,  by  the  confirmation  of  such  selec- 
tion, by  the  President  of  the  United  States  under  date  of  May 
21st,  1830,  under  and  in  pursuance  of  the  grant  of  the  United 
States  to  the  State  of  Illinois  of  land  for  canal  purposes,  made 
by  virtue  of  the  several  acts  of  Congress  of  the  United  States 
relative  thereto ; that  the  Channahon  level  of  said  canal  so  far 
as  it  passes  through  the  City  of  Joliet,  the  Guard  Lock  at 
the  north  end  of  said  Channahon  level,  the  Dam  No.  2,  at  the 
south  end  of  the  lower  basin ; the  inlet  for  water  into  the  Chan- 
nahon level  of  the  canal  from  the  lower  basin  just  above  Dam 
No.  2,  and  the  lower  basin  of  said  canal  from  Dam  No.  2 to 
Dam  No.  1 were  all  constructed  prior  to  the  year  1841,  under 
the  direction  and  by  the  authority  of  the  statute  of  the  State 
of  Illinois,  providing  for  the  construction  of  the  Illinois  & 
Michigan  Canal,  in  force  at  that  time;  that  Lock  No.  5,  Dam 
No.  1,  together  with  a provision  for  the  utilizing  of  water 
power  at  the  east  end  of  said  dam  on  Lots  11, 12, 13,  14,  15  and 
16,  Block  37,  in  the  Canal  Trustees  Subdivision,  North  East 
quarter  of  Section  9 aforesaid,  together  with  the  banks  and 
the  towpath  constituting  the  border  of  the  upper  basin  were 
all  constructed  by  the  authority  of  the  Canal  Commissioners, 
or  by  the  Canal  Trustees  of  the  State  of  Illinois,  prior  to  the 
year  1848 ; that  on  the  31st  day  of  August,  A.  D.  1848,  the  then 
Canal  Trustees  of  the  Illinois  & Michigan  Canal  acknowl- 
edged and  afterwards  caused  to  be  recorded  a plat  showing 
their  subdivision  of  said  North  East  quarter  of  Section  9, 
Town  35,  North,  Range  10,  East  of  the  Third  Principal 
Meridian,  and  that  said  Lock  No.  5 and  said  Dam  No.  1,  and 
said  lots  in  Block  37  of  said  Canal  Trustees  Subdivision  afore- 
said,’ are  all  exclusively  situate  upon  the  North  East  quarter 
of  Section  9,  Town  35,  North,  Range  10,  aforesaid,  and  that 
said  canal,  its  bed,  basins,  banks,  structures,  locks,  dams,  water 
power  rights,  are  now  the  exclusive  property  of  the  State  of 
5501  Illinois,  and  have  been  such  exclusive  property  since  the  ter- 
mination of  the  trust  estate,  of  the  Trustees  of  the  Illinois 
& Michigan  Canal  in  the  year  1871,  and  subject  to  such  trust 
have  been  the  exclusive  property  of  said  State  since  the  con- 
summation of  the  grant  made  by  Congress  to  this  State  of  land 
for  Canal  purposes,  and  the  construction  of  said  canal;  that 
the  State  is  also  the  owner  of  all  of  Block  1 in  said  Canal 
Trustees  Subdivision  of  the  North  East  quarter  of  Section  9, 
Town  35,  North,  Range  10,  East  of  the  Third  Principal  Merid- 


1683 


ian  aforesaid,  and  lias  been  such  owner  since  the  perfection 
of  said  congressional  grant  as  aforesaid. 

(Des  Plaines  Eivek.) 

Fourth:  And  the  court  finds  that  said  Desplaines  flows 

through  the  Town  of  Lockport  aforesaid,  in  a north  and  south 
direction,  and  enters  the  upper  basin  of  said  Illinois  & Michi- 
gan Canal  at  the  present  time,  at  a point  about  1,200  feet 
north  of  the  south  line  of  Section  3,  in  the  Town  of  Joliet 
aforesaid,  and  at  a place  known  as  the  towpath  bridge,  and 
that  since  the  construction  of  the  said  canal,  said  river  has 
entered  said  upper  basin  at  substantially  the  same  poin,t  and 
that  the  said  Illinois  & Michigan  Canal,  including  its  bed,  its 
banks,  its  basins,  its  locks  and  dams,  and  the  provision  for 
water  power  rights  at  the  east  end  of  Dam  No.  1,  has  been 
continuously  maintained  in  substantially  the  same  location, 
and  in  substantially  the  same  manner  from  the  north  end  of 
Lock  No.  4,  southerly,  through  the  upper  and  lower  basins 
and  the  Channahon  level  of  said  canal,  so  far  as  the  same  ex- 
tends through  the  City  of  Joliet,  in  the  same  place  and  loca- 
tion as  when  said  canal,  its  basins,  locks,  dams  and  structures 
were  originally  constructed  and  completed,  and  since  the  year 
1848,  in  which  year,  the  court  finds  that  said  canal  was  orig- 
inally opened  for  navigation. 

(Lease  of  Water  Power  Rights.) 

Fifth:  And  the  court  further  finds  that  since  the  opening 

of  said  canal,  there  has  always  existed  and  been  owned  by  the 
people  of  the  State  of  Illinois,  under  the  control  of  the  Trustees 
of  the  Illinois  & Michigan  Canal,  in  the  first  instance  and  their 
successors,  the  complainants  herein,  a water  power  right  at 
the  east  end  of  said  Dam  No.  1,  which  water  power  right  has 
been  leased  under  a lease  hereafter  referred  to,  since  the  year 
1856,  for  the  benefit  of  the  People  of  the  State  of  Illinois ; that 
there  has  existed  since  prior  to  the  year  1864  a water  power 
right  for  the  benefit  of  the  People  of  the  State  of  Illinois,  at 
both  the  east  and  west  ends  of  Dam  No.  2 aforesaid  and  that 
such  right  has  been  leased  at  the  east  end  of  said  Dam  No.  2 
since  the  year  1864,  and  at  the  west  emd  of  said  Dam  No.  2 
since  the  year  1883 ; that  on  the  Channahon  level  of  said  canal 
within  the  corporate  limits  of  the  City  of  Joliet,  and  at  a dis- 
tance of  half  a mile  south  of  said  Dam  No.  2,  water  is  and 
has  been  drawn  for  power  purposes  as  herein  after  found 
at  three  ditferent  places,  which  waters  so  drawn  have  been 
under  lease  by  the  Canal  Commissioners  of  the  State  for  the 
benefit  of  the  People  of  the  State  of  Illinois  since  the  year 
1883. 


1684 


Consent  Decree. — Continued. 


(Lease  of  Water  Power  at  Dam  No.  1.) 

That  said  icater  poiver  right  at  the  east  end  of  Dam  No.  1 
was  leased  by  the  then  Trustees  of  the  Illinois  & Michigan 
Canal,  hy  a lease  executed  Jidy  17th,  1855,  whereby  the  said 
lots  numbered  from  11  to  16  inclusive,  in  Block  37,  in  the  Canal 
Trustees  Subdivision,  called  North  Joliet,  together  with  the 
right  of  all  water  power  existing  at  said  dam,  was  demised 
for  the  term  of  twenty  years,  ivith  a right  on  the  part  of  the 
lessee  to  an  extension  or  renewal  of  said  terms  upon  the  terms 
of  said  lease,  on  the  expiration  of  the  first  term  of  twenty 
years,  for  a further  term  of  twenty  years,  and  with  the  right 
upon  the  expiration  of  the  first  renewal  of  said  lease  to  the 
lessees  to  receive  a further  reneical  for  an  additional  term 
5502  of  twenty  years,  and  that  said  lease  commanded  by  its  terms 
to  run  on  the  17th  day  of  July,  1856,  and  the  People  of  the 
State  through  their  agent,  have  been  continuously  receiving 
their  rents  from  the  water  power  at  Dam.  No.  1,  and  for  said 
lost  from  the  said  lessees  or  their  assigns  from  the  date  of  said 
demise  to  the  present  time,  and  that  said  lease  was  at  its  expi- 
ratiom,  renewed  for  a term  of  twenty  years,  which  expired 
on  the  11th  day  of  July,  1896,  and  luas  subsequently  renewed 
in  accordance  with  its  terms  and  requirements  for  a second 
and  final  term  of  renewal  expiring  on  July  11th,  1916,  which 
second  renewal  is  now  in  force  and  outstanding,  and 
that  said  lease  contained  a provision  to  the  effect  that  if  by 
reason  of  any  improvement,  alteration  or  enlargement  of  the 
canal,  the  amount  of  water  power  thereby  leased  should  be 
increased  or  diminished,  the  same  should  be  adjusted  between 
the  parties  by  a corresponding  increase  or  diminution  of  the 
rent  therein  reserved  for  said  water  power,  upon  the  basis 
of  said  lease,  and  that  said  rental  was  increased  in  accord- 
ance with  said  provision  as  against  the  assignees  of  said  lease, 
on  to-wit:  the  31st  day  of  July,  1872,  from  $500.00  for  the 
water  power  to  $1,220.00  per  annum  for  such  water  power. 

(Dam  No.  2 East  End  Lease  for  Ten  Years  from  October  3rd, 
1896,  Acquired  by  Sanitary  District.) 

The  court  further  finds  that  the  lease  was  made  of  exist- 
ing water  power  at  the  east  end  of  said  Dam  No.  2,  so  far  as 
such  power  could  be  availed  of  by  the  then  Trustees  of  the 
Illinois  & Michigan  Canal,  to  one  Lorenzo  P.  Sanger,  on  the 
12th  day  of  September,  1864,  and  that  said  lease  or  new  leases 
of  water  power  at  the  east  end  of  said  dam,  have  been  con- 
tinued and  in  force  from  the  date  of  said  lease  to  said  Sanger, 
and  that  all  of  said  water  power  at  said  east  end  of  said  dam 
No.  2,  was  on  the  ?>rd  day  of  October,  1896,  leased  to  the 


1685 


American  Stone  Company  hy  the  Canal  Commissioners  of  the 
State  of  Illinois,  for  a period  of  ten  years,  in  conformity  with 
the  provisions  and  statutes  relative  to  leasing  water  power, 
and  by  agreement  the  court  finds  that  said  defendant  has  duly 
acquired  under  the  law  of  eminent  domain  the  head  and  tail 
races  of  said  power  and  duly  acquired  in  the  same  manner  the 
leasehold  interest  of  said  lessee,  all  of  which  was  so  acquired 
before  March  1,  1898. 

(Dam  No.  2 West  End  Lease  for  Ten  Years  from  September 
11th,  1883,  x\cQuiRED  BY  Sanitary  District.) 

That  an  existing  water  power  right  at  the  west  end  of  the 
Dam  No.  2 was  utilized  by  leasing  the  same  by  the  Canal  Com- 
missioners to  one  John  E.  Bush  in  the  year  1883,  in  conform- 
ity with  the  statute  relative  to  leasing  water  power,  for  a 
period  of  ten  years  with  the  right  of  renewal  thereof  for  ten 
years  more;  and  that  the  said  defendant  has  duly  acquired 
under  the  law  of  eminent  domain  the  head  and  tail  races  of 
said  power  and  duly  acquired  in  the  same  manner  the  lease- 
hold interest  of  said  lessee  all  of  which  was  so  acquired  before 
March  1st,  1898.  That  on  the  11th  day  of  September,  1883, 
the  Canal  Commissioners  leased  to  the  Northwestern  Tile 
Company  the  right  to  take  water  from  the  Channahon  level 
of  said  canal  for  the  period  of  ten  years,  being  a right  to 
draw  water  according  to  the*  terms  of  said  lease  on  tlie  Chan- 
nahon level  of  said  canal  for  power  purposes,  discharging  the 
same  into  the  Desplaines  Eiver,  and  that  the  use  of  said  water 
so  drawn  from  said  Channahon  level,  under  said  lease  has 
been  continued  by  said  lessee  and  its  assigns,  to  the  present 
time. 


(Other  Leases.) 

The  said  Canal  Commissioners  on  the  11th  day  of  Septem- 
ber, 1883,  leased  to  one  James  B.  Speer  and  Frank  H.  Marsh 
the  right  to  take  water  from  the  Channahon  level  of  the  Illi- 
nois & Michigan  Canal,  and' use  the  same  for  power  purposes, 
discharging  the  tail  water  into  the  Desplaines  Eiver  by  a lease 
executed  in  accordance  with  the  statute  of  this  State,  and 
that  said  water  so  drawn  from  said  Channahon  level  has 
been  utilized  under  said  lease  by  said  lessees,  or  their  assigns 
up  to  the  present  time. 

5503  The  court  further  finds  that  on  the  11th  day  of  Septem- 
ber, 1883,  the  Canal  Commissioners  leased  to  William  M. 
Druley  the  right  to  draw  water  for  power  purposes  from  said 
Channahon  level  of  said  Illinois  & Michigan  Canal  in  accord- 
ance with  the  statute  of  the  State  of  Illinois,  whereby  said 
lessees  received  the  right  granted  by  said  lease  to  draw 


1686 


C on  s en  t Deere  e. — C o fit  in  u ed. 


water  from  the  Cliannahon  level  of  said  canal  discharging  it 
into  the  Desplaines  Eiver,  for  power  purposes,  and  that  said 
water  so  drawn  has  been  continuously  drawn  and  in  use  by 
said  lessee  or  his  assigns  since  the  date  of  the  first  granting  of 
said  lease,  and  that  all  of  the  water  so  drawn  under  said 
leases  from  said  Channahon  level  of  said  canal  has  been  drawn 
from  the  east  side  of  said  canal,  so  far  as  the  discharge  of 
the  water  is  concerned,  and  at  points  where  the  differences 
in  the  level  of  the  surface  of  the  water  in  the  Channahon  level 
and  the  surface  of  the  water  in  the  Desplaines  Eiver,  at  a 
point  where  they  discharge  the  water  used  for  water  purposes 
therein  is  about  13  feet  and  has  been  substantially  of  that  head 
since  the  granting  of  said  water  rights  and  the  utilization 
thereof  by  the  Canal  Commissioners  in  the  year  1883  as  afore- 
said. 

(All  Existing  Water  Power  Eights  Arose  Prior  to  January 

1st,  1889.) 

And  the  court  expressly  finds  that  all  of  said  icater  power 
rights  were  existing  luater  power  rights  prior  to  the  first  day 
of  January,  1889,  and  prior  to  the  passage  of  the  act  of  the 
General  Assembly  entitled,  ^An  Act  to  create  Sanitary  Dis- 
trict and  to  remove  obstructions  in  the  Desplaines  and  Illi- 
nois Eivers,’  and  prior  to  the  approval  of  said  act  which  ap- 
pears to  have  been  approved  on  the  29th  of  May,  1889,  and  ex- 
cept as  the  same  may  have  been  acquired  by  the  said  defend- 
ant herein,  prior  to  March  11,  1898,  are  and  have  been  con- 
tinuously existing  and  in  use  as  hereinbefore  found. 

(The  Sanitary  District,  its  Creation  and  Purpose.) 

Sixth : And  the  court  further  finds  that  said  defendant,  the 

Sanitary  District  of  Chicago  is  a municipal  corporation  or- 
ganized under  the  act  of  the  Legislature  of  the  State  of  Illi- 
noies,  entitled  ^An  Act  to  create  Sanitary  Districts  and  to 
remove  obstructions  in  the  Desplaines  and  Illinois  Eivers,’ 
approved  May  29th,  1889,  in  force  July  1st,  1889,  and  that 
the  organization  of  said  defendant  was  completed  under  the 
terms  and  conditions  of  said  act  about  the  19th  day  of  Janu- 
ary A.  D.  1890;  that  said  Sanitary  District  has  proceeded  to 
construct  a main  channel  for  the  drainage  of  said  District, 
extending  substantially  from  a connection  with  the  Chicago 
Eiver  at  Eobey  street  in  the  City  of  Chicago,  in  the  County 
of  Cook  and  State  of  Illinois,  to  the  south  line  of  Sections  14 
and  15,  in  Township  36,  North,  Eange  10,  East  of  the  Third 
Principal  Meridian,  in  Will  County,  Illinois,  said  township  be- 
ing known  as  the  Town  of  Lockport;  and  that  a large  portion 
of  the  work  of  the  construction  of  said  main  channel  has 


]G87 


been  completed,  and  that  said  District  has  expended  in  the 
construction  of  said  main  channel  and  in  and  about  the  pur- 
poses for  which  it  was  organized  the  sum  of  about  twenty- 
six  million  dollars  before  the  commencement  of  this  suit;  that 
said  main  channel  terminates  near  to  the  south  line  of  Sections 
14  and  15  in  the  Town  of  Lockport  aforesaid;  and  that  the 
slope  mentioned  in  the  23rd  section  of  said  act  under  which 
said  defendant  is  organized,  as  between  Lockport  and  Joliet, 
and  wherein  it  is  provided  ‘in  case  a channel  is  constructed 
in  the  Desplaines  Eiver,  as  contemplated  in  this  section,  it 
shall  be  carried  down  the  slope  between  Locknort  ^lud  Joliet 
to  the  pool,  commonly  known  as  the  upper  basin,  of  sufficient 
width  and  depth  to  carry  off  the  water  the  channel  shall  bring 
down  from  above,’  commences  at  the  termination  of  said 
channel  near  to  the  south  line  of  Sections  14  and  15  in  the 
Town  of  Lockport  aforesaid,  and  terminates  at  the  point 
where  the  Desplaines  Eiver  enters  the  upper  basin  as  here- 
inbefore found;  and  that  the  plans  of  the  Sanitary  District 
provide  for  carrying  the  water  discharged  from  said  main 
5504  channel  between  banks  constructed  by  itself  to  a point  near 
to  the  south  section  line  between  Sections  22  and  27  in  said 
Town  of  Lockport,  where  said  flow  from  said  main  channel  is 
turned  into  the  Desplaines  Eiver  and  from  thence  follows  the 
course  of  the  Desplaines  Eiver  down  to  the  point  where  the 
same  enters  the  upper  basin  of  said  Illinois  and  Michigan 
Canal  in  Section  9,  in  the  Township  of  Joliet  aforesaid;  and 
that  by  the  terms  of  said  act  under  which  said  defendant  is 
organized  it  is  required  that  a flow  of  water  through  the  said 
channel  shall  be  maintained  of  twenty  thousand  cubic  feet  per 
minute  for  each  one  hundred  thousand  inhabitants  within  the 
limits  of  said  Sanitary  District,  and  that  the  population  of 
said  Sanitary  District  is  less  than  one  million  five  hundred 
thousand  people  at  the  date  of  this  decree,  and  that  the  re- 
quirements of  said  law  at  the  date  herein  would  require  said 
defendant  to  provide  for  a continuous  flow  at  the  present  time 
of  not  less  than  three  hundred  thousand  cubic  feet  per  min- 
ute. 

(Duty  of  Canal  Commissioners  to  Preserve  Navigation  in 
Illinois  & Michigan  Canal.) 

Seventh:  The  court  further  finds  that  it  is  the  duty  of  the 
Canal  Commissioners  to  preserve  the  navigation  of  the  Illi- 
nois & Michigan  Canal;  and  that  said  defendant  has  no  power 
or  authority  under  its  organic  act  to  injure  or  destroy  any  ex- 
isting water  power  rights  on  said  Illinois  and  Michigan  Canal 
which  were  in  existence  at  the  date  of  the  approval,  to-wit: 
May  29th,  1889,  and  the  taking  effect  of  said  act,  to-wit:  July 
1st,  1889. 


1688 


Consent  Decree. — Continued. 


(Increased  Water  Power  Eights  at  Dam  No.  1 Belong  to 

THE  State.) 

The  court  further  finds  that  the  amount  of  water  which  the 
channel  of  the  Sanitary  District  is  required  by  the  terms  of 
the  act  under  which  it  is  organized  to  cause  to  be  brought 
down  a slope  between  Lockport  and  Joliet  into  the  upper 
basin  of  the  Illinois  & Michigan  Canal,  and  the  flow  of  which 
by  the  terms  of  said  organic  act  it  is  required  continually  to 
maintain,  will  increase  the  amount  of  water  flowing  in  said 
basin  over  Dam.  No.  1 from  about  40,000  cubic  feet  per  min- 
ute to  at  least  300,000  cubic  feet  per  minute,  and  will  increase 
the  power  now  being  used  at  said  Dam  No.  1,  to  a very  large 
extent;  that  the  State  of  Illinois  by  virtue  of  said  existing 
water  poiver  right  at  said  Dam  No.  1,  and  its  ownership  of  the 
bed,  banks  and  basins  of  said  Canal,  and  said  dam  and  locks 
at  said  Dam.  No.  1,  is  entitled  to  use  and  utilize  any  increased 
power  ivtiicli  may  he  created  at  Dam.  No.  1,  by  reason  of  any 
increase  in  the  amount  of  water  flowing  through  said  upper 
basin. 


(Head  of  Water  at  Dams  No.  1 & No.  2.) 

Eighth:  The  court  finds  that  the  mitre  sill  of  lock  4 has 

been  since  the  construction  of  said  lock  at  an  elevation  be- 
low Chicago  datum  of  minus  47.84  feet;  that  said  Dam  No.  1 
when  the  water  is  at  the  crest  of  same  is  at  an  elevation  of 
minus  42.4  feet  and  that  ordinarily  the  depth  of  the  water 
over  the  mitre  sill  of  said  lock  4 is  no  more  than  is  neces- 
sary, requisite  and  reasonably  safe  to  preserve  navigation 
on  the  Illinois  & -Michigan  Canal,  between  locks  Nos.  4 and 
5 with  said  Dam  No.  1 at  its  present  height  of  42.4  feet  be- 
low Chicago  datum;  that  the  head  of  water  under  which 
power  can  be  utilized  since  1856  at  Dam  No.  1,  is  ten  feet, 
and  that  the  head  of  the  water  at  Dam  No.  2 under  which 
power  has  been  practically  utilized  since  the  granting  of  the 
leases  as  hereinbefore  found,  is  practically  6 feet,  and  that 
the  lease  at  Dam  No.  2 called  for  a head  of  7 feet. 
(Contract  of  Canal  Commissioners  with  Sanitary  District 

Beyond  the  Power  of  Canal  Commissioners.) 

Ninth:  And  the  court  further  finds,  that  the  provisions 

of  the  agreement  or  contract  executed  by  the  complainant 
and  the  defendant  of  date  March  11th,  1898,  and  a copy 
whereof  is  attached  to  the  original  bill  and  to  the  original 
answer  in  this  case,  so  far  as  the  same  provides  for  or  au- 
5505  thorizes  the  construction  of  the  new  dam  at  the  site  of  Dam 
No  1,  u'ith  the  crest  of  such  new  dam  at  the  elevation  of  46 


1689 


feet  or  at  any  elevation  lower  than  42.4  feet  below  Chicago 
datum  and  so  far  as  the  same  provides  for  a conveyance  by 
the  Canal  Commissioners  to  the  Sanitary  District  of  Chi- 
cago of  the  title  to  lands  is  beyond  the  power  of  either  of  the 
parties  hereto  to  make  under  the  statutes  of  this  State,  but 
in  other  respects  said  agreement  is  authorized,  valid  and 
binding;  that  said  defendant  is  given  no  power  under  the^ 
statute  to  occupy  any  portion  of  the  Illinois  & Michigan 
Caanl  within  the  limits  of  the  Countv  of  AVill  in  tlie  State 
of  Illinois,  except  to  cross  the  same ; that  such  crossing  must 
be  made  under  the  direction  and  supervision  of  the  Canal 
Commissioners,  and  must  be  made  in  such  a way  as  not  to 
impair  the  usefulness  of  said  canal  and  in  such  a way  as  not 
to  injure  the  right  of  the  State  therein,  and  in  such  a way  as 
not  to  injure  or  destroy  existing  water  power  rights,  and  the 
court  expressly  finds  that  said  contract  or  agreement  and 
the  plans  prepared  for  carrying  out  the  work  contemplated 
thereunder  by  said  defendant,  will  impair  the  usefulness  of 
said  canal,  and  will  injure  the  right  of  the  State  therein, 
and  will  unnecessarily  greatly  injure  existing  water  power 
rights  belonging  to  the  people  of  the  State  of  Illinois,  ap- 
purtenant and  belonging  to  said  canal,  and  under  the  charge, 
care  and  control  of  said  complainant. 

(Power  of  Canal  Commissioners.) 

Tenth:  The  court  further  finds  that  said  Sanitary  District 
had  power  under  its  organic  act,  and  the  Canal  Commis- 
sioners likeivise  had  poiver  under  said  act,  to  agree  as  to  the 
amount  of  compensation  that  should  be  paid  to  the  Canal 
Commissioners  for  the  benefit  of  the  People  of  the  State  of 
Illinois  for  any  property  that  might  be  necessarily  appro- 
priated by  the  Sanitary  District  for  the  objects  of  its  crea- 
tion; that  the  plan  of  the  Sanitary  District  for  the  utiliza- 
tion of  the  upper  and  lower  basins  of  the  Illinois  & Michigan 
Canal  in  the  City  of  Joliet,  as  finally  modified,  requires  the 
entering  upon  and  acquiring  a right  of  way  over  a portion 
of  Block  1 of  the  Canal  Trustees’  Subdivision  entitled  ‘North 
Joliet,’  hereinbefore  referred  to  and  for  the  erection  of  a 
temporary  crib  work  in  the  upper  basin  as  shown  by  the 
plan,  and  the  erection  therein  of  a permanent  masonry  wall 
extending  from  lock  No.  5 northward  in  the  upper  basin  to 
a distance  of  500  feet;  also  for  the  erection  of  a new  dam 
on  the  site  of  the  present  Dam  No.  1 to  a height  of  minus  46 
feet  below  Chicago  datum;  and  also  for  the  construction  of 
a crib  work  or  temporary  dam  through  the  lower  basin  of 
said  canal  from  Lock  No.  5 to  the  guardlock  at  the  head  of 
the  Chananhon  level;  and  also  for  the  permanent  closing  of 
the  inlet  to  the  Channahon  level  between  the  guardlock  and 


1690 


Consent  Deere e. — C o n tinu ed. 


Dam  No.  2;  and  also  for  the  building  of  a permanent  ma- 
sonry wall  extending  from  Lock  No.  5 to  a junction  with 
the  tow  path  of  the  canal,  on  the  easterly  side  thereof  near 
Jetferson  street  and  south  of  the  guardlock  so  as  in  effect 
to  extend  the  Channahon  level  from  its  present  terminus  as 
located  at  the  north  end  thereof,  northerly  through  the  pres- 
ent basin  to  Lot  No.  5;  for  the  excavation  of  said  lower  basin 
through  its  entire  extent  east  of  said  permanent  wall  to  a 
depth  of  minus  57  feet  below  Chicago  datum  at  Dam  No.  1, 
with  a fall  of  2 feet  in  each  thousand  feet  to  a point  in  the 
Desplaines  River  about  500  feet  north  of  McDonough  street 
bridge  in  the  City  of  Joliet,  which  bridge  is  near  to  the  cen- 
ter section  line,  east  and  west,  of  Section  16  in  said  Town 
of  Joliet;  and  for  the  entire  removal  of  said  Dam  No.  2;  that 
such  plans  for  such  temporary  crib  work  are  sufficient  and 
proper  for  the  work  sought  to  be  done;  that  the  plan  for 
the  wall  extending  northward  from  Lock  No.  5 and  southward 
from  Lock  No,  5 to  the  Channahon  level  is  sufficient  so  far 
as  construction  is  concerned;  that  the  necessities  of  the  case 
demand  the  removal  of  Dam  No.  2 as  contemplated  in  said 
plans,  and  also  demands  the  excavation  of  said  channel  in 
5506  the  lower  basin  from  Dam  No.  1 through  to  Dam  No.  2 and 
below  that  to  the  point  where  said  excavation  terminates 
about  500  feet  north  of  McDonough  street  bridge  in  the  bed 
of  the  Desplaines  River  to  the  depth  and  on  the  slope  as 
contemplated  by  said  plans,  and  as  herein  found,  and  that 
the  same  to  the  extent  as  herein  found  are  proper  and  nec- 
essary under  the  organic  act  of  said  District. 

(Ckest  of  Dam  No.  1.) 

Eleventh:  The  court  further  finds  that  the  crest  of  said 

Dam  No.  1 or  any  structure  to  be  erected  to  take  its  place, 
cannot  safely  he  placed  at  a less  height  than  the  crest  of  the 
existing  dam,  to-wit:  at  a height  of  42.4  feet  below  Chicago 
datum;  that  said  District  has  no  power  or  authority  to  in- 
jure or  destroy  evisting  water  power  rights,  and  that  the 
lowering  of  the  crest  of  said  Dam  No.  1 to  minus  46  feet 
below  Chicago  datum  as  contemplated  in  the  proposed  plans 
of  said  District  would  interfere  with  navigation  upon  the 
Illinois  & Michigan  Canal,  and  would  also  interfere  with 
existing  water  power  rights  of  the  State  of  Illinois  at  Dam 
No.  1;  and  that  said  proposed  plans  so  far  as  they  relate 
to . supplying  the  Channahon  level  are  insufficient  to  supply 
to  said  level  the  quantity  of  water  required  for  the  naviga- 
tion of  said  canal  below  said  guard  No.  5 and  at  the  same 
time  to  supply  water  now  and  heretofore  used  b^^  said  water 
powers  on  the  said  level  after  compensating  for  the  loss  to 
said  powers,  consequent  upon  the  loss  of  head  thereto  by 


1691. 

reason  of  the  increased  flow  of  water  in  the  Desplaines  Eiver 
below  Dam  No.  1. 

(Payment  of  $7630.00  to  Canal  Commissioneks  a Eeason- 
ABLE  Compensation.) 

Twelfth:  The  court  further  finds  that  on  the  tenth  day 

of  August,  1898,  said  defendant  paid  to  Howard  0.  Hilton, 
the  sum  of  $7,630.00,  as  compensation  for  so  much  of  Lots 
1,  2,  3,  4,  5 and  6,  Block  1,  in  North  Joliet  as  might  be  ap- 
propriated by  said  defendant  for  the  use  of  its  channel,  and 
as  compensation  for  the  property  of  the  State,  parcel  of  the 
said  Illinois  & Michigan  Canal  proposed  to  be  used  by  said 
defendant  in  and  through  the  lower  basin  of  said  canal,  and 
that  said  sum  of  $7,630.00  was  received  by  said  Howard  0. 
Hilton  as  a tender  by  said  defendant  of  such  compensation, 
that  such  sum  was  a reasonable,  just  and  proper  amount  to 
be  paid  by  said  defendant  to  said  complainant  for  the  pub- 
lic property  used  by  said  defendant,  that  said  Hilton  was 
at  said  time  Treasurer  of  the  Canal  Commissioners,  and  had 
power  and  authority  to  receive  said  money,  and  that  his  re- 
ceipt thereof  was  and  is  a payment  of  such  amount  to  said 
Canal  Commissioners  and  to  the  State  of  Illinois. 

And  the  court  finds  that  the  real  estate  for  ivhicli  said  pay- 
ment was  made  is  described  as  follows: 

All  that  part  and  portion  of  said  Bloch  one  (1)  in  North 
Joliet  aforesaid  which  lies  ivithin  the  boundary  lines  of  the 
proposed  channel  of  said  defendant  as  now  there  located, 
which  proposed  channel,  as  now  there  located  is  three  hun- 
dred feet  ivide,  and  the  centre  or  middle  line  thereof  is  lo- 
cated and  described  as  follows  that  is  to  say: — 

Beginning  at  the  point  of  intersection  of  the  east  line  of 
Section  Four  (4),  Township  Thirty-five  (35)  North,  Bange 
Ten  (10)  East  of  the  Third  Principal  Meridian,  and  a line 
parllel  to  the  westerly  reserve  line  of  the  Illinois  and  Michi- 
gan Canal,  said  parallel  line  being  four  hundred  and  seventy- 
five  (475)  feet  distant  from  said  westerly  reserve  line  meas- 
ured at  right  angles ; running  thence  southwesterly  along 
said  parallel  line  for  a distance  of  eight  hundred  and  sixteen 
and  twenty-nine  hundredths  (816.29)  feet  to  a point  of  curve; 
running  thence  on  a curve  to  the  left  of  said  curve  having 
a radius  of  fourteen  hundred  and  forty-nine  (1449)  feet  for 
a distance  of  ten  hundred  and  two  and  thirteen  hundredths 
(1,002.13)  feet  to  a point  of  reserve  curve;  running  thence 
on  a curve  to  the  right,  said  curve  having  a radius  of  six 
5507  hundred  and  twenty-eight  (628)  feet  for  a distance  of  four 
hundred  thirty- three  and  six  hundredths  (433.06)  feet  to  a 
point  of  tangent. 

Also  all  that  part  of  the  Southeast  Quarter  (S.-  E.  1/4) 


1692 


Consent  Decree. — Continued. 


of  Section  Nine  (9),  Township  Thirty-five  (35),  North,  Range 
Ten  (10)  East  of  the  Third  Principal  Meridian;  lying  west 
of  the  center  line  of  Joliet  street  produced,  east  of  the  Des- 
plaines  River  and  north  of  the  north  line  of  Reed  street  in 
the  City  of  Joliet. 

Also  that  part  of  Lot  Two  (2),  Block  Three  (3),  Old  Town 
of  Joliet  lying  east  of  the  east  wall  of  the  Illinois  and  Michi- 
gan Canal. 

Also  a certain  tract  of  land  in  the  Southeast  Quarter  (S. 
E.  1/4)  of  Section  Nine  (9),  Township  Thirty-five  (35) 
North,  Range  Ten  (10)  EasLof  the  Third  Principal  Meridian, 
north  of  Jefferson  street,  west  of  the  Desplaines  River  and 
east  of  a line  fifty-six  (56)  feet  distant  from  and  parallel  to 
the  center  line  of  the  Illinois  & Michigan  Canal,  said  center 
line  running  through  a point,  in  the  south  line  of  Block  six- 
teen (16)  West  Joliet  produced  one  hundred  and  seventy 
(170.0)  feet  distant  from  the  southwest  corner  of  said  Block 
and  forming  an  angle  of  ninety-five  (95)  degrees  and  fifty 
(50)  minutes  with  said  south  line,  measured  from  north  to 
west. 

Also  part  of  the  Southeast  Quarter  (S.  E.  1/4)  Section 
Nine  (9)  Township  Thirty- five  (35)  North,  Range  Ten  (10) 
East  of  the  Third  Principal  Meridian  described  as  follows: 

All  that  part  of  Blocks  three  (3)  and  eight  (8),  and  all 
that  part  of  Benton  street,  Desplaines  street  and  Webster 
street.  Old  Town  of  Joliet,  lying  west  of  the  east  wall  of  the 
Illinois  and  Michigan  Canal.  The  above  described  prop- 
erty being  situated  in  the  Townships  and  City  of  Joliet,  in 
the  County  of  Will  and  State  of  Illinois. 

And  the  court  further  finds  that  in  addition  to  compensa- 
tion for  the  use  of  the  real  estate  above  described,  the  said 
sum  of  $7,000.00  included  compensation  for  the  suspension 
for  one  year  for  the  use  of  existing  water  powers  leased  by 
said  complainant  on  the  Illinois  & Michigan  Canal  to  its 
tenants. 

Thirteenth:  That  on  the  15th  day  of  August,  1898,  an 

injunction  was  issued  hy  the  order  of  the  judge  of  this  court 
in  vacation  upon  the  original  bill  in  this  case,  enjoining  and 
restraining  said  defendant  and  the  agents,  servants,  attor- 
neys, solicitors,  officers,  employees  and  contractors  of  said 
defendant,  or  any  person  connected  directly  or  indirectly 
with  said  defendant  or  under  its  control  or  supervision,  from 
in  any  manner  taking  possession  of  or  interfering  with  the 
possession  of  the  Canal  Commissioners  in  and  to  Lots  one 
(1),  two  (2),  three  (3),  four  (4),  five  (5)  and  six  (6),  in 
Block  One  (1)  in  North  Joliet,  in  Section  Nine  (9),  Town- 
ship Thirty-five  North,  Range  Ten  (10)  East  of  the  Third 
Principal  Meridian  and  lying  west  of  the  upper  basin  of  the 
Illinois  and  Michigan  Canal,  and  from  in  any  manner  tak- 


1693 


ing  possession  of  or  interfering  with  the  possession  of  the 
Canal  Commissioners  in  and  to  a tract  of  land  situate  in  the 
City  of  Joliet  in  Will  County,  State  of  Illinois,  located  north 
of  Jetferson  street  in  said  City  of  Joliet,  and  lying  between 
the  lower  basin  of  the  Illinois  and  Michigan  Canal  and  the 
guard  lock  and  level  of  the  said  canal  running  south  from 
said  guard  lock,  and  from  in  any  manner  taking  possession 
of  or  interfering  with  the  possession  of  the  Canal  Commis- 
sioners in  or  to  any  of  the  lands,  beds,  banks,  basins,  dams, 
locks  or  any  property  pertaining  to  the  said  Illinois  and 
Michigan  Canal  belonging  to  the  State  of  Illinois  and  under 
5508  the  charge  of  the  Canal  Commissioners,  and  from  remov- 
ing any  dam,  or  building  any  structure  upon  or  excavating 
any  part  or  portion  of  any  Ijasin  or  channel  of  the  Illinois 
and  Michigan  Canal,  and  from  in  any  way  interfering  with 
the  Canal  Commissioners  in  the  exclusive  control,  manage- 
ment, operation  or  use,  of  said  Illinois  and  Michigan  Canal, 
its  bed,  basin,  locks,  dams,  banks,  or  any  other  property, 
real  or  personal,  appertaining  or  belonging  to  said  canal. 

Fourteen:  The  court  further  finds  that  the  plans  and  spe- 
cifications submitted  by  the  defendant  to  the  complainant,  on 
June  20th,  1898,  are  adequate  and  sufficient  for  the  works 
proposed  by  them,  and  are  in  compliance  with  the  contract 
of  March  Ilth,  1898,  but  are  not  in  compliance  with  the  re- 
quirements of  the  statute  providing  for  the  crossing  of  the 
Illinois  & Michigan  Canal,  contemplated  by  such  plans. 

Fifteenth:  And  the  court  further  finds  that  it  has  juris- 

diction of  the  persons  of  the  parties,  complainant  and  de- 
fendant herein,  and  of  the  subject  matter  of  this  suit,  and 
that  the  complainant  is  equitably  entitled  to  relief  under  the 
pleadings  and  proofs  herein. 

It  is  therefore  ordered,  adjudged  and  decreed  by  the  court, 

First.  That  the  contract  or  paper  ivriting  of  March  11th, 
1898,  a copy  whereof  is  attached  to  the  original  bill  herein, 
and  which  purports  to  have  been  executed  by  the  complain- 
ant and  the  defendant,  to  the  extent  herein  found,  is  in  ex- 
cess of  the  poiver  of  either  the  complainant  or  defendant  to 
execute,  and  to  the  extent  so  found  is  of  no  binding  force  or 
effect,  but  in  other  respects  is  authorized,  valid  and  binding. 

Second.  That  said  complainant  and  defendant  have  the 
right  to  agree  as  to  the  amount  of  compensation  to  be  paid 
and  received  for  the  use  of  any  property  of  the  People  of 
the  State  of  Illinois,  parcel  of  the  Illinois  & Michigan  Canal, 
and  that  the  sum  of  $7,000.00  for  the  appropriation  by  said 
defendant  and  the  use  of  said  lots  fronting  on  Jetferson 
street,  and  in  the  east  side  of  the  lower  basins  of  said  Canal, 
and  for  suspending  for  one  year  the  use  of  existing  water 
power,  leased  by  said  complainants,  all  the  property  of  the 
state,  and  the  further  sum  of  $630.00  for  so  much  of  the  lots 


1694 


Consent  Decree. — Continued. 


in  Block  1 in  North  Joliet,  as  said  defendant  proposes  to 
take  and  appropriate  hereinbefore  described,  are  just  and 
adequate  compensation  for  such  property y so  proposed  to  be 
taken,  and  water  power  so  temporarily  suspended  by  said 
Sanitary  District,  and  belonging  to  the  State  for  the  use  of 
an  outlet  to  its  main  channel,  and  that  the  sum  of  $7,630.00 
paid  to  Howard  0.  Hilton  on  the  lOtb  day  of  AugTist,  1898, 
was  a sufficient  payment  for  the  use  of  such  lands  and  lots 
and  ioroiDerty,  and  temporary  deprivation  of  said  complain- 
ant of  the  rental  of  water  power  and  was  made  to  the  proper 
person  by  said  defendant. 

Third.  That  said  defendant  he,  and  it  is  hereby  perpetu- 
ally enjoined  and  restrained  from  in  any  manner  directly 
or  indirectly  injuring  or  destroying  the  existing  ivater  power 
rights  of  the  State  of  Illinois  at  Dam  No.  1 aforesaid,  and 
that  it  be  and  is  hereby  perpetually  enjoiend  and  restrained 
from  proceeding  to  erect  any  dam  or  structure  in  place  of 
jlam  No.  1,  which  shall  not  have  a permanent  crest  at  a 
height  equal  to  the  permanent  crest  of  Dam  No.  1 at  the  date 
hereof,  to-wit:  42.4  feet  below  Chicago  datum;  that  it  be 

enjoined  and  restrained  from  in  any  manner  decreasing  the 
head  of  water  for  poiuer  and  navigation  purposes  now  ex- 
isting in  the  Channahon  level  of  the  said  Illinois  & Michi- 
gan Canal  and  herein  found  to  be  under  ordinary  and  usual 
5509  conditions  about  13  feet,  without  compensating  therefor  by 
an  increased  flow  of  water  into  said  level,  equivalent  to  said 
loss  of  head;  that  it  he  enjoined  and  restrained  from  inter- 
fering with  the  water  power  at  Dam  No.  2 and  with  Dam 
No.  2,  except  upon  condition  that  it  do  furnish  and  supply 
proper  and  necessary  facilities  for  the  development  of  a 
power  equal  to  that  existing  at  said  Dam  No.  2 at  some  other 
place,  and  that  it  be  enjoined  and  restrained  from  building 
any  structures  providing  for  an  inlet  of  water  into  the  Chan- 
nalion  level  of  the  canal,  except  upon  conditions  that  the 
structures  he  sufficient  to  preserve  navigation  on  the  Illi- 
nois & Michigan  Canal,  and  the  use  of  the  water  therefor 
as  now  used  and  provided  for, -including  a flow  of  water  to 
supply  the  lower  levels  of  said  canal  from  said  Channahon 
level,  and  unless  it  also  provides  in  addition  to  such  flow,  as 
may  he  required  for  navigation,  such  an  amount  of  water 
for  use  on  said  Chananhon  level  for  power  purposes  as  shall 
conform  to  the  finds  and  requirements  herein  as  to  same; 
and  that  such  perpetual  injunction  shall  extend  to  and  be 
operative  as  against  said  defendant  the  Sanitary  District 
of  Chicago  and  any  and  all  persons,  firms  or  corporations, 
acting  or  pretending  to  act  by  any  authority  of  said  defend- 
ant, whether  such  authority  be  direct  or  indirect. 

Fourth.  It  is  further  ordered,  adjudged  and  decreed  by 
the  court,  that  .laid  defendant  he  enjoined  and  restrianed 


1695 


from  in  any  manner  entering  into  the  lower  hasin  of  said 
Illinois  & Michigan  Canal,  or  appropriating  the  same  or  any 
part  thereof  to  its  uses,  except  on  condition  that  it  do  ex- 
cavate to  a width  sufficient  to  carry  the  flotv  of  its  channel, 
and  to  a depth  at  Dam  No.  1 of  not  less  than  57  feet  below 
Chicago  datnm,  and  continue  such  excavation  to  such  depth 
of  57  feet  below  Chicago  datum  with  such  additional  depth, 
through  the  said  lower  basin  and  to  a point  not  less  than 
500  feet  north  of  McDonough  street  bridge,  situate  near  the 
center  east  and  west  line  of  Section  16,  Town  35,  North, 
Eange  10,  East  of  the  Third  Principal  Meridian,  as  will  be 
created  by  a slope  of  such  channel  of  two  feet  in  each  thou- 
sand feet  in  length  southerly  from  Dam  No.  1,  said  slope 
commencing  at  said  Dam  No.  1,  and  at  a depth  of  57  feet 
below  'Chicago  datum. 

Fifth.  It  is  further  ordered,  adjudged  and  decreed,  that 
a perpetual  injunction  issue  out  of  and  under  the  seal  of 
this  court  commanding  and  enjoining  said  defendant,  its 
agents,  servants,  contractors,  employees,  attorneys,  solicitors 
and  all  other  persons  claiming  to  act  under  or  by  authority 
from  defendant  in  any  way,  directly  or  indirectly,  as  is  above 
stated,  and  that  the  temporary  injunction  heretofore  issued 
in  this  cause,  by  order  of  one  of  the  judges  in  this  court  in 
vacation,  be  and  the  same  is  hereby  modified,  so  that  the 
same  shall  be  enforced  and  applicable  to  the  extent  speci- 
fied in  this  decree,  adjudging  a permanent  injunction  as 
against  said  defendant  and  no  farther. 

It  is  further  ordered  that  the  defendant,  the  Sanitary  Dis- 
trict of  Chicago,  pay  its  costs  made  in  this  case  to  be  taxed 
by  the  clerk  of  this  court. 

And  now  on  this  3"  day  of  November  before  the  settling  of 
the  terms  of  this  decree  and  the  signing  of  the  same,  the  defend- 
ant, by  its  solicitors,  here  presents  to  the  court  its  petition  for 
a rehearing  in  this  case,  together  with  the  affidavit  of  Thomas  T. 
Johnston  in  support  of  the  same,  and  here  now  moves  the  court 
for  a rehearing  of  this  case.  And  the  court  having  heard  argu- 
ments and  being  fully  advised  in  the  premises  doth  override 
said  petition  and  motion  for  a rehearing,  and  denies  said 
5510  rehearing.  To  which  ruling  of  said  court  in  denying  a re- 
hearing of  said  case  said  defendant  by  its  solicitors  then  and 
there  excepted. 

And  the  defendant  here  notv  in  open  court  prays  an  appeal 
to  the  Supreme  Court  of  Illinois,  which  appeal  is  granted  with- 
out bond.  And  the  defendant  is  hereby  given  and  granted  sixty 


1696 


Consent  Decree. — Continued. 


days  from  and  after  this  date  within  which  to  present  its  cer- 
tificate of  evidence  herein. 

(To  which  order  and  decree  of  said  court,  except  that  part 
thereof  overruling  said  petition,  for  a rehearing,  the  said 
complainant  also  now  here  excepts  and  prays  an  appeal  to 
the  Supreme  Court  of  the  State  of  Illinois,  without  bonds; 
which  is  granted  by  the  court,  and  leave  is  given  to  said 
complainant  to  present  and  file  a certificate  of  evidence  here- 
in, the  same  to  be  presented  within  sixty  days,  from  this 
date.) 

5511  Beaxch  Court  of  the  Will  County  Circuit  Court 
Of  the  September  Term,  A.  D.  1898. 

Thursday,  November  3rd,  1898. 

Court  opened  by  proclamation  of  sheriff. 

Present : — • 

Hon.  Eobert  W.  Hilscher,  Judge, 

Prank  Vander  Bogart,  Clerk, 

John  Francis,  Sheriff, 

and  William  I).  Heise,  State’s  Attorney. 

Attest : — 

Frank  Vander  Bogart, 

Clerk. 


The  Canal  Commissioners 

17312.  -i;- 

The  Sanitary  District  of  Chicago 

And  now  on  this  3"  day  of  November  before  the  settling  of  the 
terms  of  this  decree  and  the  signing  of  the  same,  the  defendant, 
by  its  solicitors,  here  presents  to  the  court  its  petition  for  a re- 
hearing in  this  case,  together  with  the  affiadvit  of  Thomas  T. 
Johnston  in  support  of  the  same,  and  here  now  moves  the  court 
for  a rehearing  of  this  case.  And  the  court  having  heard  argu- 
ments and  being  fully  advised  in  the  premises  doth  overrule 
said  petition  and  motion  for  a rehearing,  and  denies  said  re- 
hearing. 

(To  which  ruling  of  said  court  in  denying  a rehearing  of 
said  case  said  defendant  by  its  solicitors  then  and  there  ex- 
cepted.) 

And  the  defendant  here  now  in  open  court  prays  an  appeal  to 


I Bill  for  Injunction. 


1697 


the  Supreme  Court  of  Illinois,  which  appeal  is  granted  without 
bond.  And  the  defendant  is  hereby  given  and  granted  sixty  days 
from  and  after  this  date  within  which  to  present  its  certificate 
of  evidence  herein. 

(To  which  order  and  decree  of  said  court,  except  that  part 
thereof  overruling  said  petition,  for  a rehearing,  the  said 
complainant  also  now  here  excepts  and  prays  an  appeal  to 
the  Supreme  Court  of  the  State  of  Illinois,  without  bonds ; 
which  is  granted  by  the  court,  and  leave  is  given  to  said  com- 
plainant to  present  and  file  a certificate  of  evidence  herein, 
the  same  to  be  presnted  within  sixty  days,  from  this  date.) 

5512  Counsel  for  Complainant.  Now,  if  your  Honor  please 
when  very  rapidly  they  were  giving  the  testimony  of  Mr. 

Munroe,  he  testified  thus: 

When  did  you  first  become  identified  with  this  project 
to  build  a dam  on  the  Desplaines  Kiver  somewhere  in  the 
neighborhood  of  the  Illinois!  A.  In  the  spring  of  1904. 

Q.  Had  you  any  connection  at  that  time  of  any  nature 
with  the  Economy  Light  & Power  Company!  A.  No,  sir. 

Q.  What  was  the  first  time  you  had  any  negotiations  with 
the  Economy  Light  & Power  Company  in  reference  to  this 
project!  A.  In  May,  the  latter  part  of  April  or  the  first 
week  in  April,  1906. 

Q.  In  the  meantime,  you  had  acquired  flowage  rights  or 
ownership  to  a large  proportion  of  this  property  shown  on 
Woermann’s  Exhibits  1 and  2,  had  you  not!  A.  I had  ac- 
quired title  to  all  the  property,  tracts  for  title — ’’  I sup- 
pose that  means  contracts,  it  is  written  tracts  here — 

‘‘Contracts  for  title  to  all  of  the  property  shown  in  colors 
on  those  two  exhibits  and  had  made  all  financial  arrange- 
ments for  constructing  the  power  house  and  dam  at  the  mouth 
of  the  Desplaines  Elver.” 

5513  Later  your  Honor  held  that  they  would  have  to  produce  a 
deed,  and  they  offered  a sheet  of  blank  paper  as  the  deed 

with  the  understanding  that  they  might  bring  it  in  later.  Now, 
if  your  Honor  please,  with  reference  to  that,  I ask  this:  is  it 
admitted  or  understood  or  stipulated  that  the  title  to  the  prop- 
erty in  Sections  25,  34,  8 and  Section  36,  34,  8,  being  the  title  to 
the  property  at  the  site  of  the  dam,  was  acquired  by  the  Economy 
Light  & Power  Company  at  this  same  time,  November  30, 
1906. 

5520  Thereupon  it  was  admitted  by  the  defendant  that  the  de- 
fendant acquired  title  to  the  property  on  each  side  of  the 


1698 


river  at  tlie  site  of  the  dam  in  Sections  25  and  36  respectively, 
both  in  Township  34  North,  Eange  8,  hy  deed  from  Harold  T.  Gris- 
wold on  Xovemher  30th,  1906,  and  that  said  Griswold  acquired  title 
to  said  property  on  each  side  of  the  river  as  trustee  for  Mr. 
Charles  A.  Munroe  and  Mr.  Frank  G.  Logan,  and  that  the  said  Mr. 
Griswold  referred  to  first  began  to  acquire  interest  by  means  of 
contract  in  the  spring  of  1904,  which  afterwards  ripened  into  title. 
Some  titles  were  taken  in  Mr.  Munroe ’s  name  directly,  but  what- 
ever was  taken  in  Mr.  Munroe ’s  name  or  whatever  was  taken  in 
Mr.  Griswold’s  name  were  all  conveyed  finally  to  the  Economy 
Light  & Power  Company  by  said  deed  on  November  30,  1906. 

Thereupon  counsel  for  complainant  read  supplemental  extracts 
from  Government  reports  introduced  by  counsel  for  defendant  as 
follows : 

The  report  of  1867  of  General  James  A.  Wilson  on  page  6, 
paragraph  4,  as  follows : 

5522  ‘‘There  is  no  doubt  that  dredging  along,  or,  at  most,  dredg- 
ing and  a feeder  from  the  lake,  can  be  made  to  answer 
every  j^urpose  in  the  improvement  of  the  Illinois  River,  if 
it  is  to  be  considered  as  independent  navigation  of  no  other 
than  local  importance;  but  it  must  be  remembered  that  this 
river  is  not  the  exclusive  property  of  those  living  on  its 
banks.  It  forms  already  an  important  link  in  a network 
of  river  navigation,  extending,  with  its  various  branches, 
through  seventeen  states  of  the  Union,  and  is  destined  at 
no  distant  day  to  become  the  great  commercial  highway  be- 
tween the  productive  states  of  the  west  and  northwest  and 
markets  of  the  world.” 

And  paragraph  3 on  page  8 of  the  same  report  : 

“It  is  quite  evident,  from  what  is  already  known,  that 
steamboat  navigation  can  be  more  cheaply  provided  between  ■ 
Lockport  and  LaSalle  by  following  the  line  of  the  river  than 
by  enlarging  the  canal.” 

And  in  the  same  report  appended  is  the  report  of  Assistant  S. 

T.  A belt  from  which  some  extracts  were  read,  and  to  which  I de- 
sire this  extract  also  to  be  added.  Page  28,  paragraph  6,  and  page 
29,  paragraphs  2,  3 and  6: 

5523  “The  sources  of  the  river  being  in  a lower  latitude  than 
any  of  its  rivals,  this  advantage  increases  as  the  river  ad- 
vances in  its  course,  and,  as  a consequence,  less  obstruction 
to  navigation,  and  less  damage  to  works  of  improvement  may 

be  anticiiiated  from  the  length  of  the  winter  and  the  breaking  ' 
up  of  ice  in  the  spring.” 


1699 


Page  29,  paragraph  2 : 

more  important  advantage  belongs  to  tlie  Valley  of  the 
Illinois ; upon  it  alone  is  a navigation  practicable  for  the  larg- 
est steamers,  by  the  completion  of  which  a union  will  be  ef- 
fected with  the  best  navigable  conditions  of  the  western 
rivers,  possessing  an  aggregate  length  in  their  main  channels 
12,000  miles,  exceeding  in  their  collateral  channels  and  tribu- 
taries 39,000  miles,  and  draining  an  area  of  911,000  square 
miles,  with  90,000  square  miles  of  lake  surface,  bearing  a com- 
merce of  413,000  tons  burden.” 

Paragraph  3 : 

^‘It  possesses  another  advantage,  almost  exclusively  its 
own.  The  two  most  opulent  cities  of  the  west  are  found  at  its 
terminii.” 

Paragraph  6 : 

‘‘The  real  importance  of  this  improvement  can  only  be  es- 
timated by  regarding  it  as  completing  a system  of  water  com- 
munication between  the  east  and  the  west,  of  which  the  Os- 

5524  wego  and  Erie  Canals,  constitute  essential  parts.” 

Then  from  the  report  of  1883,  the  survey  of  Major  W.  H.  H. 
Benyaurd,  reported  in  the  report  of  the  Chief  of  Engineers, 

5525  1884,  part  3,  appendix  H.  H.  on  page  1959,  paragraphs  2 
and  3 : 

“As  stated  in  my  premilinary  report  under  date  of  Sep- 
tember 2,  1882,  I had  intended  instituting  a comparison  be- 
tween the  cost  of  enlarging  the  Illinois  and  Michigan  Canal 
between  Joliet  and  La  Salle,  and  that  of  improving  the  rivers 
between  the  same  points;  but  as  the  survey  of  the  latter  was 
not  at  that  time  authorized,  I merely  confined  my  report  on 
the  Illinois  & Michigan  Canal  to  the  cost  of  enlargement 
throughout  its  entire  length,  and  without  making  any  change 
to  the  river  route.  The  additional  cost  of  the  river  route  in 
the  first  instance  would  be  offset  by  the  lesser  amount  that 
would  be  required  for  maintenance,  repairs,  and  so  forth,  as 
the  long  line  of  canal,  with  its  aqueducts,  feeders,  weirs,  and 
so  forth  would  be  a constant  source  of  expense.  The  river 
route  has  also  the  advantage,  when  it  is  considered  that  we 
have  navigation  on  a stream  600  feet  wide  instead  of  the  nar-' 
row  channel  of  the  canal. 

Looking  at  the  matter  in  an  engineering  point  of  view,  it 
is  difficult  to  understand  what  led  originally  to  the  construc- 
tion of  the  canal,  rather  than  the  improvement  of  the  natural 
channel  of  the  river.  Should  the  Illinois  and  Michigan  Canal 
be  accepted  by  the  Government,  and  its  enlargement  under- 

5526  taken,  that  part  between  Joliet  and  La  Salle  would  be  aban- 
doned and  the  river  route  between  these  points_,  adopted.” 


1700 


Benyaurd  Rep. — Eng.  Rep.  1883. — Continued. 


On  the  preceding  page,  paragraph  4: 

‘‘The  rivers  have  an  average  width  of  about  600  feet,  with 
banks  from  8 to  23  feet  in  height  above  low  water,  so  that 
within  ordinary  stages  the  stream  flows  within  fixed  banks.” 

Then  the  report  of  the  Comstock  Board  in  1886,  report  of  the 
Chief  of  Engineers  for  the  year  1887,  part  3,  appendix  2,  W.  C. 
Endicott,  Secretary  of  War,  page  2125,  last  paragraph: 

“The  report  of  the  Board  of  Engineers  shows  that  to  en- 
large the  canal  between  Joliet  and  La  Salle,  and  provide  for 
an  increased  navigation,  equal  to  that  contemplated  by  the 
improvements  in  progress  on  the  Illinois  Eiver,  between  La 
Salle  and  its  junction  with  the  Mississippi,  would  require  an 
expenditure  of  money  greater  than  the  cost  of  improving  the 
river  itself  between  Joliet  and  La  Salle.  If  such  is  the  case, 
the  river  route  should  be  improved  as  recommended. 

The  conclusion,  therefore,  would  seem  to  be  clear  that  the 
United  States  should  not  be  bound  to  enlarge  the  existing 
canal  between  La  Salle  and  Joliet,  if  the  improvement  of  the 
Illinois  Eiver  between  those  places  will  furnish  a cheaper 
mode  of  communication,  nor  to  maintain  any  portion  of  the 
canal,  the  abandonment  of  which  may  become  necessary  or  de- 
5527  sirable  in  the  future.” 

And  appended  thereto  the  report  of  the  Chief  of  Engi- 
neers, C.  Duane,  page  2127,  paragraph  2: 

“With  reference  to  the  conditions  in  this  act  of  cession  re- 
garding the  enlargement  of  the  canal,  I would  remark  that 
the  locks  and  dams  that  have  been  and  are  to  be,  built  by  the 
United  States  below  La  Salle,  have  been  projected  with  a view 
to  a steamboat  navigation  of  the  first  class,  and  the  project 
looks  to  a continuation  of  navigation  upon  the  same  scale 
between  La  Salle  and  Joliet,  and  since  a cost  of  an  enlarge- 
ment of  the  canal  between  these  points  would  it  appears,  be 
greater  than  that  of  the  improvement  of  the  river  itself,  a 
river  route  between  these  points  should  be  adopted.” 

In  the  same  volume,  the  report  of  the  Board  of  Engineers  on  this 
subject,  page  2129,  paragraph  3: 

“The  waterway  from  Chicago  to  Grafton,  on  the  Missis- 
sippi Eiver,  is  a most  important  one;  and  when  completed 
there  is  little  doubt  that  it  will  richly  pay  for  itself  in  the 
reduction  and  regulation  of  freights.” 

And  then  in  House  Document  No.  263,  published  in  1905,  the 
passage  on  pages  8 and  9 immediately  preceding  the  paragraph 
read  by  the  defense, 

“Present  improvements:  The  total  distance  from  Lake 


1701 


Michigan  to  Grafton  and  the  mouth  of  the  Illinois  is  327.28 
5528  miles.  Beginning  in  Chicago  River,  6 miles  from  the  lake, 
the  Illinois  and  Michigan  Canal  extends  to  La  Salle,  near  the 
head  of  navigation  on  the  Illinois,  a distance  of  96.7  miles. 
This  canal  has  lost  its  traffic  to  such  an  extent  that  it  has 
ceased  to  produce  a revenue,  and  is  falling  into  decay,  which 
bids  fair  to  soon  become  total.  It  is  barely  navigable  for 
vessels  drawing  41  feet.  For  certain  purposes  it  has  been  re- 
placed as  far  as  Lockport  by  the  Chicago  Drainage  Canal,  as 
will  appear  further  on.  Below  LaSalle  the  Illinois  River  has 
been  improved  by  the  State  of  Illinois,  with  lock  and  dams  at 
Henry  and  Copperas  creeks,  covering  a distance  of  87.7  miles, 
over  which  the  State  charges  tolls.  The  remaining  136.8  miles 
to  Grafton  has  been  improved  by  the  United  States  with  locks 
and  dams  at  Lagrange  and  Kampsville.  The  project  under 
which  the  work  of  the  State  and  of  the  United  States  was 
done  in  the  Illinois  River  contemplates  a depth  of  7 feet,  the 
locks  being  350  feet  by  75  feet.  Much  dredging  remains  to  be 
done  to  complete  this  project  in  the  Illinois  River.  It  was  in- 
tended to  extend  these  dimensions  of  waterway  to  Lake  Michi- 
gan to  replace  the  obsolete  canal,  but  when  the  State  of  Illi- 
nois decided  to  authorize  the  Chicago  Drainage  Canal  it  aban- 
doned the  project  for  a 7-foot  navigation  and  directed  the 
removal  of  its  dams  in  the  Illinois  River,  at  the  same  time 
demanding  that  the  dams  constructed  by  the  United  States 
be  removed.  It  declared  in  favor  of  a channel  to  be  con- 
structed by  the  United  States  not  less^  than  14  feet  deep  from 
the  end  of  the  Drainage  Canal  at  Lockport  to  LaSalle,  Ho  be 
designed  in  such  manner  as  to  permit  future  development  to 
a greater  capacity.’  (See  joint  resolutions  adopted  May  28, 
1889,  and  May  27,  1897,  copies  hereto  appended.  Appendixes 
B and  C.) 

None  of  the  dams  have  as  yet  been  removed,  but  by  joint 
resolution  approved  April  21,  1904,  Congress  authorized  the 
Sanitary  District  of  Chicago,  at  its  own  expense,  to  lower  the 
Government  dams,  and  on  the  23rd  of  May,  1904,  permission 
was  granted  by  the  Secretary  of  War  to  that  body  to  lower 
the  dams  2 feet,  upon  condition  that  it  install  such  movable 
crests  as  should  enable  the  dams  to  be  maintained  at  their 
present  height  during  low  water  and  upon  the  further  condi- 
tion that  it  hold  the  United  States  harmless  from  any  claims 
for  damages  which  might  result  from  the  operation  of  these 
movable  crests.” 

That'  is  ending  on  page  9 immediately  preceding  the  heading 
^‘Chicago  Drainage  Canal.”  And  on  page  12,  the  first  paragraph 
immediately  preceding  what  was  read  on  the  other  side;  ^‘The 
introduction  of  dams  in  the  portion  of  the  route  where  dams  will 


1702  Report  1905, — House  Doc.  263. — Continued. 

be  required.”  To  secure  the  prescribed  depth  as  a tendency  to  fur- 
ther increase  the  overflow.  To  keep  this  at  a minimum  it  is  pro- 
posd  to  make  the  dams  of  the  movable  type,  which  shall  have  no 
effect  upon  the  water  service  at  low  and  medium  stages. 

Then  one  paragraph  on  page  16:  ‘^As  already  stated  the  pro- 
posed dams  are  to  be  of  the  movable  type.”  For  the  purpose  of 
estimates  the  Channoine  wicket  type  is  adopted  without  service 
bridge  and  without  regulating  bear  traps.  The  entire  width  of  the 
river  is  closed  by  a continuous  line  of  Channoine  wickets'.  The 
details  are  shown  upon  the  accompanying  drawings. 

5529  And  on  page  45,  and  running  over  on  the  top  of  page 
46  is  a description  of  the  operation  of  the  Chanonine  Dam.  It 
seems  to  me  that  that  was  all  read. 

Thereupon  counsel  for  defendant  objected  to  the  introduction 
of  said  extracts  from  said  engineer’s  reports  on  the  ground  that 
they  were  presented  too  late. 

After  some  colloquy  between  counsel,  particularly  in  reference 
to  the  Wilson  report,  the  report  of  the  Comstock  Board  and  the 
report  of  the  Chief  Engineer  Duane,  the  court  thereupon 
5535  ruled  that  the  last  extract  from  the  report  of  the  United 
States  for  1905,  which  had  been  used  by  the  defendants,  be 
5538  admitted  in  evidence,  and  the  balance  of  extracts  be  ex- 
cluded. 

Thereupon  counsel  for  complainant  offered  certain  passages 
from  the  canal  report  of  1900. 

5541  Counsel  for  defendant,  suggesting  that  the  entire  book  be 
admitted  in  evidence,  the  court  ordered  that  the  entire  book 

should  go  in.  (App.  II,  page  3907 ; Trans.,  p.  6337 ; Abst.,  p.  1855.) 

Counsel  for  defendant  then  read  in  evidence  part  of  Appendix 
X from  the  report  of  Major  MacKenzie,  part  III,  1886,  following 
immediately  after  the  report  of  E.  E.  Lee,  from  which  counsel 
for  complainant  read  beginning  on  page  1438,  also  on  page 

5542  1440,  1441,  1442,  to  page  1528,  also  from  the  annual  report 
of  the  Chief  of  Engineers  of  the  Army,  part  II,  1882,  Ap- 

5543  pendix  X,  beginning  on  page  1895,  also  on  page  1899. 


1703 


5544  Survey  of  Lieutenant  G.  K.  Warren. 

Page  1438. 

In  1853,  under  direction  of  Lieut.  Col.  S.  H.  Long,  a survey* 
of  the  Rock  Island  Rapids  was  made  by  Lieutenant  Warren, 
the  report  of  which  was  transmitted  to  the  House  of  Rep- 
resentatives May  20,  1854. 

From  Lieutenant  Warren’s  report  we  gather  the  following: 

‘‘Louisville,  Ky.,  April  6,  1854. 

Sir: 

Having  completed  the  drawings  of  the  rapids  of  the  Missis- 
sippi, constructed  from  surveys  made  by  order  of  Lieut.  Col. 
S.  H.  Long,  I have  the  honor  to  submit  this  report  on  the 
subject.  The  instructions  required  such  surveys  at  the  lower 
rapids  (Des  Moines),  and  at  the  upper  rapids  (Rock  River), 
as  were  necessary  to  determine  the  best  and  most  economical 
route  along  the  bed  of  the  river  for  forming  a continuous 
navigable  channel,  200  feet  wide  and  4 feet  deep  at  the  lowest 
stages.  It  is  hardly  necessary  to  state  that  this  required  an 
entirely  new  survey,  the  maps  made  in  1837  by  Lieutenant 
Lee  being  on  too  small  a scale  to  exhibit  the  character  and 
extent  of  the  channels  and  their  obstructions.  The  time  was 

5545  too  limited  with  the  means  at  hand  for  a thorough  survey  of 
the  river-bed,  and  it  wms  determined,  after  a careful  examina- 
tion and  consultation  with  some  of  the  ablest  pilots,  to  con- 
fine the  more  accurate  survey  to  the  vicinity  of  the  channel 
now  navigated.  This  channel  is  undoubtedly  the  most  prac- 
ticable one  for  improvement. 

^ ^ ^ # 

Upper  Rapids. — These,  beginning  at  half  a mile  above  the 
lower  end  of  Rock  Island,  extend  13  miles  up  the  river.  The 
principal  reefs  are  known  as  Lower  Chain  (at  foot  of  rapids). 
Rock  Island  Chain  (2  miles  from  foot).  Duck  Creek  Chain  (4^ 
miles  from  foot),  Campbell’s  Chain  (74  miles  from  foot).  Saint 
Louis  Chain  (10  miles  from  foot) ; Sycamore  Chain  (12  miles 
from  foot),  and  Upper  Chain.  Unobstructed  spaces  inter- 
vene between  these  chains,  the  greatest  being  2 miles,  between 
Campbell’s  and  Saint  Louis  Chains. 

Much  of  the  rock  is  a very  friable  limestone,  and  when 
quarried  breaks  up  in  the  smallest  pieces.  A very  soft  yellow 
sandstone  is  also  common  and  a little  slate.  Large  granite 
boulders  are  found  in  many  places. 

Owing  to  the  softness  of  the  rocks  composing  the  reefs, 
they  have  been  much  more  worn  away  and  dislocated  by  the 
ice  and  currents  than  at  the  lower  rapids,  and  do  not  form 
as  great  an  obstruction.  Small  steamboats  drawing  24  feet, 
of  water  pass  them  at  the  lowest  stages  towing  their  barges. 
The  navigation,  however,  is  attended  with  great  risk,  and 


1704  Rock  I si.  Rapids,  Warren  Rep.— Eng.  Rep.  1886. — Con. 

every  year  that  has  low  water  sees  several  steamboats  sunk 

5546  and  other  seriously  injured. 

Duck  Creek  and  Campbell’s  chains  are  particularly  danger- 
ous. The  current  is  moderate  at  both  (about  3 *miles  per 
hour),  but  the  boat  to  avoid  the  prominent  rocks  is  required 
to  make  such  sudden  turns  as  cannot  often  be  performed, 
especially  bv  steam-wheel  boats. 

These  two  chains  claim  the  earliest  attention.  Sycamore 
and  Upper  chains  should  have  the  next.  Rock  Island  chain 
is  a continuous  flat  reef  across  the  riverbed,  with  a low-water 
depth  of  24  feet.  To  make  4 feet  a cut  through  it  600  feet 
long  will  be  required.  The  water  was  raised  here  about  10 
inches  by  building  the  dams  connecting  the  islands  with  the 
Illinois  shore.  The  width  of  the  river  was  thus  considerably 
reduced.  In  the  narrowest  part  if  is  but  400  yards  wide.  The 
average  width  of  the  rapids  is  about  half  a mile.  * * * 

The  chutes  behind  Campbell’s  and  Fulton’s  Islands  are  not 
navigable,  and  could  not  be  made  so  as  easily  as  the  channel 
now  used.  But  slight  benefit  would  result  from  closing  them. 
The  only  method  of  improving  the  upper  rapids  is  to  remove 
the  rocks  that  now  obstruct  the  channel  and  close  some  of  the 
side  chutes  whose  tendency  is  to  produce  cross-currents.  The 
following  tables  show  the  amount  of  rock  to  be  removed  to 
make  the  present  channel  4 feet  deep. 

5547  Davenport,  Iowa,  December  20,  1866. 
Sir : 

In  obedience  to  your  orders  of  the  5th  of  October,  1866, 
* ^ I have  the  honor  to  submit  the  following  report, 

with  the  accompanying  drawings: 

I left  Keokuk,  Iowa,  on  the  6th  of  October,  1866,  arriving 
at  Davenport,  Iowa,  the  next  day,  and  immediately  com- 
menced organizing  my  parties,  and  ia  order  that  the  work 
might  be  pushed  forward  with  the  greatest  dispatch  consist- 
ent with  the  importance  of  the  work,  and  inasmuch  as  the 
season  for  work  would  be  of  short  duration,  I put  into  the 
field  all  the  force  that  could  work  to  advantage. 

The  hydrographic  party  was  placed  under  the  immediate 
charge  of  Mr.  J.  E.  Abbott,  civil  engineer.  Their  work  in- 
cluded all  that  related  to  the  topography  of  the  bed  of  the 
river,  and  other  information  concerning  the  flow  of  the  water 
over  the  rapids. 

A large  party  was  placed  under  the  charge  of  Mr.  W.  D. 
Clark,  civil  engineer,  with  a view  of  making  an  accurate  sur- 
vev  of  the  valley  on  both  sides  of  the  river,  showing  the 
meandering  of  the  shores  and  gathering  all  other  information 
necessarv  for  the  investigation  of  the  several  projects  for 
the  improvement  of  the  navigation  on  the  upper  rapids.  Lines 

5548  of  levels  were  run  on  both  shores  from  a point  about  4 miles 


1705 


below  Eock  Island  to  a point  about  4 miles  above  LeClaire; 
perpendicular  offsets  connecting  with  the  main  line  at  vari- 
ous distances  from  50  to  500  feet  apart,  according  to  the 
changes  in  the  general  feature  of  the  shore,  were  run. 

As  the  time  allowed  us  would  not  warrant  an  entire  re- 
survey of  the  bed  of  the  river,  and  moreover,  as  Greneral  War- 
ren’s map,  wherever  tested,  proved  to  be  sufficiently  accur- 
ate, I caused  Mr.  Abbott’s  party  to  restrict  themselves  at  first 
more  particularly  to  a thorough  examination  of  the  bottom 
on  the  chains,  in  order  to  get  the  most  accurate  possible  data 
for  estimating  the  amount  of  rock  excavation  necessary  to 
make  a channel  of  200  feet  width  and  4 feet  depth  in  low 
water.  A favorable  season  has,  however,  enabled  us  to  accom- 
plish more  hydrographic  work  than  could  reasonably  have 
been  anticipated. 

The  upper  or  Eock  Island  Eapids  begin  at  a point  near  the 
lower  end  of  Eock  Island,  and  extend  14.26  miles  up  the  river 
to  a point  near  the  lower  end  of  the  town  of  LeClaire.  The 
bed  of  the  river  throughout  this  entire  distance  consists  of 
a hard  surface  of  limestone  rock,  worn  in  many  places  into 
deep  furrows  by  the  long  continued  action  of  the  water  and 
the  material  washed  along  the  bottom.  This  rock  crops  out 

5549  along  the  shores,  and  is  generally  found  stratified  in  thin 
layers.  The  lower  strata  in  the  bed  of  the  river  appear  t(> 
be  harder,  and  of  different  thicknesses — from  4 inches  to  2 
feet  and  upward.  There  are  also  a number  of  large,  erratic 
boulders  of  granite  to  be  met  with,  but  these,  as  a general 
thing,  do  not  prevent  serious  obstructions,  but  in  some  cases 
as  at  Campbell’s  Chain,  they  rather  serve  as  guide  marks 
for  pilots,  who  would  protest  against  their  removal  on  that 
account,  unless  replaced  by  other  equally  permanent  marks. 

The  only  difficulty  in  the  way  of  navigating  the  rapids  con- 
sists in  passing  over  the  chains,  of  which  there  are  seven,  viz. : 
the  upper  or  Smith’s  Chain,  Sycamore,  Saint  Louis,  Camp- 
bell’s, Duck  Creek,  Moline  and  lower  chains.  At  these  places 
the  rocky  bed  of  the  river  projects  out  from  each  shore  like 
a bar,  the  projecting  points  sometimes  overlapping  each 
other,  leaving  only  a narrow,  tortuous  channel  between  them, 
and  in  some  instances  extending  like  a dam  or  rocky  bar  en- 
tirely across  the  river.  Between  the  chains,  throughout  almost 
the  entire  distance,  is  a wide  and  navigable  channel,  with 
plenty  of  water  for  boats  that  navigate  the  upper  Mississippi 
and  at  such  places  the  velocity  of  the  current  is  much  less 
than  on  the  chains. 

Between  the  head  and  foot  of  the  rapids,  a distance  of  a 
little  more  than  14  miles,  nearly  eleven  miles,  are  good  navi- 
gation in  the  lowest  stages,  the  obstructed  portion  covering  a 

5550  distance  of  only  more  than  3 miles.  * * * 

The  steamboat  channel,  beginning  at  the  head  of  the  rapids. 


1706  Rock  I si.  Rapids,  Warren  Rep. — Eng.  Rep.  1886. — Con. 

runs  in  close  to  the  Iowa  shore,  with  plenty  of  water  till  it 
strikes  the  upper  chain,  generally  called  by  pilots  Smith’s 
Chain;  here  the  channel  is  narrow,  crooked  and  the  current 
swift,  having  a velocity  of  more  than  3 miles  an  hour.  A large 
reef  or  rocky  bar,  known  as  Asprey  Patch,  stands  in  the 
middle  of  what  would  otherwise  be  a wide  channel.  This 
chain  is  not  considered,  however,  as  difficult  or  dangerous  as 
most  of  the  others. 

Passing  Smith’s  Chain,  the  channel  inclines  gradually  to- 
wards the  Illinois  shore,  until  it  comes  to  Sycamore  Chain, 
which  is  conceded  to  be  the  most  difficult  place  to  pass  on 
the  whole  rapids.  Here  the  rocky  ledges  project  out  from 
each  shore,  leaving  between  them  only  a narrow  and  crooked 
waterway.  The  current  being  swift  and  the  turns  short,  boats 
in  passing  are  exposed  to  strong  cross-currents,  which  tend  to 
sweep  them  on  the  lower  ledge;  besides,  in  one  of  the  sharp 
bends  a deep  pocket  has  been  cut,  and  a large  amount  of 
water  runs  through  it,  which,  by  its  action,  tends  to  draw 
boats  into  it,  where  they  sometimes  become  fastened,  and  to 
extricate  them  involves  a loss  of  much  time,  and  is  a labor 
of  great  difficulty. 

The  difficulties  at  Sycamore  Chain  are  not  the  result  of  a 
want  of  sufficient  depth  of  water,  for  there  is  a good  depth 

5551  in  the  channel,  but  they  rise  from  its  narrowness  and  crook- 
edness, together  with  the  strong  cross-current  that  sweeps 
over  it. 

After  passing  Sycamore  Chain,  the  channel  runs  close  to  the 
Illinois  shore,  passing  inside  of  Crab  Island,  where  it  be- 
comes very  narrow,  and  then  inclines  toward  the  Iowa  shore 
until,  at  Saint  Louis  rocks  it  reaches  a point  about  mid-way 
between  the  Illinois  shore  and  Fulton’s  Island.  Passing  the 
Saint  Louis  rocks,  it  again  inclines  toward  the  Illinois  shore 
until  it  reaches  Saint  Louis  Chain,  where  the  channel  becomes 
narrow  again,  but  boats  that  pass  the  chains  above  or  below 
this  seldom  experience  great  difficulty  here.  Below  this  chain 
the  channel  oi:>ens  up  gradually  into  a stretch  of  3 miles,  per- 
fectly navigable  at  all  times.  In  front  of  Hampton  the  cur- 
rent becomes  quite  sluggish. 

Opposite  the  head  of  Campbell’s  Island  the  channel  crosses 
’Campbell’s  Chain,  which  is  not  only  crooked  and  exposed  to 
cross-currents,  but  the  rocky  ledge  extends  entirely  across 
the  river.  In  the  channel  pursued  by  steamboats  across  this 
chain  the  water  is  not  much  deeper  than  on  either  side  of  it. 
The  slough  behind  Campbell’s  Island  is  not  used  for  navi- 
gation. 

After  passing  Campbell’s  Chain,  with  the  exception  of  the 

5552  rocks  near  Winnebago  Island,  which  are  somewhat  of  an 
obstruction,  the  channel  is  wide  and  easily  navigated  until 
it  comes  to  Duck  Creek  Chain,  nearly  3 miles  below.  Here  it 


1707 


is  crooked  and  narrow,  so  nmcli  so  as  frequently  to  necessi- 
tate the  use  of  anchors  at  low  water  for  the  purpose  of  work- 
ing boats  through.  This  is  another  difficult  chain  to  pass 
through. 

Below  Duck  Creek  the  channel  widens  out  again,  giving 
good  navigation,  with  the  exception  of  one  narrow  place  for 
about  2 miles,  when  it  comes  to  Moline  Chain.  Here  again 
the  ledge  of  rock  extends  entirely  across  the  river,  and  forms 
in  low  water  an  impassable  barrier  to  boats,  drawing  more 
than  30  inches.  The  water  passes  over  this  chain  at  a mean 
surface  velocity  of  3.878  feet  per  second  at  low  water,  and 
a maximum  velocity  of  5.0545  feet  per  second,  as  determined 
by  actual  observation  with  floats. 

The  dams  of  Moline  and  Benham’s  Island  cut  oft  a large 
body  of  water  that  would  otherwise  flow  out  of  the  main 
channel,  and  the  universal  testimony  of  the  pilots  estab- 
lishes the  fact  that  they  have  raised  the  water  on  this  chain 
some  ten  inches.  It  is  generally  conceded  that  the  naviga- 
tion has  been  materially  benefited  in  low  water,  but  the  in- 
creased volume  of  water  has  no  doubt  increased  the  velocity 
of  the  current,  also.  During  the  low  stages,  however,  when 
the  velocity  of  the  current  is  less  than  at  high  water,  this 

5553  increase  is  of  little  account  in  comparison  with  the  ad- 
vantages of  getting  the  increased  depth. 

From  Moline  Chain  the  channel  widens  out  again,  becomes 
deep,  inclining  towards  the  Iowa  shore,  and  is  perfectly 
navigable  for  the  largest  boats  on  the  upper  Mississippi  un- 
til it  comes  to  the  lower  chain.  The  channel  here  is  very 
crooked,  but  the  current  is  not  so  swift  as  on  some  of  the 
other  chains,  and  consequently  not  so  difficult  to  pass.  This 
chain  is  about  half  a mile  above  the  Chicago  and  Rock  Island 
Railroad  bridge,  and  no  more  natural  obstructions  present 
themselves  below  this  point  in  the  ordinary  low  stages.  * * 

The  average  length  of  the  boating  season  is  about  260 
days.  During  the  winter,  as  a matter  of  course,  navigation 
is  closed  by  the  ice. 

When  the  river  is  opened  to  navigation,  about  one-third 
of  the  whole  time  is  rendered  dangerous  by  the  shoalness  of 
the  water  on  the  rapids,  and  sometimes  impassable  for  boats 
drawing  more  than  2 feet.  In  the  year  1864  the  water  was 
lower  than  has  been  known  before  in  many  years,  attaining 
its  lowest  point  September  2. 

From  the  record  of  the  stages  of  water  kept  at  the  Chi- 
cago & Rock  Island  railroad  bridge,  it  is  found  that  the 
greatest  range  between  high  and  low  water  during  the  last 

5554  7 years  is  15  feet  9-1/2  inches,  being  the  high  water  of  1862 
and  the  low  water  of  1864,  the  mean  range  during  the  same 
period  being  less  than  12  feet. 

The  range  between  the  highest  floods  and  the  lowest  water 


1708  Rock  Isl.  Rapids,  Warren  Rep. — Eng.  Rep.  1886. — Con. 

at  other  points  along  the  rapids,  from  the  best  authority  that 
could  he  obtained,  are  at  Valley  City,  opposite  Hampton,  13 
feet  8 inches,  and  at  LeClaire  12  feet,  which,  if  correct,  shows 
a diminution  of  only  3 feet,  9 inches,  in  the  fall  at  high  water 
as  compared  with  that  at  low. 

The  average  width  of  the  river  on  the  rapids  is  about  1/2 
mile.  At  LeClaire  it  is  only  1,500  feet  in  one  place,  but 
widens  out  above  and  below.  Below  the  rapids  the  river  is 
wider  than  on  them,  as  may  be  seen  from  the  map.  A line 
of  levels,  from  the  head  to  the  foot  of  the  rapids,  shows  a 
fall  of  21.46  feet  in  a distance  of  about  14  miles,  or  an  aver- 
age fall  of  1.53  feet  per  mile  in  low  water. 

The  greatest  fall  is  on  Moline  and  Sycamore  chains. 

The  area  of  a cross-section  at  the  head  of  the  rapids, 
where  the  river  is  only  1,650  feet  wide,  is  30,220  square  feet; 
at  a point  near  Sycamore  chain,  12,408  square  feet;  at  Mo- 
line Chain,  6,829  square  feet. 

Careful  experiments  were  made  on  the  velocity  of  the  cur- 
rent in  order  to  determine  the  amount  of  discharge  over  the 
rapids  in  ordinary  low  water.  For  this  purpose  the  stations 

5555  were  taken  and  a number  of  velocities  between  them  at  dif- 
ferent distances  from  the  shore  determined  by  floats ; a mean 
of  these  was  taken  as  the  surface  velocity. 

The  mean  area  of  the  two  cross-sections  at  the  stations 
was  taken  as  the  area  of  the  cross-section,  and  by  applying 
this  to  D’Aubisson’s  formula  for  the  approximate  discharge 
of  a river,  it  was  found  to  be  36,456  cubic  feet  per  second. 
The  approximate  discharge  behind  CampbelFs  Island  was 
also  determined  in  the  same  manner,  and  was  found  to  be 
10,726  cubic  feet  per  second. 

^Vith  the  exception  of  the  places  where  the  bluffs  approach 
close  to  the  river  the  banks  are  usuafly  steep  and  rocky.  * * * 

5556  The  question  is  often  asked  by  men  who  have  navigated 

this  river  during  many  years,  and  was  once  asked  me  by  a 
very  distinguished  engineer,  why  I should  be  in  such  a haste 
to  get  6 feet  of  water  in  this  canal  at  low  stage,  when  the 
radical  improvement  of  the  river  is  so  far  from  being  com- 
plete. There  are  two  reasons  for  this : The  first  is  that  tlie 

falls  of  the  Ohio  are  the  worst  obstructions  on  the  whole 
river.  The  works,  to  give  the  navigation  the  relief  which 
it  deserves  here,  should  be  of  a permanent  character,  and 
will  cost  a great  deal  of  money.  The  normal  depth  fixed  for 
the  improved  Ohio  Biver  near  this  obstruction  is  6 feet  at 
low-water.  The  works  here  should  therefore  be  arranged 
for  such  a depth  on  general  principles.  The  second  reason 
is  of  more  present  importance  than  the  first.  Everyone  who 
has  any  knowledge  of  this  river  knows  that  if  there  were  no 
more  water  in  the  canal  at  the  lowest  stage  than  on  the  bars 
above  and  below  it,  it  would  fail  just  when  every  inch  of 


1709 


water  is  needed  in  it,  that  is,  when  the  river  has  risen,  4,  5, 
or  6 feet  above  the  lowest  stage.  As  the  river  rises  the 
surface  of  water  in  the  canal  rises  equally  with  the  surface 
of  the  river  at  the  head  of  the  falls.  Now,  when  the  river 
rises  above  the  lowest-water  stage  and  begins  to  be  used  by 
navigation,  there  is  a rise  of  more  than  1-1/2  feet  on  all  the 

5557  bars  above  and  below  for  every  single  foot  rise  at  the  crest 
of  the  falls  and  in  the  water  surface  of  the  canal. 

If  the  depth  of  water  in  the  canal  at  the  lowest  stage  were 
therefore  left  at  3 feet,  when  there  would  be  7,  8 or  9 feet 
in  it  due  to  a rise,  there  would  be  9,  10-1/2  and  i2  feet,  re- 
spectively, over  the  bad  bars  above  and  below.  There  would 
then  be  a deficiency  in  the  depth  of  the  canal  of  2,  2-1/2  and 
3 feet,  respectively.  But  in  determining  the  available  depth 
of  water  through  the  canal,  we  should  always  allow  at  least 
1 foot  for  mud  to  prevent  delay.  So  that  the  real  deficiency 
in  the  depth  of  the  canal  at  these  stages  in  comparison  with 
what  it  should  be  would  be  3,  3-1/2  and  4 feet,  respectively, 
at  such  times.  Now,  the  deeper  boats  can  load  at  these  stages 
the  better  it  pays  them.  To  keep  them  a less  de]Ah  than  6 feet 
in  the  canal  at  the  extreme  low  stage  of  the  river  would  be 
a great  injury  to  commerce,  and  ])articularly  from  now  until 
the  whole  river  is  improved. 

5558  The  Ohio  River  Basin,  according  to  some  bulletins  relat- 
ing to  the  census  of  1880,  which  I have  been  able  to  see,  still 
maintains  its  supremacy  over  any  other  of  the  portions  of 
the  great  Mississippi  Basin.  It  still  yields  enormous  quan- 
tities of  iron,  steel,  coal,  petroleum,  wheat,  corn,  oats,  salt 
and  tobacco,  and  its  numerous  manufacturing  interests  are 
on  a steady  and  healthy  increase. 

The  total  internal-revenue  collections  for  the  fiscal  year 
which  ended  June  30,  1881,  were  over  $135,000,000.  Of  this 
amount  over  $87,500,000  were  collected  in  the  eight  states 
which,  wholly  or  in  part,  lie  in  this  basin. 

No  toll  has  ever  jbeen  paid  on  the  Des  Moines  and  Rock 
Island  Rapids  in  the  Upper  Mississippi,  and  Congress  has 
appropriated  $5,955,350  to  improve  them,  against  $2,600,000 
expended  here. 

In  order  to  improve  the  navigation  to  Lake  Superior,  the 
Government  in  1852  gave  the  State  of  Michigan  750,000  acres 
of  land  and  the  right  of  wav  to  build  a canal  around  the 
falls  of  Saint  Mary’s  River,  and  has  appropriated  $2,616,000 
since  for  its  enlargement  and  the  improvement  of  the  river. 

As  the  work  now  stands,  it  is  inadequate  to  serve  the  inter- 
ests of  the  commerce  of  the  Ohio  River,  and  it  will  become 
more  and  more  so  each  year  until  the  additional  works  sug- 
gested by  me  are  completed.” 


1710  Rock  Isl.  Rapids,  McKenzie  Rep. — Eng.  Rep.  1880. — Con. 

5559  ‘ ‘ Special.  Report. 

United  States  Engineer  Office, 

Rock  Island^  Ile.,  March  15,  1880. 

General  : 

I have  the  honor  to  acknowledge  the  receipt  of  a letter 
^ from  your  office,  dated  March  9,  1880,  containing  a resolu- 
tion of  the  House  of  Representatives  calling  for  certain 
maps  and  reports  in  reference  to  a proposed  widening  of 
the  Rock  Island  Rapids. 

The  accompanying  map  (Atlas,  p.  3923;  Trans.,  p.  6723,  a 
copy  of  which  map  is  shown  in  abstract,  p.  1939),  which  shows 
the  present  200-foot  channel  and  the  work  required  for  in- 
creasing this  width  to  100  feet,  was  prepared  last  winter,  but 
as  yet  no  reports  on  the  subject  have  been  made.  I would 
therefore  submit  the  following: 

The  Rock  Island  or  Upper  Rapids  of  the  Mississippi  River 
extend  from  Le  Claire,  Iowa,  to  Rock  Island,  111.,  a distance 
of  11  miles.  The  river  over  this  reach  consists  of  a succes- 
sion of  deep  pools  separated  by  chains  of  rocks,  through 
which  the  water,  in  the  course  of  centuries,  has  cut  irregu- 
lar channels. 

The  fall  from  the  head  to  the  foot  of  the  rapids  is  about 
20  feet,  giving  a velocity  of  current  of  from  2 to  10  feet 
per  second  at  the  shoal  places. 

Previous  to  improvement  the  rapids  could  not  be  passed 

5560  by  the  larger  class  of  steamboats  at  a 2-foot  stage,  and  at 
medium  stages  boats  drawing  from  3 to  1 feet  could  only 
pass  on  calm  days  and  by  using  extreme  caution. 

Congress  caused  a survey  and  report  on  the  improvement 
of  the  rapids  to  be  made  in  1866. 

In  1867  the  work  of  excavation  was  commenced,  in  ac- 
cordance with  the  approved  plan,  which  was  to  give  a chan- 
nel over  the  chains  200  feet  in  width,  with  a depth  of  1 feet 
below  low- water  of  1861.  From  1867  to  1879,  inclusive,  $1,- 
150,650  were  appropriated,  for  which  sum  about  90,000  cubic 
yards  have  been  removed,  virtually  completing  the  above 
mentioned  plan. 

The  work  already  accomplished  has  greatly  benefited  navi- 
gation, but  still  certain  difficulties  are  met  with. 

1.  The  channel  is  so  crooked  that  it  is  not  practicable 
in  its  present  condition  to  provide  a system  of  lights,  and 
the  navigation  of  the  rapids  is  suspended  during  the  night. 

2.  The  width  of  200  feet  is  not  sufficient  to  admit  of  2 
boats  with  barges  passing  each  other,  so  that  either  the  as- 
cending or  descending  boat  must  wait  in  one  of  the  deep  pools 
until  the  other  has  passed  through  a cut. 

3.  A fresh  breeze,  acting  against  the  very  long  and  high 
Mississippi  steamers,  endangers,  and  a strong  wind  pro- 
hibits, navigation  through  the  narrow  channels. 


1711 


5561  4.  A large  steamer  ascending  tlie  rapids  through  the  com- 
paratively narrow  200-foot  channels  draws  down  the  water 
to  such  an  extent  as  to  materially  reduce  the  depth  in  the 
cuts,  so  that  a 4-foot  channel  is  not  really  available  at  all 
parts  of  the  rapids  during  a low-water  stage  of  the  river. 

The  most  available  plan  that  can  be  suggested  for  over- 
coming these  difficulties  is,  as  shown  on  the  accompanying 
map,  to  widen  the  present  cuts,  giving  a new  channel  400 
feet  in  width.  By  this  widening,  the  second  and  third  diffi- 
culties would  be  done  away  with,  the  fourth  would  be  greatly 
reduced,  and  by  so  straightening  the  channel  as  to  obtain 
long  reaches,  lights  could  be  established  which  would  over- 
come the  first  difficulty. 

To  increase  the  width  of  the  channel  to  400  feet,  giving  a 
depth  of  4 1/2  feet  below  low-water,  which  will  insure  a 
grade  as  low  as  that  of  the  present  cut,  will  require  the  re- 
moval of  299,811  cubic  yards  of  rock,  and  will  cost  approxi- 
mately $1,258,866. 

Boats  drawing  five  feet  can  pass  through  the  lies  Moines 
Rapids  Canal  during  extreme  low-water. 

If  it  is  deemed  advisable  to  give  the  same  available  depth 
and  a perfectly  safe  channel  over  the  Rock  Island  Rapids, 
the  cuts  should  be  made  400  feet  wide,  and  excavated  to  a 
depth  of  at  least  6 feet  below  low-water  of  1864.  This  would 
require  the  removal  of  581,835  cubic  yards  of  rock,  which 
would  cost  approximately  $3,491,010. 

5562  I have  estimated  the  cost  of  removing  rock  at  $6  per  cubic 
yard,  which  would  be  sufficient,  provided  an  appropriation 
was  large  enough  to  justify  the  building  of  coffer-dams  and 
a systematic  method  of  working. 

The  plans  present  could  undoubtedly  be  so  modified  dur- 
ing the  progress  of  the  work  as  to  require  cutting  on  but 
one  side  of  the  channel,  where  it  is  now  supposed  to  require 
cutting  on  both  sides ; such  changes,  when  practicable,  will 
reduce  the  estimated  cost. 

The  interests  of  navigation  of  course  require  that  in  time 
all  the  proposed  work  shall  be  done,  but  as  the  obstructions 
at  the  Rock  Island  Rapids  are  made  up  of  a succession  of 
shoals,  the  improvement  of  each  may  be  considered  as  sep- 
arate, complete  within  itself,  and  benefiting  navigation  just 
so  much. 

The  only  point  in  connection  with  the  proposed  widening 
of  the  channel  which  has  not  yet  been  considered  is  the  effect 
which  the  straightening  and  improving  of  present  channel 
would  have  on  the  depth  of  the  water  and  the  rapidity  of  the 
current. 

5563  Whereupon  counsel  for  the  defendant  produced  a copy 
of  the  original  deed  of  trust,  and  asked  that  the  same  might 


1712 


be  substituted  in  the  record  in  place  of  the  original,  which  was 
previously  admitted  in  evidence. 

Said  document  was  marked  Defendant’s  Exhibit  1,  June  20, 
1908,  and  received^in  evidence.  (App.  II,  p.  3906;  Trans.,  p.  6301; 
Abst.,  p.  1854.) 


J.  A.  Lindex, 

a witness  for  defendant,  being  recalled,  testified  as  follows: 

Direct  Examination. 

I stated  that  the  Fullerton’s  Third  Addition  to  Chicago  was 
located  chiefly  in  the  northeast  quarter  of  the  northeast  quar- 
ter of  Section  31,  Township  40,  Eange  14.  It  also  extends  into 
the  northwest  quarter  of  the  northeast  quarter  of  the  section, 
so  as  to  reach  the  river.  It  does  not  extend  into  any  other  por- 
tions of  Section  31  than  the  northeast  and  northwest  quarters 
of  the  northeast  quarter. 

5564  Q.  Then  it  lies  entirely  in  the  north  half  of  the  north- 
east quarter  of  Section  31,  does  it?  A.  Yes,  sir;  situated 

within  the  boundaries  of  the  northeast  quarter  of  the  section. 

Counsel  for  defendant  then  substituted  for  the  three  plats 
introduced  here  the  other  day,  certified  copies. 

Said  plats  were  thereupon  admitted  in  evidence,  objection  of 
complainant  to  same  being  overruled,  and  marked  ^^Defendant’s 
Canal  Trustees’  Sub-Plats  1,  2 and  3,”  respectively  (Atlas  pp. 
3990,  3991  and  3992;  Trans.,  pp.  6707-12-18;  Abst.,  p.  1937.) 

5565  Thereupon  counsel  for  defendant  read  in  evidence  the  fol- 
lowing stipulations : 


1713 


State  of  Illinois, 
County  of  Grundy. 


I 


ss. 


In  the  Circuit  Court  of  Grundy  County. 


The  People,  ex  rel.  Charles  S.  De- 
neen,  Governor,  and  William  H. 
Stead,  Attorney  General, 

Complainants, 

vs. 

Economy  Light  and  Power  Company, 
a corporation. 

Defendant. 


In  Chancery. 
fNo.  1526. 


✓ 


STIPULATION. 

Whereas,  Judge  Stough,  who  heard  the  motion  for  pre- 
liminary injunction  in  the  above  entitled  cause,  has  by  con- 
sent of  the  parties  thereto  invited  Julian  W.  Mack,  Judge 
of  the  Circuit  Court  of  Cook  County,  Illinois,  to  act  as  judge 
of  the  Circuit  Court  of  Grundy  County,  for  the  purpose  of 
presiding  as  judge  at  the  final  hearing  of  this  cause,  and 
Judge  Mack  has  accepted  such  invitation; 

5566  Now,  therefore,  it  is  stipulated  that  the  defendant  shall 
have  until  Monday,  the  30th  day  of  March,  1908,  to  file  its 
answer  in  the  said  cause,  and  that  the  complainant  shall 
have  fifteen  days  thereafter  within  wdiich  to  file  its  replica- 
tion to  such  answer,  or  otherwise  plead  or  proceed  in  respect 
to  the  pleadings  herein. 

Executed  in  duplicate,  this  23rd  day  of  March,  1908. 

Wm.  H.  Stead, 
Walter  Peeves, 
Merritt  Starr. 

Solicitors  for  Complainants. 
IsHAM,  Lincoln  & Beu^le 
Frank  H.  Scott, 

Per  G.  E.  P. 

Solicitors  for  Defendant. 


1714 


State  of  Illinois^ 
Geundy  County. 


i 


ss. 


In  the  Ciecuit  Couet  of  Geundy^  County. 


In  Chancery. 


The  People  of  the  State  of  Illinois, 
etc., 
vs. 

The  Economy  Light  and  Power  Com- 
pany. 


Bill  for  Injunction. 
No.  1526. 


5567 


STIPULATION. 


It  is  stipulated  by  and  between  the  parties  to  the  above 
entitled  cause,  by  their  counsel  respectively,  that  in  the  no- 
tices for  the  taking  of  depositions  on  behalf  of  the  complain- 
ant or  defendant,  it  shall  not  be  necessary  to  insert  the  names 
of  witnesses,  and  that  depositions  may  be  taken  of  witnesses 
not  named  in  such  notices  with  the  same  force  and  effect  as 
if  the  names  had  been  therein  inserted. 

And  it  As  further  stipulated  that,  where  depositions  are 
taken  before  a notary  public,  they  may  be  taken  in  short- 
hand and  afterwards  typewritten  under  the  direction  of  the 
notary  public  and  presented  without  the  signature  of  wit- 
nesses, the  signatures  and  final  or  subscribing  oaths  thereto 
being  waived. 

Dated  this  third  day  of  Februarv,  A.  D.  1908. 

W.  H.  Stead 
Waltee  Beeves 
Meeeitt  Staee 

Solicitors  for  Complainant. 
IsHAM,  Lincoln  & Beale 

Solicitors  for  Defendant. 


1715 


State  of  Illinois,  [ 

Grundy  County.  \ ^ 

In  the  Circuit  Court  Thereof. 
March  Term  A.  I).  1908. 


5568  The  People  of  the  State  of  Illinois, 
ex  rel.  Charles  S.  Deneen,  Gover- 
nor, and  W.  H.  Stead,  Attorney 
General, 

vs. 

. Economy  Light  & Power  Company, 


>In  Chancery. 


It  is  especially  stipulated  and  agreed  by  and  between  the 
parties  to  the  above  entitled  cause  that  in  case  either  party  to 
this  cause  shall  desire  to  offer  in  evidence,  upon  any  hearing 
ing  in  this  cause,  either  upon  the  merits  of  the  cause  or  on  any 
motion  made  therein,  all  or  any  part  or  ]>arts  of  any  printed 
document,  or  report  purporting  to  he  a public  document,  and 
to  have  been  pubiished  under  the  authority  of  the  United 
States  Government  or  of  any  of  its  departments  or  officials, 
proof  of  the  authenticity  of  said  document  or  documents 
need  not  be  made,  such  proof  being  hereby  waived,  but  the 
parts  thereof  offered  shall  be  subject  to  all  other  objections. 
February  25,  1908. 

Walter  Peeves, 

Solicitor  for  the  Complainant. 

IsHAM,  Lincoln  & Beale 

Solicitor  for  the  Defendant. 


State  of  Illinois,  } 

f V Ss 

Grundy  County.  i 


In  the  Circuit  Court  of  Grundy  County. 


5569  The  People  ex  rel,  Charles  S.  De-  ^ 
neen.  Governor,  and  W.  H.  Stead,  1 
Attorney  General,  j 

Complainants,  I 
vs. 

Economy  Light  and  Power  Com- 
pany, a corporation. 

Defendant.  J 


In  Chancerv. 
No.  1526. 


STIPULATION. 

It  is  stipulated  and  agreed  by  and  between  the  solicitors 
for  the  parties  to  the  above  entitled  cause,  that  in  case  either 


1716 


S tipulation. — Con  tin  ned. 


party  to  said  cause  shall  desire  to  offer  in  evidence,  upon 
any  hearing  thereof,  all  or  any  part,  or  parts,  of  any  printed 
document  purporting  to  he  a public  document,  or  purport- 
ing to  have  been  published  by  or  under  authority  of  the 
State  of  Illinois,  or  any  of  its  departments  or  officials,  or 
by  or  under  authority  of  commissioners  or  trustees  of  the 
Illinois  and  Michigan  Canal,  or  Sanitary  District  of  Chi- 
cago or  purporting  to  contain  reports  or  other  communica- 
tions by  legislative  committees,  or  by  any  of  the  officials  of 
said  State,  or  by  engineers  or  surveyors  to  any  such  officials, 
proof  of  the  authenticity  of  such  document,  or  of  any  re- 
ports, proceedings  or  communications  therein  set  forth,  need 
not  be  made,  such  proof  being  hereby  waived,  but  the  parts 
offered  shall  be  subject  to  all  objections  other  than  objec- 
tions based  upon  the  absence  of  such  proof. 

It  is  further  stipulated  that  in  case  either  of  the  parties 
to  said  cause  shall  desire  to  offer  in  evidence,  upon  any  hear- 
ing thereof,  all  or  any  part,  or  parts,  of  any  printed  book 
or  volume  purporting  to  contain  narratives  of  explorations 
or  travels  prior  to  1848,  or  any  printed  book  or  document 
purporting  to  contain  historical,  scientific  or  geographical 
facts  or  matter  relating  to  the  territory  northwest  of  the 
Ohio,  Indiana  Territory,  Illinois  Territory  or  State,  the  Illi- 
nois Eiver,  the  Desplaines  Eiver  and  its  use  or  non-use,  its 
character,  condition  and  physical  attributes  in  the  early  days 

5570  prior  to  1848,  or  to  the  history  or  development  of  the  sci- 
ence or  business  of  navigation,  or  engineering  questions  re- 
lated thereto,  proof  that  such  book  or  volume  was  in  fact 
written  by  its  purported  author,  and  in  fact  printed  and  pub- 
lished at  the  time  it  purports  to  have  been  printed  and  pub- 
lished, need  not  be  made,  such  proof  being  hereby  waived, 
but  the  part,  or  parts,  of  such  volume  offered  in  evidence 
shall  be  subject  to  all  objections  other  than  objections  based 
upon  the  absence  of  s;qch  proof. 

Dated  March  28,  1908. 

Wm.  H.  Stead 
Walter  Eeeves 
Merritt  Starr 

Solicitors  for  Complainant. 
IsHAM,  Lincoln  & Beale, 

Solicitors  for  Defendant. 

Whereupon  the  argument  of  counsel  was  begun.  During  the 
said  argument  counsel  for  complainant  called  attention  to  the 
testimony  in  said  cause  at  page  2473  of  record  (Trans.,  p.  3772), 
at  which  point  the  following  occurs : 

5571  ‘^Counsel  for  Complainant.  I suppose  it  is  understood 
with  regard  to  each  and  all  of  these  documents  that  what  is 


1717 


put  in  are  short  extracts,  and  upon  examination  if  we  desire 
to  supplement  what  is  offered  by  other  passages— 

The  Court.  Yes. 

Counsel,  for  Complainant.  And  that  they  are  made  part 
of  the  defendant’s  offer. 

Counsel  for  Defendant.  Certainly  wherever  they  are 
germane  to  the  offer,  that  has  been  ruled. 

The  Court.  That  has  been  understood,  Mr.  Starr.” 

(See  supra,  Trans.,  p.  5525;  Abst.,  p.  1699.) 

And  offered  in  evidence  from  the  Benyaurd  report  of  1884, 
Part  3,  which  had  been  offered  just  before  the  close  of  the  testi- 
mony by  counsel  for  com]ilainant,  which  was  then  admitted  in  evi- 
dence. 

Whereupon  the  argument  in  said  cause  was  continued,  during 
which  argument  the  following  occurred: 

5572  Counsel  for  Complainant.  I am  compelled  to  leave  a 
great  portion  of  what  I wanted  to  say  unsaid.  I do  not 
see  how,  your  Honor,  I can  take  and  rehearse  the  testimony  of 
navigators  on  the  two  sides  of  this  case,  your  Honor.  The  testi- 
mony of  Mr.  Tibbals,  who  for  many  years  was  the  Government 
inspector  of  steamboats  on  the  upper  Mississippi,  and  the  pilot 
on  these  upper  rapids  for  more  than  fifty  years.  I venture  to 
say  that,  in  the  purely  professional  occupation  of  a pilot,  he 
stands  absolutely  at  the  head. 

The  Court.  Is  he  the  man  that  conceded  that  himself? 

Counsel  for  Complainant.  Xo;  I will  tell  you  who  that 
w^as.  That  was  the  man  from  St.  Louis,  President  of  the 
Benevolent  Association,  and  as  a pilot  he  had  few  equals  and 
no  superiors.  We  didn’t  produce  that  witness. 

Here  is  Mr.  Tibbals,  wdio  says  that  he  navigated  the  Missis- 
sippi from  1855  to  the  present  time,  and  has  carried  on  suc- 
cessful navigation  on  the  Mississippi  on  14  inches  of  water; 
that  the  current  on  the  Bock  Island  Eapids  on  the  Mississippi 
is  from  six  to  nine  miles  an  hour;  he  described  a number  of 
boats  running  up  the  Chippewa  and  Minnesota,  and  other 
branches  of  the  Mississippi  Eiver.  * * * 

Here  is  Captain  Bing.  He  came  here  from  Cincinnati. 
Asked  to  state  the  relative  high  and  low  water  marks  of  the 
Ohio,  he  had  seen  high  floods  there  when  it  was  71  feet  at 
Cincinnati,  and  on  the  other  hand  he  said  have  seen  the 
river  as  low  as  12  to  14  inches  between  Pomeroy  and  Iron, 
ton.  There  are  several  shoal  places  there  that  go  down  to 
about  12  inches.”  (Heading  from  the  record.) 

I remember  perfectly  well  the  little  smile  that  came  to  your 
Honor’s  face — 


1718 


Rilling  of  Court.— Continued. 


The  CouET.  Yes,  when  he  got  down  to  small  Tjoats  I sup- 
posed row  boats  or  something  of  that  kind. 

5573  Counsel  foe  Complainant.  No,  the  river  gets  down  to  the 
point  where  the  deepest  water  yon  can  get  in  these  stretches 
is  only  12  inches,  and  then  the  little  boats  come  down  out  of 
the  tributaries  and  do  such  navigation  as  is  done  until  the  fall 
rise  comes  on  again. 

The  CouET.  Small  steamboats! 

Counsel  foe  Complainant.  Yes. 

The  CouET.  On  12  inches! 

Counsel  foe  Complainant.  That  is  what  he  said,  and  that 
is  just  what  the  fact  is. 

The  CouET.  surprise  then  w^as,  just  as  it  is  now.  I 

thought  he  had  reference  to  row  boats. 

Counsel  for  Complainant.  That  comes  out  all  clear. 

Whereupon  during  the  further  argument  of  said  cause,  counsel 
for  complainant  pointed  out  the  fact  that  the  court  ought  to  com- 
pare the  testimony  of  the  witnesses  both  for  the  complainant  and 
the  defendant,  with  the  Government  reports. 

Whereupon  the  court  ruled  as  follows: 

5575  The  Couet.  It  never  occurred  to  me  until  today,  for  my 
own  enlightenment — you  have  got  your  bill  filed  to  enjoin 
them  from  doing  certain  things;  if  they  do  these  things,  with 
your  bill  pending,  and  you  ultimately  succeed  and  there  were 
no  injunction,  they  would  have  to  undo  them,  and  any  court 
would  compel  them  at  once  to  undo  them.  The  point  I had 
in  mind  wms  this:  If  they  win  ultimately  there,  there  is  seri- 
ous damage,  without  any  possibility  of  recompen.se  from  any- 
body. If  the  State  wins  ultimately, — I am  not  talking  about 
the  decision  of  this  court,  I mean  ultimately,  is  there  any 
possibility  of  harm  to  the  State,  and  what  is  that  harm!  I 
have  not  been  able  to  figure  it  out  myself.  In  permitting 
them  to  do  what  they  want  to  do,  of  course  there  is  a power 
in  a court  of  equity  to  cause  it  all  to  be  undone  if  they  lose. 

Whereupon  counsel  for  complainant  insisted  that  such  a de- 
cision wmuld  prejudice  the  rights  of  the  State. 

During  the  further  argument  the  following  also  occurred: 

5577  The  Couet.  You  may  perhaps  shorten  your  argument, 
Mr.  Eeeves.  You  may  assume  that  if  the  flowage  contract 
is  to  be  dealt  with  separately  from  the  twenty-year  lease,  and 
that  if  the  true  interpretation  of  it  is  that  it  grants  right  in 
perpetuity,  it  is  void.  You  need  not  argue  that. 

After  the  close  of  the  argument  of  counsel,  »Tudge  Mack  en- 
tered the  decree  which  elsewhere  a])pears  of  record. 


1719 


Appendix  I. 

5578  (Said  appendix  contains  the  text  of  the  deed  of  cession 
of  the  Northwest  Territory  by  Virginia  to  the  general  Gov- 
ernment and  of  all  acts  of  Congress  of  the  United  States  and 
statutes  and  joint  resolutions  of  the  General  Assembly  of  the 
State  of  Illinois  which  were  introduced  in  evidence  and  not  copied 
into  the  record  at  the  point  of  their  introduction.) 

Note  : The  said  several  items  of  evidence  comprising  the  said 

Appendix  I are  here  abstracted  by  giving  a statement  of  what 
each  thereof  is,  its  date  and  title  and  by  referring  to  the  texts 
thereof  as  they  appear  in  the  official  publications  of  said  acts  and 
statutes,  and  incorporating  herein  by  such  reference  such  parts 
thereof  as  may  be  used  in  argument  of  this  case.  This  method  is 
adopted  for  the  sake  of  brevity  with  the  desire  that  in  the  event 
that  the  same  should  at  any  time  be  deemed  inadequate  by  the 
court,  leave  will  be  granted  to  the  complainants  to  furnish  a 
printed  pamphlet  containing  the  full  text  of  such  legislative  acts, 
etc.,  in  compact  form. 

5579-83  The  deed  of  cession  of  the  Northwest  Territory  from  Vir- 
ginia to  the  General  Government  dated  March  1,  1774. 

5584  The  ordinance  adopted  by  the  Congress  of  the  United 
States  under  the  Confederation  on  the  13th  day  of  July,  1787, 
commonly  called  the  Ordinance  of  1787. 

5595  The  Act  of  Congress  of  the  United  States  entitled  ‘U\n 
Act  providing  for  the  sale  of  the  land  of  the  United  States 
in  the  territory  northwest  of  the  Kiver  Ohio  and  above  the  mouth 
of  the  Kentucky  Eiver,”  approved  May  18,  1796. 

5603  The  Act  of  the  Congress  of  the  United  States  entitled, 
‘CVn  Act  to  divide  the  territory  of  the  United  States  north- 
west of  the  Ohio  Eiver  into  two  separate  governments”;  approved 
May  7,  1800. 

5606  The  Act  of  the  Congress  of  the  United  States  entitled,  ^C\n 
Act  making  provision  for  the  disposal  of  the  public  land  in 
Indiana  Territory,  and  for  other  purposes,”  approved  March  26, 
3804. 

5621  The  Act  of  the  Congress  of  the  United  States  entitled,  ^U\n 


1720 


Statutes  Introduced  in  Evidence. — Continued. 


Act  dividing  the  Indiana  Territory  into  two  separate  gov- 
ernments’'; approved  February  3,  1809,  to  U.  S.  Stats:  at  Large, 
514. 

5624  The  Act  of  the  Congress  of  the  United  States  entitled, 
‘‘An  Act  to  enable  the  People  of  Illinois  to  form  a Consti- 
tution and  State  government  and  for  the  admission  of  such 
State  into  the  Union  on  an  equal  footing  with  the  original  States”; 
approved  April  18,  1818,  3 U.  S.  Stats,  at  Large,  428. 

5630  Preamble  of  the  Constitution  of  the  State  of  Illinois  adopted 
at  Kaskaskia  in  Convention  August  26,  1818,  Laws  of  Illinois 

1819,  App.,  p.  1. 

5631  Joint  resolution  of  the  Senate  and  House  of  Eepresenta- 
tatives  of  the  United  States  declaring  the  admission  of  the 
State  of  Illinois  into  the  Union,  adopted  December  3,  1818. 

5632  Act  of  the  General  Assembly  of  the  State  of  Illinois  en- 
titled, “An  Act  to  authorize  the  building  of  a bridge  across 
the  Desplaines  Eiver”;  approved  February  19,  1839. 

5634  Act  of  the  General  Assembly  of  the  State  of  Illinois  en- 
titled, “An  Act  to  amend  the  several  laws  in  relation  to  the 
Illinois  and  Michigan  Canal”;  approved  February  26,  1839. 

Act  of  the  General  Assembly  of  the  State  of  Illinois  entitled, 
“An  Act  declaring  the  Desplaines  Eiver  a navigable  stream”; 
approved  February  28,  1839. 

5646  Act  of  the  General  Assembly  of  the  State  of  Illinois  en- 
titled, “An  Act  to  authorize  Stephen  Forbes  to  construct 

a dam  across  the  Desplaines  Eiver  in  Cook  County”;  approved 
March  3,  1845. 

5647  Act  of  the  General  Assembly  of  the  State  of  Illinois  en- 
titled “An  Act  authorizing  the  building  of  a bridge  in  Town- 
ship 36  north,  Eange  10  east,  in  Will  County”;  approved  Feb- 
ruary 12,  1849. 

5649  Act  of  the  General  Assembly  of  the  State  of  Illinois  en- 
titled, “An  Act  to  provide  for  the  completion  of  the  Illinois 
and  Michigan  Canal  upon  the  plan  adopted  by  the  State  in  1836”; 
approved  February  16,  1865. 

5654  Act  of  the  General  Assembly  of  the  State  of  Illinois  en- 


1721 


titled,  Act  to  incorporate  the  Marseilles  Land  and 

Water  Power  Company”;  approved  March  9,  1867. 

Act  of  the  General  Assembly  of  the  State  of  Illinois  entitled, 
‘L^Vn  Act  to  amend  the  charter  of  the  Marseilles  Land  and  Mmter 
Power  Company  in  the  County  of  LaSalle”;  approved  March  27, 
1869. 

Act  of  the  General  Assembly  of  the  State  of  Illinois  en- 
5655  titled,  ‘^An  Act  to  relieve  the  loan  of  the  City  of  Chicago 
upon  the  Illinois  and  Michigan  Canal  and  revenues  by  re- 
funding to  said  cit}^  the  amount  expended  by  it  in  making  the  im- 
provements contemplated  by  ‘An  Act  to  provide  for  the  comple- 
tion of  the  Illinois  and  Michigan  Canal  upon  the  plan  adopted  by 
the  State  in  1836,’  approved  February  16,  1865,  together  with 
the  interest  thereon  as  provided  by  Section  5 of  said  Act  and  to 
provide  for  Issuing  bonds  therefor”;  approved  October  20, 
1871. 

5658  Joint  resolution  of  the  House  and  Senate  of  the  General 
Assembly  of  the  State  of  Illinois  of  1871  declaring  the  lease 
by  the  Board  of  Trustees  of  the  Illinois  and  Michigan  Canal  to 
one  Adam  Smith  to  use  and  occupy  a part  of  the  90  foot  strip  of 
the  canal  to  be  “not  valid.” 

5660  Joint  resolution  of  the  Senate  and  House  of  Eepresenta- 
tives  of  the  General  Assembly  of  the  State  of  Illinois  of  1881 

instructing  the  Attorney  General  to  institute  legal  proceedings 
against  the  Kankakee  Piver  Improvement  Company. 

5661  Act  of  the  General  Assembly  of  the  State  of  Illinois  en- 
titled, “An  Act  to  cede  certain  lots  and  dams  in  the  Illinois  Piver 

to  the  United  States”;  approved  May  31,  1887. 

5662  Joint  resolution  of  the  Senate  and  House  of  Pepresenta- 
tives  of  the  General  Assembly  of  the  State  of  Illinois  in 

reference  to  improvements  of  the  Desplaines  and  Illinois  Pivers;” 
adopted  by  the  House  May  27,  1889;  concurred  in  by  the  Senate 
May  28,  1889. 

5665  Act  of  the  General  Assembly  of  the  State  of  Illiliois  en- 
titled, “An  Act  to  create  sanitary  districts  and  to  remove 
obstructions  in  the  Desplaines  and  Illinois  Pivers;”  approved 
May  29,  1889. 


1722 


Statutes  Introduced  in  Evidence. — Continued. 


5686  Act  of  the  General  Assembl}-  of  the  State  of  Illinois  en- 
titled, ‘A\n  Act  conferring  police  power  upon  the  sanitary 
district  of  Chicago;’’  approved  June  16,  1893. 

5687  Act  of  the  General  Assembly  of  the  State  of  Illinois  en- 
titled, ‘‘An  Act  to  amend  Sections  12  and  20  of  ‘An  Act  to 

create  sanitary  districts  and  to  remove  obstructions  in  the  Des- 
plaines  and  Illinois  Eivers’;  approved  May  29,  1889;  in  force  July 
1,  1889”;  approved  June  10,  1895. 

5689  Act  of  the  General  Assembly  of  the  State  of  Illinois  en- 
titled, “An  Act  to  amend  Sections  12  and  21  of  ‘An  Act  to 
create  sanitary  districts  and  to  remove  obstructions  in  the  Des- 
plaines  and  Illinois  Eivers,’  approved  May  29,  1889,  in  force  July 
1,  1889,  and  amended  by  an  Act  in  force  July  1,  1895;”  approved 
May  13,  1897. 

5692  Act  of  the  General  Assembly  of  the  State  of  Illinois  en- 
titled, “An  Act  to  amend  ‘x\n  Act  to  create  sanitary  districts 

and  to  remove  obstructions  in  the  Desplaines  and  Illinois  Eivers’; 
approved  May  29,  1889  in  force  July  1,  1889;”  approved  May  10, 
1901. 

5693  Act  of  the  General  Assembly  of  the  State  of  Illinois  en- 
titled, “An  Act  extending  the  powers  of  the  sanitary  district 

organized  under  an  Act  entitled,  ‘An  Act  to  create  sanitary  dis- 
tricts and  to  remove  obstructions  in  the  Desplaines  and  Illinois 
Eivers,’  approved  May  29,  1889,  and  in  force  July  1,  1889,  to  enable 
such  districts  to  improve  certain  navigable  streams  within  or  auxil- 
iary to  such  districts  and  to  build  bridges  across  such  streams;” 
approved  May  13,  1901. 

5695  Act  of  the  General  Assembly  of  the  State  of  Illinois  en- 
titled, “An  Act  in  relation  to  the  Sanitary  District  of  Chi- 
cago to  enlarge  the  corporate  limits  of  said  district  and  to  pro- 
vide for  the  navigation  of  the  channels  created  by  such  district 
and  to  construct  dams,  water  wheels  and  other  works  necessary 
to  develop  and  render  available  the  power  arising  from  the  water 
passing -through  its  channels,  and  to  levy  taxes  therefore;”  ap- 
proved May  11,  1903. 

5703  Act  of  the  General  Assembly  of  the  State  of  Illinois  en- 
titled, “An  Act  recognizing  the  Desplaines  and  Illinois 


1723 


Rivers  as  navigable  streams,  and  to  prevent  obstructions  placed 
tlierein,  and  to  remove  obstructions  therein  now  existing;”  ap- 
])roved  Deceml^er  6,  1907. 

Appendix  II  of  the  Certificate  of  Evidence. 

Appendix  II  contains  all  of  the  documents  and  documentary  evi- 
dence offered  or  introduced  in  evidence,  wliicli  are  not  set  forth  in 
connection  with  the  statement  of  their  offer,  except  those  whicli 
are  put  in  the  Atlas. 

The  Appendix  presents  the  documents  in  the  order  of  their  men- 
tion, together  with  references  accompanying  each  to  the  page  of 
the  Certificate  of  Evidence,  where  it  was  offered  or  received  in  evi- 
dence. 

Cross-references  vice  versa  appear  in  the  Certificate  of  Evidence 
to  the  places  where  the  documents  are  to  be  found  in  the  appendix. 

Note:  In  the  Certificate  of  Evidence  as  incorporated  in  the 

Transcript  of  Record  cross-references  from  the  body  of  the  testi- 
mony to  Appendix  II  and  to  the  Atlas,  were  made  by  the  page 
number  of  the  Certificate  of  Evidence,  and  from  AjDpendix  II  and 
the  Atlas,  to  the  body  of  the  testimony  in  the  same  way.  The  said 
page  numbers  of  the  Certificate  of  Evidence  may  be  found  and 
identified  in  the  Transcript  of  Record  thus : 

In  each  instance  the  Certificate  of  Evidence  page  number  in  the 
transcript  is  the  lowest  number  upon  the  page,  and  is  stricken 
through  with  a red  mark. 

5706  Report  of  Boundary  Commission. 

(App.  II,  p.  3884,  referred  to  C.  E.,  p.  1098;  Trans.,  p.  2887; 
Abst.,  p.  929.) 

Date  January  26,  1833. 

Locates  the  boundary  line  between  Illinois  and  Wisconsin, 
as  reaching  the  west  bank  of  River  Desplaines  at  a point  138 
miles,  8 chains  and  99  links  east  of  the  Mississippi  River,  ‘Do 
west  bank  of  River  Desplaines,  which  is  about  80  links  wide 
and  runs  south.” 


1724 


5717  Field  Notes  Exhibit  1. 

(App.  II,  p.  3885,  referred  to  C.  E.,  pp.  416-426;  Trans.,  pp. 

2194-2204;  Abst.,  pp.  765-6.) 

This  is  a certified  copy  of  the  field  notes  of  the  meanders 
of  the  Desplaines  Eiver. 

5720  On  page  1 of  the  exhibit  Field  Notes,  Volume  250,  page 
259,  the  surveyor  records  as  follows : 

^‘Meandered  up  the  end  bank  of  the  Illinois  Eiver  in  Sect. 
N.  0.  24  T.  N.  0.  34  N.  E.  No.  8 E.  Then  follow  the  direc- 
tions of  the  courses  and  distances  thus:  S 76  E 13  00.” 

There  are  in  all  9 of  these  specifications  of  courses  and  dis- 
tances with  marginal  notes.  In  the  middle  of  the  list  of 
courses  and  distances,  the  surveyor  notes  ^‘blutf  leaves  the 
river.” 

Meandered  up  the  end  bank  of  the  Illinois  Eiver  in  Sect. 
No.  36  T.  No.  34  E.  No.  8 E. 

5763  On  page  44  of  the  exhibit  of  field  notes,  appears  the  follow- 
ing: (Vol.  247,  page  158.) 

‘^Meanders  down  the  N Side  of  Laplain  through  Sect  No. 
1 T 38  N E 12  E from  the  head  of  navigation 


s 

34  E 

4.06 

s 

48  E 

6.00 

s 

24  E 

2.65 

s 

43  E 

6.93 

s 

15  1/2 V' 

5.00 

s 

30  1/2  W 

7.50 

s 

3 1/2  W 

13.00 

s 

13  E 

3.50 

s 

5 1/2  W 

13.00 

s 

7 W 

7.00 

s 

16  AV 

8.76 

Oct  17th  1821 

s 

41  1/2 W 

4.21 

Jno.  Walls 

s 

6 E . 

7.23 

to  the  cor  of  F Sects  1 & 12 

207) 

Commenced  meander 

ing  on 

the  west  bank  of  an  island  in 

Illinois  Eiver  at  the  corner  of  fractl  sect  11  & 14  T 34  N of  E 


9 E thence  down  the  river  with  the  meanders  thereof. 

The  term  ‘‘Illinois  Eiver”  appears  seventeen  times  in  these 
field  notes,  and  the  term  “La  Plain”  three  times. 

5762  In  Volume  247,  page  156  (Field  note,  pages  42-3),  the  sur- 
veyor says  “continued  through  Sect.  12  * * * carried  up 

across  the  Portage  Creek  or  swamp  Oct.  16, 1821,  John  Walls.” 
5771  Field  Notes  Exhibit  2. 

(App.  II,  p.  3886 — Introduced  C.  E.,  pp.  426-7;  Trans.,  p.  2205; 
Abst.,  p.  766.) 


These  are  duplicates  of  certain  of  the  last  field  notes,  which 
relate  more  specifically  to  the  site  of  the  proposed  dam. 


1725 


5982  Field  Notes  Exhibit  3. 

(App.  II,  p.  3887 — Introduced  C.  E.,  p.  427;  Trans.,  p.  2205; 
Abst.,  p.  766.) 


These  are  further  duplicates  of  some  of  the  field  notes  con- 
tained in  Field  Note  Exhibit  1. 

5791  Survey  Exhibit  4. 

(App.  II,  p.  3888,  referred  to  C.  E.,  p.  428;  Trans.,  p.  2206;  Abst., 
p.  766.) 


A delineation  of  the  township  line  called  for  by  foregoing 
field  notes  on  the  range  line  at  the  west  side  of  Township  34 
N.  E.  9 East  of  3d  P.  M.  And  the  similar  township  line  on 
the  east  side  of  the  range  line  of  Township  34,  etc. 

5795  Cooley  Exhibit  1. 

(App.  II,  p.  3889,  referred  to  C.  E.,  p.  578;  Trans.,  p.  2367; 
Abst.,  p.  804.) 


This  is  the  report  of  the  Internal  Improvement  Commis- 
sion of  Illinois,  a pamphlet  of  62  pages,  covering  the  history, 
the  physical  relations,  the  divisions  of  the  deep  water-way 
route,  and  discussion  of  the  official  project  for  deep  waterway, 
connecting  the  lakes  and  gulf,  with  full  data  concerning  the 
Desplaines  Eiver. 

5836  Cooley  Exhibit  12. 

(App.  II,  p.  3890,  referred  to  C.  E.,  p.  597,  853  and  2264;  Trans., 
pp.  2386,  2642,  4100;  Abst.,  pp.  809,  876,  1183.) 


This  is  an  extract  from  the  Eeport  of  the  Board  of  En- 
gineers on  a deep  waterway,  made  December  19,  1905,  to  the 
59th  Congress,  First  Session,  and  usually  referred  to  as  Docu- 
ment #263.  This  extract  contains  a list  of  the  gauge  read- 
ings of  the  gauges  on  the  Illinois  and  Desplaines  Eivers. 

5860  Patent  Tunnel  Boat  Exhibit. 

(App.  II,  p.  3891,  referred  to  C.  E.,  p.  810;  Trans.,  p.  2599; 

Abst.,  p.  870.)  ’ 


This  is  a copy  from  the  U.  S.  Patent  Office  of  U.  S.  Patent 
#733010.  This  is  known  as  the  ‘^Coen  Patent.’’ 

‘‘The  object  of  this  invention  is  to  provide  for  the  abso- 


1726 


lute  immersion  of  a propellor  wheel  of  abnormal  proportions 
as  compared  with  the  depth  of  water  wherein  the  said  wheel 
is  to  work,  so  as  to  secure  the  propulsive  effects  or  relative 
benefits  of  a comparatively  large  propeller  wheel  in  places 
where  only  light-draft  vessels  can  be  used. 

The  end  to  which  I aim  is  attained  by  first  inclosing  the 
wheel  within  the  body  of  the  vessel,  as  hereinafter  shown,  so 
that  the  water  can  reach  the  said  chamber  from  forward  and 
discharge  from  the  after  portion  of  the  chamber  from  the  ac- 
tion of  the  wheel.  •*  * * 

My  final  object  is  to  produce  here  a complete  propelling 
apparatus  which  can  be  easily  adjusted  to  light-draft  vessels 
wherein  the  screw-propellor  could  not  be  used,  as  ordinarily 
employed  in  vessels,  and  thereby  make  serviceable  as  inde- 
pendent carriers  many  boats  which  have  to  be  towed  by  other 
vessels  at  the  present  time.  * * * 

In  this  connection  it  should  here  be  stated  that  the  appar- 
atus herein  described  is  to  be  of  such  an  adjustable  nature  as 
to  admit  of  being  placed  in  various  forms  of  vessels  with  no 
more  change  than  may  be  found  necessary  in  the  making  of 
the  bottom  walls  of  the  main  chamber  to  fit  and  fasten  to  the 
floor  of  the  vessel  by  means  of  flanges  herein  provided. 

In  the  drawings,  A represents  an  oblong  bottomless  cham- 
ber with  arched  top,  in  which  is  an  opening  leading  to  vertical 
chamber  B,  which  is  in  turn  supplied  with  a valve  C at  its  top, 
as  shown.  This  latter  chamber  I have  designated  as  the 
‘vacuum-chamber’,'  because  when  in  operation  a vacuum  or 
partial  vacuum  is  maintained  at  the  upper  portion  thereof  in 
order  to  raise  the  water  therein  to  a sufficient  height  to  insure 
perfect  immersion  of  the  propeller-wheel  D,  which  operates  in 
Chamber  A from  rotary  motion  imparted  to  it  by  shaft  E and 
connections,  as  hereinafter  described.” 

(Copy  of  said  drawing  appears  on  opposite  page.) 


Ko.  733,010. 


PATENTED  JULY  7,  1903. 


C.  M.  COEN. 

APPARATUS  FOR  THE  PROPULSION  OF  VESSELS. 

APPLIOATIOS  PILED  OOT.  9,  1902. 

HO  KODEL. 


THE  KORSli  PETERS  CO  . PMOTO-EITmO  . WAiMRtCTON  O C 


1729 


5863  Cooley  Exhibit  4. 

(App.  II,  p.  3892,  referred  to  C.  E.,  pp.  598-852;  Trans.,  py).  2387, 
2641;  Abst.,  pp.  810,  876.) 

This  is  a tabulation  of  the  average  weekly  rate  of  flow  in 
. cubic  feet  for  the  year  1900,  by  the  Sanitary  District  of  Chi- 
cago, of  5 different  measurements  of  streams,  viz. : 

#1.  The  Illinois  & Michigan  Canal, 

#2.  The  Main  Drainage  Channel, 

#3.  The  Chicago  River, 

#4.  The  Desplaines  at  Riverside, 

#5.  The  Desplaines  at  Joliet. 

The  quantities  will  be  found  divided  into  52  weekly  sum- 
maries. The  average  for  the  49  weeks  of  the  Desplaines  River 
at  Riverside  above  any  artificial  contribution  is  given  at  19,- 
072  cubic  feet  per  minute. 

And  at  Joliet  with  the  drainage  water  added,  at  233,976  cu. 
ft.  per  minute. 

5881  Cooley  Exhibit  5. 

(App.  II,  p.  3893,  referred  to  C.  E.,  pp.  598-852;  Trans.,  p}>.  2387, 
2641;  Abst.,  pp.  810,  876.) 

This  is  a similar  exhibit  for  the  year  1901.  It  shows  the 
average  of  the  Desplaines  at  Riverside  for  the  year  to  have 
been  20,974  cu.  ft.  per  minute  without  any  added  water,  and 
277,153  cu.  ft.  at  Joliet  with  the  drainage  water  added. 

5899  Cooley  Exhibit  6. 

(App.  II,  p.  3894,  referred  to  C.  E.,  pp.  598-853;  Trans.,  pp.  2387, 
2641;  Abst.,  pp.  810,  876.) 

This  is  a similar  table  for  1902.  It  shows  the  average  of  the 
Desplaines  at  Riverside  for  the  whole  year,  to  have  been 
30,235  cu.  ft.  per  minute,  and  at  Joliet  with  the  drainage  water 
added,  294,132  cu.  ft.  per  minute. 

5918  Cooley  Exhibit  7. 

(App.  II,  p.  3895,  referred  to  C.  E.,  pp.  598-853:  Trans.,  pp.  2387, 
2641;  Abst.,  pp.  810,  876.) 

A similar  table  for  1903,  showing  an  average  at  River- 
side for  the  whole  year,  of  35,763  cu.  ft.  per  minute,  and  at 
Joliet  of  353,959  cu.  ft. 

.5937  Cooley  Exhibit  8. 

(App.  II,  p.  3896  referred  to  C.  E.,  pp.  598-853;  Trans.,  pp.  2387, 
2641;  Abst.,  pp.  810,  876.) 

A similar  exhibit  for  1904,  showing  an  average  at  River- 
side for  the  whole  year,  of  22,372  cu.  ft.  per  minute,  and  at 
Joliet  of  about  295,000  cu.  ft.  per  minute. 

5954  Cooley  Exhibit  9. 

(App.  II,  p.  3897,  referred  to  C.  E.,  pp.  598-853;  Trans.,  pp.  2387, 
2641;  Abst.,  pp.  810,  876.) 

A similar  table  for  1905,  showing  an  average  at  Riverside, 
of  22,265  cu.  ft.  per  minute,  and  at  Joliet  of  about  295,000 
cu.  ft.  per  minute. 


1730 


5969  Cooley  Exhibit  10. 

( App.  II,  p.  3898,  referred  to  C.  E.,  pp.  598-853 ; Trans.,  pp.  2387, 

2641;  Abst.,  pp.  810,  876.) 

A similar  table  for  1906,  showing  an  average  for  the  year 
of  24,598  cu.  ft.  per  minute  at  Eiverside,  and  of  about  295,- 
000  at  Joliet. 

5984  Cooley  Exhibit  11. 

(App.  II,  p.  3899,  referred  to  C.  E.,  pp.  598-853;  Trans.,  pp.  2387^ 

2641;  Abst.,  pp.  810,  876.) 

A similar  table  for  1907,  showing  the  average  at  Eiver- 
side for  the  year  of  45,582,  and  the  flow  per  minute  at  Joliet 
has  not  been  averaged,  but  varies  from  492,419  cu.  ft.  per 
minute  March  29th  to  228,302  cu.  ft.  per  minute  September 
7th. 

5999  Cooley  Exhibit  13. 

(App.  II,  p.  3900,  referred  to  C.  E.,  p.  853;  Trans.,  p.  2642; 

Abst.,  876.) 

This  is  a record  of  the  proceedings  of  the  Board  of  Trus- 
tees of  the  Sanitary  District  for  November  27,  1907,  and 
contains  a schedule  of  31  gauges,  maintained  by  the  Sanitary 
District,  of  which  3 are  upon  the  Desplaines  Eiver,  and 
gives  a record  of  daily  gauge  readings  at  these  gauges  for 
the  preceding  year. 

6011  House  Document  #263  again. 

(App.  II,  p.  3901,  referred  to  C.  E.,  p.  2264;  Trans.,  p.  4100; 

Abst.,  p.  1183.) 

Here  follow  4 pages  of  Government  gauge  readings  taken 
from  this  document. 

6014  Cooley  Exhibit  32. 

Eiverside  Gauge  Eeadings. 

(A]op.  II,  p.  3902,  referred  to  C.  E.,  p.  2264;  Trans.,  p.  4100; 

Abst.,  p.  1184.) 

This  is  a table  of  gauge  readings  at  the  Eiverside  gauge 
in  the  Desplaines  for  the  year  1905. 

6028  Cooley  Exhibit  34. 

(App.  II,  p.  3903,  referred  to  C.  E.,  p.  2265;  Trans.,  p.  4100; 

Abst.,  p.  1184.) 

A similar  table  of  daily  readings  of  the  Eiverside  gauge 
for  1907. 

6055  Fogarty  Exhibit  1. 

(App.  II,  p.  3904,  referred  to  C.  E.,  p.  2809;  Trans.,  p.  4647; 

Abst.,  p.  1352.) 

Defendant  Exhibit. 

A picture  from  the  advertisement  of  the  stone  quarry, 
representing  a temporary  piling  bridge  across  the  head  of 
Joliet  Lake,  which  the  letter  press  attached  states  was  500  ft. 

long. 

Said  picture  appears  ujion  the  opposite  page. 


1 i 0>J 


6057  Abstract  of  Bound  Volume  of  Abstracts  and  Briefs  in 

Druley  V.  Adam. 


(App.  II,  p.  3905,  referred  to  C.  E.,  ]).  3001 ; 
Abst.,  p.  1420.) 


Trans.,  p.  4838; 


Exhibits  put  in  by  tlie  defendant. 


6059 


(1) 


Supreme  Court  of  Illinois 


Northern  Grand  Division. 
September  Term,  A.  D.  1881. 


William  M.  Druley, 
Appellant  ^ 
vs. 

William  Allen 

Appellee 


Appeal  from  Appellate  Court 
^ Second  District 


Abstract  of  the  Record  of  Circuit  Court. 

3 Narr.  Alleges  possession  by  plaintiff  of  certain  lots 
of  land  with  mills  thereon  situate;  the  enjoyment  of  the 

use  of  the  water  in  Desplaines  River,  and  the  right  to  use ; 
that  defendants  by  means  of  ditches,  trenches,  gates,  &c., 
diverted  the  water  of  said  river  so  that  the  same  did  not 
flow  to  plaintiff’s  mill  as  of  right  it  should  have  done.  Dam- 
age, $5,000. 

4 Additional  Count.  Alleges  possession  and  right  to 
use  water  of  Desplaines  River;  that  defendants,  pre- 
tending to  have  license  from  Canal  Commissioners  said  Ca- 
nal Commissioners  having  the  right  to  use  the  water  of  the 
river  for  navigation  purposes  only,  cut  certain  channels  so 
that  the  surplus  water  in  said  river  not  needed  for  naviga- 
tion purposes  in  said  canal,  which  would  have  flowed  to 
plaintiff’s  mills,  was  drawn  from  said  canal  into  the  Des- 
plaines River  below  the  mills  and  lots  of  plaintitf  in  such 
manner  that  the  water  of  said  stream  was  diverted  into  said 

6060  canal  in  a much  greater  quantity  than  was  needed  for  navi- 
gation purposes,  and  than  the  commissioners  had  any  right 
to  draw  the  same  above  the  lots  and  mills  of  plaintitf,  dis- 
charged below  the  same,  so  that  the  water  of  the  river  did 
not  run  as  it  had  heretofore  run,  so  that  the  plaintiff  was 
deprived  of  its  uses,  &c. 


1734 


Abstract, — Druley  vs.  Adam. — Continued. 


(2) 

5-15  Plea.  General  notice,  with  a notice  which  contains  no 
other  facts  than  are  found  in  the  statement  of  facts 
forming  the  bill  of  exceptions. 

18  Judgment  pro  defendants;  exception  and  prayer  for 
appeal,  &c. 

19  Bill  of  Exceptions. 

Be  it  remembered,  &c.,  that  evidence  was  introduced  which, 
for  the  purposes  of  this  appeal,  it  is  stipulated  by  and  be- 
tween the  parties  established  the  following  facts : 

That  the  plaintiff  at  the  time  of  the  commencement  of  this 
suit  was  possessed  as  the  owner  of  lots  1,  2,  3 and  4 in  block 
45,  and  lots  1,  2,  3,  4,  5,  6,  7 and  8 in  block  57,  and  lots  1, 
2,  3,  4 and  6 in  block  62,  all  in  the  School  Section  Addition 
to  Joliet  in  Will  County,  Illinois;  said  addition  compris- 

20  ing  the  whole  of  Section  16,  Town  35,  Kange  10  East  3d 
P.  M. ; and  that  said  plaintiff  and  his  grantors  have  been 

in  possession  of  said  premises  continuously  since  the  year 
1852,  and  prior  thereto ; and  the  said  grantors  to  plaintiff 
were  Philo  A.  and  Orlando  H.  Haven;  that  said  premises  are 
j located  on  the  Desplaines  Eiver,  a natural  water  course  run- 

I ning  through  said  Section  16;  that  a dam,  herein  called 

Adam’s  Bam,  is  and  has  been  standing  across  said  river 
since  prior  to  the  year  1852,  and  that  said  iDremises  have 
been  used  continuously  to  the  date  of  trial  by  plaintiff  and 
his  grantors  for  mill  purposes,  deriving  the  power  therefor 
from  said  Desplaines  Eiver. 

That  said  plaintiff  now  and  for  many  years  has  located 
on  said  premises  mills  propelled  by  water  power  derived 
from  said  river,  and  has  and  had  at  the  date  of  the  diversion 
of  water  complained  of  located  on  said  premises  six  wheels, 
four  of  which  are  in  place  to  be  used  and  which  are  reason- 
ably fitted  to  use  the  water  in  the  river,  and  do  not  require 
to  put  them  in  use  any  unreasonable  detention  or  emplo}^- 
ment  of  the  water  flowing  in  said  river. 

That  the  location  of  said  premises  with  reference  to  the 
Illinois  & Michigan  Canal  and  the  Desplaines  Eiver  in -the 
6061  City  of  Joliet,  is  correctly  shown  by  the  map  marked 

which  shall  be  sent  up  with  the  record  herein;  and  that  the 
location  and  course  of  the  Desplaines  Eiver  and  the  Illinois 
& Michigan  Canal  from  the  north  line  of  Sections  22  and  23 
in  Town  35  north,  Eange  10  East  (being  the  Town  of  Lock- 
port)  to  the  south  line  of  Section  16,  Town  35,  Eange  10 
East  (being  the  Town  of  Joliet)  with  the  locks,  levels  and 
dams  of  said  canal  in  said  distance, 


1735 


(3) 

the  dam  of  said  Adam  and  the  structure  of  said  defendants 
on  said  canal  below  Adam’s  Dam  are  correctly  shown  by  the 
map  marked  to  be  sent  up  with  this  record. 

That  said  canal  was’  opened  for  navigation  in  the  spring 
of  the  year  1848. 

21  Tliat  the  summit  division  of  said  canal  terminates  at 
Lockport,  111.,  on  Section  23,  Town  36,  Eange  10,  and 
was  improved  by  the  City  of  Chicago  so  as  to  make  a con- 
tinuous level  of  drawing  water  from  Lake  Michigan  from  the 
terminus  of  the  south  branch  of  the  Chicago  Eiver  to  Lock 
No.  1 aforesaid,  under  the  Act  of  the  General  Assembly  of 
date  February  16,  1865;  that  said  improvement  was  com- 
pleted about  May  1,  1871;  that  the  State  of  Illinois,  by  Act 
of  the  General  Assembly,  assumed  charge  of  said  improved 
level  in  the  year  1871,  by  Act  of  date  October  20,  1871,  and 
has  since  controlled  the  same. 

That  from  Dam  No.  2 in  Joliet,  south  the  canal  level  is 
known  as  the  Channahon  level;  that  all  the  water  which  is 
put  into  said  level  for  any  purposes  is  drawn  from  the  pool 
formed  by  Dam  No.  2 at  Joliet,  above  plaintifl/s  dam,  and 
since  the  building  of  said  canal  and  its  opening  in  1848  until 
the  completion  of  the  structure  of  defendants  no  water  had 
ever  been  drawn  from  said  level,  or  had  been  put  into  the 
same  except  as  required  for  navigation  purposes,  nor  had 
any  water  power  been  used  or  leased  on  said  level. 

That  there  is  more  water  introduced  into  the  summit  level 
of  said  canal  by  reason  of  the  improvement  known  as  the 
deep  cut,  above  referred  to,  than  is  required  for  navigation 
purposes,  and  more  than  is  required  for  the  purposes  of  the 
canal  between  locks  one  and  two,  two  and  three,  and  three 
and  four,  on  said  canal  between  Lockport  and  Joliet;  that 
the  use  of  such  surplus  water  is  leased  to  Norton  & Co.,  at 
Lockport,  so  far  as  they  may  require,  and  the  balance  is 
discharged  by  a spillway, — both  the  water  used  by  Norton 
& Co.  and  that  discharged  by  said  spillway  being  conducted 
by  a race,  shown  in  map  1,  from  the  hydraulic  basin,  con- 
nected with  the  canal,  also  shown  on  said  map,  to  the  Des- 
plaines  Eiver,  as  shown  on  said  map,  at  a point  in  Section 
23,  in  said  town,  and  from  thence  mingled  with  the  other 
6062  water  of  said  river,  follows  the  bed  of  said  stream  through 
Sections  22,  23,  27  and  34,  in  the  Town  of  Lockport,  and 
partially  through  Sec.  3,  in  the  Town  of  Joliet,  as  shown 
by  said  map,  to  a point  where  said  canal  effects  a junction 
with  said  river. 

(4) 

That  from  said  point  in  Section  3 aforesaid  where  said 
junction  is  made  to  Dam  No.  2 in  Joliet  said  canal  is  con- 


1736  Abstract, — Druley  vs.  Adam. — Continued. 

taiiied  within  artificial  banks  or  walls  of  stone,  but  com- 
prises the  original  bed  of  said  river,  using  the  same,  and 
leaving  said  river  as  shown  on  said  map  at  Dam  No.  2. 

That  there  is  a mill  site  and  mill  on  said  river,  Sec.  .23,  in 
Lockport,  and  bad  been  for  many  years ; and  that  from  the 
point  on  Sec.  23  where  said  surplus  water  is  discharged  to 
the  point  on  Sec.  3,  in  Joliet,  where  the  canal  enters  into 
the  bed  of  said  river  there  is  no  connection  between  said 
canal  and  said  river,  and  no  structures,  works  or  improve- 
ments of  any  kind  were  ever  placed  on  said  river,  or  any 
control  exercised  over  the  same  by  any  canal  authorities,  or 
the  state,  for  any  purpose;  that  said  waste-weir  is  never 
used  except  in  case  of  high  water  and  floods,  or  when  it  is 
necessary  to  draw  otf  the  water  from  the  level  for  the  pur- 
pose of  repairs,  there  usually  being  no ‘more  water  than  is 
utilized  at  Norton’s  mills. 

23  That  the  amount  of  water  which  is  discharged  into 
the  Desplaines  Eiver  at  Lockport  from  the  summit  di- 
vision of  said  canal  through  said  spillway  and  Norton  & 
Go’s  race  is  about  25,000  cubic  feet  per  minute;  that  the 
amount  of  water  required  for  navigation  purposes  on  the 
canal  from  Lock  No.  1 to  Dam  No.  1 is  about  1,220  cubic 
feet  per  minute;  that  the  amount  of  water  required  for  navi- 
gation purposes  of  said  canal  from  Dam  No.  1 to  the  end  of 
the  Channahon  level  is  about  3,300  feet  per  minute,  and  the 
amount  required  for  navigation  purposes  on  the  Channahon 
level  alone  is  about  2,800  cubic  feet  per  minute. 

That  since  the  completion  of  said  deep  cut  and  the  turn- 
ing of  such  surplus  water  into  said  river  at  Lockport,  the 
amount  of  water  flowing  over  Adam’s  Dam  at  Joliet  before 
the  diversion  of  the  water  herein  complained  of  was  greater 
by  two-thirds,  as  estimated,  than  the  amount  flowing  over 
said  dam  prior  to  said  deep  cut  improvement,  and  that  the 
amount  of  water  passing  over  Adam’s  Dam  since  the  di- 
version complained  of  is  double  the  amount  which  passed 
over  said  dam  before  the  completion  of  the  deep  cut. 

That  the  season  during  which  said  canal  is  open  for  navi- 
gation on  said  Channahon  level  is  generally  from  March 
25th  to  November  25th  in  each  year. 

That  defendants’  premises  are  located  on  the  berme  or 
6063  western  bank  of  said  canal,  on  said  Channahon  level,  about 
half  a mile  southwest  of 

(5) 

plaintitf’s  dam;  that  defendants  built  a tunnel  under  said 

24  canah  put  in  water  wheels,  and  at  the  date  of  commenc- 
ing said  suit  had  been  drawing  water  from  said  Chan- 
nahon level  of  said  canal  to  the  extent  of  from  6,000  to 
8,000  cubic  feet  per  minute  to  operate  their  mill,  discharg- 


1737 


ing  tlie  same  into  the  l)es[)laines  Itiver  below  the  plaintiff’s 
dam  and  at  a lower  level  on  said  river  than  said  dam,  so 
that  the  use  of  said  water  was  wholly  lost  to  plaintiff;  that 
but  for  the  diversion  of  said  water  from  the  pool  above  Dam 
No.  2 of  the  Illinois  and  Michigan  Canal  into  the  Channahon 
level  of  said  canal,  and  for  such  use  by  defendants,  all  of 
said  water  would  have  naturally  flowed  in  the  banks  and 
bed  of  said  river  to  said  ])laintiff’s  dam  and  water  wheels, 
and  could  have  been  used  by  him. 

That  such  use  of  said  water  from  said  canal  by  said  de- 
fendants is  by  virtue  of  a lease  for  such  pur])ose  executed  to 
said  defendants  by  the  Canal  Commissioners  of  the  State 
of  Illinois. 

That  said  mill  of  defendants  and  said  structures  for  using 
said  water  had  been  in  use  at  the  date  of  the  trial  about  two 
years,  and  that  plaintiff  could  have  used  and  had  machinery 
wherewith  to  use  all  water  so  used  by  said  defendants,  and 
that  the  annual  damage  to  plaintiff  is  from  $800  to  $1,000 
per  annum;  that  plaintiff’s  damage  to  date  of  trial  is  from 
$1,600  to  $2,000. 

That  the  course  of  said  canal,  as  shown  by  said  maps,  is 
as  originally  laid  out  and  completed  in  1848. 

25  That  said  Philo  A.  and  Orlando  H.  Haven,  the  plain- 
tiffs’ grantors,  while  in  possession  of  said  premises,  com- 
menced suit  against  the  Trustees  of  the  Illinois  and  Michi- 
gan Canal,  about  the  year  1848,  to  recover  damages  for  the 
diversion  of  the  Desplaines  River  into  said  canal  and  away 
from  said  dam;  and  that  said  suit  is  the  identical  one  re- 
ferred to  and  decided  in  the  5th  Gilman  Reports,  page  548, 
and  in  the  Ilth  Illinois  Reports,  page  554,  and  is  of  and  con- 
cerning the  same  dam  that  plaintiff  is  now  in  possession  of. 

That  before  final  judgment  in  said  last  named  suit  and  on, 
to-wit:  the  22nd  day  of  August,  A.  D.  1853,  an  agreement 
in  writing  was  executed  between  said  Philo  A.  and  Orlando 
H.  Haven,  of  the  one  part,  and  said  Trustees  of  the  Illinois 
and  Michigan  Canal  of  the  other  part,  in  words  and  figures 
as  follows,  to-wit: 

6064  Whereas  a suit  has  been  and  is  now  pending  at  the  instance 
Philo  A.  Haven  and  Orlando  H.  Haven,  against  the  Board  of 
Trustees  of  the 


(6) 

Illinois  and  Michigan  Canal,  in  the  Circuit  Court  of  Will 
County,  Illinois,  in  consequence  of  alleged  damages  to  a cer- 
tain mill  owned,  by  said  Philo  A.  Haven  and  Orlando  H. 
Haven,  situated  on  the  Desplaines  River  at  Joliet,  Will  County, 
Illinois,  occasioned  by  diverting  the  water  of  said  river  from 
said  mill  and  applying  it  to  the  use  of  the  Illinois  and  Michi- 


1/38  Abstract, — Dndcy  vs.  Adam. — Continued. 

gc^u  Canal  above  said  mill;  and  whereas  the  said  Board  of 
Trustees  and  the  said  Philo  A.  Haven  and  Orlando  H.  Haven 
being  mutually  desirous  of  avoiding  further  litigation: — 
Therefore  we,  the  said  Philo  A.  Haven  and  Orlando  H. 
Haven,  for  and  in  consideration  of  the  sum  of  Three  thousand 
and  sixty  dollars  to  us  paid  by  the  said  Board  of  Trustees  ot 
the  Illinois  and  Michigan  Canal,  the  receipt  whereof  is 

26  hereby  acknowledged,  do  hereby  release  and  forever  dis- 
charge the  said  Board  of  Trustees  and  their  successors 

in  office,  from  all  actions,  rights  of  action,  and  all  claim  arising 
out  of  any  damages  heretofore,  now  or  hereafter,  to  be  sus- 
tained by  us,  by  reason  of  the  use  of  the  waters  of  said  Des- 
plaines  Eiver,  for  the  purpose  of  supplying  said  canal,  in  the 
manner  the  same  is  now  supplied  at  the  feeder  at  Joliet.  In 
further  consideration  of  the  said  sum  of  Three  thousand  and 
sixty  dollars,  herein  expressed  to  have  been  received  by  us, 
we  hereby  remise,  release  and  forever  quit-claim  to  the  Board 
of  Trustees  and  their  successors  in  office,  and  to  the  State  of 
Illinois,  whenever  said  canal  shall  revert  to  said  State,  the 
right  to  use  and  appropriate  the  water  of  the  said  Hesplaines 
Eiver  at  the  feeders  at  Joliet,  below  Guard  Lock  Xo.  1 for 
supplying  the  said  canal  for  the  purpose  of  navigation  in 
the  same  manner  the  water  in  said  river  in  connection  with 
other  feeders  is  now  used  for  supplying  said  canal. 

AVe  further  agree  that  when,  at  any  time,  the  Superin- 
tendent or  other  person  having  charge  of  said  canal  shall 
desire  to  reduce  the  quantity  of  water  above  our  said  mill- 
dam  for  the  purpose  of  repairing  said  canal,  its  banks  or 
other  appurtenances  at  any  point  between  our  said  mill  and 
the  dam  across  said  river  at  said  feeder,  that  said  Super- 

27  intendent,  or  other  person  having  charge  of  said  canal, 
may  reduce  the  water  above  said  mill-dam,  provided  the 

water  at  our  said  mill-dam  shall  not  be  reduced  lower  than 
the  top  or  comb  of  our  said  mill-dam,  which  may  be  done 
by  opening  the  waste-ways  at  the  west  end  of  said  mill-dam, 
which  shall  be  closed  by  said  Superintendent  as  soon  as  said 
repairs  can  be  completed,  and  shall  not  be  opened  except  for 
such  repairs  as  aforesaid,  nor  remain  open  more  than  for 
the  period  of  one 

(T) 

week  at  any  one  time,  without  such  compensation  as  may  be 
agreed  upon  by  any  two  persons  to  be  selected  by  us  for  that 
purpose. 

6065  We  further  agree  to  dismiss  all  suits  now  pending  at 
our  instance  against  said  Board  of  Trustees  in  the  Circuit 
Court  of  Will  County,  Illinois,  and  pay  all  costs  of  court 


1739 


that  may  remain  unpaid  at  the  time  said  suit  or  suits  shall 
be  dismissed. 

In  witness  thereof  the  said  Philo  A.  Haven  and  Orlando 
H.  Haven  have  hereunto  set  their  hands  and  seal  this  22nd 
day  of  August,  1833. 

Philo  A.  Haven,  (Seal) 
by  0.  Haven, 

His  Attorney  in  Fact  (Seal) 
Orlando  H.  Haven  (Seal)” 

28  And  that  the  sum  of  money  mentioned  in  said  agree- 
ment was  paid  and  receipted  for,  said  receipt  being  in 

words  as  follows: 

^‘$3,060. 

Eeceived,  Lockport,  Aug.  22d,  1853,  from  David  Leavit 
Treas.  for  the  Board  of  Trustees  of  the  Illinois  & Michigan 
Canal,,  by  the  hands  of  William  Gooding,  Secretary,  the  sum 
of  Three  Thousand  and  Sixty  Dollars,  in  full,  on  settlement 
of  our  claim  for  damage  against  the  Board  of  Trustees  of  the 
Illinois  & Michigan  Canal. 

Philo  A.  Haven, 

by  0.  H.  Haven, 
His  Attorney  in  Fact. 
0.  H.  Haven.’’ 

It  is  further  agreed  that  no  evidence  proving  or  tending 
to  prove  any  other  facts  than  as  herein  stated  and  referred, 
to,  to  wit:  Said  maps  were  offered  by  either  party  on  the 

trial  of  said  cause;  that  the  evidence  otfered  was  offered 
by  each  party  hereto  subject  to  such  material  objections 
thereto,  except  for  matters  of  form  as  might  be  made;  that 
this  statement  of  the  proofs  and  of  the  facts  proved  herein 
shall  stand  as  and  be  signed  by  the  court  and  filed  in  this 
cause  as  a proper  and  sufficient  bill  of  exceptions  in  this  case, 
and  that  no  other  or  farther  one  shall  be  required,  but  that 
nothing  herein  stated  shall  (should  a re-trial  be  had  of  this 
case  or  of  any  other)  prejudice  the  rights  of  either  party 
to  introduce  on  such  trial  farther,  other  or  different  evi- 
dence proving  or  tending  to  prove  any  different  fact  or 
facts. 

29  It  is  further  agreed  that  on  such  evidence  and  proof, 
the  said  court  wherein  said  action  was  pending  and  tried, 

found  the  issues  herein  for  the  defendants,  to  which  finding 
said  plaintiff  excepted  and  moved  for  a new  trial  in  the  said 
cause,  which  motion  was  by  said  court  over- 

(8) 

ruled,  and  thereupon  said  court  rendered  judgment  against 


1740 


Abstract ,—Dniley  vs.  Adam. — Continued. 


said  plaintiff  and  in  favor  of  said  defendant  for  costs.  And 
inasmuch  as  the  matters  and  things  do  not  appear  of  record, 
he  tenders  this  as  his  bill  of  exceptions  herein,  and  prays 
that  the  same  may  be  signed  and  sealed  and  made  j^art  of  the 
record  in  this  case. 

Garnsey  & Kxox, 

Attorneys  for  Plaintiff. 

G.  D.  A.  Parks, 

Attorney  for  Defendant, 

Certificate  of  trial  judge. 

6067  Here  follows  map  shown  on  opposite  page. 


1 


Abstract, — Drnle/ij  v.  Adam. — Continued.  174-1] 

(9) 

Abstract  of  Appellate  Court  Recor*3. 

6068  8 Order  entered  in  vacation  April  6,  A.  D.  1881,  finding 
the  facts  in  the  case  from  the  evidence. 

4 The  facts  as  found  by  the  Appellate  Court  are  set  forth 
from  pages  4 to  17  inclusive,  and  are  simply  a repetition 
of  the  agreed  state  of  facts  set  forth  in  the  bill  of  exceptions 
appearing  in  the  abstract  of  the  transcript  of  record  from 
the  Circuit  Court. 

(10) 

19  Opinion  of  Appellate  Court,  filed  April  6,  1881,  from 
page  18  to  page  30  inclusive,  recapitulates  the  facts  as 
found  by  the  Appellate  Court,  being  the  same  as  those  agreed 
upon  in  the  Circuit  Court. 

32  Opinion  of  Appellate  Court. 

Eeported  in  8 111.  App.,  72. 

6082  The  judgment  of  the  court  below  reversed  and  judgment 
entered  in  this  court  in  favor  of  the  plaintiff  below  and  against 
the  defendants  below  for  $800  and  costs  of  this  court. 
Judgment  accordingly. 

47  Order  granting  appeal  to  the  Supreme  Court. 

Appeal  allowed  for  reasons  set  forth  in  order. 

53  Certificate  of  clerk  of  Appellate  Court. 

6085  Assignment  of  errors. 


(1) 

6087  Brief  for  Appellees  in  Appellate  Court. 

The  record  presents  the  following  as  the  principal  points 
for  consideration: 

First.  Viewing  the  State  and  Adam,  in  the  relation  of 
upper  and  lower  riparian  proprietors  on  the  Desplaines 
Elver,  is  the  State  guilty  of  a diversion,  if  it  takes  out  above 
Adam’s  Dam  no  more  water  than  it  brings  in  from  Lake 
Michigan  through  its  own  canal! 

Second.  Even  if  the  State  itself  be  supposed  guilty  of  a 
diversion  by  the  act  of  passing  the  water  from  the  pool  above 
Dam  No.  2 down  to  the  Channahon  level  on  which  the  oat  mill 
of  the  appellees  is  situated,  and  where  it  can  by  no  possibility 
again  become  available  to  the  appellant,  whatever  use  is 
made  of  it,  can  the  appellees  Slater  & Druly  be  sued  as  the  re- 
sponsible agents  in  the  act  of  diversion,  which  is  thus  already 


1744  Brief  for  Appdlees,  App.  Ct. — Druley  vs.  Adam. — Con. 

(2) 

irrevocab]}^  consummated  by  operations  at  the  lock  and  dam 
above  ? 

Third.  Adam  having  purchased  subject  to  the  release  exe- 
b088  cuted  by  his  grantors  in  1853,  does  that  release  operate  to 
bar  the  action? 

The  first,  as  the  court  at  once  perceives  is  the  principal 
question,  and  to  that  I shall  devote  my  chief  attention,  the 
interest  of  both  parties  being  to  test  the  absolute  discretionary 
right  claimed  by  the  Canal  Commissioners,  to  lease  the  sur- 
plus water  at  Joliet,  derived  from  Lake  Michigan,  through 
the  deep  cut,  in  such  modes  as  they  find  most  profitable  to 
the  revenues  of  the  canal. 

I. 

THE  CASE  SHOWS  NO  DIVERSION  BY  THE  STATE. 

The  topographical  features  of  the  case  are  so  clearly  ex- 
hibited by  the  map  accompanying  the  record,  that  I shall  with- 
out further  explanation  assume  the  court  to  be  cognizant  of 
the  relative  localities  involved  in  the  controversy.  The  facts 
also  that  counsel  on  both  sides  deem  essential  to  present  the 
main  point  on  which  the  decision  of  the  court  is  desired,  are 
brought  within  a very  narrow  compass  by  the  agreed  case. 
Xothing  is  left,  therefore,  but  a question  of  law:  If  the 

water,  which  is  the  subject  of  the  alleged  diversion,  is  con- 
veyed into  the  canal  from  Lake  Michigan  through  the  works 
and  at  the  expense  of  the  State,  and  constitutes  no  part  of  the 
natural  and  customary  flow  of  the  Desplaines  Eiver,  can  it  be 
rightfully  withdrawn  again  by  the  State  on  its  own  premises, 
if  in  doing  so  that  natural  and  customary  flow  of  the  river  is 
6089  not  diminished? 

Perhaps  the  theory  on  which  the  appellees  rely  may  be 

(3) 

stated  in  the  simplest  and  most  convenient  terms  by  casting 
the  prominent  facts  into  the  form  of  a hypothetical  case. 

Let  A.  (the  State)  and  B.  (Adam)  be  upper  and  lower 
riparian  proprietors  on  a given  natural  water  course  (the 
Desplaines  Eiver),  which  I designate  as  water  course  No.  1. 

A.,  the  upper  riparian  proprietor,  happens  to  own  or  con- 
trol another  and  entirely  independent  stream  which  we  will 
designate  as  stream  No.  2 (Lake  Michigan)  the  waters  of 
which,  for  certain  purposes  of  his  own,  he  desires  to  transmit 
beyond  the  channel  of  No.  1,  by  some  suitable  artificial  struc- 
tures, the  particular  method  chosen  being  a question  of  ju- 


1745 


dicious  and  economical  engineering,  adapted  to  the  local  con- 
ditions of  the  case. 

The  method'which  A in  fact  adopts  is  this:  instead  of  cross- 
ing directly  at  the  point  where  No.  1 is  introduced  into  No.  2, 
he  finds  it  expedient  to  cross  at  a point  on  his  premises  lower 
down,  employing  the  channel  of  No.  1,  for  this  distance  as  a 
temporary  conduit  for  conveying  the  water  of  No.  2,  to  its 
destined  lexit,  and  then,  by  proper  structures  discharg'^ng 
this  extra  water  into  a channel  of  his  own  on  the  other  side, 
prepared  for  it. 

By  this  process,  the  waters  of  the  two  streams  are  of  course 
6090  necessarily  mingled  together  while  thus  flowing  as  an  agent 
for  the  production  of  mechanical  power  and  the  rights  of  the 
parties  in  the  division  admit  of  certain  adjustment  on  the 
basis  of  equivalent  quantities. 

(4) 

Let  us  further  suppose  that  B,  the  lower  riparian  owner  on 
No.  1,  not  only  receives  a full  equivalent  for  his  dues  in 
the  original  flow,  but  a much  larger  amount y incidentally  sup- 
plied from  No.  2 in  the  course  of  the  operation. 

Question:  By  thus  withdrawing  from  No.  1,  the  water 

which  he  has  temporarily  added  to  it  is  A guilty  of  a diver- 
si  on  f 

A plain  statement  of  the  questions  suffices  to  solve  it.  I 
am  certainly  but  expressing  what  seems  to  be  a self-evident 
proposition  of  natural  justice  when  I say  that  A has  a per- 
fect right  as  against  B to  deduct  from  water  course  No.  1, 
by  artificial  channels  the  same  amount  of  water  which  he  con- 
ducts into  it  by  artificial  channels  from  No.  2 unless  that 
right  has  been  qualified  by  contract  or  prescription,  which  is 
not  pretended  in  the  case  at  bar. 

This  proposition  I do  not  hesitate  to  affirm  is  an  inevitable 
inference  from  the  elementary  principles,  governing  the  rela- 
tions between  riparian  owners. 

(16) 

6106  The  Creation  of  Water  Power  was  one  of  the  Objects 
Contemplated  in  the  Original  Plan  of  the  Canal. 

An  attempt  is  made  by  appellant’s  counsel,  though  it  must 
be  admitted  not  a very  serious  one,  to  show  by  referring  to  the 
several  acts  of  the  Legislature,  under  which  the  Deep  Cut 
was  finally  completed,  that  the  water  thus  obtained  is  not 
hona  fide,  genuine,  legal  canal  water  below  the  terminus  of  the 
Summit  level. 

Now,  it  is  a matter  of  public  history  well  known  to  the  court, 
that  the  original  plan  of  the  canal  was  to  supply  the  Summit 


1746  Brief  for  Appellees,  App.  Ct. — Druley  vs.  Adam. — Con. 

level  from  Lake  Michigan,  precisely  as  it  is  now  supplied. 
Much  of  the  work,  in  fact,  has  been  done  before  the  suspen- 
sion of  1840.  When  the  enterprise  was  resumed  in  1845  under 
the  trust  created  to  secure  the  bondholders,  the  then  embar- 
rassed financial  condition  of  the  State  compelled  a temporary 
relinquishment  of  the  original  plan,  and  the  substitution 

(17) 

of  what  was  termed  the  raised  or  shallow  cut,  to  be  supplied 
by  pumps  at  Bridgeport  and  the  Calumet  feeder. 

6107  In  1865  the  City  of  Chicago  found  itself  compelled  to  face 
the  stupendous  problem  of  drainage,  for  the  public  health 
and  comfort,  and  deeming  that  its  object  could  be  effectually 
accomplished  by  completing  the  old  deep  cut  already  partially 
excavated,  asked  permission  of  the  State  to  finish  the  work. 
Permission  was  given  by  the  Act  of  16th  of  April,  1865,  en- 
titled: '‘An  Act  to  provide  for  the  completion  of  the  I.  <&  M. 
C.  upon  the  plan  adopted  hy  the  State  in  1836.’’  Besides  this 
significant  title  the  preamble  to  the  act  contains  a brief  refer- 
ence to  the  past  history  of  the  improvement, — the  original 
plan, — its  abandonment  ^Mor  the  time  being,” — the  precarious 
and  unsatisfactory  nature  of  the  mode  of  supply  from  the 
Calumet  feeder  and  hydraulic  works  at  Bridgeport,  and  the 
great  benefit  to  be  expected  by  deepening  the  cut. 

See  Public  Laws,  1865,  p.  83-4. 

The  work  accordingly  was  undertaken  and  was  completed 
in  1871,  at  an  expense  of  several  million  dollars,  and  the  cost 
soon  after  refunded  to  the  City  of  Chicago  by  the  State. 

Is  it  necessary  to  argue  the  point  which  counsel  suggest,^ 
based  on  the  special  circumstances  that  led  to  the  improve- 
ment! Is  it  not  enough  that  the  improveemnt  was  in  fact 
made!  Is  not  the  condition  of  the  case  essentially  the  same  as 
if  the  work  had  been  done  in  the  first  instance  by  the  State 
instead  of  bv  the  City  of  Chicago,  and  done  in  1848  instead 
of  1871! 

6108  Eight  of  the  Canal  Commissioneks  to  Create  and  Lease 

Water  Power. 

But  again,  the  counsel  for  appellant  express  a gloomy  ap- 
prehension that  it  is  hardly  according  to  law  for  the  Canal 
Commissioners  to  create  and  lease  water  power  to  help  sup- 
port 

(18) 

the  canal.  To  sustain  this  view  they  have  ransacked  the  canal 
laws  ah  initio,  not  forgetting  the  act  of  Congress  of  1823. 

To  this  somewhat  odd  position  I reply: 


1747 


1.  That  while  navigation  is  the  primary  object  of  a canal, 
yet  to  create  water  power  as  an  incident  has  been  the  uni- 
versal policy  of  such  enterprises  when  undertaken  at  the  pub- 
lic expense  or  by  private  corporations.  The  disposal  of  the 
water  control  of  the  State,  and  the  public  good  dictates,  both 
that  it  should  be  utilized  in  aid  of  manufacturing  interests, 
and  that  it  should  be  made  to  contribute  to  the  expense  of 
maintaining  the  wmrk.  Such,  at  all  events,  has  been  the  es- 
tablished policy  on  the  Illinois  and  Michigan  Canal,  unques- 
tioned for  more  than  thirty  years.  No  express  statute  indeed 
was  required  to  make  it  a duty  of  the  Canal  Commissioners, 
in  the  vigilant  fulfillment  of  their  public  trust,  to  thus  add  to 
their  limited  revenues,  wherever  they  found  it  practicable.  The 
details  of  administration  in  respect  to  this  branch  of  their 
official  duties,  of  course,  are  necessarily  confided  to  their  own 
judgment  and  discretion.  Special  occasions  have  arisen  and 
may  again  arise  for  special  legislative  regulation  on  the  sub- 

6109  ject,  but  the  particular  methods  of  creating  and  delivering 
power  at  any  given  place  is  a question  for  the  Commissioners 
under  the  advice  of  their  Chief  Engineer. 

2.  The  statute  expressly  gives  them  a general  authority  to 
lease  water  power. 

R.  St.  (1874),  p.  189. 

The  expression,  ^^and  lands  and  lots  connected  therewith,” 
cannot  well  be  construed  as  intended  to  exclude  cases  where 
the  State  happened  to  own  no  lands  or  lots  adjoining  the  locus 
of  the  waterfall.  Ordinarily  such  a connection  would  exist, 
but  it  would  not  where  the  site  occurs  on  a school  section,  as 
here,  or  on  Government  lands.  But  unless  the  two'  subjects 

(19) 

enumerated  in  the  clause  water  power”  and  ‘‘lots”  are  from 
their  nature  indissolubly  conjoined  together,  they  are  to  be 
taken  distributively.  We  are  to  look  at  the  main  leading  de- 
sign of  the  law ; and  that  was  to  utilize  the  surplus  water  for 
the  benefit  of  the  State  wherever  possible. 

3.  But  lastly  the  question  is  none  of  the  appellant's  busi- 
ness. If  he  is  legally  entitled  to  the  water,  the  point  is  need- 
less,— if  he  is  not,  its  use  by  the  Commissioners  is  no  concern 
of  his. 


Is  THE  Watek  Abandoned  at  Lockpokt? 

It  is  contended,  on  the  other  side,  that  admitting  the  gen- 
6110  eral  principle  under  which  we  insist  on  the  right  of  the  State 
to  draw  out  above  the  appellant’s  dam  the  water  derived  from 
Lake  Michigan,  yet  it  has  no  bearing  on  this  case,  for  the  rea- 
son that  it  applies  only  where  he  who  asserts  it  is  riparian 


1748  Brief  for  Appellees,  App.  Ct. — Druley  vs.  Adam. — Con. 

owner  eontinuously  for  the  whole  distance,  including  both  the 
point  where  the  extra  water  is  introduced  and  the  point  where 
it  is  withdrawn;  that  here  the  State  appears  to  own  no  land 
upon  either  bank  of  the  Desplaines  River  between  Lockport 
and  its  junction  with  the  canal  above  Dam  No.  1,  and  that 
the  water  being  thus  allowed  to  run  into  a foreign  water 
course  at  a point  where  the  State  has  no  status  as  a riparian 
owner,  it  must,  therefore,  be  deemed  to  have  been  abandoned, 
and  incorporated  for  all  subsequent  legal  purposes  with  the 
proper  water  of  the  river. 

To  this  argument  I reply  that  it  somewhat  misconceives  the 
facts,  and  would  be 'untenable  if  its  facts  were  true. 

The  record  shows  that  the  Desplaines  River  was  appropri- 
ated to  the  use  of  the’ canal  as  a feeder  in  the  very  beginning 
of  the  enterprise,  nearly  fifty  yeafls  ago.  The  appellant’s 
grantors  describe  it  as  a feeder  in  their  release.  It  has  been 

(20) 

so  constantly  used  for  more  than  thirty  years.  By  what  pro- 
ceedings it  was  originally  condemned  or  appropriated  to  pub- 
lic use  and  the  rights  of  riparian  owners  subjected  to  this  im- 
portant easement  does  not  appear,  nor  is  it  necessary  now  to 
6111  inquire;  for  it  has  at  any  rate  become  perfect  by  prescrip- 
tion. 

The  State  then  by  virtue  of  this  easement  has  complete 
jurisdiction  over  the  current  and  channel  of  the  river,  for  the 
general  purpose  of  a feeder ; as  much  so  as  if  it  were  the  ripar- 
ian owner  from  headspring  to  mouth. 

If  it  be  said  that  this  easement  as  a feeder  is  confined  to  the 
natural  flow  of  the  stream,  and  does  not  extend  to  its  use  for 
conveying  water  obtained  from  other  sources,  I reply  that  this 
mode  of  use  has  also  been  settled  by  prescription.  Before  the 
deep  cut  was  finished,  for  more  than  twenty  years  before  the 
surplus  water  from  the  Summit  level,  used  at  the  mills  at  Lock- 
port,  had  been  conveyed  to  the  lower  level  through  the  medium 
of  this  feeder. 

And  finally,  the  map  before  the  court  indicates  that  such 
a use  must  have  been  contemplated  when  the  easement  was 
first  acquired.  The  juxtaposition  of  the  Hydraulic  Basin  to 
the  river,  and  the  necessary  use  of  its  channel  as  a vehicle 
to  receive  and  convey  the  water  thence,  demonstrate  that  this 
was  a })art  of  its  intended  pur]>oses  when  originally  ap]>ro- 
])i*iated  as  a feeder. 

The  Intention  of  the  State. 

On  the  point  under  consideration,  the  first  inquiry  will  be,  I 
a])preliend,  what  was  the  intention  of  the  State?  For  it  will 


1749 


be  hard  to  maintain  that  a thing  is  effectually  abandoned 
which  the  owner  evidently  intends  to  resume  and  control  for 
6112  future  use.  To  ''abandon/’  in  the  sense  in  which  the  term 
is  here  employed  is  to  relinquish  all  future  claim  of  property, 
or 

(21) 


exclusive  use,  and  to  give  it  finally,  wholly  and  absolutely  to  the 
public.  But  that  confessedly  is  not  true,  in  this  case,  in  point 
of  fact. 

The  whole  plan  of  the  canal  is  to  be  treated  as  a unit,  like 
a vast  machine,  and  to  be  viewed  all  together;  each  part  in  its 
relation  to  every  other  part,  however  remote.  The  entire 
chain  or  system  of  structures  composing  the  canal,  from 
terminus  to  terminus,  must  be  surveyed,  moreover,  in  relation 
to  the  physical  peculiarities  of  the  region  through  which  it 
passes;  for  the  engineer  in  planning  such  a work  must  neces- 
sarily conform  and  adapt  it  to  the  contiguous  country. 

The  relative  course  and  comparative  levels  of  the  river  and 
canal  between  Lockport  and  Joliet  are  clearly  indicated  on 
the  map  which  the  court  has  before  it.  These  local  conditions, 
it  will  be  perceived,  are  such  that  the  surplus  water  dis- 
charged at  Lockport,  through  Norton  & Co.’s  tail  race  and 
through  the  waste  wier,  pursues  the  channel  of  the  river  for 
a distance  of  about  three  miles,  and  then  empties  again  into 
the  canal  between  Lock  No.  4 and  Dam  No.  1. 

Now,  how  have  the  legal  attributes  of  this  water,  with  refer- 
ence to  the  rights  of  the  appellant  been  essentially  changed! 
The  plan  of  the  canal  as  to  the  disposition  of  the  surplus 
6113  water,  obviously  contemplated  this  very  mode  of  transmis- 
sion from  one  level  to  another.  The  total  fall  between  Lock- 
port  and  Joliet  is  about  sixty  feet;  and  in  that  part  of  the 
canal  which  concerns  this  case,  it  will  be  seen,  there  are  seven 
successive  levels:  1st,  the  summit  level;  2d,  that  between 

locks  1 and  2;  3d.  between  locks  2 and  3;  4th,  between  locks 
3 and  4;  5th,  between  lock  4 and  Dam  No.  1;  6th,  between 
Dams  1 and  2;  7th,  the  Channahon  level. 


(22) 

Into  the  Summit  level  Lake  Michigan,  by  the  recent  im- 
provement, supplies,  as  was  contemplated  in  1836,  a large 
quantity  of  surplus  water,  estimated  at  about  25,000  cubic 
feet  per  minute,  not  needed  for  navigation,  but  very  valuable 
to  the  State  of  Illinois  and  the  manufacturing  interests  of 
Lockport  and  Joliet,  for  hydraulic  purposes. 

The  plan  of  the  canal  within  this  distance  affords  four  falls 
available  to  the  State  for  water  power — one  at  Lockport, 
leased  to  Norton  & Co.;  one  at  Dam  No.  1,  one  at  Dam  No.  2, 


1750  Brief  for  Appellees,  App.  Ct. — Bndey  vs.  Adam. — Con. 

and  one  at  Cliannalion  level,  a portion  of  which  is  leased  to 
the  defendants.  Thus  the  same  volume  of  water  is  repeatedly 
used  on  successive  levels  within  a space  of  about  four  miles. 

Recently  the  Canal  Commissioners  found  that  the  surplus 
water  at  their  disposal  from  the  level  above  Dam  No.  2,  was 
such  that  after  leasing  all  that  could  he  leased  to  advantage 
at  the  dam,  and  after  transmitting  to  the  appellant  more  than 
double  the  amount  he  was  accustomed  to  receive  through  his 
own  pitiful  stream  before  the  deepening  of  the  cut,  there  was 
still  a large  surplus  that  could  be  utilized  most  profitably,  by 
the  State,  in  the  method  exemplified  in  the  case  at  bar,  viz.  : 
by  drawing  it  directly  through  openings  from  the  canal  it- 
self, and  then  discharging  in  into  the  river,  but  necessarily 
and  unavoidably  below  the  plaintitf^s  dam. 

Thus  it  is  apparent  that  no  intention  to  finally  abandon 
the  water  at  Lockport  can  be  inferred  from  tlie  original  de- 
sign of  the  canal;  and  no  such  purpose,  in  fact  is  or  can  be 
imputed  to  the  official  agents  of  the  State  at  any  time.  If 
an  abandonment  has  occurred,  it  must  be  an  involuntary  one 
by  the  subtle  operation  of  some  mysterious  technical  rule 
of  law",  upon  the  bare  fact  that  the  surplus  water  instead  of 
being  transferred  from  one  level  to  another  between  the 
banks  of  the  canal  itself,  or  through  a race  alongside  con- 
structed by  the 

(23) 

State,  or  through  some  ravine  or  natural  depression  in  the 
ground  owned  or  controlled  by  the  State,  is  left  to  descend 
by  the  law  of  gravity  through  another  kind  of  channel  lying 
convenient  for  the  purpose,  to  wit:  the  bed  and  banks  of  the 
Desplaines  River,  a water  course  already  appropriated  to 
the  use  of  the  canal  as  a feeder. 

Is  this  an  abandonment  in  any  sense  whatever! 

6115  Let  it  be  remembered  there  is  no  question  here  between 
the  State  and  the  riparian  owners  on  the  river  between  Lock- 
])ort  and  Joliet.  To  them  individually  this  influx  of  water 
from  the  canal  may  be  a benefit  or  an  injury,  according  to 
the  use  they  happen  to  make  of  their  land.  But  whether  a 
benefit  or  an  injury,  they  assuredly  have  and  claim  to  have 
no  concern  with  the  water  after  it  again  joins  the  canal,  nor 
any  joint  interest  with  the  riparian  owmers  below  the  point 
of  junction.  The  same  thing  must  be  true  of  them,  as  to 
all  the  riparian  owmers  above. 

As  to  them,  it  cannot  be  affirmed,  for  there  can  be  no  legal 
occasion  to  affirm,  that  this  additional  water  is  a part  of  the 
customary  flow  of  the  river,  considered  as  a whole.  And  if 
not  as  to  them,  how  can  it  be  so  described  and  claimed  by 
a lower  proprietor?  It  is  their  part  of  the  channel  and 
their  part  only  which  the  State  has  been  thus  using  unin- 


1751 


terruptedly  for  now  more  than  thirty  years,  as  a convenient 
conduit  to  transmit  the  surplus  v/ater  of  the  canal  from  the 
hydraulic  basin  in  Lockport  to  the  upper  basin,  as  it  is  com- 
monly called,  in  Joliet.  If  a detriment  to  them,  they  have 
not  complained;  if  an  advantage  they  have  no  reason  to  com- 
plain. They  can  be  presumed  to  claim  no  right  in  the  water, 
except  this,  that  while  passing  through  their  possessions  in 
its  transit  from  one  point  to  another  of  the  canal,  for  ulterior 
use  by  the  State,  they  as  an  incidental  necessity  of  the  case, 
may  and  must  enjoy  the  advantages  of  it. 

(24) 

6116  And  between  themselves,  doubtless,  while  the  water  is 
thus  suffered  to  run,  each  lower  proprietor  as  against  those 
above  him  has  a right  to  demand  for  himself  the  full,  un- 
obstructed enjoyment  of  the  improved  flow.  But  whatever 
the  relation  between  the  State  and  them  or  between  them- 
selves, these  relations  cannot  rationally  extend  to  affect  one 
way  or  the  other  those  above  or  below  them. 

The  proposition  of  the  counsel  on  the  other  side,  then,  is 
at  last  cut  down  to  this: — tliat  if  A,  in  the  process  of  trans- 
mitting the  water  of  No.  2 from  one  side  to  the  other  of  No. 
1,  is  compelled  for  a part  of  the  way  to  use  or  does  use  a 
part  of  the  channel  of  No.  1,  which  does  not  happen  to  be- 
long to  him  as  riparian  proprietor,  then  and  in  that  case, 
Vvdiatever  his  intentions  the  instant  the  water  is  poured  into 
that  portion  of  the  channel;  he  can  no  longer  jmrsue  his  ex- 
clusive claim  to  it  and  utterly  loses  his  right  to  transmit  it 
across  for  his  own  use  on  the  other  side.  By  force  of  some 
metaphysical  principle  of  law,  it  becomes  indissolubly  an- 
nexed to  No.,  as  a part  of  itsAnatural,  customary  and  or- 
dinary” flow,  and  B,  and  not  only  B,  but  C,  T)  and  B down 
to  the  very  mouth  of  the  sti*eam,  though  contributing  nothing 
to  the  expense  of  construction,  repairs  or  operation,  and 
though,  not  only  not  injured,  but  in  fact  greatly  benefited  by 
its  o])eration,  as  in  this  case,  can  come  into  a court  of  jus- 

6117  tice,  and,  thanking  A for  nothing,  claim  the  water  he  has 
been  at  so  much  trouble  to  secure,  as  their  own. 

On  what  principle  of  justice,  intelligible  to  a judge,  can 
such  a claim  be  set  up?  In  this  age,  courts,  while  strictly 
observing  the  mandates  of  positive  law  and  adhering  to  es- 
tablished precedents,  are  not  accustomed  to  favor  technical 
notions  tending  to  defeat  manifest  right;  and  the  law  of 
water  courses,  forms  no  exception  in  our  jurisprudence. 

This  court,  we  think,  will  say  to  the  appellant,  what  dif- 
ference does  it  make  to  you,  whether  the  land  bordering  on 

(25) 

the  river,  in  Secs.  22,  23  and  27,  in  the  Town  of  Lockport, 


1752  Brief  for  Appellees,  App.  Ct. — Driiley  vs.  Adam. — Con. 

and  Sec.  3,  in  the  Town  of  Joliet,  belongs  to  the  State  or 
to  individual  proprietors?  If  the  State  owned  the  land,  or 
had  express  permission  from  the  owners  to  thus  use  their 
portion  of  the  bed  and  banks  of  the  river  as  a convenient 
conduit  to  convey  the  water  of  its  canal  from  one  point  to 
another,  you  hardly  pretend  that  you  would  have  any  rea- 
son to  complain.  AVhat  better  reason  have  you,  if  without 
any  formal  grant,  these  owners  have  now  for  more  than 
thirty  years  acquiesced  in  such  a use  without  objection  and 
without  asserting  against  the  State  any  adverse  riglits  for 
themselves,  by  reason  of  it;  or,  if  so,  certainly  without  as- 
serting any  which  concern  you,  or  were  for  your  benefit,  or 
have  any  possible  regard  to  your  interests? 

6118  The  fact,  then,  that  this  link  of  communication  between 
the  hydraulic  basin,  at  Lockport,  and  the  upper  basin,  in 
Joliet,  into -which  the  river  discharges  as  a feeder,  does  not 
belong  to  the  State  is,  I submit,  (piite  immaterial  to  the  argu- 
ment. It  is  a circumstance  affecting  only  and  exclusively 
the  relations  between  these  ])articular  intermediate  owners 
and  the  State.  In  fact,  for  fully  two-thirds  of  the  way,  as 
will  be  seen,  the  river  runs  through  canal  lands,  which  must 
be  supposed  to  have  been  sold  subject  to  the  right  of  the 
State  to  the  use  of  the  channel.  But  those  also  who  pur- 
chased from  the  Government  of  the  U.  S.  must  have  clone 
so  after  the  plan  of  the  canal  connecting  with  the  Desplaines 
Eiver  as  a feeder  was  adopted,  and  with  full  knowledge  of 
and  reference  to  it. 

If  ever  there  was  a case  of  prescriptive  right,  here  cer- 
tainly we  find  a right  by  prescription  in  the  State  to  em- 
ploy this  section  of  the  river  channel  as  a connecting  link 
between  the  two  canal  levels,  for  the  ])urpose  of  transmit- 
ting the  surplus  water  from  one  to  the  other. 

It  is  a case  strongly  reminding  us  of  the  language  em- 
ployed in  a decision  already  (juoted:  “It  would  be  a harsh 

rule  to  require  those  engaged  in  these  enterprises  to  con- 
struct 

(26) 

an  artificial  ditch  along  the  whole  route  through  which  the 
water  was  to  be  carried,  and  to  refuse  them  the  economy 
that  nature  occasionally  affords  in  the  sha])e  of  a dry  ra- 
vine, gulch  or  canyon?” 

6119  AVithout  ])ursuing  this  head  of  the  argument  further,  the 
counsel  for  ap]>ellees  respectfully  submits  the  following  ))rop- 
ositions  as  maintained: 

1.  That  the  a])])ellant  is  only  entitled  as  against  the  State 
to  the  natural  and  customary  flow  of  the  Desy>laines  River; 
and  can  only  coni])lain  of  a diversion  in  res])ect  thereto. 

2.  That  the  surplus  water  derived  from  Lake  Michigan, 
in  1871,  is  in  no  sense  a part  of  this  natural  and  customary 


1753 


flow,  unless  that  character  is  impressed  upon  it  by  the  cir- 
cumstance that  between  the  hydraulic  basin  at  Lockport  and 
the  upper  basin  at  Joliet,  it  is  conveyed  in  the  channel  of 
the  river,  running  by  the  side  of  the  canal,  and  employed  as 
a convenient  conduit  provided  by  nature,  and  presumably 
with  the  consent  of  the  riparian  owners. 

3.  That  this  accidental  circumstance  does  not  change  the 
rights  of  the  State  in  the  water  as  the  proper  surplus  water 
of  the  canal,  because  there  was  no  intention  to  abandon  its 
use,  in  the  sense  of  any  of  the  adjudged  cases  cited  to  sup- 
port that  position;  but,  on  the  contrary,  a manifest  intention 
to  resume  it  for  further  canal  use. 

4.  That  the  ]^eculiar  occasion  on  whicli  the  City  of  Chi- 
cago undertook  to  flnish  the  canal  accoi'ding  to  its  original 
plan,  in  no  way  affects  the  rights  of  the  State  in  the  owner- 
ship and  control  of  the  sur])lus  water  furnished  by  the 

6120  deep  cut. 

5.  That  the  general  ])olicy  of  canal  administration,  as 
well  as  the  canal  laws  of  Illinois,  contemplate  and  recpiire 
the  leasing  of  water  power,  wherever  it  can  be  profitably  de- 
veloped as  a source  of  revenue,  whether  with  or  without  ac- 
companving 

(27) 

water  lots.  Hence,  we  contend  there  has  been  no  diversion 
from  the  plaintiff  by  the  State. 

6121  I 1. 

THERE  IS  NO  RIGHT  OF  ACTION  AGAINST  THE  APPELLEES. 

This  branch  of  defense,  although  inferior  in  public  inter- 
est to  the  proceeding,  is  met  in  the  record  and  can  not  be 
passed  over  without  notice. 

The  suit  evidently  is  an  attempt  to  esca]>e  the  constitu- 
tional provision  which  prohibits  the  suing  of  the  state,  and 
also  the  statute  which  extends  the  same  exemption  to  the 
Canal  Commissioners. 

IT  St.  Ch.  19,  $3. 

It  has  thus  been  declared  the  pulilic  ])olicy  of  Illinois,  that 
in  controversies  of  this  sort,  between  the  state  and  individu- 
als, if  wrong  has  been  done  under  the  authority  of  the  state, 
resort  shall  be  had  to  the  Legislature  for  relief.  The  ap- 
pellant deemed  this  remedy  rather  unpromising  and  so  has 
sued  the  lessees  of  the  State,  Slater  <S:  Druly.  We  think  the 
action  must  fail  for  two  reasons — one  that  the  act  of  di- 
version was  not  committed  by  the  appellees,  and  the  other, 
that  it  is  against  public  ]iolicy. 


1754  Brief  for  Airpellees,  App.  Ct.—Druley  vs.  Adam. — Con. 


1.  There  has  been  no  diversion  by  the  appellees.  The 
case  shows  that  none  was  possible. 

Ahst.,  p.  1,  Eec.,  3. 

The  oat  mill  of  the  defendants  is  situated  on  the  berm 
bank  of  the  canal,  about  three-fonrths  of  a mile  below  Dam 
No.  2;  at  which  dam  the  water,  that  is  not  suffered  to  flow 

6122  into  the  channel  of  the  river  and  thence  down  to  appellant’s 
mills,  is  discharged  into  the  Channahon  level  through  the 
lock  and  a 

(28) 

bulkhead,  constructed  for  the  purpose. 

At  this  point  the  canal  has  entirely  completed  its  crossing 
of  the  Desplaines  Diver  and  from  thence  onward  diverges 
into  a separate  and  independent  channel. 

The  instant  the  water  leaves  the  pool  of  the  dam  and  de- 
scends into  the  Channahon  level  it  becomes  forever  detached 
from  all  relations  of  riparian  rights  vNth  the  river  and  the 
mill  and  dam  of  the  plaintiff. 

When  it  reaches  a point  opposite  the  defendant’s  mill,  it 
can  no  more  be  identifled  or  recognized  as  river  water  than 
at  a point  ten  miles  below  or  at  Ottawa  or  LaSalle.  It  is 
27iire  canal  water,  in  a legal,  though,  it  must  be  confessed, 
in  no  other  sense. 

The  act  of  diversion,  therefore,  as  an  actionable  injury, 
takes  place  and  is  consummated  at  Dam  No.  2 ; for  the  act 
must  consist  in  that  operation  by  which  the  water,  instead 
of  being  suffered  to  flow  over  the  dam  into  the  river  chan- 
nel and  down  to  Adam’s  wheels,  is  irrevocably  turned  off 
in  another  direction. 

In  this  operation,  conducted  as  it  must  be  by  the  func- 
tionaries of  the  State,  in  the  official  administration  of  the 
affairs  of  the  canal,  the  defendants,  of  course,  have  and  can 
have  no  responsible  agency.  The  stage  of  water  in  the 

6123  Channahon  level  from  time  to  time,  and  the  methods  of  sup- 
plying it,  are  matters  of  exclusive  official  regulation. 

The  water  being  by  this  process  already  diverted,  Adam, 
as  a riparian  proprietor,  has  no  further  concern  with  it.  In 
its  mere  character  as  a physical  substance,  he  sets  up  no 
right  to  it  in  this  suit;  and  he  can  assert  no  usiifruetuary 
right,  except  where  it  is  found  existing  under  such  local  re- 
lations to  his  mill,  that  he  himself  could  use  it  as  a motive 
power,  if  the  appellees  did  not.  But  is  obvious  that  when 
the  water  has 

(29) 


reached  down  to  a point  op])osite  their  mill,  it  can  be  of  no 
heneft  to  him  in  any  posible  event,  and  6'  eonvcrso,  it  can 
be  uo  injury  to  him,  if  it  is  used  by  others.  If,  tlien,  their 


1755 


use  of  it  is  no  legal  injury  to  him,  how  can  it  he  denominated 
a diversion? 

It  seems  too  plain  for  serious  dispute  that  the  act  of  di- 
version, if  any,  is  performed  at  the  point  where  the  road 
forks,  so  to  speak,  and  is  effected  by  the  sole  agency  of  the 
officers  of  the  State,  in  the  performance  of  their  public  du- 
ties. 

If  the  place  of  the  defendant’s  head-gate,  relatively  to  the 
plaintiff’s  mill  was  such,  that,  if  not  used  by  them,  the 
water  could  be  conceived  as  in  some  way  available  to  him, 
the  case  would  be  very  different.  But  such  is  not  their 
relative  position,  as  the  agreed  case  and  accompanying  map 
clearly  demonstrate. 

6124  The  appellant’s  only  interest  in  the  water,  I repeat,  is 
that  of  user  for  hydraulic  purposes  at  his  mill,  and  so  the 
declaration  expressly  describes  it.  He  asserts  no  right  to  it 
otherwise;  and  this  usufructuary  interest  is  only  supposable 
under  conditions  which  make  it  possible  for  him  to  use  it. 
After  it  has  passed  down  and  out  from  these  conditions,  and 
is  found  in  some  place  entirely  beyond  their  range,  it  is  alto- 
gether disconnected  from  the  system  of  riparian  rights  per- 
taining to  the  Desplaines  Biver. 

2.  The  action  was  brought  in  evasion  of  our  express  and 
established  public  policy,  in  respect  to  controversies  with  the 
State,  arising  from  the  management  of  the  canal  by  her  offi- 
cial agents. 

E.  St.,  cited  supra. 

It  is  very  distinctly  a case  coming  within  the  reason  and 
spirit  of  this  Vvuse  policy  of  the  Government.  Confessedly, 
it  is 

(30) 

a dispute  between  William  Adam  and  the  State  of  Illinois, 
involving  the  control,  at  Joliet,  of  the  immense  volume  of 
surplus  water  which  pours  down  from  Lake  Michigan  through 
the  deep  cut.  If  Adam  has  been  aggrieved,  the  State  should 
pay  the  damage;  and  this  constitutional  and  statutory  pro- 
vision, wdiile  thus  taking  the  rights  and  liabilities  of  the  State 
out  of  the  jurisdiction  of  her  judicial  tribunals,  contemplate 
that  her  Legislature  will  do  him  ample  justice.  To  that  re- 
sort, however  inconvenient,  he  is  confined. 

6125  If  the  Canal  Commissioners,  who  made  the  lease  to  the 
appellees,  as  the  official  agents  and  representatives  of  the 
State,  cannot  be  sued,  wnuld  the  court  tolerate  a suit  against 
the  executive  officers  in  charge  of  the  canal,  say  the  super- 
intendent or  the  lock  tender,  for  faithfully  carrying  out  the 
orders  of  the  Board!  If  the  principal  officer  is  protected,  in 
the  disposition  of  the  surplus  water  from  litigation,  will  not 
his  subordinates  and  employes  also  be  protected!  There  can 


1<56  Brief  for  Appellees,  App.  Cf. — Druleij  vs.  Adam. — Con. 

be  no  doubt  of  it,  since  otherwise  the  whole  object  of  this 
public  policy  of  the  State  would  be  practically  defeated. 

In  analogous  questions  arising  from  the  acts  of  ministerial 
officers  in  executing  process,  the  rule  is  universal,  that  what 
is  a justification  of  the  principal  officer  will  also  justify  his 
deputies  and  assistants. 

2 Hilliard  on  Torts,  p.  156. 

The  same  principle  of  immunity  extends  to  all  officers  act- 
ing for  the  State. 

Gidley  v.  Palniersion,  7 E.  C.  L.,  438. 

Hodgson  v.  Dexter,  V Cranch,  345. 

The  consequence  is,  that,  inasmuch  as  the  diversion  of  the 
water  by  the  officers  of  the  State  is  by  express  statute  de- 
clared 

(31) 

to  be  not  an  actionable  injury  as  to  the  State  or  her  officers 
who  may  commit  it,  the  lessees  from  the  State,  who,  if  sued 
at  all,  must  be  sued  in  the  chaarcter  of  joint  tort  feasors 
with  the  commissioners,  must  and  should  share  the  like 
6126  immunity.  If  tlie  supposed  cause  of  action  is  not  a tort, 
but  a claim  against  the  State  to  be  adjusted  by  the  General 
Assembly,  then  Slater  & Druly  it  would  seem,  cannot  be  joint 
tort  feasors. 


III. 

THE  PLFF^S  CLAIM  BARRED  BY  THE  HAVEX^S^  RELEASE. 

A certain  release  from  Adam’s  grantors,  Haven  & Haven, 
was  put  in  evidence  on  the  trial  (Abst.,  6)  though  not  very 
strenuously  pressed  in  defense,  which,  it  was  hoped,  was 
invincible  on  other  grounds.  Xor  is  it  now  pressed  strenu- 
ously; for,  if  either  of  the  two  proceeding  propositions  shall 
receive  the  assent  of  the  court,  the  point  of  the  release  be- 
comes one  of  little  or  no  practical  importance.  A few  words, 
therefore,  upon  it,  will  suffice. 

In  the  plan  of  the  canal,  the  Desplaines  river  had  been 
taken  as  a feeder  at  a point  above  the  Havens’  mill.  In  1848, 
by  an  appropriate  legal  proceeding,  the  Havens  claimed 
damages  for  diversion. 

Canal  Trustees  v.  Haven,  5 Gil.,  548. 

After  considerable  litigation,  the  case  was  finally  com- 
promised, and  the  release  in  question  executed  for  a con- 
sideration of  $3,060. 

On  the  trial  of  this  cause  in  the  court  below,  it  was  urged 
against  the  release,  when  interposed  as  a bar  to  the  suit  by 
Adam,  a grantee  from  the  releasors,  that  it  only  gave  to  the 
Canal  Trustees  and  the  State  the  right  to 


1757 


(32) 

use  the  water  of  the  river  strictly  for  the  purposes  of  navi- 
gation,  as  contradistinguished  from  water  power. 

6127  But  is  it  certain  that  this  restricted  construction  is  the 
true  one?  The  intention  of  the  parties  is  to  be  gathered 
from  the  whole  instrument,  the  surrounding  circumstances, 
and  the  nature  of  the  subject  matter. 

By  these  lights  is  it  not  more  fair  to  suppose,  that  the 
real,  substantial  design  was  to  release  to  the  trustees  the 
rights  of  the  Havens  in  the  entire  flow  of  the  stream  for 
general  canal  purposes?  True,  that  in  one  place  the  expres- 
sion ‘‘for  the  purpose  of  navigation’’  is  employed.  But  im- 
mediately following  we  find  these  other  words — “in  the  same 
manner  the  water  in  said  river  in  connection  with  other  feed- 
ers is  now  used  for  supplying  said  canal.’’  Was  it  not  the 
leading  idea,  that  it  was  to  be  turned  over  to  the  trustees  to 
be  used  as  a feeder,  just  like  any  other  feeder  supplying  the 
canal? 

The  principal  purpose  of  every  canal,  no  doubt  is  naviga- 
tion; and  water  power  is  only  an  incident.  Hence,  in  an  in- 
strument of  grant  or  release,  the  principal  object  might  and 
naturally  would  be  named,  without,  however,  necessarily  rais- 
ing the  presumption  that  it  was  meant  to  exclude  that  which 
was  usually  connected  with  it  as  an  incident.  If  in  this  case 
the  Desplaines  in  1853  had  a capacity  to  fully  supply  the 
wants  of  navigation,  and  a surplus  besides,  perhaps  a doubt 
might  arise  whether  the  grantors  did  not  intend  to  restrict 
their  grant  to  the  quantity  required  for  the  specific  object 
of  navigation.  But  in  truth  the  Desplaines  per  se  was  and 

6128  is  a most  insignificant  stream,  a mere  rill  in  the  summer 
season.  There  was  no  time  when  the  state  could  not  for 
navigation  purpose  command  the  whole  volume  of  its  dis- 
charge. Nor  was  the  state  under  any  obligation  to  maintain 
any  other  particular  feeder,  either  the  Calumet  or  the  pumps. 
Its  discretionary  power  to  construct  and  alter  its  own  works 

(33) 

could  not  have  been  intended  to  be  tied  up  in  that  way.  The 
instrument  cannot  be  construed  as  importing  a binding  con- 
dition, that  the  State  should  continue  forever  the  particular 
system  of  supply  then  happening  to  exist,  if  it  should  be 
found  expedient  afterwards  to  change  it  for  the  public  in- 
terest. 

And,  if  such  was  the  true  construction,  it  would  not  much 
help  the  appellant.  It  certainly  was  an  incidental  object  of 
“the  other  feeders’’  to  which  this  feeder  was  assimilated,  to 
furnish  water  for  hydraulic  purposes  as  well  as  for  navi- 
gation purposes. 


1758  Brief  for  Appellees,  App.  Ct. — Dniley  vs.  Ada}ns. — Con. 


If,  then,  the  Desplaines  was  placed  on  the  same  footing 
with  the  other  feeders  and  made  to  subserve  the  same  gen- 
eral objects,  how  can  the  construction  suggested  be  upheld? 

In  conclusion  of  the  whole  case,  it  is  now  respectfully  sub- 
mitted to  the  court  that  the  follovmig  propositions  have  been 
maintained  on  the  part  of  the  appellees : 

First.  That  the  Canal  Commissioners  have  not  been  guilty 
of  diverting  any  water,  to  which  the  appellant  was  entitled 
as  a lower  ripariar  owner  on  the  banks  of  the  Desplaines 
6129  Eiver. 

Second.  That  there  has  at  all  events  been  no  diversion 
by  the  appellees,  justify  an  action  against  them. 

Third.  That  if  there  has  been  a diversion  from  the  cus- 
tomary and  natural  flow  of  the  Desplaines  Eiver,  such  use 
was  authorized  by  the  Havens’  Eelease. 

G.  D.  A.  Parks, 
Atty.  for  Appellees. 


6131 


(1) 


Ik  the  Supreme  Court  of  Illinois, 


, Northern  Grand  Division, 


September  Term,  A.  D.  1881. 


5Ym.  M.  Druley, 
Appellant, 
vs. 

"William  Adam, 
Appellee. 


•n 


Appeal  from  the  Appellate  Court 
of  the  Second  District. 


BEIEF  AND  AEGUMENT  FOE  APPELLANT. 


Sa^nopsis  of  the  Case. 

This  was  an  action  in  the  common  form  brought  in  the  W ill 
Circuit  Court  by  Adam,  the  appellee,  against  Druley,  the 
appellant,  and  one  Slater  for  a diversion  of  the  water  of  the 
Desplaines  Eiver  from  the  plaintiff’s  mill.  Judgment  hav- 
ing been  rendered  for  the  defendants,  by  the  Circuit  Court,  to 
which  the  cause  had  been  submitted  for  trial,  without  a jury, 
an  appeal  was  taken  to  the  Appellate  Court;  and,  as  the  sub- 
stantial facts  were  not  disputed,  they  were  embodied  by  stipu- 
lation of  counsel  in  an  agreed  case.  By  this  it  will  appear, 
that  the  main  defense  set  np  was  two-fold,  1st,  that  there  had 
been  no  diversion  of  the  proper  waters  of  the  Desplaines  Eiver 
to  which  the  riparian  rights  of  the  plaintiff  related;  2d,  that  if 


1759 


there  had  been  such  diversion,  yet,  the  act  effecting  it  was  not 
in  any  natural 

(2) 

or  legal  sense  the  act  of  the  defendants;  hut  was  exclusively 
the  act  of  their  lessor,  the  State  of  Illinois,  done  by  her  official 
agents,  in  the  regular  and  authoritative  administration  of  the 
business  of  the  canal. 

The  Appellate  Court  having  reversed  the  judgment  of  the 
court  below,  and  rendered  a judgment  for  damages  against  the 
defendants,  the  case  has  been  brought  here  upon  a certificate 
of  the  judges  in  due  form,  setting  forth  specifically  the  ques- 
tions of  law  involved,  and  declaring,  that  they  are  of  such  im- 
portance, as  that  they  should  be  passed  upon  by  this  tribunal 
of  last  resort. 

The  principal  facts  of  the  case  are  these : — The  Illinois  and 
Michigan  Canal  crosses  the  Desplaines  Eiver  at  Joliet.  This 
crossing  is  effected,  as  the  map  attached  to  the  record  indi- 
cates, by  passing  the  unappropriated  waters  of  the  river,  min- 
gled with  those  of  the  canal  through  two  basins,  for  a distance 
of  about  a mile,  and  at  last  discharging  them  again  into  the 
natural  channel,  over  the  lower  dam,  designated  as  Dam  No.  2. 
Adam’s  mill  is  situated  on  the  east  bank  of  the  river,  about 
a third  of  a mile  below  this  dam. 

When  the  canal  leaves  the  river  at  Dam  No.  2,  it  pursues 
a southwesterly  direction,  diverging  gradually  more  and  more 
from  the  river,  this  being  known  as  the  Channahon  level.  On 
this  level,  and  about  half  a mile  heloiu  Adam’s  mill-dam, 
6133  the  defendants  in  1878  erected  an  oat  mill  on  the  berm  or 
westerly  bank.  The  Canal  Commissioners  had  discovered, 
that  by  simple  and  not  very  expensive  structures,  a valuable 
water  power,  promising  to  yield  a considerable  addition  to 
the  revenues  of  the  canal,  might  be  developed  in  this  quarter 
of  the  town  of  Joliet;  and  accordingly  made  to  Slater  & Druly 
a ten  years’  lease  of  sufficient  water  to  run  their  mill,  under 
which  leave  the  defendants  proceeded  to  put  their  enterprise 
into  operation.  Their  establishment  is  situated  nearly  a mile 
below  Dam  No.  2,  where  the  river  and  canal  part  company. 
It  is 

(3) 

for  this  water,  thus  drawn  from  the  canal,  at  a point  far  below 
the  plaintiff’s  mill,  and  far  below  Dam  No.  2,  that  the  action 
was  brought  against  them  as  lessees  of  the  State;  Adam  not 
choosing  to  make  his  contest  directly  with  the  State  herself. 

It  has  never  been,  and  of  course  cannot  be  pretended  that 
the  surplus  water  in  question  is  to  be  described  as  any  part 
of  the  natural  and  customary  flow  of  the  Desplaines  Eiver; 
if  by  that  expression  is  meant  the  flow  derived  from  its 


1760  Brief  for  Appellants^  Sup.  Ct. — Druley  vs.  Adam. — Con. 

natural  sources  and  affluents  in  the  water  shed  which  it  drains. 
The  Desplaines  is  in  truth  a very  insignificant  stream,  never 
of  much  use  as  a feeder  in  the  season  when  its  services  are 
most  needed,  and,  except  as  reinforced  by  contributions  from 
the  canal,  atfording  sites  only,  for  what  are  sometimes  de- 

6134  nominated  “thunder  shower  mills. 

In  1871,  when  the  summit  level  from  Chicago  to  Lockport 
was  finished  on  the  original  Deep  Cut  plan,  which  the  pecuni- 
ary embarrassments  of  the  State  had  for  so  many  years  sus- 
pended, drawing  its  supply  directly  from  Lake  Michigan,  as 
the  fountain  head,  the  Canal  Commissioners  found  themselves 
in  possession  on  the  summit  level  of  a vast  surplus  of  water, 
ten-fold  beyond  what  was  required  for  navigation.  The  ques- 
tion then  met  them,  how  they  could  best  utilize  it  for  the 
canal  revenues  and  the  public  good! 

From  Lockport  to  Joliet  there  is  a fall  of  about  fifty  feet, 
divided  into  five  levels.  If,  as  we  must  for  the  present  ven- 
ture to  assume,  although  questioned  by  the  Appellate  Court, 
this  surplus  water  rightfully  belonged  to  the  canal  and  was 
subject  to  the  control  of  its  officers  for  all  legitimate  canal 
purposes,  it  was  manifestly  the  duty  of  the  Commissioners  to 
make  the  most  profitable  disposition  of  it,  possible  under 
the  circumstances.  If  susceptible  of  repeated  use,  it  seemed 
to  be  as  manifestly  their  duty  to  avail  themselves  to  the  ut- 
most of  this  accidental  advantage.  How  was  this  to  be  done! 
How  were  they  to  preserve  for  repeated  use  at  successive  falls 
the  pro- 

(4) 

prietary  rights  of  the  State  in  the  water?  It  could  not,  at  least 
but  a small  portion  of  it  could  be  conveyed  through  the  chan- 
nel of  the  canal  itself  from  Lockport  to  Joliet.  To  excavate 
or  construct  another  channel  by  its  side  as  a sort  of  race  or 

6135  conduit  for  that  sole  purpose  would  be  absurd.  Nature  how- 
ever, it  was  seen,  had  provided  a convenient  medium  in 

the  channel  of  the  Desplaines  River  just  alongside;  and  by 
this,  the  surplus  passing  through  the  spillways,  and  mills  at 
Lockport,  could  be,  as  it  always  had  been,  transmitted,  till  it 
again  reached  the  canal,  in  what  is  called  the  “upper  basin 
above  Dam  No.  1.  No  question  has  ever  been  made  in  regard 
to  the  legal  rights  pertaining  to  this  body  of  water,  as  be- 
tween the  State  and  any  other  interests  concerned  in  it,  till 
we  come  to  Dam  No.  2.  Here  the  battle  begins.  At  this  point 
the  Canal  Commissioners  assert  the  right  of  the  State  to  pass 
this  immense  volume  of  water  received  into  the  summit  level 
from  the  lake,  or  so  much  of  it  as  they  find  profitable  to  their 
revenues,  into  the  level  below,  instead  of  allowing  it  to  flow 


17G1 


over  the  dam  into  the  cliannel  of  the  river,  for  the  plaintiff’s 
benefit. 

The  main  issue  thus  becomes  apparent  to  the  court.  Does 
this  surplus  water  belong  to  the  State  of  Illinois  or  to  the 
appellee?  Is  it  in  any  sense  to  be  recognized  under  the  circum- 
stances of  the  case,  as  a part  of  the  customary  flow  of  the 
Desplaines  River? 

Treating  the  State  and  Adam  as  occupying  substantially 
the  mutual  relation  of  upper  and  lower  riparian  owners  on 
the  river,  is  the  State,  as  the  upper  owner,  entitled  to  take 
out  again  what  it  has  brought  -in,  from  Lake  Michigan  by 

6136  this  recent  improvement?  By  using  the  Desplaines  as  a con- 
duit for  a part  of  the  way,  has  the  State,  in  relation  to  this 

lower  riparian  owner,  irretrievably  lost  its  proprietary  rights 
in  this  volume  of  water,  thus  conveyed  to  Lockport  through 
its  own  works  from  its  own  reservoir?  Viewing  the  canal 
from  Chicago  to  Joliet  as  one  connected  system  of  structures 
de- 

(5)  - 

signed  for  the  conveyance  and  disposition  of  the  water  derived 
from  the  lake,  and  considering  it  as  a necessary  consequence 
of  that  plan,  that  the  water  discharged  at  Lockport  should  be 
again  restored  to  the  canal  in  the  upper  basin,  can  the  offi- 
cial agents  of  the  State  by  the  fact  of  employing  this  con- 
venience of  transmission  from  one  level  to  another,  be  sup- 
posed to  have  abandoned  this  valuable  surihus,  with  respect 
to  any  proposed  future  exclusive  use  of  it?  If  it  be  con- 
ceded, as  it  must,  that  there  was  no  real  intention  on  the  part 
of  the  canal  officers  to  relinquish  the  proprietary  rights  of 
the  State  in  the  future  disposition  of  the  water,  does  such 
a result  follow,  nevertheless,  from  the  circumstance,  that  for 
a part  of  the  way,  the  State,  instead  of  having  drawn  the  water 
continuously  through  the  canal  or  through  some  other  channel, 
of  which  she  is  sole  proprietor,  has  seen  fit  to  avail  herself  of 
an  obvious  ^‘economy  of  nature,”  as  a California  judge  ex- 
presses it;  and  suffered  it  to  flow  for  a short  distance  through 

6137  the  channel  of  the  river  ? 

These  are  the  questions  of  greatest  interest  in  the  case; 
yet  there  are  others  embraced  in  the  certificate  of  the  Appel- 
late Court  which  will  demand  attention. 

It  was  argued  in  both  the  Circuit  and  Ap])ellate  Courts, 
on  behalf  of  the  defendants,  and  will  be  again  insisted  on 
here,  that  after  the  water  had  passed  down  in  to  the  Chan- 
nahon  level,  and  was  found  under  such  local  conditions  in  rela- 
tion to  the  plaintiff’s  dam,  that  he  could  by  no  possibility 
use  it  to  propel  his  machinery,  it  was  as  much  detached  from 
the  system  of  rijiarian  rights  appertaining  to  the  Desplaines 


1762  Brief  for  Appellants,  Sup.  Ct. — Driiley  vs.  Adam. — Con. 

Eiver,  as  if  it  bad  reached  the  very  terminus  of  the  Chan- 
nahon  level,  ten  miles  below,  or  Morris  or  Ottawa.  This  being 
so,  the  act  of  the  defendants  in  making  use  of  water  found 
opposite  their  head  gates,  which  had  already  flowed  down 
below  the  plaintiff’s  dam,  and  thus  found  there  by  no  re- 
sponsible agency  of  theirs,  could  be  no  actionable  diversion  on 
their  part;  and  the  cause  of  complaint  if 

(6) 

any,  was  exclusively  against  the  State  or  the  Canal  Commis- 
sioners. 

There  are  still  other  points,  to  which  the  opinion  of  the 
Appellate  Court  has  challenged  the  earnest  attention  of  coun- 
sel; but  which  are  not  deemed  necessary  to  now  introduce  to 
the  notice  of  this  Court  in  this  short  preliminary  view. 


6138 


BRIEF. 


I. 

NO  DIVERSION  BY  THE  STATE. 

No  diversion  can  be  charged  against  the  State;  because,  the 
surplus  water  in  question  is  to  be  regarded  as  the  proper  water 
of  the  Illinois  and  Michigan  Canal,  and  in  no  sense  a part  of 
the  water  ^ ‘ accustomed”  to  flow  in  the  Desplaines  River,  on 
which  the  appellee,  Mhlliam  Adam,  is  a riparian  proprietor. 

1st.  A lower  riparian  owner,  on  a natural  water  course, 
is  entitled  and  only  entitled  to  receive,  from  the  proprietor 
above  the  proper,  natural  and  customary  flow  of  the  stream, 
miimpaired  in  quantity  and  in  the  conditions  of  fall  necessary 
to  make  it  reasonably  useful  to  him. 

Ang.  on  ANater  Courses,  Sec.  95,  et  seep 
Plumleigh  v.  D arc  son,  1 Gil.,  544. 

Evans  v.  Merriweather,  3 Scam.,  492. 

This  doctrine  is  expressed  in  the  maxim  of  the  civil  law, 

acpia  currit  et  dehet  currere,  nt  ciirrere  solehat.” 

Belknap  v.  Belknap,  2 Johns.  Ch.,  463. 

6139  2d.  The  proper,  natural  and  customary  flow  of  water  in 

a natural  water  course  must  be  defined  in  general  terms,  as 
that 

(D 

body  of  water  which  issues  from  its  natural  sources  and  af- 
fluents, in  the  water  shed  that  it  drains. 

Ang.  W.  C.,  Sec.  4,  et  seep 

3d.  If  an  ii])per  ])roprietor  A,  inci-eases  the  volume  of  water 


1763 


by  artificial  means,  from  a reservoir  of  his  own,  as  in  the  case 
at  bar,  and  permits  it  to  pass  unreclaimed,  below  his  own  lim- 
its, then,  as  between  the  lower  proprietors  B & C,  C may 
justly  insist,  that  he  is  entitled  to  the  benefit  of  the  increased 
flow,  and  that  B ought  not  to  divert  it  from  him. 

Ang.  W.  C.,  Sec.  95. 

4th.  A riparian  proprietor,  owning  on  both  sides  of  the 
stream,  is  to  be  deemed  the  perfect  and  absolute  owner  of  its 
bed,  banks  and  channel,  subject  only  to  the  right  (familiarly 
if  not  with  strict  propriety  termed  an  easement),  in  favor  of 
his  neighbors  below;  that  although  he  may  make  use  of  the 
water  ad  Uhituni  and  even  alter  wholly  the  course,  dimensions 
and  character  of  the  channel  within  his  own  limits,  he  shall  at 
last  deliver  to  the  servient  proprietor  unimpaired  the  natural 
flow  which  he  had  received  from  those  above  him.  This  is  stat- 
ing the  rule  in  somewhat  stronger  terms  than  is  strictly  cor- 
rect, but  still  with  sufficient  accuracy  for  our  present  pur- 
pose. 

6140  Ang.  W.  C.,  Sec.  5. 

Buckingham  v.  Smith,  10  Ohio,  288. 

Trustees  Sc.  v.  Dickinson,  9 Cush.,  547. 

Brace  v.  Yale,  10  Allen,  443. 

2 Bouvier’s  Institutes,  174. 

5th.  The  rights  of  the  lower  proprietor,  B,  being  thus 
confined  to  the  customary,  proper  and  natural  flow  of  the 
stream,  derived  from  its  head  springs  and  affluents,  he  has 
no  legal  concern,  not  the  least,  in  the  use  which  A may  choose 
to  make  of  his  own  section  of  the  channel.  This  proposition 
can  hardly  be  stated  too  broadly.  And  on  the  same  principle  it 

(8) 

also  follows,  where  the  case  is  not  affected  by  prescription, 
contract,  or  other  special  conditions,  that  if  A,  for  his  own 
private  purposes,  conducts  water  into  the  stream  from  an 
exterior  source,  to  which  B is  a stranger,  he,  (A),  may  again 
deduct  an  equivalent  quantity,  provided  in  doing  so  he  does 
not  interfere  with  the  rights  of  B ; and  provided  also,  he  has 
done  nothing,  and  suffered  nothing  to  take  place,  amounting 
to  an  effectual  abandonment  to  public  use. 

Whittier  v.  Cacheco  Mfg.  Co.,  9 N.  H.,  454. 

Soc’y  for  Mf’g  v.  Morris  Canal  Co.,  Saxton  (X.  J.),  157. 

Butte  V.  Vaughn,  11  Cal.,  143. 

Burnett  v.  Whitesides,  15  Cal.,  35. 

6141  Elliott  V.  Fitchburg  R.  R.  Co.,  10  Cush.,  191. 

Embury  v.  Owen,  6 Exch.,  360. 

2d  Washburne  on  Real  Property,  329. 

Hoffman  et  al.  v.  Stone  et  al.,  7 Cal.,  46. 

6th.  The  water  discharged  at  Lockport  from  the  tail  race 


1764  Brief  for  Appellants,  Sup.  Ct. — Driiley  vs.  Adam. — Con. 

of  Xorton^s  Mills,  and  the  spill  way,  is  in  no  legal  sense  aban- 
doned, nor  the  right  of  the  State  to  its  future  use  relinquish- 
ed, by  reason  of  the  fact,  that  it  happens  to  pass  from  one 
level  to  another  through  a medium  exterior  to  the  prism  of  the 
canal,  instead  of  directly  between  its  walls,  or  through  some 
other  channel  exclusively  owned  by  the  State.  It  is  sufficient, 
that  it  in  fact  does  rejoin  the  canal  and  does  return  to  a con- 
dition of  statu  quo,  long  before  reaching  the  dividing  line  be- 
tween the  State  and  Adam;  and  it  is  of  no  practical  or  legal 
concern  to  Mm,  what  may  have  been  the  particular  mode  or 
conditions  of  transmission  at  some  remote  stage  in  its  pas- 
sage. 

Hoffman  et  al.  v.  Stone  et  al.,  7 Cal.,  46. 

Butte  V.  VaugMi,  11  Cal.,  143. 

7th.  The  water  supplied  to  the  summit  level  through  the 

(9) 

deep  cut  belongs  to  the  canal,  and  is  within  the  jurisdiction 
of  the  commissioners,  in  the  same  sense  and  to  the  same  extent, 
precisely,  as  the  water  found  in  any  other  of  the  several  levels. 
The  motive  causes  and  history  of  the  improvement  are  quite 
immaterial  here. 

6142  Its  supposed  benefit  to  the  drainage  of  Chicago,  as  an  inci- 
dental consequence  of  its  flow  into  and  through  the  canal, 
cannot  affect  its  ultimate  status  as  pure  canal  water,  pure  at 
least  in  a legal  sense. 

Pub.  Laws,  1865,  83. 

8th.  It  is  the  duty  of  the  commissioners,  as  well  with  a view 
to  revenue  for  the  support  of  the  canal,  as  to  incidentally  pro- 
mote the  manufacturing  interests  of  the  country  traversed, 
to  develop,  husband  and  utilize  water  power  to  the  utmost, 
wherever  they  can  do  so.  The  statute  indeed  expressly  rec- 
ognizes and  enjoins  this  duty. 

E.  S.,  Ch.  19,  Sec.  8,  Clause  6. 

II. 

XO  DIVERSION  IMPUTABEE  TO  THE  DEFENDANTS  AS  EESSEES  FROM 

THE  STATE. 

If  however  a diversion  could  be  charged  against  the  State 
by  this  act  of  turning  off  the  water  in  question  through  the 
bulkhead  in  J)am  No.  2 into  the  Channahon  level,  it  thereafter 
becomes  finally  separated  from  all  connection  with  the  Des- 
plaines  Eiver,  and  from  the  entire  system  of  riparian  rights 
and  duties  a])pertaining  thereto.  Being  thus  for  future  pur- 
poses, indistinguishabh^  incorporated  with  the  proper  water 


17G5 


of  the  canal,  and  having’  passed  under  such  local  relations 
with  reference  to  the  appellee’s  mill,  that  he  could  by  no 

6143  possibility  use  it,  to  turn  his  own  wheels,  its  use  by  Slater 
& Druly  can 

(10) 

not  be  described  as  a diverting — by  them — from  him — of  the 
waters  of  the  Desplaines  Eiver. 

Parker  v.  Grisivold,  17  Conn.,  288. 

The  claim,  if  any  there  be,  is  against  the  State  of  Illinois, 
for  an  injury  done  to  a private  citizen  by  its  official  agents, 
and  to  be  redressed,  as  the  constitution  and  the  laws  direct,  by 
the  justice  of  the  Legislature;  since  no  suit  is  permitted  to 
be  brought  against  the  State  or  the  Canal  Commissioners. 

Const.,  Art.  IV,  Sec.  26. 

E.  St.,  Ch.  19,  Sec.  3. 

If  the  alleged  injury  is  not  an  actionable  tort  against  the 
State  or  commissioners,  from  considerations  of  public  policy, 
but  left  to  legislative  remedies,  alone,  it  ought  not  to  be  charge- 
able in  law  against  the  defendants  as  joint  tort  feasors  with 
the  canal  officers;  and  the  present  suit,  as  being  in  palpable 
evasion  of  the  spirit  of  the  statute  and  constitution,  ought  not 
to  be  sustained. 

Jermaine  v.  Wagner,  1 Hill  (N.  Y.),  284. 

Hilliard  on  Torts,  Vol.  2,  155-255. 

Main  v.  McCarty,  15  111.,  441. 

6144  III. 

THE  HAVENS  RELEASE. 

1st.  The  appellee,  Adam,  bought  subject  to  the  perpetual 
release  of  damages  executed  by  Philo  A.  and  Orlando  H. 
Haven  to  the  canal  trustees,  in  1853.  This  release  was  in- 
tended to  confer  upon  the  trustees  a plenary  and  unlimited 
control  over  the  Desplaines  as  a feeder,  to  the  same  extent 
as  could  be  supposed  of  any  other  of  its  feeders ; the  re- 
leasors 

(11) 

making  their  riparian  rights  entirely  subordinate  to  the  public 
demands. 

Ang.  W.  C.,  Sec.  228. 

This  broad  view  of  its  import  and  intention  is  rendered 
probable  by  the  consideration  that  even  on  this  basis  the  com- 
promise was  one  highly  advantageous  to  the  Havens ; inasmuch 
as  this  court  had  recently  decided,  that  their  mill  privilege 
was  really  of  no  value  save  as  a sort  of  dog  in  the  manger, 
to  annoy  the  trustees  with  mere  technical  causes  of  action  and 


1766  Brief  for  Appellants,  Sap.  Ct. — Druley  vs.  Adam. — Con. 

barren  claims  for  nominal  damages.  We  specially  invite  the 
attention  of  the  court  to 

Canal  Trustees  v.  Haven,  11  111.,  554. 

2d.  But  whether  the  release  was  or  was  not  a complete  bar 
to  the  action  as  suggested,  the  acceptance  of  the  release  by 
the  trustees  can  upon  no  principle  of  construction  be  held 
as  any  recognition  of  the  right  of  the  Havens  to  claim  recom- 
pense for  that  portion  of  the  water,  which  had  been  fur- 

6145  nished  by  the  trustees  themselves,  in  the  surplus  discharged 
at  Lockport. 

So  shocking  an  inference  is  forbidden  by  every  rule : 

^^a” — Grants  are  to  be  construed  most  strongly  against  the 
grantor.  Ang.  W.  C.,  Sec.  149  ’’  Alton  v.  Trans.  Co., 

12  111.,  38. 

‘M)’’ — But  when  even  express  grants  are  made  by  the  State, 
• the  rule  is  reversed,  and  they  are  to  be  construed  most  favor- 
ably for  the  government.  People  v.  Broivn,  67  111.,  438. 

‘"c” — The  release  nowhere  speaks  of  any  water,  but  such  as 
strictly  pertained  to  the  Desplaines  Kiver,  as  a part  of  its 
proper,  natural,  original,  and  customary  flow.  Eec., 

(12) 

p.  26. 

‘‘d’’ — In  the  legal  procedings  of  which  the  release  purport- 
ed to  be  a final  adjustment,  it  does  not  appear,  from  the  re- 
ports, that  there  had  ever  been  any  pretense  of  a legal  claim 
by  the  Havens  to  a drop  of  this  surplus  water,  as  entering 
into  their  estimate  of  damages  against  the  trustees.  So  im- 
pudent and  preposterous  a claim  was  not  thought  of. 

3d.  The  release,  at  all  events,  is  to  be  construed  with  ref- 
erence only  to  the  facts  and  circumstances  surrounding  the 

6146  parties  at  the  time.  Wilcox  v.  McGhee,  11  111.,  381;  Hadden 
V.  Shout z,  15  Ilk,  582. 

The  Deep  Cut,  which,  by  a remarkable  and  unlooked  for 
train  of  causes,  was  accomplished  eighteen  years  afterwards, 
pouring  25,000  cubic  feet  of  water  per  minute  into  the  canal, 
was  not  then  in  the  remotest  contemplation  of  anybody.  Even 
if  it  be  supposed,  that  in  1853,  in  this  settlement  with  the 
Havens,  the  canal  trustees,  to  buy  their  peace,  chose  to  ignore 
the  distinction  of  right  between  the  natural  flow  of  the  Des- 
plaines Eiver  and  that  much  larger  flow  which  they  them- 
selves at  that  time  added  at  Lockport,  still  it  is  impossible 
to  believe  that  by  paying  three  thousand  dollars  for  a grant 
of  the  river  as  a feeder  to  the  canal,  they  intended  at  the  same 
time  to  make  a perpetual  grant  of  the  canal  as  a feeder  to 
their 


river. 


(13) 


1767 


ARGUMENT. 


The  certificate  from  the  Appellate  Court  will  be  found  to 
indicate  substantially  the  following  as  the  principal  points 
for  consideration,  stating  them  in  a condensed  form : 

First.  Viewing  the  State  of  Illinois  and  Adam,  as  standing 
in  the  relation  of  upper  and  lower  riparian  proprietors  on 
the  Desplaines  River,  is  the  State  guilty  of  a diversion^  if  it 
takes  out  above  Adam’s  dam  a portion  of  the  water  which 
it  brings  in  from  Lake  Michigan! 

Second.  Even  if  we  suppose  the  State  to  be  guilty  of  a di* 

6147  version,  by  passing  the  water  from  the  pool  above  ])ani  No.  '1 

down  into  the  Channahon  level  on  which  the  oat  mill  of  the 

appellant  is  built,  and  where  the  water  can  by  no  possibility 
again  become  available  to  the  appellee,  can  Slater  & Druly  be 
regarded  as  the  responsible  agents  in  this  act  of  diversion,  thus 
already  consummated,  by  an  operation  of  public  authority  at 
the  lock  and  dam  above! 

Third.  Adam  having  purchased  subject  to  the  release  ex- 
ecuted by  his  grantors  in  1853,  does  that  release  operate  to  l)ar 
the  action ! 

Or,  on  the  other  hand,  does  the  mere  acceptance  of  it  by 
the  canal  trustees  noAv  bar  the  State  from  asserting  as  against 
the  appellee  an  exclusive  right  to  dispose  of  this  additional 
volume  of  water  obtained  through  the  Deep  Cut! 

The  first  is  the  principal  question,  and  to  that  we  devote  our 
chief  attention;  the  interest  of  both  parties  and  the  public  be- 
ing to  test  the  validity  of  the  absolute  right  which  the  Canal 
Commissioners  have  deemed  it  their  duty  to  assert,  to  lease 
the  surplus  water  at  Joliet,  supplied  by  the  recent  improve- 
ment, in  such  modes  as  they  find  most  productive  of  revenue 
and  most 

(14) 

conducive  to  the  public  good.  Was  the  Deep  Cut,  in  other 
words,  made  for  the  benefit  of  William  Adam  or  the  State 
of  Illinois!  Is  the  water  it  supplies  a monopoly  to  be  en- 

6148  joyed  by  the  owner  of  Lot  1,  Block  57,  School  Section,  Joliet, 
or  may  its  benefits  be  distributed  to  other  localities  in  the 

town! 

I. 

THE  CASE  SHOWS  XO  DIVEKSIOX  BY  THE  STATE. 

The  main  topographical  features  of  the  case  are  shown  on 
the  map  accompanying  the  record,  and  we  shall  assume  the 
court  to  be  sufficiently  advised  of  the  relative  localities  in- 
volved. The  facts  also  that  are  deemed  essential  to  present 


1768  Brief  for  Appellants , Sup.  Ct.—Druley  vs.  Adam. — ^Con. 

the  points,  on  which  the  decision  of  the  court  is  sought,  are 
drawn  within  a narrow  compass  by  the  agreed  case.  Noth- 
ing is  left,  but  a question  of  law.  If  this  water,  which  is 
the  subject  of  the  alleged  diversion,  is  conveyed  into  the 
canal  from  Lake  Michigan,  through  the  works  and  at  the 
expense  of  the  State,  and  constitutes  no  part  of  the  cus- 
tomary flow  of  the  Desplaines  River,  can  it  be  rightly  drawn 
out  again  by  the  State,  if  done  on  her  own  premises;  and  if 
in  doing  so  the  natural  flow  of  the  River  to  Adam’s  Dam  is 
not  diminished  but  largely  increased? 

Perhaps  the  theory  on  which  the  appellant  relies  may  be 
best  illustrated  by  casting  the  prominent  facts  into  the  form 
of  a hypothetical  case. 

Let  A (the  State)  and  B (Adam)  be  upper  and  lower 
riparian  proprietors  on  a given  natural  water  course  (the 

Desplaines  River),  which  we  will  designate  as  water  course 

6149  No.  1. 

A,  the  upper  proprietor,  happens  to  control  another  and 
entirely  independent  reservoir,  designated  as  No.  2 (Lake 
Michigan),  the  waters  of  which,  for  certain  purposes  of  his 
own,  he 

(15) 

desires  to  transmit  across  the  channel  of  No.  1,  by  some  suit- 
able structures,  the  particular  method  being  a mere  question 
of  judicious  and  economical  engineering,  governed  by  the  local 
conditions  of  the  case. 

The  plan  which  A in  fact  adopts  is  this : Instead  of  cross- 

ing directly  at  the  point,  where  No.  1 is  introduced  into  No. 
2,  by  an  aqueduct  or  by  subterreanean  pipes,  as  we  will  sup- 
])ose  he  might,  he  finds  it  expedient  to  cross  at  a point  on 
his  premises  somewhat  lower  down,  employing  the  channel 
of  No.  1,  as  a temporary  conduit  for  conveying  the  water  of 
No.  2,  to  its  destined  point  of  exit,  and  there,  by  proper  struc- 
tures discharging  this  extra  water  into  some  channel  of  his 
own  on  the  other  side,  which  he  has  prepared  for  it. 

By  this  process,  the  waters  of  the  two  streams  are  neces- 
sarily mingled  together,  while  thus  flowing  in  the  joint  or 
common  channel,  and  are,  of  course,  incapable  of  identifica- 
tion. But  in  the  case  supposed,  the  water  is  treated  simply 
in  its  character  as  an  agent  for  producing  mechanical  power; 
and  the  rights  of  the  parties  obviously  admit  of  perfect  ad- 
justment on  the  basis  of  equivalent  quantities.  One  cubic 

6150  foot  of  water  is  as  good  as  another  cubic  foot  of  water  upon 
upon  a water  wheel ; and  the  element  of  identity  therefore  is  to 
be  dismissed  from  the  argument,  as  of  no  essential  value. 

Question.  By  thus  withdrawing  from  No.  1 the  water  which 
he  has  temporarily  added  to  it,  is  A guilty  of  a diversion? 

A plain  statement  of  the  question  comes  little  short  of  an- 


1769 


swering  it.  We  certainly  l)iit  express  what  at  first  l)lusli  seems 
a self-evident  proposition,  when  we  say,  that  A ninst  possess 
a perfect  right,  as  against  B,  to  deduct  from  water  course 
No.  1,  by  artificial  channels  the  same  amount  of  water  which 
he  has  added  to  it  by  artificial  channels;  unless  that  right 
has  been  qualified  by  contract  or  prescription. 

This  proposition,  we  submit,  is  an  inevital)le  inference 
from 

(16) 

the  elementary  principles  governing  the  relations  between 
riparian  owners. 

First.  Subject  only  to  the  reciprocal  rights  in  the  flow 
of  the  wmter  existing  between  the  dominant  and  servient  es- 
tates, each  riparian  proprietor  is  the  owner  of  the  bed  and 
banks  forming  the  channel  of  a water  course  as  absolutely  to 
all  intents  and  purposes,  as  he  owns  his  farm  upon  its  Imr- 
ders;  and  he  may  use  ii  with  precisely  the  same  perfect  and 
unqualified  rights  of  dominion. 

6151  No  one  can  call  him  to  account  for  such  use,  save  only  in 
respect  to  the  water  which  flows  upon,  through  and  from  his 

land.  This  doctrine  is  too  familiar  to  need  the  support  of 
authorities. 

Second.  The  law  of  riparian  rights  to  which  A,  the  up- 
per owner,  is  subject,  simply  demands  that  he  shall  trans- 
mit to  B,  the  natural,  proper  and  customary  flow  of  the 
stream,  as  he  receives  it  from  his  neighbor  above.  And  to  that 
extent  only  is  B at  all  concerned  in  A’s  part  of  the  channel. 

These  general  principles  also,  we  presume,  will  not  be  dis- 
puted; and  we  only  refer  as  a good,  short  statement  of  them 
to  Broom’s  Maxims,  374. 

It  follows,  of  course,  that  B has  no  possible  concern  with 
the  question  how  A chooses  to  use  that  portion  of  the  chan- 
nel which  is  within  his  own  domain,  any  more  than  with  the 
question  how  he  might  choose  to  subdivide,  enclose  or  culti- 
vate his  fields.  He,  at  all  events,  sustains  no  real,  and  as  we 
humbly  suppose,  no  technical  injury,  if  A withdraws  by  a 
train  of  suitable  structures  what  he  has  thus  introduced  from 
an  exterior  source. 

It  seems,  indeed,  too  plain  for  argument,  that  no  right  of 
B is  impaired,  unless  the  dogma  (for  so  we  must  call  it), 
can  be  supported,  that  the  instant  a drop  of  water  is  added  to 

6152  the  volume  of  No.  1,  it  becomes  an  inseparable  constituent 
part  of  it,  with  relation  to  the  rights  of  B;  no  matter  at  what 

place,  in  what  manner,  by  Avhat  party,  or  for  what  purpose 
the  addition 

(17) 

was  made.  The  notion,  surely,  has  no  foundation  in  natural 


1770  Brief  for  Appellants,  Sup.  Ct. — Druley  vs.  Adam. — Con. 

and  rational  justice;  and,  is  warranted,  as  we  believe,  by  no 
well  considered  authority. 

In  such  a case,  A’s  intention  will  be  found  a controlling  and 
decisive  consideration.  If  indeed  he  intends  his  contribution 
to  No.  1,  as  a permanent  addition  to  its  flow,  and  not,  with  a 
view  to  resume  it  for  some  ulterior  use  of  his  own,  then  per- 
haps there  are  two  or  three  decisions  squinting  towards  the 
rule,  that  even  he  cannot  divert  it  afterwards,  though  on 
his  ovm  land. 

Eddif  V.  Simpson,  3 Cab,  249. 

Wehl)  V.  Portland  Mfg.  Co.,  3 Sumner,  189. 

T ourtelotte  v.  Phelps,  4 Gray,  370. 

So  if  A adds  extra  water  to  No.  1,  which  he  suffers  to  flow 
down  in  the  channel  and  abandons  to  the  public,  in  that  case, 
as  between  B and  those  below  him,  say  C and  D,  these  still 
lower  proprietors,  might'  as  against  B,  rightfully  claim,  that 
he  should  not  divert  it,  from  them.  It  cannot  be  doubted  that 
it  is  in  this  sense,  Angel  says: 

‘At  is  also  important  to  observe,  that  as  each  pro- 
prietor through  whose  land  a water  course  passes  has 
a right  to  the  flow  and  descent  of  the  water  course,  sub- 
6153  ject  to  a like  reasonable  use  by  all  others,  he  necessar- 
ily  enjoys  the  benefits  of  any  improvements  made  by 
the  proprietors  above  him.^^ 

Any.  Wat.  Courses,  Sec.  95. 

We  believe,  however,  there  are  no  well  considered  decisions 
which  hold,  that  when  A employs  that  part  of  the  No.  1,  be- 
longing to  him,  simply  as  a convenient  medium  for  trans- 
mitting the  waters  of  No.  2 across  into  a channel  which  he 
has  provided  for  his  own  purposes  on  the  opposite  side, 
B,  as  against  A,  acquires  any  legal  right  whatever  in  such 
extra  water.  There  is  not  the  slightest  resemblance  between 
the  relations  of  A and  B,  and  B and  C in  such  a case. 

(18) 

In  support  of  our  proposition  we  refer  to 
Whittier  v.  Casheco  Mfg.  Co.,  9 N.  H.,  454. 

Soc’y  for  Mfg.  v.  Morris  Canal  Co.,  Saxton,  157. 

Butte  V.  Vaughn,  11  Cal.,  143. 

Burnett  v.  Whitesides,  15  Cal.,  35. 

Elliott  V.  Eitchburg  B.  B.  Co.,  10  Cush.,  191. 

Embury  v.  Oiven,  6 Exch.,  360. 

2d  Washburne  on  Beal  Property,  329. 

Hoffman  et  al.  v.  Stone  et  at.,  7 Cal.,  46. 

The  leading  authority  supposed  to  hold  the  contrary  is 
Eddy  V.  Simpson,  3 Cal.,  249;  the  only  case  cited  in  that  view 
by  Washburne  in  the  edition  of  his  work  on  Easements,  to 
which  the  writer  has  had  access.  If  to  be  so  construed,  we 


1771 


shall  soon  see  that  it  has  been  completely  overruled  by  later 

6154  decisions  of  the  same  court. 

In  the  case  of  Hoffman  v.  Stone,  supra,  the  water  course, 
answering-  to  No.  1 in  our  hypothesis,  was  named  Dutch  Gulch. 
It  was  dry  at  certain  seasons  of  the  year,  but,  nevertheless, 
was  by  the  court  treated  as  a natural  water  course,  on  which 
plaintiffs  and  defendants  held  the  relation  of  upper  and 
lower  riparian  proprietors. 

Aug.  Water  Courses,  Sec.  4. 

The  defendants,  it  appears,  owned  a chain  or  system  of 
artificial  ditches  for  the  supply  of  which  it  was  convenient 
to  use  channel  of  Dutch  Gulch  as  a connecting  link.  Under 
this  plan,  they  took  out  in  the  end,  the  water  they  put  in, 
so  that  it  did  not  reach  the  plaintiffs.  The  plaintiffs  allegecf 
this  to  be  a diversion;  and  sought  relief  by  injunction,  claim- 
ing the  rights  of  prior  locators,  and  the  exclusive  control  of 
the  channel.  The  court,  however,  held,  in  substance: 

1st.  That  defendants  (A)  might  use  the  channel  of  No. 
1,  to  pass  the  waters  of  No.  2 from  one  point  to  another. 

(19) 

2.  That  the  defendants  (A)  did  not  abandon  the  water 
to  the  use  of  No.  1;  as  it  was  evident  that  they  put  it  in  with 
the  express  purpose  of  taking  it  out  again. 

3.  That  while  the  physical  conditions  under  which  the 
rights  of  riparian  owners  in  California  existed  were  peculiar, 

yet  they  were  regulated  by  no  local  statutes,  and  were  en- 

6155  tirely  governed  by  the  lules  and  analogies  of  the  common  law. 

This  decision,  as  the  court  will  see,  ])roceeds  upon  the  the- 
ory of  natural  and  rational  justice  which  we  have  assumed, 
viz.,  that  B in  any  case  is  only  entitled  to  the  natural  and 
customary  flow  of  No.  1;  that  A may  use  the  channel  for  his 
own  convenience  in  any  way  he  sees  fit;  and  may,  in  entire 
consistency  with  the  rights  of  B,  again  draw  out  the  water 
which  by  artificial  means  he  has  put  in  for  his  own  purposes, 
by  his  own  structures,  and  at  his  own  expense.  In  Califor- 
nia, it  wmuld  seem,  that  priority  of  location  on  government 
lands  is  held  to  give  to  the  riparian  proprietor  some  supe- 
rior right  in  the  channel  and  water  of  water  courses.  Such 
priority,  if  we  mistake  not,  was  enjoyed  by  the  plaintiffs  in 
all  the  California  cases  we  have  cited.  But  this,  it  is  obvious, 
only  serves  to  strengthen  the  force  of  the  decisions  as  au- 
thorities in  our  favor. 

The  case  of  The  Butte  Canal  and  Ditch  Co.  v.  Vaughn, 
supra,  was  an  appeal  to  the  Supreme  Court  of  California, 
and  was  an  action  brought  by  the  plaintiffs  for  the  diversion 
of  the  waters  of  the  south  fork  of  Jackson  Creek,  in  the 
County  of  Amador.  Defendant  in  his  answer  set  up  a right 


1772  Brief  for  Appellants , Sup.  Ct. — Druley  vs.  Adam. — Con. 

to  a portion  of  the  water,  by  virtue  of  a contract  with  the 
owners  of  the  Amador  County  Canal,  which  drained  the 

6156  north  fork  of  the  Mokelumme  River.  From  this  canal  the 
water  claimed  by  defendant  was  emptied  into  a natural 

ravine,  and  from  thence  flowed  into  the  south  fork  of  Jackson 
Creek,  above  the  dam  of  plaintiff,  and  after  descending  the 
stream  for  a mile,  was  again 

(20)  • 

taken  up  at  a point  above  plaintiff’s  dam,  and  diverted  through 
defendant’s  ditch  to  his  mining  ground. 

The  opinion  of  the  court  was  delivered  by  Mr.  Justice 
Field,  who  after  reciting  the  above  facts  proceeded  as  fol- 
lows : 

^‘Upon  these  facts  the  single  question  is  presented 
whether  the  defendants,  after  the  mingling  of  the  water 
conducted  by  them  from  the  canal  with  the  waters  nat- 
urally flowing  in  the  fork,  possess  the  right  to  take  out 
an  equal  or  less  quantity  from  the  stream,  or  is  the  right 
of  the  defendants  lo  the  use  of  the  water,  whilst  in  the 
ravine,  or  to  the  use  of  an  equal  quantity,  lost  by  its 
subsequent  mingling  with  the  natural  waters  of  the  forkF’ 

‘‘The  case  is  similar  in  its  material  features  to  that  of 
Hoffman  et  al.  v.  Stone  et  al.,  7 Cal.,  45,  where  this  court 
per  Murray,  C.  J.,  said: 

“The  plaintiffs,  being  the  prior  locators,  it  would  fol 
low  that  any  interference  with  the  waters  of  Dutch 
Gulch  would  be  an  infraction  of  their  rights.  But  the 
appropriation  of  the  waters  did  not  give  them  the  ex- 
clusive use  of  the  bed  of  the  stream.  We  see  no  rea- 
son why  it  might  not  be  used  by  others  as  a channel  for 

6157  conducting  water,  so  long  as  it  did  not  interfere  with 
their  rights.  If  the  defendants  were  diverting  the  nat- 
ural water  of  the  stream  as  well  as  that  brought  into  it 
by  themselves,  then  the  plaintiff  would  have  a just  cause 
of  complaint.” 

Justice  Field  then  proceeds: 

“In  Ihe  case  at  bar  the  channel  of  the  south  fork  of 
Jackson  Creek  is  used  as  a connecting  link  between  the 

Amador  County  Canal  and  the  ditch  of  the  defendants. 

* * ' * * * 

“The  point  settled  in  the  case  of  Hoffman  v.  Stone  is 
this:  That  the  prior  right  to  the  use  of  the  natural 
water  of  a stream  does  not  entitle  the  owner  of  such 
right  to  the  exclusive  use  of  the  channel.  So  long  as  his 
right  is  not  interfered 

(21) 

with,  there  is  no  reason  why  the  hed  of  the  stream  may 


1773 


not  he  used  hy  others  as  a channel  for  conducting  water. 
If  the  plaintiff’s  in  the  present  case  receive  their  full 
supply,  as  previous  to  the  introduction  of  ivater  hy  the 

de-fendants,  they  have  no  cause  of  complaint. 

***** 

‘‘Tile  plaintiffs  rely,  with  apparent  confidence,  upon 
the  case  of  Eddy  v.  Simpson,  3 Cah,  249,  but  in  that 
case  the  court  said  when  the  waters  of  Grizzly  Canyon  and 
Bloody  Kun  left  the  possession  of  the  defendants  at 
-Cherokee  Corral  1,  all  right  to,  and  interest  in  that  water 

6158  was  lost  hy  the  defendants.  It  might  be  made  the  prop- 
erty of  whomsoever  chose  to  possess  it. 

***** 

“It  is  very  evident  that  the  court  considered  the  fact 
that  the  water  had  passed  from  the  possession  of  the 
defendants,  and  found  its  way  to  Shady  Creek,  without 
their  agency,  as  material  circumstances  of  the  case;  in 
other  words  it  regarded  the  water  as  having  been  ahan- 
doned. 

***** 

“The  first  appropriator  of  the  water  of  a stream  pass- 
ing through  the  public  lands  in  this  State,  has  the  right 
to  insist  that  the  writer  shall  be  subject  to  his  use  and  en- 
joyment, to  the  extent  of  his  original  appropriation.  To 
this  extent  his  rights  go,  and  no  farther.  In  subordi- 
nation to  these  rights  subsequent  appropriators  may  make 
such  use  of  the  channel  of  the  stream  as  they  think  proper, 
and  they  may  mingle  with  its  waters  other  waters,  and 
divert  an  equal  quantity,  as  often  as  they  choose. 

“The  judgment  of  the  court  below  must  accordingly 
he  reversed,  and  the  case  remanded.” 

This  opinion  by  Justice  Fifld,  now  of  the  Supreme  Court 
of  the  United  States,  it  cannot  be  denied  fully  recognizes  the 
doctrine  Ave  contend  for;  not  under  peculiar  California  stat- 

(22) 

utes,  not  upon  any  anomalous  principles  of  justice  growing 

6159  out  of  the  physical  peculiarities  of  that  State,  but  upon  the 
plain  analogies  of  the  common  law. 

He  refers,  as  will  be  noticed,  to  the  case  of  Eddy  v.  Simp- 
son (cited  in  Washburne  on  Easements  as  holding  a con- 
trary doctrine) ; and  without  very  emphatically  approving  that 
case,  distinguishes  it  from  the  one  in  hand  by  the  circum- 
stance, that  the  defendant  claiming  to  have  brought  in  water 
from  an  extra  source.  No.  2,  was  there  held  to  have  ahan- 
doned  it  to  public  use. 

These  decisions,  unless  Ave  entirely  misapprehend  them, 
settle,  the  main  question  iiiAmlved  in  tbe  case  at  bar,  and  that, 
too,  upon  common  law  ])rinciples.  The  physical  conforma- 


1774  Brief  for  Appellants,  Sup.  Ct. — Druley  vs.  Adam. — Con. 

tion  and  peculiar  industries  of  California,  have  no  doubt  pre- 
sented cases  of  this  kind  for  adjudication  oftener  than  any 
other  region  of  the  Union;  yet,  the  question  has  been  in 
every  instance,  argued  and  decided  substantially  upon  com- 
mon law  authorities,  unmodified  by  any  special  legislation, 
precisely  as  was  done  in  fhe  Xew  Hampshire,  Massachusetts 
and  New  Jersey  cases  which  we  have  cited.  The  court  in 
Hoffman  v.  Stone,  declared  expressly  that  it  acted  upon  the 
analogies  of  the  common  law,  unaided  by  any  statutory  regu- 
lations. Indeed  its  ruling  in  every  instance  was  simply  an 
application  of  universal  principles  of  natural  reason  and 
justice  to  the  mutual  rights  of  riparian  proprietors  along  a 
natural  water  course;  principles  just  as  applicable  within 

6160  the  borders  of  Illinois  to  parties  in  a like  predicament,  as  in 
the  mountains  and  valleys  of  California. 

Burnett  v.  Whitesides,  15  Cal.,  35. 

Of  this  case  the  writer  has  no  copy,  nor  full  abstract;  but, 
in  a note  to  I Hilliard  on  Torts,  p.  661,  we  find  it  cited  to  the 
following  effect: 

‘‘Plaintiff  and  defendant  both  drawing  water  from  the 
same  stream,  and  the  plaintiff  having  the  priority  of 
right,  if  the 

(23) 

defendant  introduce  into  the  stream  water  obtained  from 
a foreign  source,  he  has  the  right  to  divert  the  quantity 
thus  emptied  into  it,  ‘less  such  amount  as  might  be  lost 
by  evaporation  and  other  like  causes’;  but  the  water  can- 
not be  reclaimed  so  as  to  diminish  the  quantity  to  which 
the  plaintiff  is  entitled  as  prior  locator.” 

In  the  case  at  bar  the  State  not  only  does  not  diminish, 
but  in  fact  more  than  doubles  Adam’s  supply.  His  only  griev- 
ance as  the  record  will  show,  consists  in  having  a miserably 
]:>oor  mill-privilege  improved  by  the  State  into  first-class 
property. 

See  Pec.,  p.  23. 

The  case  of  Elliott  v.  Fit  eh.  B.  B.  Co.,  supra,  declares 
substantially  the  same  principle  as  that  announced  in  the 
California  cases.  It  holds,  in  effect,  that  when  A takes  out 
from  No.  1,  only  what  he  contributes  from  No.  2 (his  own 

6161  reservoir),  B cannot  complain  of  a wrongful  diversion;  and 
this,  not  upon  the  principle  of  set-off  or  compensating  ad- 
vantage, but  upon  the  general  ground  of  reason  and  justice, 
that  when  a party  withdraws  from  a water  course  no  more 
than  he  adds  to  it  by  his  own  improvements,  it  is  no  diver- 
sion. 

In  the  ini])ortant  case,  of  the  Soeietij  for  Establishing 
Manufacturers  \.  Morris  Canal  Co.,  1 N.  J.  Ecpiity  Eeports, 
157,  argued  by  most  dsitinguished  counsel  of  the  New  York, 


1775 


Pennsylvania  and  New  Jersey,  l)ar,  tlie  opinion  of  Chancellor 
Vroom  is  very  emphatic  as  to  the  right  of  the  defendant, 
The  Morris  Canal  Co.,  to  introduce  into  the  Eockaway  Kiver 
the  water  of  Lake  Hopatcung,  and  a l)rancli  of  the  Earatan, 
and  then  take  out  of  the  Eockaway  below,  sufficient  for  canal 
I)urposes,  if  not  thereby  diminishing  the  natural  flow  of  the 
stream.  ‘‘If,  then,”  says  the  learned  Chancellor,  “the  de- 
fendants take  from  the  Eockaway  no  greater  quantity  of 
water  than  they  bring  in  (and  they  claim  the  right  to  do  no 
more),  will  not  the  Society  (the  complainants)  enjoy  their 
privilege 

(24) 

without'  diminution  or  alteration,  or  can  they  in  anywise  be 
injured?”  The  court  in  this  case  clearly  recognizes  the  right 
of  the  Canal  Com])anv  to  use  the  Eockaway  as  a common 
channel  to  conduct  the  extra  water  to  a certain  point  and  re- 
sume its  use  again  for  the  ])ur])oses  of  the  canal,  notwith- 
standing tlie  fact  that  this  water  was  not  returned  to  the  Pas- 

6162  saic  till  it  passed  the  great  falls  at  Paterson,  where  com- 
plainants’ manufactories  were  established. 

In  opposition  to  this  current  of  authority,  we  have  failed  to 
discover  a single  case,  that  when  fairly  read,  and  with  careful 
reference  to  the  state  of  facts  which  molded  and  gave  com- 
plexion to  the  opinion,  can  be  regarded  as  holding  the  con- 
trary. All  such  as  are  su])posed  to  bear  adversely  will  be 
found  distinguishable  l)y  one  or  both  of  two  features: 

1.  The  controversy  was  not  between  A and  B (if  we  may 
still  use  our  hyimthesis,  as  a convenience),  but  between  B 
and  C.  C,  a still  lower  riparian  proprietor,  claiming  as 
against  B,  that  he  (C)  had  a-right  to  the  benefit  of  the  water 
abandoned  by  A,  the  uppermost  owner,  to  the  general  future 
use  of  all  the  lower  ])ro]ndetors  on  the  stream. 

Tourfelotte  v.  Phelps,  4 Gray,  370. 

2.  In  none  of  the  cases  where  A was  forbidden  to  divert 
the  water  contributed  by  himself,  will  it  appear,  that  he  liad 
made  the  contribution,  as  in  the  case  at  bar,  under  a compre- 
hensive, connected  plan,  executed  by  a train  of  suitable  struc- 
tures, to  u'ifhdrau'  it  again,  u]mn  his  own  premises;  but,  un- 
der such  circumstances  that  it  was  characterized  as  a per- 
manent, irrevocable  dedication  to  public  use.  Having  once 

thus  ' ‘ah  an  cloned”  it,  he  was  not  permitted  to  revoke  the 

6163  gift. 

Yet  it  wull  throw  some  light  on  this  ])art  of  the  argu- 
ment to  consult  also  the  following  autliorities  on  the  subject 
of  artificial  water  courses: 

Wood  V.  Waugh,  3 Exch.,  748. 


1776  Brief  for  Appellants,  Sup.  Ct. — Brnley  vs.  Adam. — Con. 

(25) 

Angell  on  W.  C.,  Sec.  433  (note  1). 

2 Wash.  E.  Pro.,  329. 

Caved  v.  Martyn,  115  E.  C.  L. 

Broom’s  Leg.  Max.,  375. 

From  these,  it  will  be  seen,  that  so  strictly  have  the  rights 
of  riparian  proprietors  been  limited  to  the  natural  flow  of 
the  stream,  that  in  cases  where  artificial  tributaries  had  been 
continued  in  operation  for  more  than  twenty  years  by  A,  B, 
nevertheless,  was  held  to  have  acquired  no  prescriptive  rights) 
therein.  This  strongly  illustrates  our  position.  If  A can 
thus  at  any  time  ad  libitum  cut  off  the  artificial  tributary 
No.  2,  and  divert  it  into  some  other  channel  than  No.  1,  we 
ask  on  what  principle  can  it  be  maintained  that  he  may  not^ 
with  as  little  injury  to  B’s  legal  rights,  use  his  own  part  of 
No.  1,  as  a channel  to  pass  the  water  from  one  point  to  an- 
other of  his  own  premises?  How  is  B injured  in  one  case 
more  than  in  the  other? 

Upon  this  point  we  cannot  conclude  without  again  quoting 
a little  more  at  length  from  Hoffman  v.  Stone,  cited  supra. 

6164  The  action,  as  we  have  already  stated,  was  brought  by  the 
owners  of  a ditch  (which  received  its  supply  of  water  from 
Butch  Creek,  or  ravine,  near  its  mouth),  in  El  Dorado  County, 
for  the  purpose  of  procuring  a perpetual  injunction  against 
the  defendants,  restraining  them  from  diverting  or  appro- 
]udating  the  waters  of  the  said  ravine.  The  defense  was, 
that  Dutch  Gulch  was  usually  a dry  creek,  affording  no  nat- 
ural water  during  the  summer  months,  and  that  the  defend- 
ants, in  order  to  connect  two  of  their  canals,  had  precipitated 
the  water  from  the  upper  one  into  the  creek,  and  taken  the 
same  out  again,  by  means  of  a dam,  into  their  lower  ditch, 
and  that  they  had  not  interfered  with  the  natural  water  of 
said  ravine. 

The  court,  speaking  through  Chief  Justice  Murra^y,  said : 
‘‘The  former  decisions  of  this  court,  in-  cases  involv- 
ing the  rights  of  parties  to  appropriate  waters  for  min- 
ing and  other 

(26) 

purposes,  have  been  based  upon  the  wants  of  the  com- 
munity, and  the  y)ecadiar  condition  of  things  in  this  State 
(for  which  tliere  is  no  ])recedent),  rather  than  any  abso- 
lute rule  of  law  governing  such  cases. 

“The  absence  of  legislation  on  this  subject  has  de- 
volved upon  the  courts  the  necessity  of  framing  rules  for 
the  ])rotection  of  this  great  interest,  and  in  determining 
these  questions  ire  have  conformed  as  nearly  as  possible 
to  the  analogies  of  the  common  lau'.’^ 


6165 


1777 


'‘In  the  case  before  ns  it  is  shown  that  Dutch  Gulch 
was  a mere  torrent,  dry  at  certain  seasons  of  the  year; 
that  it  was  used  by  the  defendants  as  a part  of  their 
ditch  for  conducting  water  from  another  stream  down 
to  their  dam.  That  in  point  of  fact  the  water  so  brought 
to  Dutch  Gulch,  and  turned  in  there  by  defendants,  was 
not  abandoned  by  them,  but  was  turned  in  for  the  pur- 
pose of  being  conveyed  to  their  dam.  That  there  was, 
at  the  time  of  the  commencement  of  this  suit,  no  natural 
water  flowing  in  the  Tied  of  the  stream,  and  that  all  the 
waters  so  diverted  by  the  defendants  were  artificial,  or 
waters  conducted  there  by  them.” 

"The  plaintiffs  being  the  prior  locators,  it  would  follow 
that  any  interference  with  the  waters  of  Dutch  Gulch 
would  be  an  infraction  of  their  rights.  But  the  appro- 
priation of  the  waters  did  not  give  them  the  exclusive 
use  of  the  hed  of  the  stream.  We  see  no  reason  why 
it  might  not  be  used  by  others  as  a channel  for  conduct- 
ing ivater,  so  long  as  it  did  not  interfere  ivith  their  rights. 
If  the  defendants  were  diverting  the  natural  water  of 
the  stream,  as  well  as  that  brought  into  it  by  themselves, 
then  the  plaintiffs  would  have  a just  cause  of  complaint. 
It  would  be  a harsh  rule,  however,  to  require  those  en- 
6166  gaged  in  these  enterprises  to  construct  an  actual  ditch 
along  the  whole  route  through  which  the  waters  were 
to  be  carried,  and  to  refuse  them  the  economy  that  nature 

(27) 

occasionally  afforded  in  the  shape  of  a dry  ravine,  gulch 
or  canyon.  It  is  contended,  however,  that  this  case  falls 
within  the  rule  of  Eddy  v.  Simpson,  3 Cal.,  and  Kelly  & 
Co.  V.  Natoma  Water  Co.,  Jan.  T.,  1856.  We  do  not  think 
so.  The  verdict  of  the  jury  finds  that  the  water  was 
not  abandoned  by  the  defendants,  and  left  to  find  its  way 
by  natural  channels  into  Dutch  Gulch,  but  was  turned  in 
by  the  defendants,  making  a connecting  link  of  their 
ditch.  ’ ’ 

We  now  submit,  that  both  on  principle  and  authority,  the 
State  of  Illinois,  as  the  upper  riparian  owner,  has  the  right 
to  withdraw  from  the  river  Desplaines  a quantity  of  water 
equal  to  that  which  it  contributed  from  Lake  Michigan,  pro- 
vided that  it  is  done  on  its  own  premises;  that  its  rights  have 
not  been  relinquished  by  contract;  and  that  it  has. done  no 
act  operating  as  a final  and  irrevocable  abandonment  thereof 
to  public  use. 

THE  CREATION  OF  WATER  POWER  WAS  ONE  OF  THE  OBJECTS  CON- 
TEMPLATED IN  THE  ORIGINAL  PLAN  OP  THE  CANAL. 

An  attempt  was  made  in  the  argument  of  our  opponents 


1778  Brief  for  Appellants,  Sup.  Cf. — Druley  vs.  Adam. — Con. 

in  the  court  below,  to  show,  by  referring  to  the  several  acts  of 
the  Legislature,  under  which  the  Deep  Cut  was  completed, 

6167  that  the  water  thus  obtained  loses  its  character  as  the  prox^er 
water  of  the  Illinois  and  Michigan  Canal,  below  the  Summit 

Level ; and  it  seems  to  have  made  more  imx)ression  ipDon  the 
Appellate  Court  than  we  anticipated. 

It  is  a matter  of  public  history  well  known  to  the  court, 
that  the  original  and  long  cherished  jDlan  of  the  canal  was 
to  supply  the  Summit  Level  from  Lake  Michigan,  precisely 
as  it  is  now  sup|3lied.  Much  of  the  work,  in  fact,  had  been 
done  before  the  suspension,  which  occurred  in  1840.  AYhen 
the  enterprise  was  resumed  in  1845,  under  the  well  remembered 
trust  created  to  secure  the  bondholders,  the  then  embarrassed 
financial  condition  of  the  State  compelled  a relinquishment 
of  the  original 

(28) 

scheme,  and  the  substitution  of  what  was  termed  the  ‘Liaised 
or  shallow  cut,”  to  be  supplied  by  pumps  at  Bridgeport,  with 
the  aid  of  the  Calumet  Feeder. 

In  1865  the  City  of  Chicago  found  itself  confronted  by  the 
formidable  problem  of  drainage,  for  the  health  and  comfort 
of  its  citizens;  and  deeming  that  this  object  might  be  pro- 
moted if  not  effectually  accomplished  by  completing  the  old 
deep  cut,  already  partially  excavated,  asked  permission  of  the 
State  to  take  hold  and  finish  the  work.  Permission  was  given 
by  the  act  of  16th  April,  1865,  entitled  ^L4n  Act  to  provide 
for  the  completion  of  the  I.  S M.  C.  upon  the  plan  adopted  by 
the  State  in  1836.”  Besides  this  title,  which  seems  sigmifi- 

6168  cant  enough,  the  x:)reamble  to  the  act  contains  a reference  to 
the  past  history  of  the  improvement, — the  original  plan, — ■ 

‘4ts  abandoment  for  the  time  being,” — the  precarious  and 
unsatisfactory  nature  of  the  mode  of  sip^iDly  from  the  Calu- 
met feeder  and  hydraulic  works  at  Bridgex^ort,  and  the  great 
benefit  to  the  canal  itself  to  be  exxoected  by  deex:>ening  the 
cut. 

See  Public  Laws,  1865,  pp.  83-4. 

The  work  accordingly  was  undertaken  and  was  comx^leted  in 
1871,  at  an  expense  of  several  millions  of  dollars,  and  the  cost 
soon  after  refunded  to  the  City  of  Chicago  by  the  State. 

AVith  all  due  respect  to  the  Ax3pellate  Court,  we  must  say, 
as  we  said  on  a x3revious  occasion,  that  we  deem  it  unnecessary 
to  seriously  argue  the  x^oint  which  counsel  had  suggested, 
based  on  the  sx^ecial  circumstances  that  led  to  the  execution 
of  the  improvement.  Is  it  not  enough  that  it  was  in  fact 
made?  Is  it  not  enough  that  the  deep  cut  is  in  fact  an  inte- 
gral .part  of  the  whole  canal?  Is  not  the  condition  of  the  case, 
for  all  legal  x^uiqooses,  x^recisely  the  same  as  if  the  work  had 
been  done  in  the  first  instance  by  the  State,  instead  of  by  the 


1779 


City  of  CliicagOj  and  done  in  1848  instead  of  1871?  Can  this 
part  of  tlie  canal,  now  that  it  is  finished  and  paid  for  out 
of  the  State  treasury,  be 

(29) 

distinguished  from  any  other  part,  as  to  the  jurisdiction  of 

6170  the  State  over  it,  or  over  the  water  in  it,  in  any  respect  what- 
ever? 

EIGHT  OF  THE  CANAL  COMMISSIONERS  TO  CREATE  AND  LEASE  WATER 

POWER. 

But  again,  the  counsel  for  appellee,  in  their  previous  argu- 
ment, expressed  a doubt,  whether  it  was  quite  according  to 
law  for  the  Canal  Commissioners  to  create  and  lease  water 
power  to  help  repair,  improve  and  support  the  canal;  and  to 
sustain  this  view,  ransacked  the  canal  lavrs  ab  initio,  not  for- 
getting the  act  of  Congress  of  1822. 

To  this  somewhat  remarkable  position  we  reply: 

1.  While  navigation  is  the  primary  and  cardinal  object 
of  every  navigable  canal,  yet,  to  create  water  power  as  an 
incident,  has  been  the  universal  policy  of  such  enterprises, 
whether  undertaken  at  the  public  expense  or  by  private  cor- 
porations. The  disposal  of  the  water  in  descending  from  one 
level  to  another  must  necessarily  be  in  the  control  of  the 
State,  and  the  public  good,  as  we  had  supposed,  demands  both 
that  it  should  be  utilized  in  aid  of  the  manufacturing  inter- 
ests of  the  country  and  made  to  contribute  as  far  as  possi- 
ble, to  the  expense  of  maintaining  the  work.  Such,  at  all 
events,  we  know,  has  been  the  unquestioned  policy  of  the 
Illinois  and  Michigan  Canal,  for  more  than  thirty  years.  No 
express  statute  indeed  was  required  to  make  it  the  bounden 
duty  of  the  Canal  Commissioners,  in  the  vigilant  fulfillment 

of  their  public  trust,  to  add  in  this  way  to  the  limited  reve- 

6171  nues  of  the  canal,  wherever  they  found  it  practicable.  The 
particular  details  of  administration  in  respect  to  this  branch 

of  their  official  charge,  are  necessarily  confided  to  their  own 
judgment  and  discretion.  Special  occasions  have  arisen  and 
may  again  arise  for  special  statutes  on  this  suliject;  but  the 
particular  methods  of  creating  water 

(30) 

power  at  any  given  place  must,  as  a general  rule,  be  a ques- 
tion for  the  commissioners,  with  the  advice  of  their  engi- 
neer. 

2.  The  statute  regulating  their  powers  and  duties  ex- 
pressly gives  them  a plenary  authority  to  lease  water  power; 
as  a recognized  source  of  canal  income. 

E.  St.  (1874),  p.  189,  Sec.  8,  Ch.  19. 


1780  Brief  for  Appellants , Sup.  Ct.—Druley  vs.  Adam. — Con. 

The  expression  here  used  ‘^and  lands  and  lots  connected 
therewith/^  cannot  well  be  construed  as  intended  to  exclude 
cases  where  the  State  happened  to  own  no  lands  or  lots  ad- 
. joining  the  locus  of  the  waterfall.  Ordinarily  such  a con- 
nection would  exist,  but  it  would  not,  where  the  site  occurs 
on  a school  section,  as  is  the  case  here,  or  on  Government 
lands.  Still,  unless  the  two  subjects  enumerated  in  tlie  clause 
‘‘waterpower”  and  “lots”  are,  from  their  nature,  indissolu- 
bly incorporated  together,  as  objects  of  sale  or  contract,  they 
are  to  be  taken  severally.  We  are  to  look  at  the  main  de- 
sign of  the  law;  and  that  we  cannot  doubt  was  to  utilize  the 
surplus  water  for  the  benefit  of  the  State,  wherever  possible 
to  do  so. 

6172  3.  But  lastly,  the  question  is  entirely  immaterial.  If  the 

appellee  is  legally  entitled  to  the  water,  the  point  is  need- 
less;— if  he  is  not,  of  course  its  use  by  the  commissioners  is 
no  concern  of  his. 

IS  THE  WATEK  ABANDONED  AT  LOCKPOET? 

It  was  contended,  by  our  opponents,  and  the  Appellate 
Court  seems  to  have  yielded  to  their  reasoning,  that  admitting 
the  general  principles  under  which  we  claim  the  right  of  the 
State  to  draw  out  above  the  appellee’s  dam  the  water  derived 
from  Lake  Michigan,  yet  they  are  not  available  to  us  in 
this  case;  that  they  apply  only  where  he  who  asserts  them  is 
riparian  owner  continuously  for  the  whole  distance,  from  the 
point  of  introduction  to  the  point  of  discharge;  that  here  the 
State 

(31) 

is  not  shown  to  own  any  land  upon  either  bank  of  the  Des- 
plaines  River  between  Lockport  and  its  junction  with  the 
canal  in  the  upper  basin  at  Joliet;  and  that  the  water  being 
thus  allowed  to  escape  into  a foreign  water  course,  at  a point 
where  the  State  has  no  rights  as  a riparian  owner,  it  must, 
therefore,  be  deemed  to  be  abandoned,  and  that  being  aban- 
doned it  is  thenceforth  incorporated  with  the  proper  water 
of  the  river,  so  far  as  respects  the  rights  of  the  riparian 
owners  below. 


THE  INTENTION  OF  THE  STATE. 

On  this  point,  to  which  the  opinion  of  the  Appellate  Court 
6173  gives  prominence,  our  first  inquiry  will  be,  what  was  the 
intention  of  the  State  as  evinced  in  the  plan  of  the  canal  1 
For  it  will  be  difficult  to  maintain,  that  anything  is  effectually 
abandoned,  which  the  owner  evidently  purposes  to  imme- 
diately resume  and  control  for  his  own  future  use. 

To  begin  with,  the  entire  plan  of  the  canal  is  to  be  treated 


1781 


as  a unit,  and  viewed  comprehensively;  each  part  in  its  rela- 
tion to  every  other  part,  however  remote.  The  chain  or  sys- 
tem of  structures  composing  it  as  a whole,  must  be  surveyed, 
also,  in  connection  with  the  physical  peculiarities  of  the  re^ 
gion  through  which  it  passes;  for,  in  planning  such  a work 
the  engineer  must  necessarily  adapt  it  to  the  contiguous  lo- 
calities. 

The  relative  course  and  com]uirative  levels  of  the  river  and 
canal  between  Lockport  and  Joliet  are  shown,  in  a general 
way  on  the  map  which  the  court  has  before  it. 

These  conditions,  are  such,  it  will  he  seen,  that  the  sur])lus 
water  discharged  at  Lockport.  thromrh  Norton  & Co.’s  tail 
race  and  through  the  waste  weir, necessarily  seeks  and  pursues 
the  natural  depression  constituting  the  channel  of  the  Des- 
plaines  Elver  for  a distance  of  about  three  miles,  joining  the 
canal  again  between  Lock  No.  4 and  Dam  No.  1. 

And  this  is  called  an  irreclaimable  abandonment,  operat- 
ing 

(32) 

to  extinguish  any  proprietary  rights  of  the  State  in  the  water, 
and  making  it  in  a legal  sense  at  least  as  to  the  appellee, 

6174  Adam,  a constituent  part  of  the  proper  customary  and  nat- 
ural flow  of  the  Desplaines  Eiver!  But  now  let  counsel 

explain  what  they  mean  by  abandonment?  The  only  force 
of  the  term  as  here  used  is  to  signify  some  act  or  default 
of  the  State,  by  which  it  loses  its  jus  disponendi  in  the  water, 
as  a subject  of  future  exclusive  control.  What  is  it?  Where 
do  we  find  it!  No  actual  personal  intention  to  abandon  in 
this  sense  can  be  imputed  to  the  commissioners;  for  that  is 
conclusively  negatived  by  the  very  facts  which  led  to  this 
suit.  The  surplus  in  (piestion  had  only  come  into  existence 
in  1871,  and  during  this  short  interval- there  surely  is  noth- 
ing shown  in  the  record  to  indicate  any  such  intention  on 
the  part  of  the  canal  authorities;  no  act,  no  declaration,  no 
prolonged  non-user,  which  can  possibly  be  construed  as  hav- 
ing that  effect.  Indeed  this  lease  to  Slater  & Druly  in  1878, 
may  have  been  and  ])robably  was  the  first  opportunity  that 
offered  for  a lease  of  water  power  on  this  new  plan,  below 
Dam  No.  2.  Possibly  the  plan  itself  had  not  before  occurred 
to  the  commissioners.  At  all  events,  there  is  nothing  tending 
to  show  any  actual  purpose  of  the  official  representatives  of 
the  State  to  abandon,  in  the  sense  here  supposed. 

Again,  no  abandonment  could  be  predicated  upon  the  bare 
fact  that  the  water  is  transferred  from  one  level  to  another, 
provided  it  passes  all  the  way  through  the  prism  of  the  canal 
or  some  appurtenant  channel  belonging  to  the  State,  made 

6175  for  that  very  purpose.  Nor,  upon  the  supposition  that  the 
water  has  been  permanently  and  finally  detached  from  its 


1782  Brief  for  Appellants,  Sup.  Ci. — Bruley  vs.  Adam. — Coii. 

relations  to  the  canal;  because,  it  is  obvious  that  it  is  (iestined 
to  the  taken  in  again  but  a short  distance  below,  and,  that, 
too,  as  a necessaiw  physical  consequence  of  the  plan  of  the 
canal  itself.  This  return  of  the  water  to  the  canal  is  just  as 
certain  to  take 

(33) 

place  as  if  the  water  descended  from  the  one  level  to  the 
other  between  the  very  walls  of  the  canal. 

Where  then  is  the  abandonment!  It  must  consist,  if  at 
all,  in  this; — that  in  descending  from  one  level  to  another,  it 
makes  a short  detoiir  through  a foreign  channel,  situated  most 
conveniently  for  the  purpose,  but  which  unfortunately  does 
not  for  this  intermediate  distance  belong  to  the  State  as  ri- 
parian owner.  This  circumstance,  quite  unimportant  one 
would  think,  to  the  beneficial  rights  of  Mr.  Adam,  suggests 
to  his  counsel  the  notion  that  the  instant  the  water  passes 
from  the  premises  of  the  State,  although  immediately  re- 
turned again  and  found  in  the  canal,  long  before  it  reaches 
the  boundary  line  between  the  State  and  Adam,  it  becomes 
transformed  as  to  him  into  ‘‘the  natural,  proper  and  cus- 
tomary flow’’  of  the  Desplaines  Eiver.  Does  not  this  ap- 
proach absurdity! 

The  waters  are  mingled,  it  is  true,  and  can  no  longer  be  dis- 
tinguished and  identified.  But,  as  we  have  previously  re- 
6176  marked,  this  identification  is  not  necesasry  to  a proper  ad- 
justment of  the  substantial  rights  of  the  parties  concerned. 
The  water  is  recognized  in  this  action  only  in  its  character 
as  an  agent  of  mechanical  power;  and  any  one  cubic  foot  of 
the  fluid,  under  the  same  conditions  of  fall,  is  precisely  the 
same  as  any  other.  When  two  or  more  mill  owners  are  in- 
terested in  certain  proportions  in  a volume  of  water  thus 
mingled  from  different  sources,  the  quantities  belonging  to 
each  can  be  measured  with  reasonable  certainty,  and  their 
relative  rights  duly  ascertained  and  enforced'.  If  Mr.  B,  in 
our  hypotliesis  is  entitled  to  receive  and  does  receive  10,000 
cubic  feet  of  water  at  his  mill,  how  can  it  concern  any  rights 
or  interests  of  his,  from  whence  it  comes,  or  through  what 
previous  conditions  of  transmission  it  has  passed,  before 
reaching  his  pond!  A court  of  justice  will  not  perplex  it- 
self with  such  fruitless  and  senseless  trifling.  It  will  define 
nothing  as  even  a technical  riparian  right  except  such  as  may 
be  supposed  to  be  in  some  possible 

(34) 

way  and  some  conceivable  degree  l)eneficial  to  the  plaintiff. 
But  this  confusion  of  the  element  of  water  as  a mechanical 
agent,  by  the  necessary  intercommunication  occurring  between 
different  water  courses,  can  produce  no  injury  to  any  party  in- 


terested.  Hence,  we  assume  that  the  legal  status  of,  the 
waters  in  question  here  cannot  be  affected  in  tlie  least  by 
the  mere  circumstance  of  having  thus  commingled  in  one  stage 
of  their  course. 

6177  Again,  we  ask,  where  does  the  abandonment  come  in! 
It  does  not  necessarily  result  from  the  mere  fact  that  the 

State  is  not  riparian  proprietor  in  fee  on  the  Hesplaines  con^ 
tinuously  from  Lockport  to  the  point  of  junction  at  Joliet. 
Suppose  the  State  had  procured  a lease  or  the  written  con- 
sent of  all  the  land-owners  on  both  sides  of  the  river  to  so 
use  the  channel.  Would  not  this  have  obviated  the  ground 
^of  objection!  We  have  indeed  no  proof  of  any  such  written 
consent  from  them;  but  suppose  that  for  thirty  years  they 
have  in  fact  made  no  complaint  of  this  use  by  the  State; 
and  have  thus  tacitly  and  impliedly  acquiesced,  would  not  the 
effect  be  the  same!  Now,  this  happens  to  be  the  precise 
truth  here,  as  we  may  fairly  infer  from  the  record.  From 
the  very  beginning  the  State  was  known  to  have  appropriated 
the  river  to  its  service  as  a feeder,  in  respect  to  whatever 
water  it  could  supply  from  its  own  sources  and  affluents.  It 
is  in  fact  named  as  a feeder  in  the  Haven’s  release.  (Record, 
25.) 

And  this  additional  but  homogeneous  use,  even  if  it  could 
not  be  claimed  as  a matter  of  right,  was  not  and  could  not  be 
objected  to  by  the  land  owners  who  were  already  subject  to 
the  prior  easement.  The  improved  flow  across  their  own 
premises  could  be  no  possible  detriment  to  them.  Those  who 
owned  mill  sites  would  hardly  object  to  the  free  gift  of  25,- 

6178  000  cubic  feet  of  water  per  minute  to  turn  their  wheels. 
They  would  have  acquired,  indeed,  no  vested  right  in  this 

improved  flow,  and  the  State  could  withhold  it  any  day,  with- 
out afford- 

(35) 

ing  just  ground  of  coni]:)laint;  but  while  permitted  to  enjoy  it 
they  must  be  presumed  from  the  dictates  of  self-interest  to 
consent  to  the  use  of  the  channel  made  by  the  State  for  its 
own  ulterior  purposes.  Now,  if  the  river  was  employed  as 
a medium  of  transmission  with  their  consent,  as  we  must 
presume,  is  not  the  case  essentially  the  same  as  if  the  State 
happened  to  be  riparian  proprietor  in  fee  continuously  from 
Lockport  to  Ham  No.  2! 

But  even  without  and  against  their  consent,  the  result, 
we  submit,  would  still  be  the  same — so  far  as  the  appellee 
is  concerned.  It  would  in  that  case  be  exclusively  and  strictly 
a question  between  the  State  and  these  riparian  proprietors, 
not  affecting  or  concerning  those  above  or  below  them  in 
the  least.  If  the  State  made  an  unauthorized  use  of  their 
respective  portions  of  the  river,  detrimental  to  their  rights. 


1784  Brief  for  Appellants , Sup.  Ct. — Driiley  vs.  Adam. — Con. 

justice  would  dictate  that  they  should  have  redress.  But 
how  would  this  wrong  committed  upon  them  individually, 
have  any  proper  bearing  on  the  question,  whether  the  State, 
as  to  Adam,  had  abandoned  the  water  for  his  benefit?  It  is 
quite  indifferent  to  him,  one  would  suppose,  under  what  re- 
lations as  between  the  State  and  these  upper  proprietors 

6179  the  water  might  make  its  way  down  to  Dam  No.  2.  In 
either  or  any  case  it  is  inevitably  destined  to  rejoin  the  canal. 

and  is  aecompanied  all  along  with  the  constant  intention  of 
resumdng  control  of  it  for  alleged  canal  purposes. 

SUMMARY. 

We  conclude,  then,  as  to  our  first  and  main  proposition:' 

1st.  That  an  upper  riparian  proprietor  upon  a natural 
water  course,  who  within  his  own  domain  puts  in  water  from 
an  exterior  source  may  again  take  it  out,  unless  between  the 
points  of  introduction  and  discharge,  he  has  done  some  act 
or  placed  the  water  under  some  local  conditions  which,  in 
reason 

(36) 

and  law,  amount  to  a renunciation  of  this  right  of  exclusive 
control. 

2d.  That  the  record  here  discloses  no  such  act,  and  no 
such  local  conditions. 

3d.  That  it  is  immaterial  to  the  issues  here  how  the  dejep 
cut  happened  to  get  finished,  or  how  tlie  City  of  Chicago  was 
interested  in  the  flow  of  water,  as  affecting  her  problem  of 
drainage.  The  summit  level  is  at  all  events  a constituent, 
integral  part  of  the  canal;  and  the  water  received  into  it  is 
in  precisely  the  same  legal  predicament,  as  if  the  work  had 
been  done  by  the  State  in  the  first  instance. 

4th.  That  except  as  the  proposition  may  be  qualified  by 
special  contract  in  respect  to  the  rights  of  particular  indh 

6180  viduals,  all  water  received  into  the  canal  from  whatever 
source,  or  to  subserve  whatever  incidental  object,  is  to  be 
deemed  the  proper  water  of  the  canal  to  be  used  for  all  proper 
canal  purposes;  that  it  has  universally  been  recognized  as  a 
legitimate  object  and  economy  of  canal  management  to  cre- 
ate and  lease  water  power  wherever  practicable;  that  our 
statute  recognizes  the  object  in  express  terms,  and  that  the 
rig'ht  of  proxoerty  in  the  State  to  the  water  in  the  Illinois  and 
Michigan  Canal,  with  respect  to  that  object,  rests  upon  the 
same  grounds  as  its  right  to  water  needed  for  purposes  of 
navigation.  The  rents  from  mills  is  as  desirable  and  legiti- 
mate a source  of  canal  revenue  as  the  tolls  from  boats. 

5th.  And  finally,  that  for  these  reasons  there  has  been  no 
diversion  from  the  mill  of  appellee,  unless  the  rights  of  the 


1785 


State,  in  the  surplus  water  first  created  in  1871,  have  been 
in  some  way  abridged  by  the  transaction  with  Haven,  and 
Haven,  in  1853. 

This  matter  of  the  release  will  be  considered  hereafter. 

(37) 


II. 

THE  DIVERSION,  IF  ANY,  BEING  CONSUMMATED  AT  DAM  NO.  2,  IT 

CANNOT  BE  IMPUTED  TO  THE  LESSEES  OF  WATER  POWER  ON  A 

LOWER  LEVEL,  AS  THE  RESPONSIBLE  AGENTS  THEREOF. 

6181  The  oat  mill  of  the  defendants  is  situated  on  the  berm 
bank  of  the  canal,  about  a mile  below  Dam  No.  2.  At  this 

dam,  the  water,  that  is  not  suffered  to  flow  into  the  channel 
of  the  river  and  thence  down  to  appellee’s  mill,  is  discharged 
into  the  Channahon  level  through  the  lock  and  a bulkhead,  con- 
structed for  the  ])urpose. 

At  this  point,  as  the  court  has  seen,  the  canal  has  entirely 
completed  its  crossing  of  the  Desplaines  Kiver  and  from 
thence  onward  ])ursiies  a separate  and  independent  course. 

Hence  the  instant  the  water  leaves  the  pool  of  the  dam  and 
descends  into  the  Channahon  level  it  becomes  by  a physical 
necessity  forever  detached  from  all  relations  of  riparian  right 
with  the  river  and  the  mill  and  dam  of  the  ])laintiff. 

When  it  reaches,  a ])oint  opposite  the  defendant’s  mill,  it 
can  no  more  be  identified  or  recognized  as  river  water  than 
at  a point  ten  miles  below  or  at  Ottawa  or  La  Salle. 

The  act  of  diversion,  therefore,  that  act  which  completely 
accomplishes  the  injury  to  the  plaintiff,  if  any  there  be,  takes 
place  at  Dam  No.  2;  for  it  must  ex  vi  termini  consist  in  that 
operation,  or  series  of  operations,  by  which  the  water,  in- 
stead of  being  suffered  to  flow  over  the  dam  into  the  river 

6182  channel  and  down  to  Adam’s  wheels,  is  irrevocably  turned 
away  in  another  direction.  And  in  this  operation,  per- 
formed as  it  must  be,  by  the  functionaries  of  the  State,  in 
the  official  administration  of  the  affairs  of  the  canal,  the 
defendants,  we  humbly' submit,  can  be  supposed  to  exercise  no 
responsible  agency.  The  stage  of  water  in  the  Channahon 
level  from  time  to  time,  and 

(38) 

the  methods  of  supplying  it,  are  matters  of  exclusive  official 
cognizance  and  regulation,  in  which  third  persons  have  no 
concern. 

The  water  being  by  this  process  already  irrevocably  di- 
verted x\dam,  as  a riparian  proprietor,  has  no  further  con- 


1786  Brief  for  Appellants,  Sup.  Ct. — Druley  vs.  Adam. — Con. 

cern  with  it.  In  its  mere  character  as  a physical  substance, 
he  sets  up  no  right  to  it  in  this  suit.  The  use  is  all  he  claims, 
and  he  can  assert  no  usufructuary  right,  except  where  he 
finds  it  existing  under  such  local  relations  to  his  mill,  that 
he  himself  could  use  it  as  a motive  power,  if  the  defendants 
did  not.  But  is  it  not  obvious,  that  when  the  water  has 
reached  down  to  a point  opposite  their  head  gates,  it  can  be 
of  no  benefit  to  him  in  any  possible  event,  and  it  therefore  can 
be  no  injury  to  him,  if  used  by  others!  If  the  use  of  it  by 
Slater  & Druly  was  no  legal  injury  to  him,  how  can  it  be  de- 
nominated a diversion  in  the  sense  of  the  law?  Does  it  not 
seem  too  plain  for  serious  dispute,  that  the  act  of  diversion, 
if  any,  is  performed  at  the  point  where  the  road  forks,  so 

6183  to  speak,  and  is  there  performed  by  the  sole  agency  of 
the  officers  of  the  State,  in  the  execution  of  their  public 

duties!  The  only  claim  of  the  appellee  to  the  water,  we 
repeat,  is  that  of  user  for  hydraulic  purposes  at  his  mill, 
and  so  the  declaration  expressly  describes  it.  He  asserts 
no  right  to  it  otherwise;  and  this  usufructuary  interest  is 
only  supposable  under  conditions  which  make  it  possible  for 
him  to  use  it  at  his  mill.  After  it  has  passed  down  and  out 
from  these  conditions,  and  is  found  in  some  place  entirely  be- 
yond their  range,  certainly  it  can  no  longer  afford  a cause 
of  action  to  him. 

But  it  is  said,  that  the  lessees  of  the  water  power  became 
joint  wrongdoers  with  the  official  agents  of  the  State,  by 
accepting  the  lease.  They  knew,  or  were  bound  to  know, 
that  the  water  they  contracted  to  receive  was  due  to  Adam, 
and  thus  in  law  became  parties  to  the  diversion.  We  can- 
not think  the  view  tenable  at  all. 

While  the  State  in  its  relations  with  its  citizens  is  in  jus- 
tice 

(39) 

bound  to  afford  redress  for  wrongs  of  this  description,  if 
wrongs  they  be,  done  under  its  authority,  yet  it  is  an  express 
requirement  of  our  public  policy,  that  relief  in  such  cases 
should  be  sought  from  the  Legislature  by  ]jetition,  rather  than 
from  the  courts  by  action.  Xo  application  of  this  principle 
can  be  more  obvious,  than  to  the  affairs  of  the  canal ; and  es- 

6184  })ecially  to  a case  like  this  at  bar.  The  commissioners,  and 
their  executive  officers,  by  authority  from  them,  are  invested 

with  entire  jurisdiction  over  the  canal  and  its  waters  and 
over  all  its  operations  in  regulating  the  stage  of  water  from 
time  to  time  on  the  several  Jevels.  In  dealing  with  these 
representatives  of  the  State  in  respect  to  the  water  of  the 
canal  at  any  given  ]mint  in  the  line,  it  would  be  most  unjust 
to  ask  private  individuals  to  inquire  at  their  peril  as  to  the 
particular  sources  from  which  the  water  was  derived,  and  the 


1787 


special  conditions  of  private  right  to  which  it  might  be  subject 
here  and  there.  There  is  the  water,  within  the  banks  of  the 
Illinois  and  Michigan  Canal,  in  the  undisputed  and  absolute 
possession  of  the  agents  of  the  State;  a possession,  which 
whether  right  or  wrong,  no  one  can  interfere  with.  What 
could  Slater  & Druly  be  supposed  to  know,  when  they  took 
their  lease,  about  this  old  Hhvens  settlement  in  1858,  if  in- 
deed it  ought  to  cut  any  tiguie  in  the  case  at  all!  The  persons 
controlling  and  regulating  the  stage  of  water  in  the  several 
levels,  and  its  transmission  from  one  to  another  were  public 
officers,  acting  under  official  responsibility,  and  presumed 
from  every  prima  facie  indication  of  authority,  to  be  acting 
rightly. 

Ballance  v.  Uuderhill,  3 Scam.,  453. 

Glancy  v.  Ellcoft,  14  111.,  456. 

Todemier  v.  AspUurcdl,  43  Ilk,  401. 

6185  They  appeared  to  be  in  the  full  undisputed  possession  of 
the  water;  and,  by  all  the  analogies  of  the  law,  that  posses- 
sion was  presumptive  evidence  to  third  persons  of  a plenary 

(40) 

right  to  control  it.  In  fact  the  presumption  ought,  we  think, 
to  be  stronger  here,  than  in  ordinary  cases  of  the  possession 
of  property,  which  could  be  physically  identified  and  dis- 
tinguished; for,  it  is  impossible  to  make  any  discrimination, 
based  on  diverse  proprietary  rights,  in  regard  to  the  aggre- 
gate mass  of  water  contained  in  the  canal.  But  it  may  be 
argued  that  the  defendants  knew  the  local  relations  of  the 
canal  and  river,  and  therefore  the  rights  of  Adam;  because, 
these  rights  were  inferrible  from  those  relations.  This  would 
be  carrying  the  rule  relied  on  very  far.  Two  courts  have 
passed  on  the  question  and  have  differed  diametrically  in 
their  opinion.  Were  these  plain  grinders  of  oat  meal  to  ^Baiow 
the  true  prince  by  instinct,”  when  wfise  judges  thus  differed, 
after  elaborate  argument! 

But  the  learned  judge  delivering  the  opinion  of  the  Appel- 
late Court,  places  his  main  stress,  if  we  understand  him 
correctly,  upon  the  release  from  Haven  & Haven,  as  going  far 
to  establish  the  rights  of  Adam.  A¥ith  all  due  deference,  we 
cannot  but  think  and  shall  endeavor  respectfully  to  show,  that 
the  court  was  here  in  error;  but,  be  this  as  it  may,  what  evi- 
dence is  there  in  this  record,  that  these  lessees  before  this 
suit  was  brought  knew  anything  about  that  release!  And 

6186  w^hat  wms  there  to  put  them  upon  inquiry! 

When  public  officers,  in  managing  public  property,  under 
a discretionary  legal  authority,  which  is  prima  facie  sufficient, 
contract  in  any  instance  with  individuals,  and  under  that  con- 
tract act  jointly  with  them,  the  scienter,  the  tortious  intent 


1788  Brief  for  Appellants,  Sup.  Ct. — Druley  vs.  Adam. — Con. 

would  seem  to  be  indispensable  to  make  their  co-contractors 
joint  tort  feasors. 

Hilliard  on  Torts,  Vol.  2,  pp.  155-255. 

Main  v.  McCarty,  15  111.,  441. 

Jermaine  v.  Wagner,  1 Hill  (N.  Y.),  284. 

In  the  case  last  cited,  decided  by  the  Supreme  Court,  of 
the 

(41) 

State  of  New  York,  acts  done  under  the  authority  of  the  Canal 
Commissioners  of  that  State  were  sought  to  be  justified  ‘be- 
cause the  canal  commissioners  had  jurisdiction  of  the  subject 
matter;”  and  it  was  argued,  that  ^‘although  the  latter  might 
not  be  protected,  yet  the  defendants  should  be,  inasmuch  as 
they  acted  under  the  direction  of  a body  which  was  prima 
facie  authorized  to  give  the  direction.”  The  court  seem  to 
have  fully  recognized  the  general  principle  for  which  we  con- 
tend, but  held  in  that  case  that  the  commissioners  had  no  prima 
facie  authority. 

In  this  connection,  it  may  not  be  unworthy  of  notice  as  a 
consideration  of  some  significance,  that  the  Canal  Commis- 
sioners are  themselves  exempted  bv  law  from  being  sued. 

E.  S.,  Ch.  19,  Sec.  3. 

6187  The  object  of  this  is  manifest.  It  was  deemed  mischiev- 
ous to  the  public  interests,  that  the  acts  of  the  commission- 
ers, who  are  declared  ‘Hor  all  legal  purposes”  to  be  ‘‘officers 
of  the  State”  should  be  left  liable  to  the  vexations  and  ob- 
structions of  daily  litigation.  How  far  this  exemption  ought 
to  be  extended,  or  whether  it  is  subject  to  any  exceptions, 
we  need  not  say.  It  is  very  clear,  at  all  events,  that  a case 
like  this,  of  all  others,  falls  within  the  scope  of  the  policy 
thus  established.  This  on  its  very  face  is  a square  direct  con- 
test between  William  Adam  and  the  State  of  Illinois ; involv- 
ing a question  of  public  concern;  whether  the  surplus  water 
drawn  from  Lake  Michigan  by  a cut  through  miles  of  solid 
rock  at  a cost  of  millions  of  dollars,  belongs  to  him  and  his 
little  7 by  9 mill,  or  to  the  State  of  Illinois.  If  he  is  aggrieved 
by  the  State,  the  constitution  denies  him  any  method  of  re- 
dress, save  one  supposed  to  be  ample  under  a just  and  en- 
lightened government,  and  that  is,  to  lay  his  case  before  tire 
General  Assembly.  But  this  he  conceived  would  be  an  incon- 
vient,  perhaps  an  expensive,  and  certainly  a very  hazardous 
experiment;  so  he 

(42) 

casts  about  him  for  some  way  to  evade  the  constitution  and  the 
laws,  and  finally  brings  suit  against  these  innocent  lessees, 
who  had  erected  a large  and  expensive  mill,  upon  the  faith 
of  their  contract  with  the  official  agents  of  the  State  of  Illi- 


1789 


nois.  The  point  we  have  been  considering  is  entirely  need- 
6188  less,  as  we  suppose,  for  our  defense,  and  we  shall  expend 
no  more  labor  upon  it;  but  it  will  be  for  the  court  to  say, 
whether  such  a suit  is  not  a palpable  evasion  of  our  oplicy, 
as  to  the  administration  of  public  property ; and  if  so,  whether 
it  ought  to  be  favored  or  maintained.  If  the  tort  is  by  statute 
no  tort  against  the  State  or  its  officers,  ought  it  in  justice 
to  be  held  a tort  against  these  lessees? 

If  not,  how  can  they  be  described  as  joint  tort  feasors,  upon 
the  general  principles  connecting  joint  trespassers  in  respon- 
sibility? 


III. 

THE  HAVENS  RELEASE. 

The  point  made  on  the  trial  of  the  cause,  that  the  release 
executed  by  the  plaintiff’s  grantors.  Haven  and  Haven,  in 
1853,  operated  as  a bar  to  the  action,  we  do  not  care  to  press 
at  much  length  in  argument  here.  It  does  not  touch  the  main 
and  really  interesting  question  in  the  case,  on  which  the 
opinion  of  the  court  is  desired ; and  is  we  hope,  entirely  super- 
fluous for  any  necessary  purpose  of  defense.  A word  there- 
fore in  reference  to  it  will  suffice. 

The  question  is  one  of  fair  construction.  One  expression 
in  the  release,  if  taken  literally,  limits  its  operation  to  ‘‘pur- 
poses of  navigation  as  contradistinguished  from  any  other 
purpose.”  It  is  argued,  and,  we  confess,  not  without  plaus- 
6189  ibility,  that  this  excludes  the  idea  of  a full  and  complete 
power  of  disposition  over  the  water  taken.  But  the  grant, 
although  expressed  to 

(43) 

be  for  “purposes  of  navigation,”  was  in  practical  effect  a 
grant  of  the  entire  stream;  unless  construed  as  subject  to  a 
tacit  condition  that  the  trustees  should  always  maintain  its 
other  feeders  in  statu  quo,  and  that  the  Desplaines  should 
only  be  required  to  furnish  for  purposes  of  navigation,  its 
proportionate  share,  in  conjimction  with  those  other  feeders. 
We  are  not  convinced  that  the  trustees  in  this  compromise 
meant  to  so  bind  themselves.  It  would  hardly  comport  with 
public  policy,  that  the  rights  of  the  State  in  reference  to  any 
one  of  its  several  feeders  should  be  hampered  by  such  a re- 
striction, precluding  it  from  any  future  change  in  its  system 
of  supply,  however  expedient,  without  incurring  the  risk  of  for- 
feiture. We  think,  that  while  it  was  not  then  deemed  prob- 
able that  there  would  be  any  material  alteration,  yet,  the  river 
was  turned  over  to  the  trustees  as  a feeder  for  any  and  all 


1790  Brief  for  Appellants,  Sup.  Ct. — Dndey  vs.  Adam. — Con. 

the  uses  and  purposes  attributable  to  any  canal  feeder.  To 
employ  the  term  ‘‘for  purposes  of  navigation/’  as  a term 
of  cautious  limitation,  in  connection  with  this  contemptible 
rivulet  and  the  Havens’  still  more  contemptible  interest  in  it, 
would  have  been  ridiculous.  If  the  State  bad  the  right  to 
the  whole  of  it,  irrespective  of  other  feeders,  to  fill  the  level, 
it  was  perfectly  well  known  that  there  never  could  be  to  the 
end  of  time  a surplus  to  use  for  water  power;  and  hence  we 

6190  felt  justified  in  contending  on  the  trial  that  the  release,  when 
fairly  construed,  was  intended  to  be  general  and  unlimited; 

and  the  entire  waters  of  the  river  turned  over  to  the  trustees 
to  use  at  their  discretion.  Even  an  arrangement  of  that  kind 
must  have  been  regarded  by  the  Havens  as  highly  advan- 
tageous to  them;  because  this  court  had  just  decided  in  11th 
111.  that  they  were  riparian  owners  only  on  one  side,  that 
their  dam  was  wholly  unauthorized  beyond  the  center  of  the 
stream,  that  they  were  at  the  mercy  of  the  State,  as  the  owner 
of  the  opposite  bank,  for  their  power;  and  that  the}^  could 
expect  no  more  than  nominal  damages  by  any  assessment 
that  the  courts  would  sustain.  The  compro- 

(44) 

niise  was  assented  to  by  the  trustees,  because  on  their  part 
they  did  not  choose  to  be  harassed  with  perpetual  suits  for 
even  nominal  damages. 

The  Appellate  Court,  however,  if  we  rightly  apprehend  its 
decision,  adopted  the  conclusion,  not  only  that  the  release 
was  no  bar  to  the  action,  but  that  it  even  had  the  effect  of 
giving  to  the  plaintiff  as  grantee  of  the  Havens,  a right  to 
claim  as  riparian  owner  this  vast  additional  volume  of  water, 
13roduced  eighteen  years  afterwards  by  an  improvement  which 
entirely  revolutionized  the  former  system  of  supply — an  addi- 
tion exceeding,  probably,  twenty  times  the  natural  flow  of  the 
Desplaines  in  1853! 

6191  Holding  that  court,  as  we  do,  in  the  highest  respect,  we 
must,  nevertheless,  be  permitted  to  insist  here  most  stren- 
uously and  confidently  that  their  position  is  unwarranted  by 
any  just  construction  of  the  release. 

The  whole  transaction  between  the  Havens  and  the  Canal 
Trustees  had  reference  to  the  state  of  things  then  existing. 

The  canal  had  been  completed  in  1848  upon  the  shallow  cut  or 
raised  level  plan,  as  the  best  the  State  in  those  hard  times 
could  do.  Instead  of  a direct  and  never-failing  supply  from 
the  lake,  the  level  was  to  be  supplied  by  the  poor  expedient 
of  pumps  at  Bridgeport,  reinforced  by  the  Calumet,  and  the 
feeble  and  uncertain  tributes  in  spring  and  fall  of  the  little 
Desplaines.  There  are  probably  upon  the  bench  of  this  court 
those  who  personally  know  how  little  anybody  in  Illinois  at 


1791 


that  early  day  expected  the  time  would  ever  come,  when  this 
channel  would  be  carved  deep  through  miles  of  solid  rock  to 
the  inexhaustible  bosom  of  the  lake.  It  is  fair  to  affirm  posi- 
tively, that  neither  of  the  parties  to  this  agreement,  the 
Havens  or  the  Trustees,  thought  of  such  a thing  as  the  ulti- 
mate finishing  of  the  Deep  Cut,  any  more  than  they  thought  of 
the  millennium.  In  fact  at  that  time  the  railroad  era  had 
dawned  in  Illinois,  putting  water  communications  completely 
in  the 

(45) 

background,  and  making  it  exceedingly  doubtful  whether  the 

6192  State  would  ever  spend  another  dollar  on  that  kind  of  in- 
ternal improvements.  But  the  release  itself  contains  abund- 
ant intrinsic  evidence,  that  the  whole  arrangement  had  ref- 
erence to  the  particular  state  of  facts  existing  in  1853.  It 
recites  the  claim  of  the  releasors  as  riparian  owners  on  the 
Desplaines  Eiver,  that  they  had  suffered  damage  by  the  diver- 
sion of  the  water  belonging  to  them  as  such  owners,  the  legal 
proceedings  pending  to  settle  the  questions  in  dispute,  and 
the  expediency  of  stopping  the  litigation,  by  compromise;  and 
then  proceeds  to  set  forth  the  terms  of  adjustment  agreed 
on.  Some  disputed  questions,  it  is  true,  had  already  been 
adjudicated  in  this  Court. 

Canal  Trustees  v.  Haven,  5 Gil.,  556. 

Same  v.  Same,  11  111.,  554. 

In  the  first  case,  which  went  up  on  an  agreement  as  to  the 
facts,  it  was  decided  that  the  Act  of  Congress  of  1822  did 
not  apply  to  school  sections,  that  although  the  Desplaines 
Eiver  had  been  meandered,  the  grantees  from  the  Government 
took  to  the  center  of  the  stream,  and  that  the  Havens  were 
to  be  regarded  as  riparian  proprietors,  and  as  such  entitled 
to  recover  for  any  diversion  of  the  water  of  the  river.  In 
the  second  case,  it  was  decided,  that  the  Havens  were  riparian 
owners  only  on  the  east  bank;  but  were  entitled  to  at  least 
nominal  damages.  Both  cases,  as  will  be  seen,  simply  recog- 

6193  nize  the  old  familiar  common  law  rules  on  the  subject  of 
riparian  ownership  and  diversion.  At  all  events,  it  is  en- 
tirely certain  that  in  neither  was  there  a single  intimation  that 
the  Havens  occupied  any  other  position  than  that  of  ordi- 

. nary  riparian  owners  on  a natural  water  course ; or  that, 
from  the  peculiar  relations  between  the  river  and  the  canal, 
they  could  claim  damage  for  the  diversion  of  any  water  other 
than  that  which  could  be  shown  to  be  the  natural,  customary 
and  proper  flow  of  their  stream. 

(46) 

Nor  did  the  release  contemplate  any  extension  or  modifica- 


1792  Brief  for  Appellants,  Sup.  Ct. — Druley  vs.  Adam. — Con. 

tion  of  their  common  law  rights  as  riparian  owners,  further 
than  this,  that  the  State,  as  represented  and  hound  by  the 
canal  trustees,  might  perhaps  be  held  to  have  virtually  ac- 
quiesced in  their  right  to  thereafter  maintain  their  dam 
across  the  whole  width  of  the  river  to  the  bank  of  the  canal, 
using  that  hank  for  their  west  abutment ; — a right  which  they 
did  not  possess  before.  But  the  learned  judge  who  speaks 
for  the  Appellate  Court,  argues,  that  at  that  time,  in  1853, 
the  surplus  water  from  the  summit  level,  discharged  at  Lock- 
port  into  the  Desplaines,  came  down  to  the  pool  above  Dam 
No.  2,  by  prcisely  the  same  process  as  does  the  immensely 
increased  flow  now;  and  that  the  trustees,  in  accepting  this 
release  virtually  recognized  this  surplus  as  a part  of  the  legiti- 
mate flow  of  the  river,  for  the  diversion  of  which  the  Havens 

6194  were  entitled  to  damage.  Where  did  the  court  find  in  the 
record  in  this  case  any  warrant  for  such  a proposition!  Cer- 
tainly not  in  either  of  the  decision  of  this  Court  which  have 
been  cited.  Certainly  in  no  express  grant,  declaration,  or 
admission  of  the  trustees,  for  they  made  none.  Certainly  not 
in  the  language  of  the  release,  because  it  nowhere  speaks 
of  the  water  in  dispute,  otherwise  than  as  ‘Hhe  waters  of 
said  Desplaines  Kiver.  ” But  what  were  the  waters  of  the  Des- 
plaines Kiver!  The  particular  point  arising  here  was  not 
referred  to  in  either  of  the  decisions  of  this  Court.  It  is 
quite  evident  it  was  not  considered  in  the  assessment  of  dam- 
ages, from  which  the  second  appeal  was  taken.  In  the  opin- 
ion (11th  111.,  554),  Justice  Teeat  speaks  only  of  diverting 
the  water  of  the  river  from  its  natural  channel,” — ”of  the 
use  of  the  water  as  it  is  accustomed  to  flow  along  the  chan- 
nel,”— of  the  right  ‘Do  use  the  whole  of  the  water  naturally 
passing  down  the  channel,” — of  the  H’s  being  “entitled  to 
use  but  half  the  water  naturally  flowing  along  the  channel,  ’ ’ — 
of  their  duty"  “to  use  it  as  it  is  accustomed  to  flow  down  the 
channel,”  &c., — language  appro- 

. (47) 

priate  only-  to  a case  where  the  water  in  question  was  recog- 
nized as  being  that  which  was  “accustomed”  to  flow  through 
the  water  course  under  consideration.  And  what  is  meant  in 
the  text  books  and  adjudged  cases,  by-  water  naturally  flow- 
ing, and  water  accustomed  to  flow!  Are  not  these  the 

6195  terms  always  used  to  define  the  ordinary  and  proper  flow 
of  a natural  water  course,  with  no  possible  reference  to  the 

exceptional  case,  in  which  an  upper  owner  happens  to  have 
improved  the  stream  from  a reservoir  of  his  own! 

In  1853,  the  canal  had  been  in  operation  hut  five  years. 
During  this  time,  it  is  true,  the  surplus  from  the  summit 
level  had  passed  down  the  river  to  its  junction  with  the  canal 


1793 


in  the  upper  basin  as  it  does  now,  and  as  the  plan  of  the  canal 
required.  Was  this  sufficient  to  make  it  in  the  eye  of  the  law 
an  ordinary  and  customary  flow?  Could  even  twenty  years 
have  created  a right  by  prescription  against  the  State  ? Could 
not  the  State,  if  it  had  chosen,  and  if  it  had  been  practicable, 
stopped  at  any  time  this  flow  through  the  river,  and  dis- 
charged this  surplus  through  some  other  channel?  Who  can 
doubt  it?  But  when  the  parties  got  together  for  a settlement, 
the  occasion  had  passed  for  any  such  belligerent  analysis  of 
rights,  and  probably  these  considerations  were  not  mentioned 
or  thought  of  at  all.  How  then  can  it  now  be  contended  that  by 
accepting  that  release  the  trustees  estopped  themselves  and 
estopped  the  State  forever  from  asserting  against  the  Ha- 
vens or  their  grantee,  that  the  contribution  to  the  river  from 
the  Lockport  mills  and  spillway  in  1853,  was  not  a part  of 
its  natural  and  customary  flow?  This  court  once  said:  ^Ht 

is  a familiar  doctrine  that  the  State  is  not  embraced  within 
the  Statute  of  Limitations,  unless  specially  named,  and 

6196  by  analogy  would  not  fall  within  the  doctrine  of  estoppel. 
Its  rights,  revenues  and  property  would  be  at  a fearful  haz- 
ard, should  this  doctrine  be  applicable  to  a State.  A great 
and  overshadowing  public  policy  of  preserving  these  rights, 
revenues  and  prop- 

(48) 

erty  from  injury  and  loss  by  the  negligence  of  public  officers 
forbids  the  application  of  the  doctrine.’’ 

The  People  v.  Broivn,  67  Ilk,  438. 

On  this  point,  therefore,  we  conclude,  that  the  Havens 
release  is  to  be  construed  with  reference  to  the  state  of  facts 
or  circumstances  surrounding  the  parties  at  the  time  it  wms 
executed;  that  in  the  suit  of  which  it  was  the  flnal  adjust- 
ment, they  appear  to  have  set  up  no  claim  save  that  of  ordi- 
nary riparian  proprietors,  that  is  to  say,  a claim  to  the  water 
as  it  was  accustomed  to  flow  in  the  natural  channel  of  the 
Desplaines  Eiver;  that  there  never  had  been  a judicial  de- 
termination or  intimation,  to  the  effect  that  the  addition  to 
that  customary  flow,  produced  by  the  discharge  from  the 
hydraulic  basin  and  spillway  at  Lockport  was  or  had  become 
by  lapse  of  time  or  contract  or  otherwise  a part  of  such  cus- 
tomary flow  in  any  legal  sense,  and  that  there  is  nothing  in 
the  release  itself  importing  any  such  claim.  It  seems  ~roo 
plain  for  argument.  One  of  two  things  must  be  true; — either 
the  question  was  considered  by  the  parties  in  their  settle- 
ment, or  it  was  not.  If  it  was  not,  then  the  acceptance  of 

6197  the  release  cannot  be  now  set  up  by  way  of  estoppel  to  pre- 
clude the  State  or  its  grantees  from  raising  the  point; — if  it 

u:as,  then  the  terms  employed  conclusively  demonstrate,  that 


1794  Brief  for  Appellants,  Sup.  Ct.—Driiley  vs.  Adam. — Con. 

the  Havens  did  not  expressly  make  and  therefore  could  not 
he  understood  as  intending  to  make  any  such  claim. 

But  be  this  as  it  may,  even  conceding  that  in  1853  the 
trustees  in  treating  with  the  Havens  did  not  choose  to  notice 
the  distinction  between  the  natural  flow  of  the  river  and  the 
artificial  addition  supplied  from  the  canal  itself,  and  were  will- 
ing to  recognize  the  whole  aggregate  volume  indiscriminately 
as  river  water, — such  an  agreement  as  that  even  cannot  be  con- 
strued as  contemplating  or  embracing  the  unlooked  for  state 
of  things  existing  now.  They,  and  nobody  then  could#  have 
fore- 

(49) 

seen  that  in  the  lapse  of  eighteen  years,  by  a somewhat  re- 
markable and  entirely  unlooked  for  train  of  causes,  the  long 
suspended  deep  cut  would  at  last  be  finished,  the  whole  sys- 
tem of  supply  for  the  summit,  Joliet  and  Channahon  levels 
totally  revolutionized:  and  the  Hesplaines  in  its  character  as 
a feeder  completely  vriped  out  from  the  map.  The  first 
canon  of  construction  in  expounding  contracts,  and  the  one 
which  really  involves  all  others,  is  to  get  at  the  intention  of 
the  parties.  To  do  this,  the  courts  place  themselves  ‘‘as  far  as 
possible”  in  the  position  of  “the  parties  when  they  made  the 
contract,  by  possessing  themselves  of  the  circumstances 
6198  which  they  had  in  view  during  the  negotiations.” 

Stout  V.  Whitney,  12  111.,  227. 

Wilcox  V.  McGhee,  11  Ilk,  381. 

Hadden  v.  Schoutz,  15  Ilk,  582. 

Now  waiving  all  advantage  from  the  rule  that  grants  are  to 
be  taken  most  strongly  against  the  grantor,  and  the  equally 
familiar  rule  that  in  favor  of  the  Government  even  its  own 
grants  are  to  be  construed  strictly  as  against  the  adverse 
party  and  favorably  for  itself,  let  us  place  ourselves  in  the 
canal  office  in  1853.  The  Hesplaines  was  not  much  of  a 
stream,  but  the  trustees  wanted  to  control  it  as  a feeder  for 
whatever  it  was  worth,  without  the  liability  of  incessant  law- 
suits. The  Havens  making  their  appearance  before  the  board 
in  a simple  character  of  riparian  proprietors  on  the  east  bank, 
as  holding  title  to  lot  1,  ‘block  57,  School  Section  Addition 
to  Joliet,  agree  to  execute  a perpetual  release  of  damages 
for  $3,000.  Suppose  the  president  of  the  board  had  said — • 
“Perhaps  the  State  may  in  a few  years  finish  the  deep  cut, 
supplying,  say,  25,000  cubic  feet  of  water  per  minute,  enough 
for  navigation  and  an  immense  surplus  besides  for  water- 
power at  Lock])ort  and  Joliet.  Xow  if  in  this  event  she  shall 
turn  over  Ham  Xo.  2,  into  your  mill  pond,  or  at  least  double 
the  quantity 


1795 


(50) 

of  water  you  are  getting  now,  and  probably  ten  times  what 
you  got  before  the  canal  was  opened,  thus  converting  your 

6199  little  mill  into  first-class  property,  do  you  mean  to  sue  any- 
body for  damages,  should  our  successors,  the  Canal  Com- 
missioners, find  it  expedient  to  use  the  rest  of  the  water  some- 
where on  the  Channahon  level!”  Judging  from  this  paper  and 
the  attendant  circumstances,  what  likely  would  have  been 
their  answer!  Tenacious  as  they  had  been  of  their  rights, 
they  had  mever  put  forth  a claim  so  absurd  as  this.  They 
had  never  claimed  a foot  of  water  to  which  the}^  could  not 
show  themselves  entitled  as  riparian  proprietors  by  the  strict 
rules  of  the  common  law.  They  had  never  sought  to  recover 
damages  for  diverting  a foot  of  water  which  could  not  be 
legally  defined  as  water  ^‘accustomed”  to  flow  in  the  I)es- 
plaines  Elver.  Their  answer  assuredly  would  have  been: 
“We  convey  to  you  our  rights,  such  as  they  are,  in  the  Des- 
plaines  as  a feeder.  You  are  of  course  at  liberty  to  use 
it  as  a feeder  as  long  as  you  choose,  and  to  dispense  with  it 
whenever  you  choose,  it  is  immaterial  to  us.  If  at  some 
future  time  you  or  the  State  should  abandon  the  present 
system  altogether,  so  that  instead  of  the  river  feeding  the 
canal,  the  canal  should  incidentally  feed  the  river,  largely 
augmenting  its  flow,  and  enhancing  our  water-power,  vre  shall 
be  duly  thankful  for  such  good  fortune,  and  will  give  you 
bond  and  security  never  to  bring  suit  against  anybody  for 
such  a blessed  diversion  as  that.” 

It  is  indeed  hard  to  deal  with  a claim  so  provokingly  ab- 
surd and  unjust  with  equanimity  and  decorum,  especially 

6200  to  one  who  has  watched  the  water  flowing  over  Earn  Xo.  2 
for  thirty-five  years,  and  seen  the  advancement  of  this  poor, 

forlorn  Havens  mill  to  its  present  condition.  Here  the  State 
of  Illinois  at  an  enormous  expense  has  made  this  great  im- 
provement for  the  general  good.  The  canal  at  best  has  a 
hard  time  of  it  to  get  along,  and  sorely  needs  every  dollar 
of  revenue  it  can  obtain  from  every  source.  It  now  happens 
to  possess  a large  surplus 

(51) 

of  water  which  is  available  with  profit  for  hydraulic  power. 
The  fall  of  the  canal  is  such  that  it  can  be  rei)eatedly  used, 
first  at  Lockport,  again  at  Dam  Xo.  I,  and  finally  at  Dam 
Xo.  2.  After  the  experience  of  a few  years,  the  commission- 
ers have  discovered  that  the  amount  of  water  at  their  dis- 
posal at  Joliet  is  so  great,  that  after  leasing  all  that  can 
possibly  be  leased  to  advantage  at  the  dam,  and  after  send- 
ing down  to  the  appellee’s  mill  double  the  amount  he  had  ever 
received  before,  there  is  still  a considerable  surplus  that  can 


1796  Brief  for  J ppeUanis,  Slip.  Ct. — Druleij  vs.  Adam.  — Con. 

only  be  utilized  at  all  on  the  plan  here  brought  to  the  notice 
of  the  court.  Instead  of  leaving  it  as  a monopoly  in  the  hands 
of  Adam  and  the  several  lessees  at  Dam  Xo.  2,  limiting  the 
area  of  manufacturing  establishments  in  Joliet  to  their  par- 
ticular district,  this  scheme  operates  to  distribute  the  bene- 
fit of  this  hydraulic  power  over  territory  well  situated  for 
such  industries,  adjoining  the  west  bank  of  the  canal  for  a 
long  distance,  perhaps  a mile  or  more.  But  now  this  ap- 
pellee, ecpially  grateful  and  modest,  comes  into  court  and 
6201  claims,  that  the  water  is  his,  and  that  the  water  rents  must 
be  paid  to  him,  instead  of  going  into  the  coffers  of  the  State. 
He  hardly  pretends  that  the  millions  that  were  expended  on 
the  works,  through  which  Lake  Michigan  rolls  down  to  Joliet, 
were  altogether  contributed  by  him.  He  generously  leaves  to 
the  State  undisturbed  the  ]*esponsibility  and  expense  of  re- 
pairing, maintaining,  suiDerintending  and  operating  the  canal. 
For  his  own  part  he  is  content  with  the  humble  post  of  gob- 
bling up  the  accruing  revenues. 

For  the  reasons,  thus  presented  at  a length  which  only  the 
importance  of  the  case  could  justify,  we  respectfully  submit, 
that  the  judgment  of  the  Appellate  Court  ought  to  be  re- 
versed. 

G.  D.  A.  Parks, 

E.  F. 

Attorneys  for  Appellant. 


(1) 

Ix  THE  Supreme  Court  of  Illixois, 
Xorthern  Grand  Division, 

September  Term,  A.  D.  1881. 

6203  

MAi.  Druley,  Appellant, 
vs. 

"William  Adam,  Appellee. 

Appeal  from  Appellate  Court  of  Second  District. 


Additioxal  Brief  for  Appellaxt. 


AVe  think  in  our  former  brief  that  we  have  shown,  both  upon 
principle  and  authority,  that  a riparian  proprietor  on  a nat- 
ural water  course  is  entitled,  and  only  entitled,  to  receive 
from  the  proprietor  above  the  proper,  natural  and  customary 
flow  of  the  stream,  unimpaired  in  quantity,  and  in  the  con- 


1797 


dition  of  fall  necessary  to  make  it  reasonably  useful  to  liimj 
but  this  rule  applies  only  to  the  water  naturally  and  custoru- 
arily  flowing  in  the  stream.  It  will,  perhaps,  in  this  con^ 
nection,  be  advisable  for  us  to  review  more  fully  than  we  have 
the 


(2) 

authorities  which  were  relied  upon  by  counsel  for  appellees  in 
6204  the  Appellate  Court,  and  to  consider  some  of  the  positions 
there  assumed  by  them. 

I. 


Appellee  in  the  Appellate  Court  made  the  proposition  that 
*^a  lower  riparian  proprietor  has  the  right  to  the  use  of  all 
water  which  may  be  added  to  a stream  by  a higher  proprietor, 
no  matter  for  what  purpose,  and  it  matters  not  that  the  addi- 
tion was  made  at  the  entire  expense  of  the  upper  proprietor 
and  withdrawn  before  reaching  the  land  of  the  lower,”  and  in 
support  thereof  cited  several  authorities  to  which  we  desire 
briefly  to  call  the  attention  of  the  Court.  It  seems  to  us 
that  none  of  them  are  applicable  to  the  point  made  in  the 
case  at  bar.  Tourtolotfe  v.  Phelps,  4th  Gray,  Mass.,  370, 
turned  entirely  upon  the  construction  of  certain  deeds  of  con- 
veyance, and  the  question  in  the  case  is  expressly  stated  to  be 
^Ghe  extent  of  the  defendant’s  right  at  his  shop”  under  cer- 
tain deeds  of  conveyance  introduced  in  evidence.  The  de- 
fendant in  that  case  did  not  seek  to  assert  nor  claim  the  right 
to  withdraw  from  the  stream  water  he  had  added  thereto,  nor 
was  that  question  in  the  case  either  directly  or  indirectly, 
nor  has  that  Court  in  that  case  attempted  to  pass  upon  this 
question.  The  nearest  approach  in  the  opinion  to  the  ques- 
tion urged  by  appellee  will  be  found  on  page  376,  and  is  as 
6205  follows: 

''One  consideration  is  important  to  the  present  inquiry: 
It  is  this:  That  as  each  propfletor  through  whose  land  a 

water  course  passes  has  a right  to  the  natural  flow  and 
descent  of  the  water  course  subject  to  the  like  reasonable 
use  by  all  others,  he  necessarily  enjoys  the 

(3) 

benefit  of  any  improvement  made  by  the  proprietors  above 
him.  If  they  increase  the  head  waters  for  useful  pur- 
poses by  flotving  increased  areas  of  land  and  by  making 
reservoirs  to  preserve  surplus  waters  for  dry  seasons, 
and  thus  increases  the  volume  of  water  for  hydraulic  pur- 
poses, every  lower  proprietor  necessarily  enjoys  the  bene- 
fit of  it;  but  in  such  case  no  mill  owner  below  the  first 
and  nearest  the  meadow  or  land  flowed  can  be  liable  to  tiie 


1798  Drulcif  v.  Adam, — Appt.  2nd  Brief  Sup.  Ct.—Con. 

land  owner  for  damages.  He  has  done  the  land  owner  no 
wrong  by  having  the  increased  volume  of  water  at  his 
works,  whether  he  uses  it  or  not;  such  increased  volume  of 
water  was  inevitable  by  him;  he  hadn^t  caused  it,  and 
could  not  prevent  it.  He  would  not  be  responsible  to  the 
land  owner  for  damages  caused  by  flowing  his  land,  be- 
cause it  was  not  caused  by  his  dam,  but  by  some  one  above 
him,  for  whose  doing  he  would  not  be  responsible.’’ 

The  improvements  here  spoken  of  are  not  those  caused  by 
an  addition  to  the  icaters  of  the  stream  from  other  sources, 
but  simply  consisted  of  the  construction  of  reservoirs  tvhere- 
by  the  surplus  ivater  was  preserved  for  dry  seasons.  Of  course 
the  lower  riparian  proprietors  necessarily  enjoyed  the  benefit 

6206  of  the  reservoirs  constructed  above  to  retain  the  waters  for 
the  seasons  of  drought.  The  upper  proprietors  could  not, 

from  the  nature  of  the  case,  enjoy  the  benefits  of  their  im- 
provements without  conferring  corresponding  benefits  on 
those  below  them.  One  of  the  questions  in  the  case  cited  was 
as  to  the  liability  of  the  defendant  for  the  overflow  of  a 
certain  meadow  land  belonging  to  the  plaintiff.  It  was  held 
that  the  defendant  was  not  liable,  although  he  used  the  water 
thus  held  back  and  preserved  by  the  dam,  for  the  reason  that 
it  was  not  his  dam  that  penned  u]d  and  flowed  back  this 
water,  but  the  dam  of  the  upper  proprietor.  It  was  true 
that  he  de- 

(■i) 

rived  a benefit  from  the  construction  of  this  dam  and  the 
preservation  of  the  surplus  waters;  but  he  did  not  build  the 
dam  nor  in  any  manner  aided  in  its  construction,  and  it  was 
therefore  held  that  he  was  not  liable  for  the  damages  caused 
by  this  overflow.  Upon  the  same  principle  it  can  be  asserted 
that  the  appellant  here  is  not  liable,  even  if,  as  between  ap- 
pellee and  the  state,  appellee  is  entitled  to  the  waters  brought 
through  the  deep  cut  at  the  summit  level,  for  it  was  not 
appellant’s  dam  that  caused  a.  diversion  of  the  water  from  the 
Hesplaines  Elver  into  the  canal,  but  it  was  the  dam  of  the 
people  of  the  State  of  Illinois,  the  owners  of  the  canal ; and 

6207  at  the  point  where 'appellant  drew  this  water  from  the  canal 
the  water  was  in  the  absolute  and  undisputed  possession  of 

the  state  and  subject  to  the  control  of  the  Canal  Commission- 
ers, and  subject  to  that  control,  too,  not  by  reason  of  any  act 
or  assent  on  behalf  of  the  appellant,  but  by  reason  of  an  act 
of  the  Canal  Commissioners,  for  which  he  was  in  no  manner 
responsible. 

The  next  case  cited  by  appellee  in  the  Appellate  Court 
in  support  of  his  claim  to  the  water  procured  through  the 
summit  level  from  Lake  Michigan  was  Webb  v.  FortlandAIanu- 


1799 


facturing  Co.,  3 Sumner,  p.  189.  There  were  but  two  ques- 
tions in  that  case,  and  I quote  from  the  opinion  of  the  court, 
page  191: 

‘‘The  first  is  whether  to  maintain  the  present  suit  it 
is  essential  for  the  plaintitf  to  show  any  actual  damage. 
The  second  is  whether  in  point  of  law  a mill  owner  hav- 
ing a right  to  a certain  portion  of  the  water  of  a stream 
for  use  of  his  mill  at  a particular  dam  has  a right  to  draw 
off  the  same  or  any  less  quantity  of- the  water  at  a con- 
siderable distance  above  the  dam  without  the  consent  of 
the  owners  of  other  mills  on  the  same  dam.” 

It  will  be  seen  that  neither 

(5) 

of  these  questions  affects  the  question  at  issue,  nor  is  the 
question  at  issue  in  any  manner  discussed  in  the  opinion.  It 
was  held  in  that  case  that  the  defendant  by  drawing  off  the 
water,  to  which  he  claimed  to  be  entitled,  from  the  pond  at 

6208  some  distance  above  the  dam,  necessarily  decreased  the 
amount  of  the  head  which  the  mill  owners  located  at  the  dam 

would  otherwise  have,  and  to  that  extent  they  were  injured, 
and  for  such  injuries  were  entitled  to  maintain  their  bill. 
It  was  also  claimed  in  that  case  that  the  defendants  had  fully 
indemnified  the  plaintiff  from  injury,  and  in  fact  conferred  a 
benefit  upon  him  by  creating  a reservoir  higher  up  the  stream 
so  as  to  be  capable  of  affording  a full  supply  in  the  dryest 
seasons;  but  it  was  held  that  the  plaintiff  had  no  interest 
in  such  dam,  could  not  compel  its  maintenance,  nor  could  he 
be  compelled  to  take  any  benefits  that  he  might  necessarily 
derive  therefrom  in  lieu  of  his  natural  right  to  a full  head  of 
water  at  his  dam. 

The  third  case  relied  upon  is  that  of  Swindon  Water  Works 
V.  IF.  S B.  Canal  Co.,  14  Moaks,  (Eng.  E.),  86,  but  that  case 
has  not  the  remotest  analogy  in  any  respect  to  the  case  at 
bar.  The  Swindon  Water  Works  Company  claimed  the  right 
as  upper  proprietors  of  the  stream  to  divert  all  the  water 
for  the  purpose  of  supplying  the  town  of  Swindon,  and  by 
this  means  prevent  any  portion  thereof  finding  its  way  to  the 
lower  proprietor,  which  the  English  House  of  Lords  very 
properly  held  they  had  no  right  to  do. 

6209  The  next  case  cited  is  that  of  Batavia  Manufacturing  Co. 
V.  Newton,  91  111.,  230.  But  no  such  question  was  before 

this  Court  in  this  case,  nor  did  this  Court  even  by  way  of 
argument  say  anything  in  that  case  that  can  be  properly 
construed  in  support  of  such  a proposition.  The  only  com 


1800  Dndeij  v.  Adam, — Appt.  2nd  Brief  Sup.  Ct. — Con. 

(6) 

tention  between  the  parties  was  as  stated  by  Mr.  Justice 
Scliolfield  (page  284)  : 

‘‘The  plaintiff  claims  a preference  of  twelve  hundred 
square  inches,  while  the  defendant  contends  that  it  is  en-  ' 
titled  to  but  six  hundred  square  inches.  The  ruling  was 
in  favor  of  the  contention  of  the  defendant.’^ 

And  the  settlement  of  this  question  depended  entirely  upon 
the  construction  of  certain  deeds  of  conveyance  which  had 
been  introduced  in  evidence  and  formed  a part  of  the  record. 

By  way  of  illustration,  Justice  Scliolfield  uses  the  language 
relied  upon  by  appellee,  page  241 ; but  the  Court  will  see  that 
the  illustration  is  with  reference  to  water  that  was  sup- 
posed to  have  been  added  to  the  natural  stream,  had  com- 
mingled therewith  and  had  reached  the  joint  possession  of 
the  riparian  proprietors  at  their  common  dam,  and  simply 
asserts  that  such  contribution  was  to  the  common  pond,  in 
which  each  were  jointly  interested,  and  that  such  fact  would 
not  entitle  the  person  supplying  the  same  to  a peeference  in 
ITS  USE  AT  THE  DAM;  liut  eveii  tJuit  questiou  was  not  before 
the  court  in  that  case,  much  less  can  it  be  claimed  that  this 
6210  illustration  supports  the  claim  made  that  if  an  upper  riparian 
proprietor  has  added  to  the  natural  waters  of  a stream  by 
artificial  means  and  for  his  own  purposes,  he  has  no  right, 
for  his  own  use,  to  withdraw  the  same  or  a like  quantity  from 
the  stream  before  it  reaches  the  possession  af  the  lower  pro- 
prietor. 

The  next  is  that  of  Eddy  v.  Simpson,  3 Cal.,  249,  and  comes 
nearer  than  any  other  case  cited  in  support  of  the  proposition 
contended  for,  but  still,  when  carefully  considered,  falls  far 
short,  and  unfortunately  for  the  appellee  has  been  expressly 
held  by  later  cases  in  the  same  court  not  to  bear  the  con- 
struction sought  to  be  placed  upon  it,  and  if  ca- 

(7) 

pable  of  bearing  such  construction,  has  been  expressly  over- 
ruled by  the  cases  heretofore  cited  by  us.  In  that  case  it  was 
held  that  the  water  which  it  was  sought  to  withdraw  from 
the  stream  had,  without  the  agency  of  the  defendants  found 
it  way  into  Shady  Creek,  joining  the  waters  then  in  the  pos- 
session of  the  plaintiffs,  and  became  a part  of  the  body  of 
water  used  and  possessed  by  the  plaintiffs,  that  the  defend- 
ants had  abandoned  the  water  and  lost  all  right  therein,  and 
therefore  had  no  right,  after  it  had  come  into  the  possession 
of  the  plaintiffs,  to  withdraw  the  same  from  the  plaintiffs’ 
possession.  It  seems  to  us  that  if  it  was  true,  as  found  in  the 
case  last  cited,  that  the  waters  had  been  abandoned  by  the  de- 


1801 


6211  fendant  and  allowed  without  his  agency  to  flow  into  the  pos- 
session of  the  plaintitfs,  that  the  defendant  would  have  no 

right,  either  natural  or  legal,  to  withdraw  the  same  from  the 
possession  of  the  plaintiff.  And  this  concession  in  no  man- 
ner militates  against  the  claim  made  by  us.  Here  the  water 
was  withdrawn  by  the  party  who  supihied  the  same  before 
it  came  into  the  possession  of  the  plaintiff.  What  he  coni- 
plains  of,  is  that  the  water  ivas  not  permitted  to  come  into  his 
possession. 

It  was  claimed  by  counsel  for  appellee  in  the  Appellate 
Court,  and  will  undoubtedly  be  insisted  upon  here,  that  the 
California  cases  are  not  of  a general  applicability  for  the  rea- 
son that  they  are,  as  it  is  claimed,  founded  on  the  situation 
of  the  parties  and  the  customs  and  laws  of  California.  From 
the  peculiar  situation  of  many  of  the  water  rights  in  Cali- 
fornia, the  precise  question  at  issue  has  arisen  more  fre 
quently  in  that  state  than  in  all  other  localities  combined; 
but  the  Supreme  Court  of  California  distinctly  assert  that  they 
base  their  opinion  upon  common  law  principles,  applying  to 
the 

(8) 

peculiar  condition  of  things  in  California  well  established  rules 
of  the  common  law.  At  common  law  a person  in  order  to 
be  entitled  to  the  use  of  water  in  a running  stream  must  be  a 
riparian  proprietor;  that  is,  he  must  own  the  soil  upon  either 
one  or  both  of  the  banks  of  the  stream,  and  unless  he  was 

6212  such  owner  he  had  no  right  to  claim  any  interest  in  the  use 
of  the  water,  unless  such  interest  had  been  acquired  by  gra;it 

or  prescription.  In  California,  however,  in  most  instances  the 
fee  to  the  streams  at  the  time  this  question  arose  was  in  the 
Government.  Strictly  speaking,  there  were  no  riparian  pro- 
prietors except  the  Government,  but  from  the  earliest  settle- 
ment of  the  state  the  person  who,  for  the  purpose  of  operat- 
ing mines,  or  for  irrigation,  first  dammed  up  and  controlled 
the  waters  of  a stream  was  treated  and  considered  as  having 
a proprietary  interest  in  the  use  of  such  water  as  against 
all  persons  other  than  the  Govermdnt,  or  those  claliming 
under  the  Government.  The  development  of  the  mines  of 
California  required  the  protection  of  parties  who  had  expend- 
ed large  sums  of  money  and  a large  amount  of  labor  in  con- 
trolling for  useful  purposes  the  waters  of  a running  stream. 
And  so  the  courts,  applying  common  law  principles  to  the 
existing  state  of  facts,  say  that  they  will  treat  the  first  ap- 
propriator  of  the  waters  of  a running  stream,  in  all  cases 
where  the  Government  is  the  proprietor,  as  the  person  entitled 
to  the  use  of  such  waters;  and  this,  too,  notwithstanding 
he  may  have  no  interest  in  the  soil  over  or  through  which 


1802  Druley  v.  Adam, — Appt.  2nd  Brief  Sup.  Ct. — Con. 


the  stream  runs.  Such  ruling,  was  a proper  application  of 
well  established  rules  of  justice  to  the  state  of  facts  there 
found  to  exist.  Such  being  the  case,  and  the  first  appropri- 

6213  ator  of  the  waters  of  a running  stream  being  treated  and 
considered  as  the  true  owner  thereof,  so  far  as  the  use  of 

(9) 

such  waters  was  concerned,  the  question  in  the  case  cited 
by  us  from  California  arose,  and  as  the  Supreme  Court  of 
California  say,  by  the  application  of  common  law  principles 
they  find  that  a person  who  has  added  to  the  waters  of  a 
stream  may  draw  from  such  waters  a like  amount.  The  only 
departure  from  strict  common  law  principles  being  in  treating 
the  first  appropriator  of  the  waters  of  a stream  as  the  true 
riparian  owner  as  against  all  persons  except  the  Government 
and  those  claiming  by  grant  from  the  Government,  such  per- 
sons so  treated  as  the  true  owners  being  entitled  to  the  same 
rights  to  be  determined  in  the  same  manner  as  persons  who 
are  riparian  proprietors  at  common  law. 

II. 

We  desire  also  to  call  the  particular  attention  of  the  court 
to  the  facts  appearing  in  several  of  the  cases  referred  to  in 
our  former  brief;  but,  before  doing  so,  will  state  as  a propo- 
sition which  we  think  is  fully  sustained  by' the  authorities, 
that  in  no  case  is  a party  liable  to  a lower  land  owner  for 
diverting  water  if  actual  damage  has  not  been  done. 

6214  Wadsiuortli  v.  Tillotson,  15  Conn.,  366. 

Gillet  V.  Johnson,  30  Conn.,  180. 

Seeley  v.  Brush,  35  Conn.,  419. 

Chat  field  v.  Wilson,  31  Vt.,  358. 

Gerish  v.  New  Market  Mfg.  Co.,  30  N.  H.,  478-483. 

Pollitt  V,  Long,  58  Barber,  20. 

Billing  v.  Murray,  6 Ind.,  324. 

Williams  v.  Mooreland,  2 Barn.  & C.,  910. 

Mason  v.  Hill,  3 Barn.  & Add.,  304. 

Mason  v.  Hill,  5 Barn.  & Add.,  1. 

Emhry  v.  Owen,  6 Ex.,  358. 

Wood  V.  V/add,  3 Ex.,  748-781. 

3 Kent  Com.,  441,  note  1,  12th  Ed. 

(10) 

Of  course  this  rule  does  not  apply  if  there  has  been  such 
a diversion  of  the  water  as  would,  if  presisted  in  for  twenty 
years,  grow  into  a prescriptive  right  to  the  use  of  the  water 
thus  diverted,  to  the  prejudice  of  the  lower  proprietor,  for  in 
such  case  the  law  implies  damage,  though  none  be  shown.  We 
do  not  contend  that  a lower  riparian  proprietor  is  bound. 


1803 


in  order  to  be  protected  in  his  rights,  to  be  in  the  actual  use 
of  the  water  power.  The  doctrine  seems  to  be  well  establish- 
ed that  an  improper  or  unreasonable  diversion  of  the  natukal 
waters  of  a stream  works  an  injury  to  the  lower  proprietor,, 
even  if  he  is  not  in  a condition  at  the  time  of  such  diversion 

6215  to  apply  the  water  to  his  own  use,  for  the  reason  that  such 
diversion,  if  continued  in  for  a period  of  twenty  years, 

may  result  in  a prescriptive  right  to  his  prejudice.  But  this 
rule  only  applies  to  the  natukal  waters  of  the  stream,  and  it 
only  applies  in  cases  where  the  diversion  is  an  unreasonable 
one.  This  doctrine  seems  to  be  conclusively  settled  by  Chief 
Justice  Shaw,  in  Elliott  v.  Fitchburg  R.  R.  Co.,  10  Cush.,  191. 
In  that  case  one  Clark  was  an  upper,  and  Elliott,  the  plain- 
tiff, a lower  riparian  proprietor  upon  a stream.  Clark  had 
deeded  to  the  railroad  company  a perpetual  right  and  priv- 
ilege to  make  and  maintain  a dam  and  reservoir  on  this 
stream,  and  to  draw  and  use  the  water  therefrom.  In  pursu- 
ance of  the  right  thus  conveyed  the  railroad  company  had 
erected  a dam  across  the  stream  below  a spring  on  Clark’s 
land,  and  by  such  dam  had  made  a reservoir  and  inserted  a 
pipe  therein,  from  which  they  took  the  water  from  the  res- 
ervoir for  the  purpose  of  supplying  their  depot  at  Sherly, 
and  used  the  same  in  supplying  their  locomotives,  and  for 
other  similar  purposes.  The  defendants  proved  that  Clark’s 
meadow,  through  which  the  creek  run,  was  wet  and  si:>ringy, 
and  that 

(11) 

he  had  cut  ditches  across  the  meadow  to  the  brook,  thereby  in- 
creasing the  fioiv  of  water  to  the  brook;  and  it  was  further 
proved  that  there  is  no  outlet  for  the  tvater  of  said  meadoiv 
except  into  this  brook,  and  that  the  meadow  was  situated 

6216  below  the  dam.  Page  102. 

''The  plaintiff  contended  that  if  the  jury  were  satisfied 
of  the  existence  of  the  brook  as  alleged,  and  the  diversion 
of  the  water  therefrom  by  the  defendants,  he  was  en- 
titled to  a verdict  for  nominal  damages  without  proof  of 
actual  damage ; but  the  presiding  judge  instructed 
the  jury  that  unless  the  plaintiff  suffered  actual 
damage  in  consequence  of  the  diversion,  the  de- 
fendants were  not  liable  in  this  action.  In  connection  ivith 
this  instruction  the  judge  further  instructed  the  jury 
that  if  they  believed  that  the  defendants  by  excavating 
said  reservoir  and  spring^  above  the  dam,  or  that  said 
Clark  by  digging  said  ditches  had  increased  the  flow 
of  ivater  in  said  brook  equal  to  the  quantity  of  water  the 
defendants  had  diverted  therefrom,  then  the  defendants 


1804  Druleif  v.  Adam, — Appt.  2nd  Brief  Sup.  Ct. — Con. 

were  not  liable  in  this  aetion.  The  whole  court  are  of 
opinion  that  this  direction  was  right  in  both  particulars.” 
It  has  been  suggested  by  counsel  for  appellee  that  this  case 
was  determined  upon  the  peculiar  statutes  of  the  State  of 
Massachusetts  in  relation  to  mill  rights.  In  this  counsel  are 
in  error.  The  court  say,  after  having  considered  the  ques- 
tion raised  upon  the  first  direction  to  the  jury,  (that  is,  that 
the  plaintiff  must  show  an  actual  damage  in  order  to  be  en- 
titled to  recover) : 

‘‘We  consider  the  other  direction  correct  also,  as  we  un- 

6217  derstand  it.  The  question  wms  not  (if  the  defendants 
have  caused  damage  to  the  plaintiff  amounting  in  law 
to  a disturbance  of  his  right,  for  which  an  action  would 
lie)  whether  it  would  be  barred  by  an  advantage  of  equal 
value  conferred  in  the  nature  of  a set-off,  hut  ivhether 
the 

(12) 

improvements  of  Clark  upon  his  meadow  taken  together 
as  a whole,  including  the  dam  and  ditches  as  parts  of  one 
and  the  same  improvement,  any  damage  was  done  to  the 
plaintiff ; and  this  we  think  ivas  correctly  so  left. 

“It  may,  perhaps,  be  proper  to  guard  against  miscon- 
struction in  considering  what  are  the  general  rights  and 
duties  of  persons  owning  lands  bounding  on  running 
streams  by  the  general  rules  of  law  and  for  general  pur- 
poses, that  some  alterations  of  these  rules  may  be  effected 
in  Massachusetts  by  the  acts  of  legislation  on  that  sub- 
ject in  respect  to  mills,  and  the  constructions  which  have 
been  judicially  put  upon  such  legislative  acts.  * * * 

It  is  not  necessary,  however,  to  go  into  this  subject,  but 
merely  to  say  that  the  rights  to  streams  of  running  water 
upon  which  the  present  question  turns  are  not  dependent 
upon  or.  affected  by  the  mill  acts.” 

It  was  insisted  by  the  counsel  for  appellee  in  the  Appellate 
Court  that  the  case  of  Whittier  v.  Cocheco  Mfg.  Co.,  9 N.  H., 
454,  was  not  in  point,  for  the  reason  as  contended  that  the 
manner  of  the  enjoyment  of  the  water  by  the  defendants 

6218  was  consistent  with  the  manner  in  which  they  had  used  the 
same  for  fifty  years,  and  that  they  were  not  obliged  to  pen 

it  back  for  plaintiff’s  benefit.  The  case  will  be  better  under- 
stood by  the  following  diagram? 

(13) 

The  Cocheco  Eiver  runs,  as  we  understand  the  case,  in  an 
easterly  direction  from  its  source  to  its  mouth.  At  the  point 
designated  "Waldron’s  Falls  there  was  a dam,  and  on  the 
northerly  side  of  the  river  the  defendants  and  their  grantors 


1805 


had,  for  a period  of  fifty  years,  been  in  the  enjoyment  of  a 
certain  waterpower  privilege.  On  the  southerly  side  of  the 
river  the  plaintiff,  by  virtue  of  the  conveyance  to  him,  be- 
came seized  of  a water  power  privilege,  under  which  he  was 
entitled  to  a portion  of  the  water  formed  in  the  mill-pond 
above  the  dam  that  furnishes  the.  water  power  under  which 
the  defendants  claimed.  Under  these  circumstances  the  de- 
fendants, to  increase  the  flow  of  water  to  their  water  priv- 
ilege, had  constructed  a reservoir  at  Bow  pond,  some  dis- 
tance above  the  dam,  at  Waldron’s  Falls,  and  in  this  res- 
ervoir the  water  was  dammed  back  and  kept  for  use  during 
a season  of  low  water.  Subsequent  to  the  time  that  the 

6219  plaintiff  acquired  his  water  power  privilege  at  the  south- 
ern end  of  the  dam,  and  subsequent  to  the  construction  of  the 

reservoir  by  the  defendants  at  Bow  pond,  on  the  northerly 
side  of  the  river,  the  defendants  iiurchased  certain  cotton 
mills  at  a point  about  three  miles  lower  down  the  river,  at 
which  point  they  constructed  another  dam  for  the  purpose  of 
supplying  their  cotton  factory  with  water  ])ower,  and  during 
low  stages  of  water  opened  their  gates  at  the  dam  at  Waldron’s 
Falls  and  allowed  the  water,  which  they  had  penned  back  in 
the  reservoir  at  Bow  pond,  to  flow  past  the  dam  at  Waldron’s 
Falls  to  the  dam  at  their  cotton  factory  and  use  the  water 
at  the  latter  point.  The  action  was  commenced  in  1831.  It 
appeared  from  the  evidence,  first,  that  the  defendants  and 
their  grantors  had  for  more  than  fifty  years  used  a portion 
of  the  water  of  the  Cocheco  River 

(14) 

at  Waldron’s  Falls  at  the  northerly  side  of  the  dam.  It 
further  appeared  that  in  February,  1819,  tw^elve  years  before 
the  action  was  commenced,  the  plaintiff’s  grantors  became 
seized  of  a certain  mill  privilege  at  the  south  end  of  the  dam. 
It  further  appeared  that  the  reservoir  at  Bovr  pond  was 
constructed  in  1825,  six  years  after  plaintiffs’  grantors  had 
become  seized  of  the  water  power  privilege  at  the  south  end 
of  the  dam  at  Waldron’s  Falls;  and  at  this  time  the  defend- 
ants and  their  grantors  used  the  water  power  privilege  which 
they  were  entitled  to  at  the  northerly  end  of  the  dam  at 
Waldron’s  Falls,  so  that  the  reservoir,  which  supplied  the 

6220  additional  water  power  in  seasons  of  drought,  was  construct- 
ed after  the  rights  of  the  plaintiff  had  accrued,  and  the  at- 
tempt to  use  the  water  thus  dammed  back  at  the  cotton  fac- 
tory, three  miles  below  Waldron’s  Falls,  was  not  made  until 
long  after  the  plaintiff  or  his  grantors  had  acquired  their 
water  power  privilege.  The  court  held  that  the  defendants 
had  a right  to  open  their  gates  at  Waldron’s  Falls  and  to 
allow  the  water  to  which  they  were  entitled,  and  the  water 


1806  Dniley  v.  Adam, — Appt.  2nd  Brief  Sup.  Ct. — Con. 


which  they  had  supplied  to  the  stream  by  means  of  the  res- 
ervoir at  Bow  pond,  to  flow  down  past  the  dam  at  Waldron’s 
Falls  to  their  cotton  factory  three  miles  below;  provided, 
of  course,  that  they  use  no  greater  quantity  than  they  would 
have  used  but  for  such  change  in  the  location  of  the  place 
where  the  same  was  used.  We  can  do  no  better,  upon  this 
subject,  than  to  quote  from  the  opinion  of  the  court,  page  458: 
'‘The  next  question  rises  upon  the  instruction  to  the 
jury,  that  the  defendants  might  draw  through  their  gates 
in  dry  seasons  even  a larger  quantity  than  they  had  been 
accustomed  to  draw  prior  to  1828,  if  the  excess  was  fur- 
nished hy  themselves  hy  means  of  a reservoir  they  had 
constructed  above."’ 

The  court  will  see  that,  as  the  action  was  commenced  in 

(15) 

1831,  no  right  by  prescription  existed  to  this  excess  of  water. 
It  depended  entirely  upon  the  legal  right  of  the  defendants 

6221  to  use  water  which  they  themselves  had  provided,  and  hy 
their  own  means  had  added  to  the  waters  of  the  stream. 

On  page  459  the  court  continues: 

“This  part  of  the  case  depends  upon  some  special  cir- 
cumstances, probably  not  often  existing.  The  defendants 
appear  to  have  provided  a supply  of  water  at  Bow  pond, 
the  outlet  of  which  empties  into  the  Cocheco  Eiver,  for  the 
use  of  their  factories  in  time  of  drought.  There  is  no 
complaint  that  in  making  provision  for  this  supply  they 
have  infringed  any  rights;  if  there  was,  it  could  not  be 
tried  in  this  case.  In  order  to  use  this  water  at  their  fac- 
tories in  Dover  it  must  pass  Waldron’s  Falls,  and  the 
question  is  whether  the  defendants  are  obliged  to  shut 
their  gates  at  that  place  so  that  the  plaintiff  may  have 
the  use  of  the  additional  water  thus  provided  as  it  passes 
those  falls,  or  to  use  it  in  part  themselves  there  in  order 
that  the  plaintiff  may  use  it  with  them,  or  whether  they 
may  suiter  their  gates  to  stand  open,  and  this  additional 
water  to  pass  icithout  use  by  any  one.  On  the  case  before 
us,  the  plaintiff  has  no  right  to  have  this  water  pass 
Waldron’s  Falls.  The  defendants  may  pen  it  back  and 
permit  it  to  evaporate  without  suffering  it  to  come  into 
the  Cocheco  River.  It  is  derived  from  a reservoir  pro- 
vided hy  them  for  their  own  purposes,  and  the  plaintiff 
can  maintain  no  action  for  depriving  him  of  the  use  of 

6222  it  in  that  mode.  On  what  principle,  then,  is  his  right 
infringed  if  they  let  the  water  into  the  river,  hoisting 
their  gates  at  Waldron’s  Falls  and  permitting  it  to  pass 
hy?  On  what  ground  are  they  obliged  to  pen  it  up  there 
for  the  plaintiff’s  heneflt.  Suppose,  instead  of  a mill  the 


1807 


plaintiff  was  the  owner  of  a meadow  lyin^?  upon  the  Cocli- 
eco  above  Waldron’s  Falls,  which  in  or- 

(16) 

dinary  stages  of  water,  in  the  summer,  prior  to  the  con- 
struction of  the  reservoir  at  Bow  pond,  had  not  been 
affected  by  the  water,  and  that  if  the  defendants  were  now 
to  let  the  water  out  of  the  reservoir  in  the  summer  and 
pen  it  up  by  the  dam  at  Waldron’s  Fall  until  they  had 
occasion  to  use  it  for  their  works  there,  the  plaintiff’s 
meadow  would  be  overflowed  thereby  and  injured,  he 
would  most  clearly  have  a right  to  complain  of  that,  and 
his  complaint  would  be  in  substance  that  the  defendants 
did  not  open  their  gates  and  let  the  water  pass,  but  by 
means  of  their  dam  they  threw  the  water  back  upon  his 
land.  This  may  serve  to  show  that  he  cannot  object  to 
the  act  of  the  defendants  in  drawing  the  water  through 
their  gates,  unless  he  can  show  a right  to  the  use  of  it 
and  a duty  upon  the  part  of  the  defendants  not  to  deprive 
him  of  that  use.  As  the  owner  of  a mill  site  on  the  river, 
he  u'ould  have  been  entitled  to  the  use  of  it  from  the 
mere  fact  that  it  run  in  the  channel,  had  hot  the  defend- 
ants PROVIDED  IT  AND  TURNED  IT  INTO  THE  RIVER  FOR  THEIR 
6223  OWN  USE.” 

And,  again,  page  461 : 

‘‘We  have  considered  this  case  as  if  Whitson  & Son  (the 
plaintiff’s  grantors),  when  they  conveyed  in  1819,  could 
grant  the  right  to  use  the  southerly  end  of  the  dam  all  the 
water  ordinarily  running  in  the  stream  lieyond  the  quan- 
tity which  the  defendants  and  those  under  whom  they 
claim  had  been  accustomed  to  use  on  the  northerly  side.” 
So  the  court  will  see  that  this  case  is  directly  in  point  and 
fully  sustains  the  claim  we  make.  It  did  not  turn  upon  the 
fact  that  the  defendants  had  by  use  acquired  a right  to  the 
water  in  the  stream  to  the  exclusion  of  the  plamtiff,  but  the 
plaintiff  was  treated  as  being  entitled  to  a portion  of  the 

(17) 

water  running  in  the  stream  for  his  mill  site  at  the  southerly 
end  of  the  dam  at  Waldron’s  Falls,  and  it  is  expressly  held 
that  he  has  no  right  to  complain  of  diversion  of  water  from 
this  stream,  and  a refusal  to  permit  it  to  pass  over  the  dam 
at  Waldron’s  Falls  in  case  such  water  has  been  supplied  byJhe 
defendants. 

The  case  of  Society  for  Manufacturing  v.  Morris  Canal  Co., 
Saxton  (N.  J.  CTi.),  157,  is  so  nearly  identical  in  all  particulars 
with  the  case  at  bar  that  we  feel  justified  in  quoting  there- 
from more  fully  than  in  our  former  brief.  We  desire  here 


1808  Dniley  v.  Adam, — Appf.  2nd  Brief  Slip.  Ct. — Con. 


to  say  there  is  nothing  in  that  case,  as  claimed  by  appellee ^s 
counsel  in  Ajopellate  Court,  from  which  it  can  be  inferred 

6224  that  the  Canal  Company  used  the  Rockaway  as  a part  of 
their  canal  the  whole  distance  from  the  points  at  which  the 

waters  of  Lake  Hopatcnng  and  Green  pond  were  brought  into 
the  Rockaway  to  the  point  where  the  same  was  withdrawn 
for  canal  purposes.  As  these  points  were  necessarily  dis- 
tant from  each  other,  the  prohahilities  are  that  the  water  froni 
either  one  or  the  other,  or  perhaps  both  of  these  sources, 
was  introduced  into  the  Rockaway  at  a point  where  the  Rock- 
away itself  was  iiot  used  as  a part  of  the  canal,  but  we  appre- 
hend on  principle  it  can  make  no  difference  how  this  fact  is, 
the  important  inquiry  is,  were  such  ivaters  introduced  by 
the  SAME  PEKSox  7rho,  for  his  own  purposes  {at  a point  ivhere 
he  had  control  of  the  stream)  ivithdrew  the  same;  and  if 
so,  had'  such  person  the  right  to  withdraw  from  the  stream 
as  much  as  he  had  added  thereto? 

The  chancellor  says,  p.  188: 

‘A  now  propose  to  consider  the  right  of  the  defendants, 
or  how  far,  if  at  all,  they  interfere  with  those  of  the  com- 
plainants; and  wdiether,  in  the  exercise  of  those  rights 
any  injury  has  been  done  to  the 

(18) 

plaintiffs,  and  whether,  in  the  further  use  of  them,  the 
plaintiffs  will  be  so  certainly  and  permanently  injured  as 
to  justify  the  interference  of  the  court  at  this  time  by  in- 
junction. 

6225  ‘‘And  first  as  to  the  rights  claimed  by  the  defendants; 

I do  not  understand  them  as  claiming  a right  to  the  ad 
libitum  or  unrestrained  use  of  the  water  of  the  Passaic 
or  its  tributaries,  subject  to  the  payment  of  a compen- 
sation or  damages  to  the  society  for  establishing  useful 
manufactures.  * * * 

“They  claim,  under  the  act  of  incorporation,  the  right 
to  construct  a navigable  canal  from  the  Delaware  to  the 
Passaic;  they  dlaim  the  use  of  the  waters  of  Lake  Hopat- 
cung  and  of  the  extra  water  of  Green  pond;  they  claim 
to  bring  the  water  from  the  Hopatcung  into  the  Rockaway 
to  make  use  of  that  river  as  part  of  the  canal,  and  to 
take  out  of  it  again  water  for  the  use  of  the  canal — not 

THEREBY  DIMINISHING  THE  ORDINARY  AND  NATURAE  FLOVv^  OE 
THE  WATER  AT  THE  GREAT  FADES  OF  PATERSON. 

“It  does  not  follow  that  because  a person  as  riparian 
proprietor  has  a right  to  the  flow  of  a stream  and  to  its 
use  for  the  purpose  of  manufacturing  or  any  other  pur- 
pose requiring  the  use  of  water,  that  therefore  no  other 


1809 


proprietor  or  person  shall  be  at  liberty  to  use,  for  the  same 
or  like  objects,  the  water  above  him.  This  would  be  con- 
trary to  natural  justice  and  the  reason  of  things.  Each 
one  has  a right  to  the  use,  provided  that  in  the  exercise  of 
such  right  he  does  no  injury  to  his  neighbor.  ?.  Blac. 
Com.,  403. 

6226  ‘‘Now  if  the  Morris  Canal  and  Banking  Company  make 
such  use  of  the  waters  of  the  Passaic,  or  any  of  its  trib- 
utaries, as  to  occasion  no  diminution  in  the  fioiv  of  the 
stream  at  the  place 

(19) 

where  it  is  used  by  the  complainants ; and  if  in  such  use 
no  injury  ivhatever  is  done  to  the  complainants , are  they 
not  exercising  an  ordinary  and  well  established  right? 
Does  not  the  same  privilege  that  is  accorded  to  others 
also  belong  to  them?  It  appears  to  me  unquestionable 
that  the  defendants  have  such  right  as  against  the  com- 
plainants, subject  to  the  condition  already  stated. 

“But  the  Morris  Canal  Company  claim  the  further  priv- 
ilege of  introducing  into  the  Eockaway  the  waters  of  the 
Lake  Hopatcung,  and  of  one  of  the  branches  of  the  Ear- 
itan,  and. then  of  taking  out  of  the  Eockaway  below  so 
much  water  as  may  be  necessary  for  the  purposes  of 
their  canal;  averring  that  the  waters  of  the  stream  ivill  be 
thereby  in  no  wise  diminished. 

“The  water  thus  taken  out,  it  is  admitted,  is  not  to  be 
returned  until  it  shall  have  passed  the  great  falls  at  Pat- 
erson. They  say  that  the  supply  of  water  thus  brought 
in,  together  with  the  extra  supply  which  they  are  author- 
ized to  take  from  Green  pond,  will  in  times  of  drought 
afford  the  society  a more  copious  floiv  than  they  would 
otherwise  have,  and  therefore  that  it  will  be  a benefit.  On 
the  other  hand  it  is  contended  by  the  society  that  the 
6227  Canal  Company  have  no  authority  thus  to  commingle  dif- 
ferent streams  and  different  rights;  that  they  are  en- 
titled to  the  flow  of  the  identical  stream  of  water,  not  only 
without  diminution  but  without  alteration ; that  if  the 
claims  of  the  company  in  this  behalf  are  sustained,  the 
supply  afforded  by  these  substituted  streams  may  in  time 
diminish,  and  the  property  and  immunities  of  the  com- 
pany be  jeoparded  or  ruined. 

“This  is  supposed  to  present  a question  of  novelty  and 
importance.  It  certainly  is  not  the  case  of  a simple  diver- 
sion 

(20) 

of  the  stream  for  necessary  purposes,  returning  it  again 
to  its  natural  channel  when  those  purposes  shall  have  been 


1810  Druley  v.  Adam, — Appi.  2nd  Brief  Sup.  Ct.~~Con. 

answered;  but  would  seem  to  be  rather  a substitution  of 
part  of  one  stream  for  part  of  another.  The  principle  that 
assigns  to  everything  capable  of  ownership  a legal  and 
determinate  owner,  is  wise  and  salutary  and  productive 
of  great  ends  of  civil  society.  This  principle,  however, 
can  only  be  applied  to  streams  of  water  in  a limited  sense. 
There  is  no  such  thing  as  actual  property  in  running 
water.  It  is  transient  in  its  nature  and  must  be  permitted 
to  flow  for  the  common  benefit.  The  interest  is  rather  of 
a usufruct ory  kind,  but  not  the  less  absolute  or  vested  on 
that  account. 

“To  say,  then,  that  a person  entitled  to  the  flow  of  a 

6228  stream  through  his  land,  is  entitled  to  the  flow  of  the 

very  identical  substance  that  issued  from  the  original 
source,  is  an  assertion  of  right  not  easily  sustained.  It 
would  he  tantamount  to  the  ownership  of  the  particidar 
ivater  itself,  ndiieh  cannot  he.  I do  not  understand  Lord 
Ellenborough,  in  Bealy  v.  Shaw,  to  carry  the  doctrine 
thus  far.  His  principle  is,  that  every  man  has 

a right  to  the  advantage  of  a flow  of  water  in 
his  own  land,  without  having  its  quantity  di- 
minished, or  its  QUALITY  altered  hy  the  operations  of 
those  u'ho  might  he  above  him  on  the  same  stream.  It  it  not 
pretended  that  the  quality  of  the  water  to  be  let  in 
from  Lake  Hopatcung  and  other  sources  is  in  any  way 
ditferent  from  the  water  of  the  Eockaway.  If  then  the 

DEFENDANTS  TAKE  FKOM  THE  RoCKAWAY  NO  GKEATER  QUAN- 
TITY OF  WATER  THAN  THEY  BRING  IN,  (and  they  claiiii  a right 
to  do  no  more,)  will  not  the  society  enjoy  their  privi- 
lege WITHOUT  DIMINUTION  OR  ALTERATION,  OR  CAN  THEY  IN 
ANY  WAY  BE  INJURED!” 

(21) 

This  case,  as  the  court  will  see,  was  decided  upon  the  exact 
principle  we  contend  for.  It  did  not  turn  upon  the  fact  that 
the  Eockaway  was  used  as  a part  of  the  canal  the  entire 
distance  from  the  point  where  the  water  was  introduced  to 
the  point  where  it  wuis  withdrawn.  Indeed,  there  is  nothing 
in  the  case  to  indicate  that  the  hed  of  the  stream  was  used  as 
a canal  at  all,  but  the  indications  are  that  the  sense  in  which 

6229  the  court  speaks  of  the  claim  made  by  the.Canal  Company  to 
the  use  of  that  stream  as  a part  of  the  canal,  is  its  use  as  a 
feeder,  for  in  reading  the  statement  of  the  case  and  the  ex- 
tended and  able  argument  of  the  counsel,  it  will  be  found  that 
it  is  nowhere  stated  that  the  bed  of  the  stream  was  used  as  a 
part  of  the  hed  of  the  canal.  On  the  contrary,  Mr.  Wood,  of 
counsel  for  the  Society,  claimed,  p.  167,  that  the  Canal  Com- 
pany could  have  accomplished  their  purposes  and  avoided 
all  trouble  hy  passing  the  water  from  Lake  Hopatcung  and 


1811 


other  sources  over  the  Rockaivay  in  an  aqueduct,  and  this 
claim  seems  to  have  been  acquiesced  in  l)y  all  the  counsel  on 
both  sides. 

The  California  cases  already  referred  to  establish  the 
right  of  the  Canal  Commissioners  to  the  surplus  water 
turned  into  the  Desplaines  from  Lake  Michigan  as  clearly 
and  conclusively  as  it  is  possible  for  that  right  to  be  es- 
tablished by  the  uniform  decisions  of  any  one  court.  The 
opinions  of  this  court  have  always  ranked  high  with  the 
profession,  and  one  of  them  was  rendered  l)y  Mr.  Justice 
Field,  now  of  the  Supreme  Court  of  the  United  States,  whose 
reputation  as  a learned  jurist  is  second  to  none,  and  it  would 
seem  upon  principle  that  as  a riparian  proprietor  is  only 
entitled  to  the  water  that  naturally  runs  in  the  stream,  that 
he  has  no  right  to  complain  if  an  upper  pro])rietor  takes 

6230  from  the  stream  a like  or  less  quantity  than  that  which  he 
has  added  thereto. 

(22) 

The  same  question  has  been  since  rei)eatedly  reaffirmed  l)y 
the  Supreme  Court  of  California. 

II  I. 

The  State  of  Illinois  l)y  making  the  deep  cut  at  the  summit 
level  has  caused  the  waters  of  Lake  Michigan  to  flow  directly 
through  that  deep  cut  into  the  canal.  This  water,  as  the 
act  shows,  was  brought  from  Lake  Michigan  in  pursuance 
of  the  original  plan  for  the  construction  of  the  canal,  and  one 
of  such  purposes  always  has  been  to  sup])ly  water  for  man- 
ufacturing purposes  in  case  a surplus  of  water  is  found  in 
the  canal  for  that  purpose;  and  all  of  the  acts  of  the  Legisla- 
lature  recognize  this  fact  and  impose  upon  the  Canal  Com- 
missioners, and  have  for  all  time,  the  duty  of  realizing  as 
large  a revenue  as  possible  from  this  source  for  the  purpose 
of  keeping  up  and  maintaining  the  canal.  This  water  from 
Lake  Michigan  is  turned  into  the  canal  and  into  the  Des- 
plaines River  by  artificial  means,  and  is,  at  least  until  it  ar- 
rives at  Lockport,  an  artificial  water  course,  entirely  within 
the  control  of  the  Canal  Commissioners,  subject  to  be  by  them 
diverted  in  such  a manner  as  the  law  may  authorize,  or  as 
they  shall  deem  best  for  the  interests  of  the  State,  and  for 
such  diversion,  no  matter  whether  made  for  the  purposes  of 

6231  supplying  the  canal  with  water  or  for  the  purpose  of  fur- 
nishing power  for  manufacturing  purposes,  the  appellee  has 
no  right  to  complain,  and  would  have  no  such  right  if  the 
Canal  Commissioners  should  by  an  artificial  channel  receive 
the  water  at  the  place  where  it  is  discharged  through  the 
Norton  mill-race,  and  conduct  the  same  in  an  artificial  chan- 


1812  Druley  v.  Adam, — Appt.  2nd  Brief  Sup.  Ct. — Con. 

nel  to  the  canal,  or  to  the  point  where  the  river  and  canal  are 
nnited. 

(23) 

We  don’t  understand  that  appellee’s  counsel  insist  that  in 
such  case  they  would  have  any  right  to  complain.  In  other 
words,  they  concede  the  right  of  the  Canal  Commissioners  to 
divert  this  surplus  water  from  Lake  Michigan  at  any  point 
BEFOEE  it  reaches  the  Desplaines  Kiver,  but  insist  that  it  can- 
not be  diverted  after  it  has  reached  the  bed  of  that  stream. 
We  can  see  no  difference  in  principle  between  the  diversion 
before  and  a diversion  after  the  waters  have  reached  the  Des- 
plaines Elver,  provided  always  this  diversion  is  made  be- 
fore the  artificial  waters  thus  commingled  with  the  natural 
waters  of  the  stream  came  into  possession  of  appellee.  This 
artificial  water  is  added  to  the  stream,  not  for  the  benefit  of 
appellee,  but  for  the  benefit  of  the  canal  and  for  canal  pur- 
poses. They  were  withdrawn  from  the  stream  by  the  same 
party  that  supplied  the  same  and  for  legitimate  purpose.  It 
has  even  been  held  that  the  right  of  prescription  cannot  be 
asserted  in  favor  of  the  use  of  such  water,  but  that  the 
5232  original  proprietor  may  alter  the  course  at  any  time  to 
suit  his  pleasure,  even  after  a period  of  twenty  years. 

Greatrex  v.  Hayward,  8th  Exc.  (W.  H.  & G.),  p.  292. 

Wood  V.  Waud,  3 Exc.,  748. 

Washburn  on  Easements,  X,  p.  294-6. 

Arkwright  v.  Gillj  5 Mees.  & W.,  203. 

Greatrex  v.  Hayward,  8 Exc.  (W.  H.  & G.),  p.  290. 

Wood  V.  Waud,  3 Exch.,  748. 

Angell  on  Water  Courses  (6  Ed.),  Sec.  206. 

But  the  uper  proprietor  may  acquire  an  easement  to  the 
flow  of  an  artificial  stream  over  the  lands  of  a lower  pro- 
prietor, and  this,  too,  although  the  lower  proprietors  has  no 
right  to  demand  that  the  artificial  water  course  should  be 
maintained.  ’ 

Angell  on  Water  Courses,  (6  Ed.),  206  A. 

(24) 

Rawstron  v.  Taylor,  11  Exch.,  378. 

Broadbent  v.  Ramsbotham,  id.,  610. 

Solomon  v.  Vintner  Co.,  4 H.  & N.,  593. 

Sampson  v.  Hoddinott,  1 C.  B.  X.  S.,  590,  606. 

In  such  case  the  upper  proprietor  would  not  he  liable  for 
a diversion  of  the  water  formerly  running  in  the  artificial 
water  course. 

Rawstron  v.  Taylor,  supra,  which  is  a leading  and  import- 
ant case  on  this  subject. 

6233  Counsel  for  appellee  in  the  Appellate  Court  seemed  to  rely 
upon  the  case  of  Wood-  v.  Waud,  3 Exch.,  748,  as  establish- 


ing  their  right  to  the  water  added  to  the  Desx)]aiiies  River 
from  Lake  Michigan  through  the  deep  cut  in  the  canal. 

This  book  is  not  to  be  found  in  the  library,  but  a full  re- 
port of  the  case  will  he  found  in  Washburne  on  Easements 
and  Servitudes  (2d  Ed.),  p.  370,  star,  p.  297,  from  which  we 
cite  as  follows: 

‘Mn  Wood  V.  Waucl,  3 Exch.,  748,  the  plaintiff  and  de- 
fendant each  had  mills  u})on  a small  natural  stream.  A 
part  of  the  supply  of  water  for  these  was  derived  from 
two  different  mines,  from  one  of  which  a stream  had 
flowed  for  sixty  years  by  means  of  an  artificial  outlet 
dug  by  the  owner  of  the  mine  for  the  purpose  of  drain- 
ing his  mine.  From  the  other  mine  a stream  of  water 
flowed  which  was  caused  by  pumping.  These  streams 
flowed  through  separate  soughs  into  the  natural  stream, 
One  of  these  passed  underground  through  the  defendant’s 
land  before  reaching  the  plaintiff’s  land,  and  then 
through  that  into  the  stream.  The  other  did  not  pass 
through  the  plaintiff’s  land  at  all  before  reaching  and 
discharging  itself  into  the  stream. 

The  action  of  the  plaintiff  was  for  diverting,  or  impro- 

(25) 

perly  interfering,  by  the  defendant,  with  the  enjoyment 
by  the  plaintiff  of  water  flowing  from  these  soughs. 
AVliatever  he  did  in  this  resyiect  was  done  upon  his  own 
6234  land,  before  they  had  entered  and  united  with  the  waters 
of  the  natural  stream,  and  before  the  water  of  the  sough 
that  run  through  the  plaintiff’s  land  had  reached  the  lat- 
ter. 

The  court  held  that  if  the  mine  owner  had  seen  fit  to 
stop  the  supply  of  water,  or  divert  it,  so  that  the  water 
from  the  mines  should  no  longer  roach  the  works  of  the 
mill  owners,  he  would  not  have  been  liable  therefor,  adopt- 
ing the  doctrine  of  Arkn'right  v.  Gdl.  As  between  the 
plaintiff  and  defendant  no  prescription  had  been  set  up 
or  relied  on  on  either  side,  neither  had  any  right  to  com- 
plain of  any  use  which  the  other  should  make  of  the  water 
on  his  own  land,  before  it  reached  that  of  the  other,  pro- 
vided he  did  not  foul  it  or  turn  it  into  the  stream  heated 
so  as  to  injure  the  party  below.  ‘Each,’  in  the  language 
of  the  court,  ‘may  take  and  use  what  passes  through  his 
land,  and  the  proprietor  below  has  no  right  to  any  part 
of  that  water  until  it  has  reached  his  own  land.  He  has 
no  right  to  compel  the  owners  above  to  permit  the  water 
to  flow  through  their  land  for  his  benefit,  and  conse- 
quently has  no  right  to  action  if  they  refuse  to  do  so. 
* * * If  they  polluted  the  water  so  as  to  be  injurious  to 
the  tenant  below  the  case  would  be  different.’  But  as 
soon  as  the  water  from  either  of  these  soughs  had  be- 


18] 4 Drulei/  v.  Adam, — Appt.  2]id  Brief  Sup.  Ct. — Con. 


come  united  with  that  of  the  natural  stream  in  its  nat- 

6235  ural  water  course  it  partook  of  the  character  and  inci- 
dents of  a natural  stream.  Pollock,  C.  B.,  in  giving  the 
opinion  of  the  court  in  the  above  case,  gives,  as  an  illus- 
tration of  the  doctrine  which  he  sustains,  the  case  of  a 
drain  made  through  a man’s  land  for  agricultural  pur- 
poses, which 

(26) 

had  continued  for  twenty  years,  whereby  the  water  from 
his  own  land  was  discharged  upon  that  of  another.  This 
would  not  give  a right  to  the  latter  to  insist  upon  its 
continuance  and  thereby  to  preclude  the  land  owner  from 
altering  the  level  of  his  drain  for  the  greater  improve- 
ment of  the  land.  The  state  of  the  circumstances  in  such 
cases  shows  that  one  party  never  intended  to  give  nor 
the  other  to  enjoy  the  use  of  the  stream  as  a matter  of 
right.” 

‘‘The  above  makes  this  important  distinction  between 
the  right  of  the  lower  riparian  proprietor  to  water  flow- 
ing in  a natural  stream  and  to  that  created  and  flowing 
in  an  artificial  one  for  a temporary  purpose,  that  in  the 
former  case  an  action  will  lie  for  its  diversion  by  an  up- 
per proprietor,  although  done  on  his  own  land,  whereas 
in  the  latter  case  no  action  will  lie  for  the  diversion  of 
the  water  unless  the  same  shall  have  reached  and  become 
part  of  a natural  stream.” 

From  this  it  will  be  seen  that  the  question  at  issue  was  not 

6236  presented  in  that  case,  and  so  far  as  it  goes  it  is  an  author- 
ity in  our  favor. 

It  establishes  conclusively  our  right  at  least  on  our  own 
land,  to  divert  the  waters  of  our  artificial  water  course. 

But  the  artificial  waters  considered  in  this  case  were  not 
contributed  by  either  Wood  or  Waud,  but  by  another,  mho 
was  not  a partg  to  that  suit.  So  that  while  it  may  be  true 
that  as  between  Wood  and  Waud  neither  would  have  had  the 
right  to  withdraw  from  a natural  stream  water,  or  a like 
quantity  of  water,  that  had  been  added  thereto  by  another, 
this  case  does  not  decide  that  if  either  had  added  artificially 
to  the  waters  of  a stream  that  he  might  not,  on  his  own  prem- 
ises, withdraw  a like  quantity. 

If,  in  that  case,  artificial  water  had  been  added  to  the  nat- 

(27) 

ural  stream  by  means  of  an  artificial  channel  by  the  defend- 
ant for  his  own  purposes,  and  for  his  own  use  withdrawn  from 
the  natural  stream  before  it  reached  the  possession  of  the 
plaintiff,  and,  if,  under  such  circumstances,  the  court  had 
held  that  he  had  no  right  so  to  do,  the  case  might  support 


1815 


tile  position  assumed  by  appellee;  but  as  it  is  it  falls  far 
short  of  so  doing.  The  most  that  can  be  claimed  on  the 
strength  of  that  case  is  that  the  defendant  would  not  have 
the  right  of  withdrawing,  to  the  prejudice  of  the  ])laintiff, 

6237  water  that  had  been  supplied  to  the  natural  stream  by  a 
stranger  to  him,  neither  at  his  request  nor  through  his 
agency;  that  is,  the  stranger  who  thus  added  to  the  waters 
of  the  stream  by  artificial  means,  not  seeking  to  withdraw 
it  for  its  own  use,  had  abandoned  it  for  the  use  of  the  sev- 
eral riparian  proprietors,  and  for  that  reason  the  several 
riparian  proprietors  were  interested  therein  to  the  same  ex- 
tent as  if  supplied  from  natural  sources,  the  stranger,  how- 
ever, being  at  liberty  to  divert  the  artificial  stream  at  any 
time.  It  was  his  water,  and  he  had  a right  to  permit  it  to 
flow  into  the  natural  stream,  or  elsewhere,  as  he  saw  fit. 

IV. 

Appellee  claimed  in  the  court  below  that  no  water  had  been 
added  to  the  Kiver  Desplaines  by  apiiellant  or  those  from 
whom  he  claims;  that  the  water  which  was  added  was  by  vir- 
tue of  the  improvement  of  the  summit  division  of  the  canal ; 
that  the  purpose  of  this  improvement  was  not  to  supply 
water  to  the  canal,  etc.;  and  in  support  of  the  position  thus 
assumed,  counsel  cited  a portion  and  a portion  only  of  the 
])reamble  of  the  Act  of  1865,  under  which  the  deep  cut  was 
made. 

(28) 

The  portion  cited  read  as  follows,  viz.:  “Whereas,  it  has 
been  represented  that  the  City  of  Chicago,  in  order  to  purify 

6238  or  cleanse  Chicago  River  by  draining  a sufficient  quantity 
of  water  from  Lake  Michigan  directly  through  it  and  through 
the  summit  division  of  the  Illinois  and  Michigan  Canal,  would 
advance  a sufficient  sum  of  money  to  accomplish  this  desir- 
able object.”  Here  ends  the  quotation,  and  counsel  in  com- 
menting on  it  say  this  showed  the  object  of  the  act  to  be  to 
purify  the  Chicago  River  and  to  accomplish  this  end  water 
was  to  be  drawn  through  the  summit  division  of  the  canal. 

It  is  evident  the  Appellate  Court  did  not  read  the  act 
or  the  preamble  thereto,  but  took  it  for  granted  the  quotation 
was  the  whole  of  the  preamble,  and  hence  was  led  into  error 
as  to  the  true  object  of  the  passage  of  that  act. 

If  the  sole  object  of  making  the  deep  cut  was  to  drain 
Chicago  River,  there  would  be  some  force  in  the  position 
taken;  but  even  then,  if  the  water  was  resumed  before  it 
passed  to  the  point  where  appellee  was  entitled  to  use  the 
same,  no  action  would  lie  therefor.  But  it  is  hardly  neces- 
sary to  discuss  that  question,  as  a perusal  of  the  whole  pre- 
amble and  the  act  itself  shows  that  the  object  of  making  this 


1816  Druley  v.  Adam, — Appt,  2nd  Brief  Sup.  Ct. — Con. 


deep  cut  was  to  supply  the  canal  itself  ivith  water  from  Lake 
Michigan. 

The  whole  preamble  is  as  follows: 

^‘Whereas,  it  has  been  represented  that  the  City  of 
Chicago,  in  order  to  purify  or  cleanse  Chicago  Eiver  by 

6239  drawing  a sufficient  quantity  of  water  from  Lake  Michi- 
gan directly  through  it  and  through  the  summit  division 
of  the  Illinois  and  Michigan  Canal,  would  advance  a suf- 
ficient amount  of  funds  to  accomplish  this  desirable  ob- 
ject; and  w'hereas,  the  original  plan  of  said  canal  was  to 
cut  down  the  summit  so  as  to  draw  a supply  of  ivater 

(29) 

for  navigation  directly  from  Lake  Michigan,  ivhich  plan 
was  abandoned , for  the  time  being,  after  a large  part  of 
the  u'ork  had  been  executed,  o^mv  in  consequence  of  the 
inability  of  the  state  to  procure  funds  for  its  further 
prosecution;  and  whereas,  under  the  law  creating  the 
trust,  the  plan  of  the  summit  division  of  the  canal  was 
changed,  the  level  being  raised  so  as  to  require  the  prin- 
cipal supply  of  water  to  be  obtained  through  the  Calu- 
met feeder,  subject  to  serious  contingencies,  and  by 
pumping  onto  the  summit  with  hydraulic  works  at 
Bridgeport;  now,  therefore. 

Be  it  enacted.  Sc.  Sec.  L That  to  secure  the  comple- 
tion of  the  summit  division  of  the  Illinois  and  Michigan 
Canal  upon  the  original  deep  cut  plan,  &c. 

Sec.  2.  The  canal  shall  be  constructed  on  the  plan 
adopted  by  the  Canal  Commissioners  in  1836. 

Sec.  3.  Provides  for  right  of  way. 

Sec.  4.  The  amount  expended  (not  exceeding  the  sum 
of  $2,500,000  and  interest)  in  deepening  summit  division 
on  the  plan  adopted  by  the  Canal  Commissioners  in 
1836  shall  be  a lien  upon  the  canal  and  its  revenues. 

6240  Sec.  5.  The  State  may  at  any  time  relieve  this  lien 
by  refunding  to  the  city  the  amount  expended. 

The  title  to  this  act,  as  well  as  the  preamble  and  the 
act  itself,  is  wmrthy  of  consideration,  and  shows  what  the 
object  of  the  act  was,  viz. : 

An  act  to  provide  for  the  completion  of  the  Illinois 
and  Michigan  Canal  upon  the  plan  adopted  by  the  State 
ml836.’’' 

In  1871,  shortly  after  the  great  fire  in  Chicago  (see  Ses- 
sion Laws,  1871-2,  p.  170),  the  General  Assembly,  under  pro- 
visions of  Section  5 of  the  Act  of  1865,  refunded  this  money 
to  the  City  of  Chicago  and  discharged  this  lien. 

(30) 

So  it  will  be  seen  that  the  primary  object  for  deepening  the 
summit  division  was  obtaining  a supply  of  water  for  the 


1817 


canal,  directly  from  Lake  Michigan.  To  complete  the  canal 
ON  THE  ORIGINAL  DEEP  CUT  PLAN_,  adopted  in  1836,  the  second- 
ary object  was  to  furnish  drainage  to  Chicago.  To  accom- 
plish the  primary  object  the  City  of  Chicago  was  authorized  to 
complete  the  canal  on  the  original  deep  cut  plan,  and  was 
given  a lien  on  the  canal  and  its  resources  for  its  repayment. 
The  drainage  of  Chicago  was  a mere  incident,  a secondary 
consideration. 

In  this  connection  and  for  the  purpose  of  showing  more 
conclusively  what  was  intended  by  the  Act  of  1865,  author- 
izing the  deep  cut  on  the  summit  level,  it  may  be  of 

6241  interest  to  examine  the  Act  of  1836,  providing  for  the  con- 
struction of  the  Illinois  and  Michigan  Canal.  (Vide  Sess. 
Laws.,  1836,  p.  145.) 

We  quote  from  Sec.  16  of  that  act  as  follows: 

‘^The  said  canal  shall  not  be  less  than  forty-five  feet 
wide  at  the  surface,  thirty  feet  at  the  base  and  of  suf- 
ficient depth  to  insure  a navigation  of  at  least  four  feet, 
to  be  suitable  for  ordinary  canal  lioat  navigation,  to  be 

SUPPLIED  WITH  water  FROM  I.AKE  MICHIGAN  and  SUCll 

other  sources  as  the  Canal  Commissioners  may  think 
proper,  &c.’’ 

To  be  supplied  with  water  from  Lake  ^Michigan  for  what 
purpose?  For  navigation  simply!  ISTo,  for  all  purposes; 
and  one  of  the  purposes  always  contemplated  in  making  such 
improvements  is  the  supplying  of  water  power  when  practi- 
cable, and  thereby  aid,  from  the  revenue  thus  derived,  in 
maintaining,  at  the  least  possible  expense  to  the  public,  these 
desirable  enterprises. 

(31) 

V. 

We  desire  to  consider  briefly  the  opinion  of  Mr.  Justice 
Pillsbury,  of  the  Appellate  Court,  as  we  presume  that  opin- 
ion will,  to  some  extent,  be  the  liasis  of  the  argument  that 
may  be  made  in  this  court  on  behalf  of  appellee. 

Justice  Pillsbury  says  (page  11  of  abstract)  that: 

6242  ‘Mn  construing  contracts  courts  will  examine  their 
provisions  in  the  light  of  the  circumstances  surround- 
ing the  parties,  and  the  subject  matter  when  made.” 

This  is  undoubtedly  true,  and  is  supported  by  the  authori- 
ties cited  by  us  on  page  49  of  our  former  brief. 

To  use  the  language  adopted  by  Mr.  Justice  Caton  in 
Hodden  v.  Shentz,  15  111.,  at  page  582 : 

^‘The  law  must  give  a common  sense  construction  to 
grants,  and  consider  the  state  of  things,  and  the  consid- 
eration in  view  of  the  parties  at  the  time  the  grant  is 
made  which  move  them  to  its  execution  and  acceptance.” 


1818  Dndey  v.  Adam, — Appt.  2nd  Brief  Sup.  Ct. — Con. 


It  becomes,  then,  for  the  proper  application  of  this  rule, 
necessary  to  inquire  what  the  considerations  are  that  were 
in  view  of  the  parties  at  the  time  the  Havens’  release  was 
executed.  It  is  a part  of  the  conceded  facts  in  this  case  that 
the  Illinois  and  Michigan  Canal  was  completed  and  opened 
for  navigation  in  the  spring  of  the  year  1848.  (See  page  3 
of  abstract.)  So  that  prior  to  that  time  there  had  been  no 
diversion  of  the  wmters  of  the  Desplaines  River  by  the  canal 
authorities.  That  diversion  did  not  commence  until  the  20th 
day  of  April,  1848. 

Canal  Trustees  v.  Haven,  5th  Gilm.,  p.  554. 

So  that  of  course  up  to  that  time  there  can  be  no  claim  or 
pretense  that  any  water  was  allowed  to  spill  from 
6243  the  summit 


(32) 

level  into  the  Desplaines  River  at  Lockport.  The  cases  of 
Haven  v.  The  Canal  Trustees,  decided  in  the  5th  of  Gilman, 
was  brought  to  the  October  Term  of  the  Circuit  Court  of 
AVill  county  for  the  year  1848,  and  was  tried  upon  an  agreed 
state  of  facts  fully  appearing  in  the  opinion,  from  which, 
among  other  things,  it  appeared  (Canal  T)iistees  v.  Haven, 
supra,  p.  554)  that 

“on  the  20th  day  of  April,  1848,  the  defendants  (Canal 
Trustees)  diverted,  or  caused  to  be  diverted,  into  the 
canal  for  the  use  of  said  canal,  from  the  natural  chan- 
nel of  the  river,  the  whole  or  tlie  x)rincipal  part  of  the 
waters  of  said  river  by  turning  the  same  from  the  basin 
in  said  river  by  means  of  a dam  on  Section  9,  being  a 
canal  section,  and  about  half  a mile  above  the  dam  of  said 
plaintiffs,  so  that  the  plaintiffs  are  wholly  deprived  of 
the  use  of  the  water  at  their  said  mills,  and  have  not  since 
been  able  to  run  their  machinery.  From  the  time  of 
putting  this  portion  of  the  canal  under  contract  in  1838. 
and  up  to  the  year  1843,  there  had  l)een  no  change  in  the 
original  plan  of  supplying  the  canal  with  water  from 
Lake  Michigan  hy  the  deep  cut  as  originally  contem- 
plated, and  all  contracts  let  previous  to  1843,  and  all  the 
arrangements  of  said  canal,  were  made  notoriously  upon 
the  plan  aforesaid,  and  with  a view  to  supply  the  canal 
from  Lake  Michigan.’' 

6244  In  that  case  the  Supreme  Court  decided  that  Section  16 
was  not  included  in  the  lands  reserved  from  sale  and  granted 
to  the  State  by  the  Act  of  1822;  so  that  the  provision  of  the 
Legislature  reserving  a right  of  way  for  the  canal,  did  not 
apply  to  Section  16.  and  on  the  state  of  facts  ])resented  in 
that  case  this  court  held  that  the  Havens  were  ri])arian  pro- 
prietors upon  one  side  of  the  stream,  and  as  such  were  en- 
titled to  the  use  of  one-half  of  the  natural  how  of  the  stream. 
(]i.  558.)  This  same  case  was  again  taken  to  tlie 


1819 


(33) 

Supreme  Court  of  this  State  upon  the  assessment  of  dam- 
ages, and  is  reported  in  the  11th  111.,  554,  and  the  judgment 
for  damages  reversed  for  the  reason  that  they  were  excessive 
and  that  the  amount  wliich  the  Havens  were  entitled  to  re- 
cover, as  the  case  then  stood,  was  merely  nominal.  The 
Havens’  contract,  or  lease,  which  is  set  forth  in  this  record, 
was  a settlement  of  this  suit,  and  the  })reamble  to  the  con- 
tract shows  that  it  was  intended  as  a settlement  of  the  mat- 
ters in  controversy  in  that  suit  and  for  damages  to  the 
Havens  occasioned  by  diverting  the  waters  of  said  river 
from  their  mill  and  applying  it  to  the  use  of  the  Illinois  and 
Michigan  Canal  al)ove  said  mill.  When  we  take  into  consid- 
eration the  agreed  state  of  facts  in  the  case  reported  in  the 
5th  Gilman  and  the  reference  that  is  there  made  to  the  aban- 
donment of  the  project  for  supplying  the  canal  with  water 
from  Lake  Michigan,  and  the  further  consideration  that  the 
Havens  were  then  complaining  that  the  canal  was  not  thus 

6245  supplied  with  water,  but  that  on  the  contrary  the  trustees 
were  using  the  natural  water  of  the  Desplaines  River  for  that 
purpose,  and  the  further  consideration  that  this  suit  was 
In’ought  immediately  after  the  opening  of  the  canal,  it  is 
evident  that  the  subject  matter  of  that  contract  was  the 
natural  water  of  the  Desplaines  River,  and  not  water  that 
was  then  or  that  might  any  time  thereafter  he  added  thereto 

• from  Lake  Michigan.  Justice  Pillsbury  says  in  his  opinion 
(p.  vll  of  abstract)  : 

“AVe  think  it  fairly  deducible  from  the  admitted  facts, 
if  not  stated  in  so  many  words,  that  the  hydraulic  basin 
referred  to  as  being  at  Norton’s  mills  was  a part  of  the 
original  construction  of  the  canal  and  that  before  the 
deepening  of  the  summit  level  the  surplus  or  waste  water 
from  that  level  was  turned  into  the  Desplaines  River  in 
the  same  manner  it  has  been  since, 

(34) 

although  in  much  less  quantities.” 

There  is  no  warrant  for  this  deduction.  There  is  nothing 
in  the  admitted  facts  that  directly  or  indirectly  concedes 
that  a drop  of  water  passed  from  the  canal  at  Lockport  into 
the  Desplaines  River  until  the  canal  and  river  formed  a 
junction  and  were  united  in  one  stream.  There  was  no  waste 
u'Citer  at  Lockport.  There  could  not  have  been  from  the  fact 
that  the  summit  level  was  supplied  only  in  part  by  feeders, 
and  the  canal  authorities  were  compelled  to  and  did  erect 
extensive  pumping  works  for  the  purpose  of  assisting  in 

6246  supplying  that  level  with  water  from  the  Chicago  River  at 
Bridgeport.  There  is  no  evidence,  therefore,  nor  any  fair 


1820  Bruley  v.  Adam, — Appt.  2nd  Brief  Sup.  Ct. — Con. 


inference,  that  the  volume  of  the  water  in  the  river  was  at 
the  time  of  the  execution  of  this  contract,  or  the  commence- 
ment of  the  suit  which  this  contract  settled,  increased  by 
the  water  running  in  the  canal  to  the  slightest  extent,  ex- 
cept at  the  point  where  the  canal  and  river  were  one;  and 
there  could  be  no  inference  further  from  the  true  facts  in  the 
case  than  that  drawn  by  Justice  Pillsbnry  when  he  says: 

‘‘With  these  facts  within  the  knowledge  of  the  par- 
ties and,  as  we  must  conclude,  taken  into  consideration 
by  them  in  adjusting  the  matters  in  dispute,  it  would 
seem  that  the  trustees  treated  the  right  to  the  exclusive 
use  of  the  water  of  the  river,  increased  by  their  own 
work,  so  far  as  it  could  be  necessary  to  appropriate  it 
for  the  purposes  of  navigation,  as  a sufficient  considera- 
tion for  the  relinquishment  upon  their  part  of  any  claim 
to  use  or  divert  any  portion  of  the  water  in  the  stream, 
from  whatever  source  derived,  not  required  for  such 
purpose.  ’ ’ 

The  agreed  state  of  facts,  as  appearing  in  5th  Gilman, 
upon  which  the  Haven  suit  was  brought  (and  the  Haven  con- 
tract itself),  shows  as  conclusively  and  clearly  as  anything 
can  show  that  at  the  time  of  the  execution  of  the  Haven  re- 
lease all  idea  of  making  the  deep  cut  and  supplying  the  canal 
with  ivater  from  Lake  Michigan  had  been  abandoned, 

6247  and  the  canal  authorities  were  compelled  to"  look  elsewhere 
for  their  supply  of  water;  and  even  if  a slight  quantity  of 
water  did  escape  from  the  canal  into  the  river  at  Lock- 
port  at  this  time,  the  quantity  was  inconsiderable,  and  was 
not  taken  into  account  either  one  way  or  the  other  in  the  ex- 
ecution and  acceptance  of  this  release.  In  fact,  it  is  evident 
that  the  Havens  never  imagined  for  a moment  that  they 
were  entitled  to  any  water  except  that  which  flowed  nat- 
urally in  the  Desplaines  Kiver,  and  the  Canal  Trustees  cer- 
tainly never  imagined  for  a moment  that  they  were  releasing 
or  abandoning  their  claim  to  water  that  might  thereafter  be 
added  by  them  from  Lake  Michigan.  So  that  from  the  con- 
dition of  the  thing  which  was  the  subject  matter  of  this  con- 
tract and  the  circumstances  surrounding  the  parties  at  the 
time,  it  is  evident  that  the  only  thing  concerning  which  these 
parties  contracted  was  the  natural  water  of  the  Desplaines 
Eiver;  and  while  we  doubt  not  this  release  can  be  success- 
fully relied  upon  as  a bar  to  the  claim  now  made,  it  cer- 
tainly would  be  a strange  construction  of  the  release  to  say 
that  it  applied  to  other  and  different  water  than  the  natural 
water  of  the  Desplaines  River  or  that  it  applied  to  waters 
which,  in  the  contemplation  of  the  parties  at  that  time,  neve'r 
could  become  a subject  of  controversy.  Again,  the  language 

6248  of  the  release  itself  confirms  us  in  the  position  we  have 
taken.  The  release  was  executed  to  settle  the  suit  brought 


1821 


for  alleged  damages  ‘‘occasioned  by  diverting  the  water  of 
said  river/’  and  in  consideration  of  the  money  received  the 
Havens  “released  and  discharged  the  trustees  from  all  action, 
rights  of  action,  and  all  claims  arising  out  of 

(36) 

any  damages  heretofore,  now  or  hereafter  to  be  sustained  by 
them  hy  reason  of  the  use  of  the  waters  of  the  Desplaines 
River  for  the  purpose  of  supplying  said  canal  in  the  same  man- 
ner the  same  is  now  supplied  at  the  feeder  at  Joliet.  That 
is,  they  released  damages  on  account  of  the  diversion  of  the 
imter  of  the  Desplaines  River,  but  in  no  manner  can  it  be 
inferred  that  they  set  up  any  right  or  claim  of  right  to  the 
waters  of  Lake  Michigan.  And  again,  they  grant  the  right 
to  use  and  appropriate  the  water  of  the  said  Desplaines  River 
at  the  feeders  at  Joliet  below  Guard  Lock  No.  1,  for  supply- 
ing the  said  canal  for  the  purposes  of  navigation  in  the  same 
manner  the  ivater  in  said  river  in  connection  ivith  other 
feeders  is  now  used  for  supplying  said  canal.  " And  it  is 
a part  of  the  history  of  the  canal,  well  known  to  all  citizens 
at  all  familiar  with  its  management,  that  from  the  opening 
of  the  canal  in  1848  until  the  present  time  it  has  been  one  of 
objects  of  the  canal  authorities  to  supply  water  power  at  all 
points  and  under  all  circumstances  where  it  was  practic- 
6249  able  for  them  to  do  so;  and  every  act  of  the  Legislature  pro- 
viding for  the  government  of  the  canal,  from  the  year  1839 
to  the  present  time,  has  made  it  the  duty  of  the  Canal  Com- 
missioners or  trustees  to  derive  all  possible  revenue  from 
this  source.  Again,  by  applying  to  this  release  the  well  es- 
tablished doctrine  that  all  grants  are  to  he  construed  most 
strongly  against  the  grantor,  a doctrine  so  thoroughly  set- 
tled as  to  be  elementary,  and  we  find  that  under  the  Havens’ 
release  the  Canal  Commissioners  would  be  entitled  to  use 
all  the  natural  ivaters  of  the  Desplaines  River,  so  far  at  least 
as  those  claiming  under  the  Havens  are  concerned,  for  the 
purposes  of  navigation  in  the  canal.  This  right  continues 
for  all  time  to  come;  and  if  you  limit  the  grant  to  the  use  of 
such  waters 

(37) 

to  the  purposes  of  navigation  alone,  still  applying  the  above 
rule,  it  could  only  apply  to  the  natural  ivaters  of  the  river. 
Nothing  else  being  in  contemplation  of  the  party  at  the  time, 
leaving,  therefore,  the  Canal  Commissioners  at  full  liberty 
to  withdraw  from  the  Desplaines  River  for  the  purpose  of 
supplying  water  poiver  privileges  all  the  water  which  which 
they  had  added  thereto  from  Lake  Michigan  or  other  sources, 
provided  always  that  the  natural  waters  of  the  river  afforded, 
them  a sufficient  supply  for  the  purposes  of  navigation,  as  it 


1822  Druleij  v.  Adam, — Appt.  2nd  Brief  Sup.  Cf.—Con. 

is,  by  the  improvement  of  the  state,  appellee  has  been  greatly 
benefited  and  his  water  power  largely  increased.  In  what 

6250  manner,  therefore,  can  it  be  said  that  he  has  sustained  dam- 
age? It  seems  to  us  clear  that  the  effect  given  by  Justice 

Pillsbury  is  unwarranted  by  the  facts,  and  is  in  direct  con- 
flict with  the  rule  that  he  himself  lays  down. 

Again  on  page  14  of  the  abstract.  Justice  Pillsbury  says: 
“From  the  admitted  facts,  and  from  the  circumstances 
surrounding  the  making  of  the  improvement,  or  deep  cut 
so-called,  the  conclusion  is  rendered  certain  that  the  said 
improvement  was  not  made  for  the  purpose  of  supplying 
the  canal  below  Guard  Lock  Xo.  1 with  water  for  canal 
purposes,  but  for  the  purpose  alone  of  improving  the 
drainage  facilities  of  the  City  of  Chicago  b\  making  th^ 
canal  an  outlet  for  its  sewers  by  way  of  the  Despiaines 
Eiver.  All  the  facts  and  circumstances  negative  the 
idea  that  it  was  a part  of  the  plan  of  the  city  in  making 
such  deep  cut,  or  of  the  State  in  allowing  the  city  to  do 
so,  to  create  a water  power  on  the  Channahon  level,  or 
to  furnish  water  for  canal  purposes.’^ 

It  is  impossible  to  believe  that  the  learned  judge  who  wrote 
this  opinion  had  had  his  attention  called  to  the  act 

(38) 

of  1836  providing  for  the  construction  of  the  canal,  for  if  he 
had  he  would  have  seen  that  it  was  originally  contemplated 
that  so  far  as  possible  the  canal  should  be  supplied  from  one 
end  to  the  other  with  water  from  Lake  Michigan.  The  origi- 
nal plan  of  the  canal  contemplated  the  use  of  that  water  and 

6251  relied  upon  Lake  Michigan  as  the  principal  source  of  sup- 
ply. It  is  also  very  evident  that  the  learned  judge  failed 

to  read  the  act  of  1865,  under  which  the  deep  cut  was  con- 
structed, for  the  title  of  that  act  would  have  disclosed  to  him 
his  error.  It  is  also  very  evident  that  the  learned  judge  sup- 
posed that  the  counsel  for  the  appellee  had  quoted  in  their 
brief  in  this  court  the  whole  of  the  preamble  to  the  act  of 
1865,  and  that  he  accepted  the  conclusions  to  which  counsel 
for  appellee  had  arrived  as  to  the  object  of  this  deep  cut,  with- 
out a careful  examination  of  the  act  itself;  for,  if  the  act  of 
1836  and  the  title  to  the  act  of  1865,  the  preamble  thereto,  and 
the  act  itself,  are  considered  together  (and  it  is  necessary 
to  thus  consider  them  in  order  to  arrive  at  the  legislative 
intent),  it  is  as  clear  as  the  noonday  sun  in  an  unclouded 
sky  that  the  object  of  the  Legislature  in  causing  this  work  to 
be  done  was  to  supply  the  canal  with  water  from  Lake  Michi- 
gan, and  to  supply  it  for  the  use  of  the  canal  for  all  legiti- 
mate purposes,  such  as  navigation  of  the  canal  itself,  and 
the  furnishing  when  practicable  of  water  power  along  the 


1823 


route  of  the  canal.  The  State  did  this  work,  and  not  the 
City  of  Chicago.  It  is  true  tliat  the  City  of  Chicago  acted 
as  the  agent  of  the  Stide  in  so  doing.  The  City  of  (hiicago 

6252  had  an  object  to  accomplish  in  which  the  State  had  no  inter- 
est; but  being  an  object  of  public  importance,  the  State  fa- 
cilitated its  accomplishment  by  allowing  the  city  to  advance 
the  necessary  funds  to  complete  what  the  State  had  already 
planned, 

(39) 

giving  the  city  a lien,  which  lien  was  subsequently  discharged 
by  the  State.  The  State  never  for  one  moment  surrendered 
the  control  of  the  canal.  The  State  never  had  in  allowing 
this  work  to  be  done  any  other  object  in  view  than  the  deep- 
ening of  the  canal  itself,  and  the  act  under  which  the  work  was 
done  provided  that  the  City  of  Chicago  should  be  reimbursed, 
either  from  the  revenues  of  the  canal  or  from  the  treasury 
of  the  State.  And  if  the  learned  judge  was  in  possession 
of  all  these  facts  at  the  time  of  penning  the  quotation  last 
above  made,  the  conclusion  arrived  at  is  unaccountable,  and 
must  be  a surprise  to  every  one  conversant  with  the  facts, 
as  well  as  to  himself  on  further  reflection. 

V I. 

We  desire  to  suggest  in  closing  that  the  Appellate  Court 
had  no  jurisdiction  to  hear  or  determine  this  case. 

' Sec.  88  of  the  Practice  Act,  Sess.  Laws  1879,  p.  222,  pro- 
vides that  “All  cases  relating  to  revenue,  or  in  which  the 
State  is  interested  as  a party  or  otherwise^  shall  be  taken 
directly  to  the  Supreme  Court.” 

6253  In  the  case  at  bar  the  State  is  directly  interested,  not  as 
a party,  it  is  true,  but  in  the  result.  If  this  judgment  is  col- 
lected the  State  would  be  both  legally  and  morally  bound  to 
refund  the  money  to  the  appellant.  And  then  again,  if  the 
judgment  of  the  Appellate  Court  is  affirmed,  all  revenue  to 
the  State  from  this  source  will  be  lost. 

Eespectfullv  submitted, 

G.  D.  A.  Parks, 

E.  F.  Bull, 


For  Appellant. 


) 

I 

1 


6256 


In  the  Supreme  Court  of  Illinois^ 
Northern  Grand  Division. 

To  March  Term,  A.  D.  1882. 


1827 


Win.  M.  Druly,  appellant,  vs.  William  Adam,  appellee. 
Appeal  from  Appellate  Court,  Second  District. 


Petition  for  Kehearing. 

May  it  please  your  Honors: 

So  important  are  the  public  rights  involved  in  this  case, 
so  novel  some  of  the  questions  it  presents,  and  from  cer- 
tain special  circumstances  happening  to  attend  it  so  disas- 
trous to  the  interests  of  the  canal  the  final  establishment  in 
this  court  of  the  claim  of  the  appellee,  that  we  must  earn- 
estly entreat  the  court  to  reconsider-  its  judgment.  That  the 
opinion  purports  to  be  unanimous,  and  that  it  hears  on  its 
face  formidable  marks  of  elaborate,  painstaking  and  assidu- 
ous investigation  by  the  learned  judge  who  prepared  it,  are, 
no  doubt,  inauspicious  and  disheartening  circumstances.  But, 
while  yielding  our  tribute  of  respect  to  its  force  and  abilify, 
we 

must  be  permitted  to  say,  with  all  deference,  that  we  cannot 
yet  surrender  the  main  position  assumed  by  us  in  the  argu- 
ments which  we  had  the  honor  to  advance.  And  we  now 
ask  your  Honors  to  grant  a rehearing  with  the  more  con- 
6257  fidence,  because  the  past  history  of  the  court  encourages  us 
to  believe  that  in  a case,  not  only  of  remarkable  public  im- 
portance, but  entirely  new  in  this  State,  it  will  be  and  in- 
deed can  be  restrained  by  no  pride  of  opinion  from  retesting 
its  first  impressions. 

I. 

The  Havens’  release,  vrhich,  it  never  has  been  questioned 
on  either  side,  is  obligatory  on  both  parties,  the  appellee  as 
grantee  of  the  Havens  succeeding  to  all  their  rights,  and  the 
State,  as  bound  by  all  contracts  entered  into  by  the  Canal 
Trustees,  within  the  scope  of  the  trust. 

The  instrument,  although  releasing  part  damages  and  prop- 
erly enough  called  ‘'a  release/’  was  in  fact  and  in  form  a 
grant  to  the  Canal  Trustees  in  1853  of  the  right  to  divert 
the  entire  waters  of  the  Desplaines  Eiver  to  the  use  of  the 
I.  & M.  Canal  ^Hor  the  purposes  of  navigation.” 

The  court  scarce  need  be  reminded  of  the  rule  that  grants 


1828  Pei.  for  Rehearing,  Sup.  Ct. — Driileg  vs.  Adam. — Con. 

are  construed  most  strongly  against  the  grantor.  “Whep 
a deed  is  so  drawn  that  some  will  read  it  one  way  and  some 
another,  it  is  a well  established  rule  that  that  meaning  shall 
he  adopted  which  is  adverse  to  the  interests  of  the  grantor/’ 
Alton  V.  Illinois  T.  Co.,  12  111.,  58. 

And  where  the  grant  is  to  the  State,  or  to  a party  pro  hoc 
vice  representing  the  State,  this  rule  will  be  applied  with  more 
than  its  ordinary  force.  Where,  as  here,  the  extent  of  the 

6258  grant  is  ambiguous  and  a construction  is  sought  to  be  put 

(3) 

upon  it  which  in  effect  estops  the  State  from  asserting  rights 
not  expressly  waived  and  not  necessarily  involved  in  the  grant, 
or  in  any  of  the  conditions  annexed  to  the  grant,  such  con- 
struction will  not  be  allowed.  Estoppels  are  not  held  ap- 
plicable to  the  State. 

People  V.  Broivn,  67  111.,  468. 

This  element  in  the  case,  a consideration  on  which  we  had 
thought  tit  to  lay  stress  in  our  argument,  seems  to  us,  speak- 
ing wdth  great  deference,  to  have  been  altogether  laid  aside 
in  the  opinion  of  the  court.  A most  important  right  of  the 
State  of  Illinois  is  swept  away  by  a train  of  reasoning  which. 

{ as  w^e  humbly  think,  would  be  deemed  harsh  and  technical 
when  applied  even  to  the  case  of  a private  individual. 

The  Canal  Trustees  in  this  instrument  were  simply  gran- 
tees. They  bound  themselves  to  nothing;  they  granted  noth- 
ing, waived  nothing;  nor  were  there  any  conditions  annexed 
to  the  grant  by  which  the  trustees  assumed  impliedly  any 
liability  whatever.  In  settlement  of  their  dispute  with  the 
Havens  they  gave  them  a certain  sum  of  money  for  the  con- 
veyance of  a perpetual  right  to  use  ^Ahe  waters  of  the  Des- 
plaines  Eiver”  for  purposes  of  navigation.  If  the  waters 
which  they  furnished  themselves  from  the  Summit  Level  at 
Lockport  became  by  operation  of  law  under  the  circumstances 
of  this  case,  without  the  aid  of  any  special  contract,  the 
proper  wmters  of  the  Hesplaines  Eiver,  putting  it  out  of  the 

6259  power  of  the  State  to  assert  any  exclusive  right  to  it  after 
it  again  returned  to  and  became  part  of  the  waters  of  the 

canal,  that  of  course  ends  the  controversy.  The  expression 
used  in  the  release  was  quite  enough  in  that  view.  There 
was  no  necessity  to  make  any  special  explicit  reference  to 
this  addition  to  the  volume  of  the  river.  But  this  proposi’ 
tion,  with  all  due  deference  we  deny,  and  shall  hereafter  ask 
the  court  to  reconsider. 

(^) 

But  the  point  now  and  here  is,  did  the  mere  acceptance  of 
a gi'ant  describing  the  water  as  ‘4he  water  of  the  Desplaines 
Eiver,”  and  containing  no  reference  to  this  special  contribu- 


1829 


tion  to  the  flow  supplied  by  the  grantees  themselves,  operate 
to  estop  the  grantees  or  the  State,  their  cestui  que  trust, 
after  the  termination  of  the  trust,  from  asserting  their  right 
to  this  contributed  water?  We  must  be  permitted  to  persist 
in  our  original  position,  that  it  did  not  estop  the  State  and 
would  not  have  estopped  a private  individual. 

The  release  was  the  settlement  of  the  a suit  in  court.  What 
was  claimed  in  that  suit  appears  from  the  reports  of  this 
court. 

Canal  Trustees  v.  Haven,  5 Gil.,  556. 

Same  v.  Same,  11  111.,  554. 

If  we  examine  these  reports  carefully  and  with  scrutiny 
from  beginning  to  end,  we  shall  fail  to  see  the  first  glimpse 
of  a claim  on  the  part  of  the  Havens  that  they  claim  any 
right  other  than  that  of  ordinary  riparian  proprietors  on  the 

6260  east  bank  of  the  Desplaines  River,  a natural  water  course, 
to  the  use  of  the  whole  volume  of  water  which  had  immemor- 

ially  flowed  through  the  channel  thereof.  Not  a glimpse,  not 
a trace,  not  a whisper  of  any  other  claim.  Read  Justice 
Treat ^s  opinion.  He  speaks  simply  of  the  natural  flow;  and 
that  in  half  a dozen  instances. 

See  appellant’s  first  brief,  p.  46. 

That  particular  feature  of  the  case  was  not  argued  nor 
hinted  at  in  the  argument  of  either  of  those  appeals.  But 
there  is  that  to  be  found  in  the  statement  of  the  first  case, 
which  is  positively  decisive  on  this  point.  The  Havens  had 
built  their  saw  mill  in  1839,  and  their  grist  mill  in  1842,  years 
before  the  alleged  diversion  by  the  trustees.  Says  Justice 
Trumbull:  ‘^Said  mills  and  buildings  have  been  used  by  the 

(5) 

plaintiffs  for  the  uses  and  purposes  for  which  they  were 
built  from  the  time  they  were  built  as  aforesaid  till  the  20th 
day  of  April,  1848;  the  wafer  in  said  river  being  at  times 
insufficient  for  all  said  machinery d'  What  water?  What  is 
here  meant  as  the  water  of  the  Desplaines  River?  During 
this  era  in- the  annals  of  the  Havens’  mill,  from  1839  to  20th 
April,  1848,  when  the  canal  was  first  opened,  certainly  there 
can  be  no  doubt  as  to  what  was  their  status  as  riparian  pro-^ 
prietors.  They  pretended  to  claim  only  the  natural  flow  of 
the  stream,  under  the  old  maxim:  '‘Aqua  currit  et  debat  cur- 

rere,  ut  currere  solebatd’  Solebat — accustomed  to  flow,  or, 

6261  as  it  is  often  expressed,  imanemorially  accustomed  to  flow 
The  new  era  commenced  20th  April,  1848.  At  that  date  the 

trustees  assumed  the  right  to  appropriate  all  the  waters  of 
the  river  as  a feeder,  diverting  them  entirely  at  their  pleasure 
from  the  Havens’  mills.  Did  the  counsel  on  either  side  or 
did  the  court  seem  to  recognize  any  change  in  their  riparian 
rights  from  the  fact  that  on  the  20th  April,  1848,  the  flow 


1830  Pet.  for  Rehearing , Sup.  Ct. — Druley  vs.  Adam. — Con. 

was  improved  by  the  surplus  from  the  summit  level  dis- 
charged at  Lockport?  No;  we  say  unhesitatingly,  no.  The 
point  is  nowhere  adverted  to.  Such  as  their  rights  were  in 
1839  such  they  continued  to  be  in  1848,  no  more,  no  less  and 
no  other  in  the  view  of  the  court. 

Mark!  the  diversions  of  which  the  Havens  complained  oc- 
curred on  the  20th  April,  1848,  the  day  the  canal  was  opened 
for  use.  5 Gil.,  p.  554.  On  that  day  the  trustees  diverted 
- the  whole  or  principal  part  of  the  waters  of  said  river : * * * 
^‘so  that  the  plaintiffs  are  wholly  deprived  of  the  use  of 
the  water  at  their  said  mills,  and  have  not  since  been  able 
to  run  their  machinery.’’  The  inference  is,  that  before  the 
20th  of  April,  1848,  they  were  able  to  run  their  machinery 

(6) 

with  ‘Ghe  waters  of  the  river”;  but  since  that  day  they  have 
not  been  permitted  to  use  that  same  water,  by  reason  of  the 
diversion.  Can  anything  be  plainer?  Throughout  the  opin- 
ion the  river  is  spoken  of  in  its  character  as  a natural  water 
course,  without  even  the  slightest  side  glance  for  a moment 
6262  at  the  peculiar  relation  which  the  canal  and  river  began 
to  bear  to  each  other  when  the  pumping  engine  at  Bridge- 
port began  to  borrow  a supply  from  Lake  Michigan.  The 
only  reference  to  the  subject  is  where  the  Havens  complain 
that  when  they  commenced  their  enterprise  in  1839  they  did 
so  in  view  of  the  deep  cut  plan,  which  would  have  obviated 
the  necessity  of  using  the  Hesplaines  as  a feeder  at  all;  and 
that  they  had  received  no  warning  of  a change  of  plan  till 
1843,  when  the  mills  had  been  all  built  and  were  in  use.  Take 
the  second  appeal,  reported  in  11  Ills.  Where  is  there  any 
spark  of  evidence  or  even  ground  for  conjecture  that  in  the 
assessment  of  their  damages  they  had  had  the  impudence 
to  ask  compensation  from  the  trustees  for  water  paid  for  and 
furnished  by  the  trustees  themselves?  We  entreat  the  court 
to  again  look  carefully  through  these  reports  and  see  if  we 
are  not  and  have  not  been  right  in  the  view  we  have  pressed 
with  so  much  confidence. 

And  on  this  subject  it  is  a curious  fact  that  the  very  state 
trustee  who  conducted  this  negotiation  for  a settlement  with 
the  Havens,  and  who  knew  better  than  most  living  men  the 
intention  and  understanding  of  the  parties,  was  the  circuit 
judge  who  tried  anJ  decided  this  case. 

But,  at  all  events,  the  release  had  reference  to  the  use  of 
the  Hesplaines  as  a feeder  under  the  conditions^  of  fact  theii 
existing,  to-wit,  on  the  22d  day  of  August,  1853. 

Stout  V.  Whitney,  12  111.,  227. 


1831 


6263  (7) 

Assuredly  it  is  a very  hard  and  even  strained  construc- 
tion to  adopt  against  a momentous  interest  of  the  people  of 
this  State,  that  even  if  the  trustees  he  supposed  willing  to 
include  the  diversion  of  their  own  supply  in  the  estimate  of 
damages  in  1853,  they  meant  also  to  relinquish  the  legal  rights 
of  the  State  for  all  time  in  the  immeasurably  larger  contribu- 
tion through  the  deep  cut  made  eighteen  years  afterwards 
by  a strange  and  then  entirely  unlooked  for  and  undreamed 
of  series  of  events.  We  therefore  feel  warranted,  with  all 
due  deference  to  the  court,  to  reiterate  our  original  proposi- 
tion that  the  grant  from  the  Havens  does  not  evince  a claim 
on  their  part;  much  less  does  the  acceptance  of  it  evince 
a negotiation  by  the  trustees  of  a right  in  the  grantors,  as 
lower  riparian  proprietors,  to  any  part  of  this  surplus  water 
discharged  from  the  canal  and  added  to  the  river  at  Lockport. 

There  are  one  or  two  other  considerations  of  interest  con* 
nected  with  this  Havens  ’ release : 

The  court  will  see  by  Section  16  of  the  Canal  Act  of  1836 
(Sess.  L.  1836,  p.  11-5),  that,  ‘‘The  said  canal  shall  not  be  less 
than  45  feet  wide  at  the  surface,  30  feet  at  the  base,  and  of  suf- 
ficient depth  to  insure  a navigation  of  at  least  4 feet,  to  be 
suitable  for  ordinary  canal  boat  navigation;  to  he  supplied 
ivith  tvater  from  Lake  Michigan  and  such  other  sources  as 
the  Canal  Commissioners  may  think  proper,  and  to  be  con- 
structed in  a manner  best  calculated  to  promote  the  perma- 
nent interests  of  the  country,’’  &c.,  &c. 

6264  From  this  quotation  and  the  several  other  sections  of 
that  act  the  court  will  see  that  it  was  the  original  inten- 
tion of  the  Legislature  of  this  State  to  supply  the  Illinois  and 
Michigan  Canal  when  completed,  so  far  as  practicable,  by 
water  from  Lake  Michigan.  That  could  only  be  done  by 
cutting  down 

(8) 

‘ what  is  known  in  this  record  as  the  “Summit  Level”  to  such 
an  extent  as  to  allow  the  water  to  flow  naturally  from  Lake 
Michigan  into  the  canal. 

Owing  to  the  financial  embarrassments  under  which  the 
State  labored  during  the  time  of  the  construction  of  this  canal, 
the  original  plan  of  supplying  the  canal  with  water  from  Lake 
Michigan  was  temporarily  abandoned,  and  it  became  neces- 
, sary,  therefore,  to  provide  other  sources  of  supply  at  a less 
expense,  the  result  of  which  was  the  construction  of  what  is 
known  as  the  “Summit  Level,”  which  was  supplied  with 
water  either  by  pumping  or  from  other  sources,  all  of  which 
were  to  a great  extent  unreliable,  but  required  a much  less 
immediate  expense  on  the  part  of  the  State. 


1832  Pet.  for  Rehearing , Sup.  Ct. — Druleg  vs.  Adam. — Con. 

Under  these  circumstances  the  Canal  Commissioners,  or 
their  successors,  the  Canal  Trustees,  being  authorized  thereto 
by  the  State,  for  the  time  being  abandoned  the  idea  of  sup- 
plying the  canal  with  water  from  Lake  Michigan. 

Amongst  other  sources  of  supply  the  Canal  Trustees  sought 
to  avail  themselves  of  the  waters  of  the  Desplaines  Kiver 
(so  far  as  the  same  would  go)  for  supplying  the  Channahon 

6265  level  with  water  for  the  purpose  of  navigation. 

The  Canal  Trustees  on  behalf  of  the  State  were  riparian 
proprietors  of  the  Desplaines  Edver  for  a very  considerable 
distance,  and  much  of  the  way  on  both  sides  of  the  river,  and 
they  converted  to  the  purposes  of  the  canal  a portion  of 
the  bed  of  that  stream,  making  the  bed  of  the  stream  the  bed 
of  the  canal. 

At  Dam  number  two,  some  little  distance  above  appellee’s 
dam,  the  canal  left  the  bed  of  the  stream,  and  the  waters 
of  the  stream  were  diverted  by  the  Canal  Trustees  for  the 
use  of  the  canal. 

(9) 

At  that  time  at  the  present  site  of  appellee’s  dam  the 
Havens  were  riparian  proprietors  upon  the  eastern  bank  of 
the  Desplaines  Eiver  and  complained  of  the  diversion  by  the 
Canal  Trustees  of  a portion  of  the  waters  of  that  stream, 
and  brought  their  suit  therefor,  which  was  determined  by 
this  court  in  5 Gil.,  548,  supra,  and  in  11  111.,  554,  supra. 

We  desire  again  to  call  the  special  attention  of  the  court 
to  the  opinion  by  Treat,  Chief  Justice,  in  11  Illinois,  where 
it  is  expressly  held  that  all  the  right  that  the  Havens  en- 
joyed was  to  one-half  the  water  as  it  was  acccustomed  to  flow 
in  the  channel,  and  that  as  they  were  riparian  proprietors 
only  upon  one  side  of  the  stream,  the  State  being  the  ripar- 
ian proprietor  upon  the  other  side  of  the  stream,  they  had 
no  right  to  erect  a dam,  and  were  entitled  in  any  event  to 

6266  only  nominal  damages. 

Perhaps  we  will  be  better  understood  by  quoting  (page 
557)  from  the  opinion  itself: 

^^The  appellees  have  a right  to  only  one-half  of  the 
water,  must  use  it  as  it  is  accustomed  to  ftoiv  doivn  the 
channel.  The  erection  of  a dam  across  the  stream  by 
means  of  which  the  head  of  water  was  increased,  and 
the  value  of  the  site  and  improvements  enhanced  urns 
UNAUTHOKTZED.  The  assessiueut  of  damages  for  the  de- 
privation of  water  must  therefore  be  made  with  refer- 
ence to  the  actual  value  used,  the  one-half  of  the  ivater 
naturally  ftoicing  along  the  channel^  ivithout  taking  into 
consideration  anif  artificial  obstructions  extending  across 
the  stream.  If  there  had  been  no  diversion  of  the  water 
the  appellees  could  not  maintain  their  dam  across  the 


1833 


KivEE^  and  the  appellants  were  authorized  by  law  to  ap- 
propriate the  water  for  the  purpose  of  the  canal,  and 
they  are  only  bound  in  this  proceeding  to  compensate  the 
appellees  for  the  loss  of  their  portion  of  it.’’ 

(10) 

It  is  not  claimed  here  that  the  appellee  has  any  interest 
except  that  which  he  derived  from  the  Havens,  and  he  is  in 
no  better  position  to  recover  for  the  diversion  of  the  water 
complained  of  than  the  Havens  would  be  if  they  still  retained 
their  interest. 

Neither  of  the  parties  contracted  or  understood  that  they 
were  contracting  with  reference  to  any  addition  that  might 

6267  be  made  to  that  flow  of  water  by  artificial  means.  It  is 
true  that  if  the  addition  to  the  natural  waters  of  the  stream 

from  artificial  sources  is  made  by  parties  other  than  those 
seeking  to  ivithdraw  the  ivater  thus  added,  such  additions  be- 
come a part  of  the  natural  waters  of  the  stream,  and  cannot 
be  withdrawn  to  the  injury  of  any  of  the  riparian  proprie- 
tors, unless  such  ivithdrawal  is  made  hy  the  person  who  adds 
the  volume  of  ivater  to  the  stream  and  before  such  waters 
come  into  possession  of  the  lower  riparian  proprietor. 

The  intention  of  the  parties  to  this  Haven  release  must  be 
gleaned  not  only  from  the  writing  itself,  but  from  the  char- 
acter of  the  subject  matter  of  that  writing  as  well  as  the  sur- 
rounding circumstances.  At  the  time  of  the  execution  of 
this  release,  as  heretofore  stated,  the  project  of  a deep  cut 
through  the  Summit  Level  and  of  supplying  the  canal  with 
water  from  Lake  Michigan  had  been  temporarily  abandoned. 
Neither  of  these  parties  contemplated  that  such  improvement 
would  ever  be  made,  although  it  was  well  understood  that  the 
original  plan  contemplated  them. 

The  Canal  Trustees  desired  to  procure  a right  to  divert  the 
waters  of  the  Desplaines  Kiver,  such  waters  as  flow  into 
that  river  in  a state  of  nature,  and  perhaps  such  water  as 
might  be  added  by  any  parties  other  than  themselves,  by  arti- 
ficial means,  and  it  would  be  a strange  construction  of  that 

(11) 

contract,  and  one  which  would  virtually  charge  the  Canal 

6268  Trustees  with  a serious  disregard  of  their  official  duties, 
if  not  an  absolute  diversion  of  the  trust  reposed  in  them,  to 

say  that  they  intended  by  that  contract  to  pay  the  Havens 
for,  or  to  release  to  the  Havens,  the  right  to  use  waters  which 
they  themselves  might  add  to  the  Desplaines  Eiver  by  arti- 
ficial means. 

Can  it  be  contended  for  a moment  that  the  parties  to  the 
Havens  release  had  in  view,  in  making  that  contract,  any* 
thing  except  the  condition  of  things  as  they  then  existed? 


1834  Pet.  for  Rehearing , Sup.  Ct. — Druleg  vs.  Adam. — Con. 

The  Canal  Trustees  released  nothing;  it  was  the  Havens 
that  made  the  release.  They  released  what  they  then  had, 
nothing  more. 

The  release,  then,  leaves  the  parties  thereto  in  the  same  po- 
sition in  reference  to  accretions  to  the  natural  flow  of  water 
in  the  stream — in  the  same  condition  precisely  they  would 
have  been  in  if  no  release  had  been  executed;  and  if  the  water 
added  to  the  stream,  by  artiflcial  means,  could  have  been 
withdrawn  by  the  Canal  Commissioners,  if  no  release  had 
been  made,  such  right  still  exists,  so  that  it  is  unnecessary  to 
take  into  consideration  the  effect  of  that  release. 

They  certainly  could  not  release  that  which  they  did  not 
own. 

If,  therefore,  the  water  added  to  the  stream  by  artiflcial 
means  could  be  withdrawn  by  the  person  or  persons  adding 
the  same,  before  it  reached  the  possession  of  appellee,  if 

6269  the  release  had  not  been  executed,  that  release  will  not  en- 
title appellee  thereto. 

(12) 

II.  If  we  are  correct  in  this,  then  is  the  water  in  question 
abandoned  by  being  discharged  at  Lockport  and  returned 
again  to  the  canal  at  Joliet?  Let  it  be  admitted  that  it  k 
surplus  water  not  required  for  navigation,  and  which  when 
it  reaches  the  terminus  of  the  Summit  Level  must  be  got  rid 
of  so  far  as  the  exigencies  at  that  point  on  the  canal  are  con- 
cerned. The  capacity  of  the  canal  we  know  is  wholly  insuf- 
ficient to  hold  it.  And,  we  admit  further,  that  if  the  State, 
in  adopting  its  plan  of  canal  administration  and  manage- 
ment, has  no  power  to  assert  a right  to  the  use  of  water  for 
hydraulic  purposes  merely,  and  indeed  to  assert  it  as  a right 
just  as  perfect  and  absolute  as  its  right  to  control  of  water 
for  purposes  of  navigation,  then,  when  once  detached  from 
the  channel  of  the  canal  the  continuity  of  its  relations  to 
the  canal  is  finally  and  irreclaimably  severed.  But  if,  on 
the  other  hand,  the  creation  and  utilization  of  water  power, 
wherever  practicable,  is  just  as  much  a branch  of  our  recog- 
nized and  established  canal  policy  as  navigation  itself,  and 
the  income  derivable  from  it  just  as  legitimate,  desirable  and 
customary  a source  of  revenue  as  tolls  and  transportation; 
and  if,  therefore,  there  is  the  same  occasion  for  asserting  the 
rights  of  the  State  to  the  control  of  the  water  with  respect 
to  the  one  object  as  with  respect  to  the  other,  then  we  submit 

6270  that  the  appellee,  in  order  to  maintain  his  proposition,  that 
the  State  has  lost  its  rights  in  this  case,  must  establish  either 

that  there  was  an  actual  intention  to  abandon,  or  whatever  the 
intention,  that  the  surplus  water  was  suffered  to  mingle  with 
the  natural  flow  of  the  river  under  such  conditions,  that  when 


1835 


it  again  was  restored  to  the  canal  above  Dam  No.  1,  it  had 
become 

(13) 

with  reference  to  appellee’s  right,  irrevocably  incorporated 
with  the  natural  flow  of  the  Desj^laines. 

We  shall  assume,  what  we  hereafter  will  attempt  to  prove, 
that  water  available  for  hydraulic  purposes  at  its  points  of  de- 
scent from  one  level  to  another  is  to  be  deemed  water  be- 
longing to  the  canal  in  the  same  sense  as  water  required 
for  navigation. 

But  it  may  so  happen,  if  the  rights  of  the  State  to  the 
water  can  be  upheld  for  the  whole  distance,  say  from  Norton’s 
mill  at  Lockport  to  Druly’s  mill  at  Joliet,  that  the  same 
water  may  be, susceptible  of  repeated  use  on  successive  levels. 
And  if  it  can  be  so  repeatedly  used  before  finally  passing  from 
the  domain  of  the  State,  it  assuredly  is  the  duty  of  the  com- 
missioners to  reap  to  the  full  benefit  of  that  repeated  use. 
If  they  had  the  legal  right,  it  was  as  much  their  duty  to  lease 
this  water  to  Slater  and  Druly  at  the  tliiyd  fall  as  it  was  to 
lease  to  Norton  & Co.  at  the  first  fall.  No  one  will  deny, 
the  opinion  of  the  court  does  not  question,  but  that  if  the  sur- 
plus had  been  discharged  into  a channel  belonging  to  the 
6271  State  connecting  the  summit  level  with  the  upper  level  at 
Joliet  and  constructed  for  that  very  purpose,  the  rights  of 
the  State  would  have  been  preserved.  The  mere  fact  of  trans- 
mission from  one  level  to  another  cannot  affect  the  right.  It 
is  the  mode  or  process  of  transmission  which  presents  the 
question. 

What  is  there  in  this  mode  of  passing  the  water  from  one 
point  to  another  on  the  canal,  which  is  supposed  to  sever 
the  right  of  the  State  to  it'?  Simply  this.  At  Lockport  the 
river  is  lower  than  the  canal  ; at  Joliet,  at  the  point  of  inter- 
section, the  canal  is  lower  than  the  river.  At  Lockport,  the 
surplus,  which  we  admit  must  be  got  rid  of  there  in  some 

(14) 

way,  is  discharged  into  channels  which  lead  down  to  the 
Desplaines,  not  far  distant.  But  when  discharged,  the  rela- 
tive course  and  comparative  levels  of  the  two  water  courses 
are  such,  that  it  is  destined  to  rejoin  the  canal  on  the  5th 
level  below  the  summit  level,  that  is,  on  the  level  between 
Lock  No.  4 and  Dam  No.  1.  It  thus  leaves  the  canal  under 
the  necessary  concomitant  condition  of  returning  to  the  canal 
and  of  returning  to  it  before  the  beneficial  rights  of  the  ap- 
pellee, as  a lower  riparian  proprietor,  become  involved.  If 
abandonment,  in  the  sense  in  which  the  term  is  here  used,  de- 
pends at  all  on  intention^  we  absolutely  know  from  the  origi- 


18o6  Pei.  for  Rehearing,  Sup.  Ct. — Driiley  vs.  Adam. — Con. 

nal  plan  of  the  canal  itself,  that  there  was  not  and  could  not 
be  any  intention  on  the  part  of  the  State  to  abandon  the 

6272  water  at  Lockport  irreclaimably  to  public  use,  save  for 
the  distance  between  the  two  levels.  If,  then,  by  a physical 

necessity,  the  water  was  to  return  to  the  possession  of  the 
State,  is  it  not  impossible  to  successfully  maintain  that  it  was 
intentionally  abandoned? 

Thus  the  question  narl-ows  itself  to  this  single  point:  Sup- 

posing that  the  State  intended  to  assert  whatever  legal  rights 
she  had  or  might  have  in  this  water  after  it  should  have 
been  restored  to  the  canal,  does  the  fact  of  its  previous  trans- 
mission from  the  one  point  to  the  other  through  the  medium 
of  the  Desplaines  Kiver,  a channel  not  belonging  to  her,  pre- 
clude her  claim? 

We  must  again  respectfully  insist  that  it  does  not.  Why 
should  this  circumstance  have  the  least  significance  upon  the 
rights  of  the  State  as  against  the  appellee,  a lower  riparian 
proprietor?  The  river,  it  will  be  borne  in  mind,  was  already 
appropriated  to  the  use  of  the  State  as  a Feedek,  and  so 
expressly  recognized  by  the  Havens  themselves.  (Eec.,  p. 
26;  Abst..  p.  6.) 

(15) 

How  and  when  originally  appropriated  to  that  use,  as 
against  the  riparian  owners  between  Lockport  and  Joliet, 
does  not  appear;  whether  by  condemnation  or  by  voluntary 
grant.  Nor  is  it  necessary  to  know.  The  grantors  of  the 
appellee  have  recognized  the  fact  that  it  was  a Feedek,  with 
all  the  rights  to  the  State  which  the  term  implies,  as  against 

6273  all  parties  above  Dam  No.  2.  The  channel  was  hers,  then, 
quite  as  effectually,  so  far  as  concerns  the  questions  in  this 

case,  as  if  she  had  owned  the  lands  on  both  banks,  as  indeed 
she  did  for  a good  part  of  the  way,  which  crosses  sections 
23  and  27  in  Lockport  and  3 in  Joliet — odd  numbered  and 
therefore  canal  sections.  If  she  owned  or  controlled  this  part 
of  the  channel  as  a feeder,  how  does  it  lay  in  the  mouth  of 
the  appellee  to  ^say  that  the  State  could  not  use  it  to  carry 
the  surplus  water  in  question  as  well  as  the  natural  flow  of 
the  stream?  For  what  reason  which  can  commend  itself  to 
the  good  sense  of  the  court  can  he  claim  that  that  part  of 
the  water  which  comes  into  the  upper  basin  through  the  river 
is  in  any  different  legal  predicament  from  that  part  that  de- 
scends through  the  locks?  For,  obviously,  the  one  part 
is  no  more  certainlv  destined  to  rea]:>pear  within  the  walls 
of  the  canal  than  the  other  is  to  flow  down  between  those 
walls. 

Therefore  we  again  maintain  that  the  case  in  all  its  essen- 
tial features  is  the  same,  when  we  reach  Dam  2,  as  if  the 


18:37 


water  in  dispute  liad  flown  continuously  all  the  way  through 
the  canal  itself  to  the  pool  or  basin  above  Dam  No.  1,  where 
the  canal  intersects  the  river. 

Here  for  the  first  time  the  canal  and  river  are  mingled  to- 
gether and  flow  in  a common  channel,  and  here  the  main  is- 
sue develops  itself  in  a distinct  form.  As  between  A,  an 
upper,  and  B,  a lower  riparian  owner  upon  a natural  water 

6274  (16) 

course,  if  A on  his  own  premises  adds  to  its  flow  a reservoir 
or  stream  of  his  own,  can  he  again  take  out,  if  done  on  his 
own  premises,  what  he  brings  in,  provided  B’s  original  on 
natural  flow  is  not  diminished? 

Why  not?  Can  a single  reason  be  urged  against  the  propo- 
sition, founded  in  natural  justice?  Here  the  agreed  case 
informs  the  court  that  the  appellee  receives  double  the  amount 
of  water  he  had  before  his  purchase  from  the  Havens.  What 
claim  for  damages  can  be  rationally  stated  on  such  a state 
of  facts  as  this? 

On  this  point  we  do  most  earnestly  entreat  the  court  to 
again  review  and  consider  the  authorities  to  which  we  called 
its  attention  in  our  former  argument.  Let  the  California  au- 
thorities be  swept  aside  as  inapplicable,  although  we  cannot 
but  observe  that  the  learned  judge  who  writes  the  opinion  in 
this  case  himself  cites  a California  authority,  Eddy  v.  Simp- 
son, 3 Cal.,  p.  249.  There  still  remains  an  array  of  cases  sup- 
porting our  view  which,  as  we  humbly  think,  has  not  been 
overcome  or  even  shaken.  There  still  remains  the  funda- 
mental principle  regulating  the  mutual  rights  between  an  up- 
per and  a lower  riparian  proprietor,  that  the  lower  has  abso- 
lutely but  one  claim  against  the  upper,  and  that  is  to  deliver 
to  him,  unimpaired  in  quantity,  quality  and  conditions  of  fall, 
the  natural  and  customary  flow  of  the  stream.  Without  re- 
peating the  list  of  authorities  cited  in  our  first  brief,  we  beg 

6275  permission  to  again  call  attention  to  them  as  found  on  pages 
6,  7 and  8. 

The  system  of  aquatic  law  is  founded,  like  every  other 
branch  of  jurisprudence,  on  principles  of  natural  reason  and 
justice.  Were  it  res  nova,  what  court  would  for  a moment 
endure  this  claim,  which  rather  shows  impudence  and  in- 

(17) 

gratitude  than  violated  right?  What  right  has  the  appellee 
to  any  water  of  the  Desplaines  Biver  save  that  which,  in  the 
language  of  the  precedents,  could  be  described  as  immemor- 
ially  flowing  therein?  If  B gets  the  whole  natural  and  cus- 
tomary flow,  what  business  has  he  even  to  inquire  what  use  A 


1838  Pet.  for  Rehearing,  Sup.  Ct.—Drideg  vs.  Adam. — Con. 

chooses  to  make  of  his  portion  of  the  channel!  The  rights 
and  liabilities  deduced  from  a wrongful  confusion  of  goods 
afford  us  no  analogies  of  use  here.  The  identity  of  water 
as  a motive  power  can  never  be  of  any  consequence.  The 
rights  of  all  parties  concerned  may  be  fully  satisfied  by  equiva- 
lent quantities.  Where  in  joining  together  the  links  of  a 
chain  of  water  communication  it  becomes  necessary,  as  it 
often  does,  to  mingle  the  flow  of  different  water  courses, 
there  can  be  no  possible  cause  of  complaint  to  any  one  of  the 
parties  concerned  in  such  mingled  waters,  if  at  last  he  re- 
ceives his  full  share. 

The  learned  judge,  whose  opinion  we  are  presuming  to 
criticise,  from  imperative  demands  of  professional  duty  in  a 
most  important  case,  seems  to  regard  it  as  a doctrine  to  be 

6276  collected  from  the  authorities  that  where  an  upper  pro- 
prietor improves  the  flow,  from  an  artificial  or  foreign  source, 

although  for  his  ovti  purposes,  he  cannot  afterwards  with- 
draw it.  He  quotes  the  language  from  Angell,  which  we  had 
quoted  ourselves  in  our  first  brief,  p.  17,  and  which  is  again 
referred  to  and  explained  in  our  additional  brief,  p.  2.  It 
is,  in  fact,  a literal  quotation  from  the  opinion  in  Tourte- 
lotte  V.  Phelps,  4th  Gray,  376,  in  which  the  point  now  under 
consideration  was  not  even  hinted  at  by  the  court.  The  ques- 
tion there  was  whether,  in  case  A should  cause  an  improve- 
ment in  the  flow  of  a stream  by  storing  it  in  reservoirs,  the 
benefit  of  which  B below  necessarily  enjoyed,  he  (B) 

(18) 

should  by  reason  of  such  benefit  be  liable  for  damages  to 
the  owner  of  the  land  overflowed.  The  proposition  is  incorpo- 
rated by  Angell  in  the  text  of  his  work,  without  indicating 
the  special  facts  and  features  of  the  case  where  it  was  first 
expressed.  In  short,  we  venture  the  assertion  that  no  de- 
cision can  be  found  giving  countenance  to  the  doctrine  con- 
tended for,  save  that  of  Eddy  v.  Simpson,  one  of  those  very 
California  authorities  which  have  been  thrown  out  as  aliens 
from  the  discussion.  In  our  ‘^Additional  Argument”  we 
quoted  at  length  from  the  three  leading  cases  of  Whittier 
V.  Cocheca  Mfg.  Co.  (N.  H.),  Elliott  v.  Eitchhiirg  R.  R.  Co. 
(Mass.),  and  Society  for  Mfg.,  Sc.,  v.  Morris  Canal  Co.  (X. 

^ J.).  Where,  we  ask,  has  any  one  of  these  decisions  been  re- 

ferred to  doubtingly  or  disapprovingly  by  any  text  writer 

6277  or  by  any  court  or  any  judge!  And  where,  save  in  Eddy 
V.  Simpson,  can  a decision  be  found  that  directly  controverts 
our  theory!  What  court  has  said  that  an  upper  proprietor, 
who  adds  by  artificial  means  water  to  the  stream  with  intent 
to  take  it  out  again  within  his  own  domain,  may  not  do  so, 
provided  he  does  not  withhold  the  natural  and  customary 
flow  from  his  neighbor  below! 


1839 


III. 

It  seems  to  us  that  the  court  has  entirely  misconceived  the 
positions  which  we  assumed  in  the  argument  of  this  case.  It 
is  said  in  the  opinion  that  there  is  no  property  in  running 
water.  It  is  like  a wild  animal.  If  the  first  captor  permits 
it  to  escape,  it  is  liable  to  be  seized  by  another,  and  thereby 
become  the  property  of  the  second  captor. 

We  are  well  aware  that  the  doctrine  is  thoroughly  estah- 

(19) 

lished  that  there  is  no  property  in  the  natural  waters  of  a 
running  stream;  that  all  the  riparian  proprietors  can  claim 
is  the  use  thereof.  Such  use  must  be  a reasonable  use,  and 
of  such  a character  as  not  seriously  to  inconvenience  the  lower 
riparian  proprietor,  or  to  interfere  with  a like  use  of  the 
same  waters  by  him.  This  doctrine  has  not  only  been  thor- 
oughly settled  by  this  court,  but  the  same  view  has  been 
adopted  by  every  tribunal  that  has  ever  been  called  upon  to 
pass  upon  this  (piestion,  and  we  certainly  never  intended  to 
be  understood  as  controverting  it.  Neither  do  we  intend  to  be 
6278  understood  as  controverting  the  doctrine  that  in  addition  to 
the  natural  waters  of  a stream  the  several  ri])arian  proprie- 
tors are  entitled  to  the  use  of  all  the  water  that  may  have 
been  added  to  the  natural  waters  of  the  stream  by  other  ri- 
parian proprietors,  by  the  draining  of  mines,  or  other  sources 
of  like  character,  unless  the  same  or  a like  quantity  has  been 
withdrawn  from  the  stream  hy  the  person  supplying  the  same 
before  it  comes  into  the  })ossession  of  the  servient  riparian 
proprietor.  Neither  do  we  contend  that  any  ])erson  has  a 
right,  to  the  detriment  of  other  riparian  })roprietors,  to  with- 
draw from  the  stream  itself  any  water  that  has  thus  been* 
added  by  any  person,  other  than  he  who  soeks  thus  to  with- 
draw it. 

In  other  vcords,  if  A.  B,  C and  D are  riparian  proprietors 
in  the  order  named,  and  A,  by  a drainage  of  mines  or  other 
means,  adds  to  the  waters  of  the  stream,  and  the  waters  thus 
added  pass  from  the  premises  of  A to  those  of  B,  B would 
have  no  right  to  withdraw  tlie  waters  thus  added  by  A by 
artificial  means,  to  the  detriment  of  C and  D,^the  servient 
riparian  pro])rietors,  and  no  matter  for  what  purpose  A may 
have  added  the  waters  to  the  stream  by  artificial  means  he 
has  an  undoubted  right  to  withdravc  the  waters  thus  added 

(20) 

while  the  same  are  in  his  })ossession,  and  by  doing  so  h^ 
does  no  injury  to  the  lower  riparian  proprietors,  for  they  get 


1840  Pet.  for  Rehearing,  Sup.  Ct. — Druleg  vs.  Adam. — Con. 

all  that  they  are  entitled  to.  A has  simply  added  to  the 
stream  upon  his  own  premises  and  withdrawn  therefrom  a 
6279  like  quantity  to  that  added,  and  in  so  doing  has  injured  no 
one. 

We  can  perhaps  illustrate  the  idea  we  desire  to  advance  by 
the  accompanying  diagram  showing  an  imaginary  stream  upon 
which  A,  B,  C and  D are  supposed  to  be,  in  the  order  named, 
riparian  proprietors  and  severally  owning  mill  sites  upon  the 
supposed  stream. 


6280  (Said  diagram  ajq:>ears  upon  opposite  page.) 


1841 


Pet.  for  B^eJicaring,  Sup.  Ct. — Druley  vs.  xidam. — Con.  184o 

(21) 

6281  If  A on  his  own  territory  introduces  water  by  artificial 
means  for  his  individual  use,  he  would  undoubtedly  be  en- 
titled to  withdraw  a like  quantity  at  any  time  before  the 
water  thus  added  had  passed  from  his  premises  to  those  of 
B,  and  neither  of  the  servient  riparian  proprietors  could  com- 
plain of  such  withdrawal ; but  B would  not  have  the  right  to 
withdraw  the  water  thus  added  by  A to  the  detriment  of  C 
or  D.  Suppose,  however,  A becomes  seized  of  C’s  mill  site 
and  water  privileges ; thus  uniting  in  one  person  the  mill  sites 
A and  C,  and  A should  desire  to  allow  the  water  he  had  ad- 
ded by  artificial  means  to  pass  through  the  bed  of  the  stream 
over  B’s  mill  site.  In  such  case,  B,  from  the  position  he  oc- 
cupies, would  necessarily  enjoy  the  benefit  of  the  water  ad- 
ded by  A as  it  passed  over  his  premises;  but  would  D have  a 
right  to  insist  upon  the  same  benefits  enjoyed  by  B!  On  the 
contrary,  would  not  A have  the  same  right  to  withdraw  the 
water  thus  added  by  him,  if  he  saw  fit  to  do  so,  upon  his 
newly  acquired  property,  the  mill  site  formerly  owned  by 
Cf  It  seems  to  us  he  would.  Naturally  justice  so  indicates, 
and  we  undertake  to  say  that  no  authority  ancient  or  modern 

. holds  to  a contrary  doctrine. 

The  ancient  English  authorities  cited  in  our  former  briefs 
fully  sustain  the  position  we  here  assume,  and  they  are  in 
full  accord  with  the  American  cases  on  this  subject,  and  a 
careful  persual  of  those  authorities  will  sustain  our  position. 

6282  In  several  of  these  English  cases  it  is  held,  under  circum- 
stances similar  to  the  supposed  case,  that  A,  the  person  thus 

contributing  by  artificial  means  to  the  flow  of  water  in  a 
running  stream,  has  a right  to  withdraw  the  same  on  his  own 
premises.  But  if  A does  not  see  fit  to  withdraw  the  same 
then  he  is  held  to  have  contributed  the  water  to  the  stream 
for  the  common  benefit  of  all  servient  riprian  proprietors. 

(22) 

IV. 

The  learned  Judge  who  wrote  the  opinion  filed  in  this  case 
cited  several  authors  and  cases  to  the  effect  that  a lower 
riparian  proprietor,  from  his  position,  necessarily  enjoys  the 
benefits  of  any  improvements  made  by  an  upper  proprietor, 
eitlier  by  making  reservoirs  whereby  the  water  is  preserved 
for  seasons  of  low  water,  or  by  flowing  increased  areas  of 
land.  This  doctrine  we  do  not  seek  to  controvert.  The  lower 
riparian  proprietor  is  undoubtedly  entitled  to  all  such  bene- 
fits as  he  necessarily  enjoys,  nor  can  he  be  held,  against  his 
will,  to  contribute  to  the  expense  of  the  improvements  thus 


1844  Pet.  for  Rehearing , Sup.  Ct. — Druley  vs.  Adam. — Con. 

made,  nor  is  he  liable  for  damages  caused  by  flowing  increased 
areas  of  land,  if  he  took  no  part  in  causing  the  same. 

But  this  doctrine  is  not  applicable  to  the  case  at  bar.  If 
there  was  a mill  at  Daggett’s  mill  site  (but  there  is  not)  Dag- 
gett would  necessarily  enjoy  the  benefit  of  the  increased  flow 
of  water;  but  that  furnishes  no  reason  why  appellee  should. 

6283  These  authorities  only  refer  to  cases  where  the  upper  ripar- 
ian proprietor,  in  making  improvements  to  his  own  prop- 

. erty,  is  unable  to  reap  the  benefit  thereof  without  at  the  same 
time  conferring  a benefit  upon  the  lower. 

For  instance,  each  riparian  proprietor  is  entitled  to  the 
use  of  all  the  water  naturally  flowing  in  the  stream.  If  the 
upper  proprietor  preserves  the  same  in  reservoirs  against 
seasons  of  low  water,  he  preserves  water  that  in  a state  of 
nature  is  accustomed  to  flow  in  the  channel  of  the  stream  and 
to  the  use  of  which  the  lower  proprietor  is  entitled;  and  in 

(23) 

preserving  it  for  himself  he  necessarily  preserves  it  for  those 
below  him. 

There  is  no  authority  holding,  however,  that  the  lower 
proprietor  is  necessarily  entitled  to  the  benefit  of  water  arti- 
fically  added  to  the  stream,  if  the  upper  proprietor  withdraws 
the  same  before  it  comes  to  the  servient  estate — not  one; 
and  we  think  we  speak  advisedly  in  asserting  this. 

The  upper  proprietor  has  no  right  to  withdraw  the  natural 
waters  of  the  stream  to  the  injury  of  the  lower ; but  no  case 
can  be  found  ivhere  it  has  been  held  he  has  no  right  to  with- 
draw a like  quantity  to  that  tvhich  he  has  added  to  the  stream 
by  artificial  means,  if  he  does  so  before  such  waters  come 
into  the  possession  or  upon  the  premises  of  the  lower  prop- 
rietor. 

There  is  a broad  and  clear  distinction  between  improve- 
ments made  whereby  the  natural  waters  of  the  stream  are 

6284  preserved  against  seasons  of  drought,  the  benefits  of  which 
from  the  nature  of  things  must  be  enjoyed  by  the  lower 
proprietor,  and  improvements  made  which  by  artificial  means 
adds  to  the  volume  of  quantity  of  water  in  the  stream. 

The  lower  proprietor  is  by  law  entitled  to  the  use  of  all 
the  water  naturally  flowing  in  the  stream,  and  cannot  with- 
out his  consent  be  deprived  thereof;  but  he  is  not  entitled 
necessarily  to  water  added  by  an  upper  proprietor  unless 
the  upper  proprietor  thus  adding  the  same  abandons  it  to 
his  use;  and  he  certainly  cannot  be  held  to  so  abandon  the 
same  if  he  withdraws  it  on  his  own  premises  before  it  reaches 
such  lower  proprietor. 


1845 


V. 

A riparian  proprietor  takes  his  estate  subject  to  the  ease- 
ment of  the  stream.  He  may  not  desire  to  use  the 

(24) 

water.  The  stream  may  be  a nuisance  to  him,  and  yet  he  is 
bound  to  permit  the  stream  to  flow  through  his  premises  so 
as  to  reach  those  of  the  lower  proprietor  in  the  accustomed 
channel  of  the  stream.  He  would  have  no  right  to  divert  the 
stream  at  the  point  where  it  first  enters  his  premises  so  as  to 
prevent  it  from  passing  to  those  below  him.  While  his  es- 
tate is  charged  with  this  easement,  it  is  onlg  charged  to  the 
extent  necessary  to  carry  off  the  water  naturally  flowing  into 
the  stream.  If  the  channel  of  the  stream  is  barely  sufficient 
to  carry  off  the  water  naturally  flowing  into  the  stream,  any 

6285  one  adding  to  such  natural  flow  of  water  and  thereby  caus- 
ing damage  to  him  can  be  held  responsible. 

It  is  well  said  he  is  entitled  to  the  use  of  the  waters  natur- 
ally flowing  in  the  stream,  and  any  one  materially  interfering 
therewith  can  be  made  to  respond  in  nominal  damages  at 
least;  and  with  just  as  much  force  can  it  be  said  that  any 
one  who  materially  adds  to  the  burden  of  this  easement  upon 
his  estate  can  be  made  to  respond  in  nominal  damages  at 
least,  and  if  the  person  who  has  added  to  the  natural  waters 
of  a stream  and  thereby  increased  the  burden  shall  withdraw 
a like  quantity  of  water  before  it  passes  upon  the  premises 
burdened  with  the  easement,  the  owner  of  such  premises 
could  not  complain,  for  by  such  withdrawal  he  has  suffered 
no  damage,  the  burden  has  not  been  increased. 

Suppose  in  the  case  at  bar  Adams  had  all  the  water  he 
could  use,  all  that  the  capacity  of  the  stream  could  accommo- 
date, and  that  the  commissioners,  by  turning  this  large  quan- 
tity of  water  into  the  river  and  permitting  the  same  to  flow 
down  and  upon  his  premises,  had  caused  him  a serious  dam- 
age, would  any  one  deny  his  legal  and  equitable  right  to  re- 
cover for  such  damage! 

(25) 

We  cannot  compel  him  against  his  will  to  take  any  addi- 
tional burden  upon  his  estate,  and  this  additional  water  might, 
under  some  circumstances,  be  a serious  additional  burden. 
Nor  can  he  compel  us  to  permit  him  to  receive  the  benefit  of 

6286  our  improvements.  ^ 

The  illustration  referred  to  by  the  learned  Judge  who 
wrote  the  opinion  in  this  case,  wherein  he  compared  the  title 
to  running  water  to  the  case  of  the  capture  of  wild  animals, 
is  a peculiarly  happy  one  for  our  purpose.  We  will  suppose 
the  Canal  Commissioners  have  a close  at  Lockport  wherein 


1846  Pet.  for  Pieliearing , Svp.  Ct. — Druley  vs.  Adam. — Con. 

they  keep  a herd  of  wild  animals,  i.  e.,  the  water  of  Lake 
Michigan,  which  at  great  expense  they  have  captured  and 
brought  to  that  point;  they  voluntarily  allow  this  herd  to 
escape  and  go  across  a close  not  owned  by  them,  but  inter- 
vening between  their  close  at  Lockport  and  another  close 
owned  by  them  at  Joliet.  It  is  true  the  herd  is  going  in  the 
direction  of  appellee’s  close,  and,  but  for  the  act  of  the  Canal 
Commissioners,  would  all  eventually  have  reached  it;  but  as 
soon  as  it  enters  upon  the  close  of  the  Canal  Commissioners 
at  Joliet  they  re-capture  a part  of  the  herd,  but  upon  their 
own  premises,  and  by  reason  of  such  re-capture  only  a por- 
tion of  them  reach  appellee’s  close.  As  we  undoubtedly  had 
a right  to  capture  the  whole  herd,  ought  appellee  to  complain 
because  we  permit  him  to  capture  a part!  But  if  a portion  of 
the  herd  that  does  come  upon  appellee’s  close  damage  him, 
the  commissioners  would  undoubtedly  be  liable  for  permitting 
the  escape. 

There  is  nothing  so  mysterious  about  water  after  all,  if 
we  will  only  carefully  and  soberly  consider  the  subject. 

6287  So  far  as  its  use  is  concerned,  which  is  all  the  right  man 
can 

(26) 

(from  the  character  of  the  fluid)  have  in  running  water,  we 
should  apply  the  common  rules  of  law  governing  other  simi- 
lar rights.  A riparian  proprietor  has  only  a right  to  the  use 
of  a like  quantity  to  that  which  naturally  flows  to  him,  and 
if  he  gets  that  he  is  uninjured. 

VI. 

We  earnestly,  but  respectfully,  again  ask  the  court  to  re- 
view the  authorities  cited  in  our  former  arguments,  for  we 
are  firmly  convinced  those  authorities  have  been  miscon- 
ceived by  the  court.  If  we  are  capable  of  comprehending 
them,  they  fail  to  support  the  opinion  filed,  but  do  support 
the  positions  assumed  by  us.  We  never  thought  of  contro- 
verting some  of  the  positions  it  seems  to  be  assumed  we  de- 
nied ; never  for  a moment  supposed  man  could  have  any  prop- 
erty in  running  water  itself;  and  never  supposed  one  man 
could  withdraw  to  the  detriment  of  those  below  him  water 
added  by  another. 

We,  however,  insist  that  no  authority  can  he  found  de- 
nying to  a man  the  right  of  withdrawing  any  water  he  may 
have  added  to  the  volume  of  a stream,  if  he  does  so  before  it 
comes  upon  the  premises  or  into  the  possession  of  a lower 
proprietor,  and  what  was  said  by  Mr.  Justice  Scolfield,  by  way 
of  argument,  in  the  Batavia  ]\ranufacturing  Co.  case,  91  Ilk, 
230,  ap])lied  to  a case  where  the  additional  water  had  reached 


1847 


the  common  dam,  and  hence  the  joint  possession  of  both  par- 

6288  ties.  There  being  no  authority  to  the  contrary,  it  is  against 
natural  justice  to  deny  to  a party  thus  adding  waters  to  a 

stream  the  privilege  of  withdrawing  the  same;  for  by  sucli 
withdrawal  he  harms  no  one.  On  the  contrary,  several 

(27) 

of  these  authorities  distinctly  assert  the  right  of  such  with- 
drawal, and  this,  too,  notwithstanding  the  added  waters  have 
been  permitted  to  flow  to  the  lower  proprietor  for,  in  some 
cases,  sixty  years.  That  is,  the  lower  proprietor  can  acquire 
no  interest  therein  by  prescription.  In  this  connection  we  de- 
sire to  call  the  particular  attention  of  the  court  to  our  ad- 
ditional argument,  filed  in  this  case,  pp.  28  to  27,  and  to  the 
authorities  there  cited. 

Some  of  the  text  books  do  not  seem  to  make  the  distinction 
we  seek  to  make,  that  is,  that  no  one  except  the  person  ad- 
ding to  the  volume  of  the  stream  has  a right  to  withdraw  the 
water  added;  and,  from  a casual  reading  of  the  text,  the 
court  might  well  conceive  that  the  language  used  applied  to 
all  alike;  but  a careful  and  critical  examination  will  show 
that  the  rule  adopted  by  the  text  books  as  to  the  withdrawal 
of  artificially  added  water  only  applies  to  persons  other  than 
those  adding  the  same.  With  this  distinction  in  view,  the  doc- 
trine is  in  harmony  with  the  principles  of  natural  justice; 
but,  if  the  distinction  is  ignored,  the  rule  is  inequitalhe  and 
unjust. 

In  the  case  previously  supposed  of  successive  riparian 
proprietors  A,  the  upper  proprietor,  adds  water  to  the 

6289  stream,  which  he  permits  to  flow  over  B’s  premises.  B con- 
siders it  a benefit  and  does  not  complain.  C may  consider  it 
and  it  may  in  fact  be  a serious  damage  to  him.  And  D,  on 
the  contrary,  may  consider  it  a benefit.  To  avoid  a suit  from 
C he  must  withdraw  the  water  before  it  enters  upon  his  prem- 
ises. And  if  the  position  of  appellee  is  correct,  to  avoid  a 
suit  by  ]),  the  lower  proprietor,  he  must  again  restore  the 
artificially  added  water  to  the  bed  of  the  stream  before  it 
comes  upon  D’s  premises,  which  might  be  impossible,  and, 

(28) 

whether  possible  or  impossible  is  absurd.  An  examination 
of  the  cases  cited  in  support  of  the  rule  enunciated  by  the 
text  books  shows  that  such  rule  does  not  and  is  not  intended 
to  apply  to  the  person  who  has  caused  the  water  to  be  added 
to  the  stream,  provided  he  withdraws  the  same  before  it 
comes  into  the  possession  of  the  lower  proprietor  complain- 
ing of  the  withdrawal;  but  is  only  intended  to  apply  to  cases 
where  such  withdrawal  is  made  by  some  one  who  has  not 
contributed  to  the  increased  supply. 


1848  Pet.  for  Rehearing,  Sup.  Ct. — Druley  vs.  Adam. — Con. 


VII. 

The  learned  Judge,  who  speaks  for  the  court,  has  sought  to 
distinguish  the  case  at  bar  from  the  operation  of  the  New 
Hampshire,  Massachusetts  and  New  Jersey  authorities  we 
had  cited,  upon  the  ground,  as  we  understand  him,  that  the 
party  in  each  instance  who  withdraws  the  water  he  had  him- 
self contributed  from  an  exterior  source,  held  the  status  of 

6290  riparian  proprietor  continuously  from  the  point  of  intro- 
duction to  the  point  of  discharge;  that  the  whole  series  of 

operations  was  embraced  under  a single  plan;  and  that  the 
processes  of  addition  and  subtraction  were  to  be  treated  as 
concurrent  and  simultaneous  acts.  We  must  entreat  the 
court,  with  all  deference,  to  review  its  reasoning  upon  this 
point. 

In  our  first  argument  (p.  31)  we  had  presented  with  as 
much  fullness  as  we  thought  necessary  our  position,  that  the 
whole  plan  of  the  canal  was  to  be  surveyed  as  a unit.  Any 
two  levels,  whether  contiguous  or  not,  or  however  remote 
from  each  other,  were  members  of  the  same  integral  system  of 
water  communication.  Not  only  so,  but  the  physical  features 
of  the  region  wliich  it  traversed,  its  hills  and  valleys 

(29) 

and  interseeting  streams,  were  constituent  ingredients  and 
elements  of  that  plan,  which  must  have  been  consulted  by  the 
engineer,  and  every  stone  in  every  structure  of  the  whole 
work  from  terminus  to  terminus  was  laid  with  an  eye  to  the 
exigencies  dictated  by  these  contiguous  localities.  Thus,  ac- 
cording to  the  original  plan,  as  we  know,  (because  it  was  an 
inevitable  necessity  of  the  case,)  provision  was  made  to 
discharge  the  surplus  water  from  the  Summit  Level  and  re- 
ceive it  again  on  the  Fifth  level  below.  And  the  Desplaines 
River  was  engrafted  upon  that  original  plan,  not  only  as  a 
feeder  to  supply  its  own  waters,  but  as  a connecting  link  be- 
tween these  two  levels.  With  or  without  due  authority  by 

6291  previous  legal  proceedings  for  the  appropriation  of  it  to 
public  use,  it  was  in  fact  ah  initio  enlisted  into  the  service  of 

the  canal  for  this  needful  double  service.  So  far,  therefore, 
as  plan  is  concerned,  there  can  be  no  doubt  that  the  Desplaines 
River  from  a point  opposite  the  hydraulic  basin  at  Lockport 
to  the  point  of  intersection  at  Joliet  was  practically  made  an 
auxiliary  and  adjunct  to  the  canal.  And  now  for  more  than 
thirty  years  the  state  has  exercised,  without  complaint  or 
challenge  from  anybody,  so  far  as  these  uses  are  concerned, 
unlimited  and  uninterrupted  control.  Is  the  court  now  pre- 
])ared  to  say  that  the  state  had  no  jurisdiction  over  it  in  its 
character  as  a feeder  between  the  points  mentioned?  Cer- 


1849 


tainly  not.  But  if  she  should  undeniably  use  the  channel  as 
a feeder,  to  convey  its  own  proper  \vaters  to  the  canal,  is 
it  not  rather  fine-spun  reasoning  which  would  deny  to  her  the 
right  to  employ  it  also  for  the  homogeneous  use  of  carrying 
her  own  surplus  from  the  Summit  Level  to  a lower  level, 
where  it  could  be  again  received  and  again  applied  to  use- 
ful canal  purposes?  In  short,  by  any  rational  tests,  is  the 
unitv  of 

(30) 

possession  in  the  state  broken,  as  the  opinion  seems  to  sup- 
pose? 

We  beg  further  to  remind  the  court  that  there  has  never 
been  the  least  change  in  the  original  plan  in  any  particular. 
What  it  was  in  1836  such  it  was  in  1848,  when  the  shallow 

6292  cut  was  adopted,  and  such  it  continued  to  be  when  the  deep 
cut  was  commenced  in  1871.  The  process  has  been  and  of 

course  always  must  be  precisely  the  same.  Xo  other  is  pos- 
sible, unless  the  state  should  resort  to  the  absurd  expedient 
of  constructing  a channel  of  her  own  to  convey  the  surplus 
water  between  the  points  in  question.  We  liave  so  often  and 
so  amply  quoted  from  the  New  Hampshire,  Massachusetts 
and  New  Jersey  cases  that  we  again  venture  to  refer  to  them 
only  to  remark  that  we  believe  the  court  will  find  on  a critical 
re-examination  that  in  none  of  them  did  the  upper  owner, 
making  and  subsequently  withdrawing  an  addition  to  the  flow 
of  the  natural  stream  occupy  the  position  of  riparian  pro- 
prietor continuously  for  the  whole  distance  between  the  points 
of  entrance  and  exit.  This  certainly  was  not  the  case  in 
Whittier  v.  Coclieco  Mfg.  Co.;  for  in  that  case,  as  the  record 
clearly  shows,  Whittier  was  a riparian  proprietor  upon  one 
side  of  the  stream,  at  a point  midway  between  defendant’s 
reservoir  and  their  mill,  and  when  the  water  supplied  by  arti- 
ficial means  from  Bow  Pond  (defendant’s  reservoir)  arrived 
at  the  dam  at  Waldron’s  Falls,  commingled  as  it  was  with  the 
natural  waters  of  the  stream,  it  was  in  the  joint  possession 
of  Whittier  and  the  defendant.  And  yet  the  defendant  was 
held  entitled  to  a like  quantity  of  water  to  that  supplied  by 
him  from  Bow  Pond  without  permitting  Whittier  the  use 

6293  thereof,  and  this  too  when  upon  its  arrival  at  Waldron’s 
Falls  it  was  in  the  joint  possession  of  Whittier  and  the  de- 
fendant. 

(31) 

VIII. 

The  opinion  says  for  a distance  of  near  three  miles  the 
waters  pass  over  soil  owned  by  other  parties  than  the  state 
or  Canal  Trustees,  or  commissioners,  among  whom  is  the 


1850  Pet.  for  Rehearing,  Sap.  Ct. — Druleg  vs.  Adam. — Con. 

owner  of  a mill  at  whicli  these  waters  are  used,  known  as 
Daggett’s  Mill,  a short  distance  below  Lockport.  The  odd 
sections  belong  to  the  state,  so  that,  as  will  be  seen  by  the 
map,  the  distance  in  which  the  river  passes  over  soil  not 
owned  by  the  state  is  overstated.  Xor  does  the  record  show 
that  there  is  any  mill  at  the  point  marked  ‘‘Daggett’s  Mill,” 
on  the  map.  Daggett’s  Mill  is  marked  upon  the  map  as  be- 
ing on  Sec.  22.  The  record  makes  no  mention  of  any  mill  ex- 
cept on  Sec.  23, — an  odd  section.  See  Circuit  Court  Eecord, 
p.  22;  Abst.,  in  Appellate  Court,  p.  4.  AYe  are  at  a loss  to 
conceive  how  these  facts  change  the  rights  of  the  Canal  Com- 
missioners, or  of  the  state,  so  long  as  the  water  is  withdraivn 
on  premises  owned  by  the  state;  but  as  it  is  mentioned  in  the 
opinion,  thought  best  to  allude  to  it.  As  a matter  of  fact, 
Daggett’s  Mill  has  been  abandoned  for  many  years.  Of 
course  the  record  does  not  show  this;  neither  does  it  show  that 
Daggett’s  iMill  is  or  ever  has  been  in  operation. 

IX. 

6294  The  cases  of  The  City  of  Chicago  v.  Foney,  60  111.,  383,  and 
Chicago  v.  McGraiv,  75  Ilk,  566,  do  not,  as  we  conceive, 

shake  the  position  which  we.  assume,  that  the  deep  cut  was  in 
fact  the  wmrk  of  the  state.  It  is  true  the  doctrine  is  estab- 
lished that  Chicago  was  liable  for  the  carelessness  of  its  ser- 
vants and  employes  in  the  line  of  their  duty,  hut  that  is  no 

(32) 

neir  doctrine.  Xo  matter  what  the  relations  of  the  city  to 
the  state  were.  Xo  matter  if  the  city  was  willing,  for  rea- 
sons of  its  own,  to  advance  the  money  to  make  the  deep  cut. 
Xo  matter,  even  if  the  city  had  been  a simple  contractor  of 
the  state — and  that,  in  fact,  is  what  she  was — her  liability, 
under  the  facts  stated  in  Chicago  v.  Foney,  supra,  was  un- 
questioned. But  neither  of  these  cases  establish  any  interest 
in  the  canal  in  the  City  of  Chicago.  The  deep  cut  was  made 
in  ])ursuance  of  the  origincd  plan  adopted  in  1836,  was  a part 
and  parcel  of  that  plan,  the  entire  control  of  the  whole  canal, 
deep  cut  and  all,  was  retained  and  always  has  been  retained 
by  the  state.  The  state  has  repaid  the  city  for  its  outlays  as 
originally  contemplated,  and  the  lien  of  the  city  was  wholly 
released,  and  if  this  deep  cut  had  been  made  in  1836  the  bene- 
fits to  the  city  arising  therefrom  would  have  been  the  same. 
All  the  legislation  of  the  state  shows  that  the  dee])  cut  plan 
of  1836  Avas  never  abandoned,  except  temporarily,  and  in 

6295  1865  was  fully  revived.  The  City  of  Chicago  in  doing  the  work 
was  liable  for  damages  for  negligence  to  the  same  extent 

contractors  for  huilding  a railroad,  or  making  any  other  pub- 


18;3l 


lie  or  private  improveiiieiits,  are  liable,  and  to  no  greater  ex- 
tent, and  that,  as  we  understand  them,  is  the  only  question  de- 
cided in  those  cases. 

X. 

THE  DEEP  CUT. 

Our  opponents  had  made  a point  on  the  fact  that  the  deep 
cut  so-called  from  Chicago  to  Lockport,  which  had  been  com- 
menced by  the  state  in  1836,  according  to  the  original  plan, 
was  completed  in  1871  hy  the  City  of  Chicago,  the  admitted 
object 

(33) 

of  her  undertaking  being  simply  to  perfect  her  drainage  as 
a sanitary  measure.  We  replied  that  in  our  view  the  par- 
ticular causes  which  led  to  the  resumption  and  completion  of 
the  work  on  its  original  plan,  cut  no  figure  in  the  case.  The 
result  was  precisely  the  same  as  if  the  state  had  herself 
gone  on  and  consummated  the  work,  instead  of  being  driven  to 
a change  of  plan  in  1845.  If  the  state  had  done  it,  the  effect 
on  Chicago  drainage  would  have  been  precisely  the  same,  and 
doubtless  this  incidental  benefit  was  not  lost  sight  of  in 
forming  the  original  plan.  But  we  pray  the  court  to  look 
again  and  see  if  this  consideration  is  a factor  of  any  possible 
importance  in  the  problem.  The  point  is,  was  this  channel 
through  the  rock  carved  out  for  six  feet  below  the  sur- 
face of  Lake  Michigan  a part  of  the  canal  under  the  juris- 
6296  diction  of  the  Commissioners,  precisely  like  every  other  part, 
from  terminus  to  terminus?  Does  the  character  of  the 
water  that  flows  through  it  differ  in  the  least,  so  far  as  con- 
cerns the  right  of  the  state  to  control  it,  from  that  on  any 
other  level?  If  so,  we  have  yet  to  be  informed  in  what  par- 
ticular. Take  it  at  the  point  of  discharge  at  Lockport.  Does 
the  circumstance  that  in  its  flow  from  the  Chicago  Eiver  to 
that  point  it  incidentally  takes  along  the  filth  of  that  city, 
affect  in  any  way  whatever  the  rights  of  the  state  in  its  future 
direction  and  disposition?  When  it  reaches  Lockport  is  it 
in  any  different  legal  predicament  than  if  the  work  had  been 
done  by  the  state  in  1848?  Are  not  the  physical  agencies 
]:>roducing  the  result  the  same?  Does  or  did  the  municipal 
government  of  Chicago  exercise  the  least  jurisdiction  over 
this  part  of  the  canal,  either  jointly  with  or  exclusively  of  the 
Commissioners?  Even  before  the  cost  of  the  work  was  re- 
funded to  the  city  in  1871,  could  the  city  authorities  have  in- 
terfered 

(34) 

in  managing  or  regulating  the  water  on  the  Summit  Level  in 


1852  Pet.  for  Rehearing^  Sup.  Ct. — Druleg  vs.  Adams. — Con. 

any  event?  If  not,  as  clearly  they  could  not,  if  every  legal 
right  to  be  predicated  of  the  water  when  it  leaves  the  Hy- 
draulic Basin  at  Lockport,  and  all  the  authority  and  juris- 
diction of  the  state  over  it  with  reference  to  any  future  use 

6297  are  exactly  the  same  in  the  one  case  as  in  the  other,  we  ask, 
again,  of  what  significance  is  the  peculiar  history  of  the  im- 
provement? Suppose  it  to  be  true,  wdiich  is  not  true,  that  in 
the  x\ct  of  1865  the  General  Assembly  had  no  thought  of  the 
immense  additional  water  power  which  the  Deep  Cut  would 
furnish,  what  of  that?  Is  this  court  prepared  to  say,  in  order 
to  confirm  an  enormous  monopoly  in  the  hands  of  the  appel- 
lee, that  if  the  Canal  Commissioners,  the  stewards  of  this 
great  public  trust,  found  that  they  could  add  thousands  of 
dollars  to  the  revenue  of  the  canal,  by  creating  hydraulic  priv- 
ileges at  points  of  fall  well  fitted  for  such  use,  it  was  not  their 
bounden  duty  to  do  so?  And  will  it  be  said  that  it  is  not  uni- 
versally the  policy  of  canal  management  to  create  water 
power  wherever  it  can  be  done? 

But  in  point  of  fact,  the  engineer  who  planned  the  work  in 
1836  had  his  eye  constantly  and  intently  on  this  important 
source  of  income  for  the  support  of  the  canal.  Every  canal 
report  will  prove  this.  What  means  the  costly  hydraulic 
basin  at  Lockport?  and  what  mean  the  hydraulic  structure  at 
dam  No.  1 in  Joliet,  where  Hyde’s  mill  is  situated,  and  the 
structure  of  similar  design  at  dam  No.  2 in  Joliet? 

If,  in  the  original  plan  and  construction  of  the  canal,  the 
utilization  of  water  power  at  Joliet  was  as  much  contem- 

6298  plated  and  provided  for  as  at  Lockport,  how  can  it  be  said 
that  when  the  water  is  once  discharged  from  Norton’s  tail 

race  its  legitimate  use  for  water-power  purposes  was  ex- 
hausted? 

(35) 

Was  it  not  considered  that  the  same  water  used  at  Lockport 
at  the  first  fall  would  reappear  in  the  canal  at  Joliet  at  the 
second  fall,  and  still  again  reappear  at  the  third  fall,  and 
under  like  conditions  for  use  for  manufacturing  purposes? 
And  is  not  the  whole  plan  of  the  canal  to  be  comprehended 
in  one  view  as  a unit?- 

We  pray  the  court  to  review  its  conclusions  upon  this 
branch  of  the  case.  We  respectfully  ask  it  to  refer  again  to  the 
arguments  we  had  the  honor  to  present  at  the  hearing.  We  ask 
it  in  behalf  of  the  great  public  interest  struggling  against  a 
most  odious  monopoly  in  the  hands  of  an  individual  who  sup- 
ports his  pretensions  without  one  single  meritorious  consid- 
eration to  commend  them  to  favor  to  look  again  at  the  case 
and  see  if,  after  all,  the  theory  set  up  on  behalf  of  the  appel- 
lant was  not  substantially  correct.  To  sum  up,  waiting  other 
matters  ruled  against  us  and  which  we  do  not  deem  essen- 


1853 


tial,  we  ask  Your  Honors  to  reconsider  the  opinion  filed  in 
this  cause  upon  the  following  points : 

1.  Can  the  Havens  release,  by  any  construction  be  held 

6299  to  import  a claim  of  right  against  the  state  to  any  water  ad- 
ded by  artificial  means  to  the  natural  and  immemorial  flow 

of  the  Desplaines  Eiver  by  the  state? 

2.  Do  not  the  reports  of  the  court  in  5th  Gilman  and  11th 
II].,  supra,  sufficiently  demonstrate  that  no  such  claim  was 
ever  made  in  the  whole  course  of  the  litigation? 

3.  If  made,  can  a contract  in  relation  to  such  claim  in  1853 
be  construed  as  contemplating  and  embracing  the  state  of 
things  which  ensued  upon  a total  revolution  of  the  system 
of  supply  in  1871,  a revolution  altogether  superseding  the 
use  of  the  Desplaines  Elver  as  a feeder,  and  really  making 
the  canal  a most  copious  feeder  to  the  river? 

(36) 

4.  Again,  upon  the  supposition  that  the  Havens  in  their 
release  and  grant  did  intend  to  assert,  but  without  express- 
ing it  in  terms,  such  a claim  is  the  state  now  estopped  from 
contesting  it  by  reason  of  the  fact  of  accepting  the  grant, 
provided  it  does  not  appear  that  the  claim  was  made  mani- 
fest in  any  condition  annexed  to  the  grant,  and  was  never 
otherwise  recognized  by  the  trustee  or  since  1865  by  the  Canal 
Commissioners  ? 

5.  Could  the  Canal  Trustees  in  1853  bind  the  state  per- 
petually by  a contract,  the  operation  of  which  would  de- 
pend upon  a future  change  in  the  plan  of  the  canal  ? 

6.  If  the  appellee  receives  now  twice  the  amount  of  water 

6300  he  received  before  1871,  is  it  a diversion  on  the  part  of  the 
state  of  which  he  can  complain  to  take  out  above  his  dam  the 

remainder  of  the  surplus  water  which  she  herself  has  brought 
down  from  Lake  Michigan  by  the  deep  cut  improvement? 

7.  It  is  not  settled  by  an  overwhelming  weight  of  author- 
ty  that  an  upper  riparian  proprietor  on  a natural  water 
course  is  only  bound  to  deliver  to  the  one  below  the  natural 
and  ordinary  flow  which  he  has  received  from  the  one  above ; 
and,  as  corollary  to  this,  that  if  he  adds  to  the  stream  from  an 
independent  source  or  reservoir  of  his  own,  he  may  again 
deduct  it  or  an  equivalent  quantity? 

8.  Is  not  the  Summit  Level  a part  of  the  canal,  altogether 
undistinguished  from  the  rest  in  every  respect,  so  far  as 
concerns  the  jurisdiction  of  the  State  over  it  and  her  legal 
right  to  dispose  of  the  water  after  it  shall  have  reached  the 
point  of  discharge  at  Lockport?  At  least  is  not  this  so  since 
the  lien  of  Chicago  for  the  cost  was  released  in  1871? 

9.  If,  from  necessities  growing  out  of  the  plan  of  the  ca- 


1854  Pet.  for  Rehearing , Sup.  Ct. — Driiley  vs.  Adam. — Con. 

(37) 

nal,  it  happens  to  be  convenient  or  necessary  on  an  upper 
level  to  discharge  the  surplus  water  accumulating  there  intv» 
a lower  level  through  a connecting  channel  exterior  to  the 
canal,  is  the  right  of  the  State  lost  in  consequence  of  that 
process  of  transmission  any  more  than  it  would  be  if  she  was 
sole  owner  of  such  exterior  channel? 

6301  10.  If  at  any  point  on  the  line  of  the  canal  the  local  condi- 

tions for  producing  water-power  happen  to  exist,  is  the 
right  of  the  State  extingmished  by  non  user  during  any  lapse 
of  time ; or,  in  the  present  case,  was  the  right  of  the  State 
to  make  the  lease  in  question  to  Slater  & Druly  forfeited  by 
the  delay  of  seven  years,  1871-8,  in  making  this  new  use  of 
this  new  surplus  derived  through  the  deep  cut  ? 

11.  Was  the  appellee,  being  as  the  record  shows,  riparian 
owner  only  on  the  east  bank  of  the  stream,  entitled  in  any 
event  to  more  than  nominal  damages? 

Trustees  v.  Havens,  11  111.,  154. 

12.  Did  not  the  admitted  jurisdiction  of  the  State  over 
the  Desplaines  Eiver  as  a feeder  include  and  imply  the  right 
to  employ  the  canal  as  a medium  for  conveying  the  surplus 
water  in  question? 

Eespectfully  submitted, 

G.  D.  A.  Pakks  and 
E.  F.  Bull, 

Attorneys  for  Petitioner. 

Defendant's  Mortgage  Exhibit. 

(App.  II,  p.  3906,  referred  to  C.  E.,  p.  3489;  Trans.,  p.  5323; 
Abst.,  p.  1613.) 


6302  A printed  copy  of  a mortgage  by  the  Economy  Light  k 
Power  Company  to  the  Eoyal  Trust  Company,  dated  Decem- 
ber 1,  1906,  securing  an  issue  of  $3,000,000  of  bonds. 


1854ci 


Economy  Light  & Power  Company 
to 

Ivoyal  Trust  Company. 


Trust  J)eed  dated  De- 
cember 1,  1906. 

Pecorded 

Consideration,  $L0(). 


Property  (^onveyed: — twenty-two  (2'2)  city  lots  in  North 
Joliet, 

the  Dam  No.  1 Lease; 

the  lands  situated  in  various  sections  in  Township  thirty- 
four  (34)  north,  Eange  nine  (9),  Will  County; 

the  full  and  free  use,  benefit  and  enjoyment  of  a certain 
stream  of  water  called  the  Des  Plaines  Piver,  flowing  through 
certain  lands,  as  it  may  he  necessary  for  said  Economy  Light 
& Power  Company,  its  successors  and  assigns  to  take,  flow, 
injure  or  damage,  in  order  to  utilize  the  fall  in  said  river ; 

and  also  certain  other  lands  situated  in  Township  thirty- 
five  (35)  north,  Pange  ten  (10),  AVill  County; 

the  contract  between  Harold  E.  Griswold  and  the  con- 
servator of  the  Estate  of  Harvey  Glidden, 

the  Griswold  lease  from  the  Canal  Commissioners,  dated 
September  2,  1904 ; 

the  agreement  between  Harold  F.  Griswold  and  Peter  Con- 
roy ; 

the  pole  line  contract  of  the  Canal  Commissioners  dated 
September  2,  1904; 

the  Kankakee  Feeder  lease  between  Canal  Commissioners 
and  Charles  A.  Afunroe,  dated  January  5,  1905, 

and  all  other  contracts  assigned  by  Harold  E.  Griswold  and 
Charles  A.  Munroe  to  the  Economy  Light  & Power  Company. 

Secures  an  issue  of  3.000  First  Mortgage  5 per  cent.  Bonds 
of  $1,000  each  of  said  Economy  Tjight  & Power  Company 
aggregating  in  amount  $3,000,000,  said  bonds  being  dated  De- 
cember 1,  1906,  and  payable  December  1,  1956. 


1854b 


Article  6.  790  bonds  to  be  issued  to  retire  foi’mer  bonds 

and  bonds  No.  791  to  2,000,  inclusive,  to  be  delivered  to  Trus- 
tee for  certification  and  proceeds  to  be  used  to  pay  $138,000 
of  floating  debt  and  $274,000  to  be  used  for  purchase  of  lands, 
flowage  rights  and  contract  rights  and  other  property,  and  the 
remainder  of  the  proceeds  of  said  1,210  bonds  so  far  as  neces- 
sary  to  be  used  to  pay  the  cost  of  constructing  dam,  Tvater 
power  works,  etc.,  and  balance  to  be  held  for  future  sale. 


1855 


6337  Illinois  & Michigan  Canal  Commissioners'  Report  of  1900 
Embracing  a Documentary  History  of  the  Illinois 
& Michigan  Canal. 

(App.  II,  p.  3907,  ]*eferred  to  C.  E.,  ]).  3706;  Trans.,  ]).  5541; 
Abst.,  p.  1702.) 


This  report  by  the  Canal  Commissioners  is  a printed  vol- 
ume of  273  pages. 

(The  Desplaines  River. 

Data  From  the 

‘^Documentary  History  of  the  Illinois  and  Michigan  Canal" 

Published  in  the  Canal  Commissioners'  Report  for  1900. 

pp.  60-268. 

Route  of  Canal.) 

Eroin  report  of  J.  M.  Bneklin,  Dee.  18-1830. 

6376  “Prom  the  month  of  the  Chicago  river  to  the  ])oint  fixed 
upon  as  the  entrance  of  the  canal,  there  is  no  obstruction 
whatever  to  its  navigation  by  boats  drawing  under  five  feet 
for  that  distance,  which  is  five  miles,  this  river  forms  a perfect 
natural  canal,  its  banks  being  low  and  of  uniform  heights 
and  its  waters  supplied  bv  the  Lake."  (Can.  Com.  Rep.,  1900, 
p.  73.) 

“Leaving  the  river  at  the  point  above  mentioned,  the  line 
of  the  canal  inclines  towards  the  Regula  (as  wull  be  seem  by 
a reference  to  the  accompanying  map)  and  follows  along 
the  margin  of  the  Portage  lake  until  it  strikes  the  river  Des 
Plaines  at  the  ford,  a distance  of  nine  miles;  the  excavation 
throughout  this  distance  will  pass  through  a hard  ferruginous 
clay  (as  has  been  ascertained  by  borings)  at  an  average  depth 
of  15.41  feet.  From  the  ford  of  the  Des  Plaines  to  the 
Ausoganashkee  swamp,  the  line  runs  through  the  valley  of  the 
J)es  Plaines  river,  at  an  average  elevation  of  16.27  feet  above 
the  bottom  of  the  canal.  On  this  part  of  the  route,  which  is 
nine  miles  in  length,  the  excavation  to  the  depth  of  6.27  feet 
is  good  consisting  of  sand  and  clay,  but  the  remaining  ten 
feet  composes  almost  a continuous  map  of  limestone  extending 
with  little  intermission  from  the  ford  of  the  Des  Plaines  to 
the  end  of  the  line  surveyed,  it  is  probably  of  the  same  char- 
acter as  that  in  the  bed  of  the  river,  the  upjier  strata  only 
of  which  appear  to  be  detached."  (Can.  Com.  Rep.,  1900,  p. 
73.) 

“The  Ausoganashkee  or  Reed  swamp  does  not  present  any 
insurmountable  obstacles  to  the  passage  of  the  canal  through 
it,  although  with  the  lake  as  a feeder,  it  must  necessarily  be 
attended  with  great  expense.  The  canal  is  located  immediately 


1856 


Extract, — Canal  Com.  Rep.  1900.  Continued. 


across  its  mouth,  which  is  half  a mile  in  breadth,  the  depth 
6376a  of  the  excavation  rendering  it  expedient  to  select  the  most 

direct  route.  The  surface  of  this  swamp  is  15.86  feet  above 
the  bottom  of  the  canal,  9.80  feet  above  the  level  of  Lake  Mich- 
igan and  2.30  feet  above  the  river  Des  Plaines  at  its  low 
stage,  the  excavations  through  it  will  consist  of  5^  feet  of  mud 
and  earth  and  10.36  feet  of  rock.”  (Can.  Com.  Rep.,  1900, 
p.  74.) 

^‘To  carry  the  canal  entirely  through  the  deep  cut  which 
terminates  about  six  miles  below  the  Ausoganashkee  will  prob- 
ably increase  the  above  amount  to  two  millions  and  a half, 
the  great  expense  of  time  and  money  thus  necessarily  incurred 
in  making  a feeder  of  the  lake  renders  it  desirable  to  use 
for  that  purpose  some  stream  by  which  tlie  summit  level  can 
be  better  adapted  to  the  elevation  of  the  ground  on  the  line 
of  the  canal.  The  river  Des  Plaines  when  low  affords  a 
very  inconsiderable  quantity  of  water,  but  the  Calamic  river 
which  empties  into  Lake  Michigan  about  twelve  miles  south 
of  Chicago,  furnishes  an  abundant  supply  (320,000  cubic  feet 
per  hour)  and  is  in  every  respect,  so  far  as  my  observation 
extends,  advantageously  situated  as  a feeder.  Too  much  time 
was  necessarily  consumed  in  the  survey  on  the  line  of  the 
canal  to  admit  of  as  particular  an  examination  of  this  river 
as  from  the  facts  collected  respecting  it,  it  undoubtedly  de- 
serves.” (Can.  Com.  Rep.,  p.  74.) 

‘Mt  is  evident  from  the  nature  of  the  ground  as  well  as 
from  the  representations  of  the  inhabitants  of  the  country, 
that  there  is  in  times  of  high  water,  a communication  between 
the  rivers  Des  Plaines  and  Calamic,  through  the  valleys  of 
the  Ausoganashkee  swamp  and  Stoney  creek-,  as  neither  of 
these  rivers  rise  more  than  ten  or  twelve  feet,  and  as  there  is 
no  perceptible  current  between  them  when  both  are  up,  it  is 
reasonable  to  conclude  that  the  intermediate  ground  is  low 
enough  to  admit  of  the  waters  of  the  Calamic  being  brought 
into  tlie  valley  of  the  Des  Plaines  at  a small  expense,  jorovided 
a dam  can  be  made  in  the  former  at  a sufficient  elevation  to 
give  the  feeder  its  proper  descent.” 


The  Sectiox  or  Lands  LTnder  the  IT.  S.  Land  Grant. 

From  Report  of  Roberts,  Jayne  and  Dunn,  Canal  Commis- 
sioners. 

December  27,  1830. 

6377a  ^‘Tlie  commissioners  selected  each  alternate  section  hav- 
ing an  odd  number,  commencing  with  township  Xo.  32  north 
range  Xo.  1 east  of  the  third  principal  meridian,  within  five 


1857 


miles  of  each  side  of  the  canal,  making  in  all  four  hundred 
and  ninety  sections.”  (Can.  Com.  Eep.,  1900,  p.  76.) 

Platting  of  Chicago, 

Its  Commercial  Importance. 

6378  ‘'That  means  might  be  realized  as  early  as  possible  to 
commence  the  work  of  excavation,  the  commissioners  deter- 
mined to  bring  into  market  the  remaining  canal  lands,  on  the 
27th  day  of  September  at  Chicago,  and  on  the  4th  day  of 
October  following  at  the  rapids  of  the  Illinois  river.  In  the 
meantime  they  laid  off  into  town  lots  part  of  section  9,  T.  No. 
39  N.,  K.  14  E.,  lying  on  the  Chicago  river  near  Lake  Michigan, 
and  part  of  section  No.  11,  T.  33,  N.,  E.  No.  3 E.  situated  at  the 
mouth  of  Fox  river  on  the  Illinois.”  (Can.  Com.  Eep.,  1900, 
p.  77.) 

“A  portion  of  these  lots  were  with  the  remaining  canal 
lands  (except  fractional  section  15,  T.  39  N.,  E.  14  E.)  after 
public  notice  given,  offered  for  sale  at  the  times  and  places 
specified.  The  report  of  the  Treasurer  before  referred  to,  em- 
braces a satisfactory  and  detailed  account  of  these  sales.  The 
sales  of  lots  in  the  town  of  Chicago  on  section  9,  T.  39  N., 
Eange  14  E.,  amounted  to  about  $4,363  and  were  so  flattering 
as  to  inspire  the  Commissioners  with  a confident  hope  that 
the  remaining  lots,  say  about  three-fourths,  would  with  proper 
care  and  management,  yield  a very  handsome  increase  to  the 
canal  fund.  This  town  is  situated  on  the  Chicago  river  near 
its  mouth  and  possesses  many  advantages,  natural  and  ad- 
vantitous.  It  is  the  only  eligible  site  for  a town  on  the  lake 
shore  within  the  limits  of  Illinois  surrounded  by  a beautiful, 
champaigne  fertile  country,  surpassed  by  none  in  the  richness 
of  its  products  and  from  the  long  experience  of  its  inhabitants 
is  decidedly  healthy.  (Can.  Com.  Eep.,  1900,  p.  77.) 

Its  prominence  in  a commercial  point  of  view  has  already 
prompted  merchants  from  the  northeastern  part  of  the  State 
and  northwestern  part  of  Indiana  to  take  their  produce  to 
Chicago,  ship  for  Detroit,  Buffalo  and  New  York  and  return 
by  the  same  route,  as  the  safest  and  cheapest.  Saving  on 
the  transportation  of  goods  1.25  per  hundred  weight  and  per- 
forming the  trip  ten  days  sooner,  than  by  either  of  the  other 
channels,  through  which  merchandise  is  brought  into  these 
sections  of  the  two  States.  The  circumstance  of  Chicago 
being  located  at  the  head  of  the  contemplated  canal  will  make 
it  the  future  depot  of  all  the  surplus  products  of  the  coun- 
try on  the  Illinois  river  and  its  tributaries.  These  advaii* 
tages  point  out  its  importance  and  at  once  elicit  the  foster- 
ing care  of  the  Legislature  of  this  State.  Nothing  would  con- 


1858 


Extract, — Canal  Com.  Rep.  1900. — Continued. 


. V 


duce  more  to  the  prosperity  of  this  place  than  the  construction 
of  a safe  harbor  at  the  month  of  the  Chicago  river.”  (Can. 
Com.  Eep.,  1900,  p.  77.) 


5Vater  Supply  of  Rivers. 

The  Deep  Cut  axd  Shallow  Cut. 

6378a  Cost  of  Caxal. 

‘‘From  the  estimate  embraced  in  the  engineer’s  report,  it 
will  be  discovered  that  the  cost  of  construction  of  that  part 
of  the  canal,  included  within  the  points  mentioned,  will  exceed 
one  million  and  a half  of  dollars.  This  estimate  is  founded 
on  the  presumption  that  the  water  required,  say  four  and  a 
half  feet  in  depth,  is  to  be  supplied  from  the  Lake;  and  that 
the  dimensions  of  the  canal  are  twenty-six  feet  in  width  at 
liottom,  with  a slope  on  the  sides  (in  earth)  of  one  foot  and 
three-quarters  base  to  every  foot  perpendicular  rise.  The  law 
on  this  subject  has  prescribed  that  the  dimensions  of  the  canal 
shall  be  as  follows:  “At  least  forty  feet  in  width  at  the 

summit  water  line,  twenty-eight  feet  wide  at  the  bottom  and 
of  sufficient  depth  to  contain  at  least  four  feet  water.”  The 
difference  in  the  dimensions  assumed  by  the  engineer,  for  the 
purposes  of  calculation,  and  those  prescribed  by  law,  is  so 
slight  that  the  estimate  predicted  on  the  first  may  be  safely 
relied  on  as  appreciable  to  the  latter.”  (Can.  Com.  Rep., 
1900,  p.  78.) 

“The  great  expense  of  construction  that  must  be  incurred 
on  the  plan  of  using  the  waters  of  the  lake  to  supply  the  sum- 
mit level  induced  the  commissioners  to  make  such  examina- 
tion and  inquiries  as  time  permitted  into  the  practicability  of 
procuring  a sufficient  supply  of  water  from  some  other  source, 
that  would  raise  the  summit  level  sufficiently  high  to  avoid 
rock  excavation.  It  is  believed  that  the  river  Calamic  which 
emptied  into  the  Lake  about  twelve  miles  south  of  Chicago, 
furnishes  an  abundant  supply  of  water  (320,000  c.  feet  per 
hour)  and  is  in  other  respects  advantageously  situated  for 
the  purpose.  Too  much  time  was  necessarily  consumed  on 
the  canal  line  to  admit  of  a particular  examination  of  this 
river  during  last  fall,  but  the  information  communicated  by 
the  engineer  in  his  report  and  such  observations  as  the  Com- 
missioners have  been  able  to  make,  convince  them  of  the  prac- 
ticability of  the  plan  of  using  the  Calamic  as  a feeder.” 
(Can.  Com.  Rep.,  1900,  p.  78.) 

“When  we  reflect  that  the  cost  of  constructing  the  first 
eighteen  and  a half  miles  of  the  canal,  will  not,  on  this  plan 
exceed  $160,000  and  that  on  the  other  it  will  amount  to  more 


1859 


than  a million  and  a half,  the  reason  in  favor  of  using  the 
waters  of  the  Calainic  will  appear  too  obvious  to  require  com- 
ment. The  report  of  the  engineer  is  referred  to  for  more 
satisfactorv  information  on  this  subject.”  (Can.  Com.  Rep., 
1900,  p.  78.) 


Railroad  vs.  Canal. 

Act  of  1831,  Section  2. 

6381  ‘‘It  shall  be  the  duty  of  the  superintending  commissioner, 
to  cause  the  engineer  employed  by  him,  to  ascertain  as  early 
in  the  spring  as  the  weather  will  permit,  whether  the  Calamic 
will  be  a sufficient  feeder  for  the  part  of  the  canal  between 
Chicago  and  Des  Plaines  river,  “or  whether  the  construction 
of  a railroad  is  not  preferable,  or  will  be  of  more  public  utility 
than  a canal.”  And  if  the  commissioners  shall  seem  satisfied 
of  sufficiency  of  said  river,  and  that  a canal  will  be  of  more 
public  utility  than  a railroad,  it  shall  be  their  duty  to  com- 
mence the  excavations  without  delay.  And  if  they  should  be 
of  opinion  that  it  would  not,  all  further  proceedings  in  rela- 
tion to  said  canal  and  sales  of  land,  shall  be  deferred  until 
the  next  meeting  of  the  Legislature.”  (Can.  Com.  Rep.,  1900, 
p.  83.) 


From  Report  of  Acting  Commissioner  Dunn. 

6382  “The  engineer  is  of  the  opinion  that  ‘the  facts  elicited  by 
the  examination  of  the  route  of  the  proposed  canal  are  un- 
favorable to  the  practicability  of  its  safe  and  economical 
6382a  construction.’  But  represents  that  the  route  examined 
for  a railway  was  found  extremely  favorable  for  the  adop- 
tion of  that  sort  of  improvement.  These  statements  of  the 
engineer  but  confirm  a conviction  that  I had  for  some  time 
labored  under.”  (Can.  Com.  Rep.,  1900,  p.  85-86.) 


From  Report  of  Canal  Commissioners. 

Railroad  vs.  Canal. 

“They  regret  that  it  is  not  in  their  power  to  make  a report 
in  detail.  This  cannot  be  looked  for  from  them  until  they  have 
all  the  means  which  the  isubject  is  susceptible  of  furnishing, 
necessary  to  'satisfy  the  expectations  of  the  pubilc.  They  deem 
it  a sufficient  reason  to  say  that  the  engineer  in  their  employ- 
ment has  been  constantly  and  indefatigably  engaged  in  the 
execution  of  the  work  for  nearly  seven  months  past,  notwith- 
standing the  season  were  exceedingly  unpropitious.  But  their 


1860  Extract, — Canal  Com.  Rep.  1900. — Continued. 

convictions  justify  them  in  stating  that  the  work  has  been  exe- 
cuted with  great  pains  and  fidelity  and  which  they  think,  mer- 
its, in  reference  to  its  accuracy,  the  confidence  of  the  coun- 
try.’’ (Can.  Com.  Eep.,  1900,  p.  86.) 

‘‘It  would  be  premature  in  the  undersigned  to  say  un- 
qualifiedly that  either  one  of  the  improvements  contemplated 
should  be  preferred  to  the  other,  without  the  aid  they  would 
derive  from  the  estimates  of  the  cost.  But  from  the  con- 
victions that  at  present  influence  them,  they  cannot  hesitate 
to  say  that  a railway  on  the  route  referred  to,  is  decidedly 
preferable  to  a canal.”  (Can.  Com.  Eep.,  1900,  p.  86.) 

“The  maps,  profiles  and  estimates  of  a railway  and  cana] 
will  be  made  out  by  Mr.  Bucklin  without  delay,  hut  which  will 
necessarily,  however,  occupy  some  time  to  enable  him  to  ac- 
complish this  part  of  his  labor.  But  we  state  it  as  our  pres- 
ent convictions,  undecided  by  his  report,  that  unless  there  are 
some  facts  hereafter  presented  (which  we  do  not  now  antici- 
pate) we  should  feel  it  our  duty  to  recommend  to  the  Leg- 
islature the  adoption  of  a railway  in  preference  to  a canal.” 
(Can.  Com.  Eep.,  1900,  p.  86.) 


Water  Supply 

6383a  From  Eeport  or  J.  M.  Bucklix,  Engineer,  Jan.  1,  1833. 

“The  discharge  of  the  Calamic  river  in  the  fall  of  1830,  a 
season  of  extreme  drouth,  amounted  to  320,000  cubic  feet  per 
hour,  which  may  be  safely  relied  upon  as  its  minimum  dis- 
charge. This  quantity  was  considered  sufficient  for  the  upper 
portion  of  the  canal,  hut  by  the  late  survey  the  length  of 
canal  to  be  supplied  from  the  summit  until  relieved  by  the 
river  Du  Page  proving  to  be  much  greater  than  was  antici- 
pated, an  additional  supply  of  102,400  cubic  feet  per  hour  will 
he  required  for  its  consumption.  The  river  Des  Plaines  in 
most  seasons  would  alone  make  up  the  deficiency,  but  in  the 
fall  of  1830  its  discharge  was  at  one  period  reduced  to  60,000 
feet  per  hour.  Eelying  upon  its  contributing  this  quantity 
of  water  in  the  dryest  seasons,  there  will  still  remain  a de- 
ficiency of  42,400  cubic  feet  for  which  there  is  no  resource 
hut  the  establishment  of  an  artificial  reservoir  on  the  Summit 
Level.  The  Ausoganashkee  swamp  presents  great  advan- 
tages for  this  purpose,  as  it  receives  the  drainage  of  the  coun- 
try to  a great  extent,  and  is  susceptible  at  a comparatively 
small  expense,  of  being  rendered  more  secure  from  breaches 
and  other  casualties  than  most  works  of  a similar  descrip- 
tion. It  will  form  an  area  of  1,194  acres,  cajiable  of  being 
filled  to  the  average  depth  of  ten  feet  and  of  containing  a 
body  of  water  more  than  adequate  after  the  deduction  of  a 


18G1 


large  allowance  for  evaporation  and  leakage  to  all  demands 
made  upon  it  by  the  above  mentioned  deficiency.  (Can.  Com. 
Kep.,  1900,  p.  88.) 

‘‘Discharge  of  the  Des  Plaines  river  per  hour  in  cubic  feet 
60,000.’’ 

6384  ‘'The  entire  length  of  the  canal  being  92.75  miles  there 
will  then  remain  56.25  miles  to  be  supplied  from  other 
sources.  Forty-one  miles  of  this  distance  will  devolve  upon 
the  river  Du  Page  and  the  remainder  upon  Fox  Kiver.  The 
river  Du  Page  or  Tokoquenonc  empties  into  the  river  Des 
Plaines  3.67  miles  above  its  junction  with  the  Kankakee.  By 
an  imperfect  and  hasty  measurement  of  the  Du  Page  in  the 
fall  of  1830,  its  minimum  discharge  was  estimated  at  415,000 
cubic  feet  per  hour,  the  succeeding  summer  and  fall  being 
remarkably  wet,  did  not  afford  an  opportunity  of  ascertain- 
ing its  discharge  at  a low  stage,  but  it  is  obvious  to  the  ob- 
server of  both  streams,  that  its  discharge  must,  at  all  times, 
be  greater  than  that  of  the  Calamic.  We  may  rely  upon 
its  capacity  to  furnish  the  same  quantity  of  water,  that  is, 
320,000  cubic  feet  per  hour,  from  which  deduct  246,000  cubic 
feet,  the  quantity  required  for  evaporation  and  leakage  in 
forty-one  miles  of  canal  at  6,000  cubic  feet  per  hour  for  every 
mile,  and  there  will  remain  a surplus  of  74,000  cubic  feet  per 
hour,  which  being  insufficient  for  the  consumption  of  the  re- 
maining 15.25  miles,  the  waters  of  Fox  river  can  be  brought 
into  requisition  to  supply  the  deficiency.  As  far  as  the  results 
of  experience  can  be  applied  in  calculating  the  quantity  of 
water  expended  by  a canal  located  on  ground  of  ordinary  per- 
meability, an  ample  supply  of  water  is  thus  provided  for  the 
whole  route.  Nevertheless  it  must  be  acknowledged  that  in  the 
upper  levels  where  from  the  scarcity  of  water  it  is  most  im- 
portant to  restrict  the  loss  of  water  within  the  usual  limits, 
the  canal  passes  through  so  rocky  and  porous  a section  of  coun- 
try that  it  is  impossible  to  anticipate  what  may  be  the  extent 
of  the  leakage  or  how  far  the  precautions  ordinarily  adopted 
may  succeed  in  enabling  the  canal  to  retain  the  water.”  (Can. 
Com.  Eep.,  1900,  p.  89.) 


Eailw^ay  and  Caxal  IX  Des  Plaixes  Valley. 

“Eesuming  the  survey  of  1830,  at  the  Ausoganashkee  swamp 
the  line  of  the  late  survey  continues  in  the  southeast  valley 
of  the  river  Des  Plaines  until  within  half  a mile  of  Hickory 
Creek,  it  then  crosses  the  river  and  encroaching  upon  its 
bed  for  a short  distance  to  avoid  rock  excavation,  is  conducted 
by  means  of  a narrow  valley  to  Mount  Joliet,  where  it  falls 
in  with  the  line  of  railway  and  terminates  the  second  division. 


1862 


Extract, — Canal  Com.  Rep.  1900. — Continued. 


a distance  of  19.75  miles.  The  rock  excavation  which 
forms  a large  item  in  the  cost  of  this  division,  is  occasioned 
hy  the  gradual  rise  of  the  rock  on  the  smmnit  level,  and  the 
difficulty  in  procuring  earth  for  embankment  on  the  lower 
levels,  which  in  some  instances  renders  a depression  of  the 
level  and  the  consequent  excavation  of  the  rock  more  advan- 
tageous than  a continuation  of  the  level  and  the  substitution 
6384a  of  embankment,  although  under  the  circumstances  it  would 
be  preferable.  The  broad  valley  of  this  singular  stream 
in  places  where  it  has  much  descent  seems  in  its  whole  extent 
(far  beyond  the  present  rise  of  its  waters)  to  have  been  swept 
hare  of  everything  that  was  not  sufficiently  ponderous  to  resist 
the  effects  of  a violent  current.  In  these  situations  with  the 
exception  of  occasional  mounds  of  gravel,  materials  for  em- 
banlmient  cannot  be  found  within  a distance  that  would  justify 
their  use  except  in  a case  of  absolute  necessity.  Besides  the 
expense  accruing  from  these  causes,  the  cost  of  keeping  this 
part  of  the  canal  in  repair  after  it  is  finished,  must  be  neces- 
sarily great  on  account  of  the  immense  deposits  of  earth  and 
the  breaches  to  which  it  will  be  annually  subjected  by  the 
numerous  small  streams  which  intersect  the  route  and  must 
be  received  into  the  canal  as  they  cannot  be  passed  under  it 
or  disposed  of  in  any  other  way.  The  whole  line  is  more 
or  less  exposed  to  this  defect,  hut  it  is  of  more  frequent 
occurrence  in  this  division  than  in  any  other  part  of  it.  It  is 
here  that  the  rocky  district  of  the  country  before  alluded  to, 
as  exciting  so  much  apprehension  respecting  its  probable 
effect  in  exhausting  the  supply  of  water  is  situated.  (Can. 
Com.  Rep.,  1900,  p.  90.) 

‘‘The  third  division  which  is  included  between  Mount  Joliet 
and  the  river  Au  Sable  (a  distance  of  15.234  miles)  affords 
a ])etter  location  than  the  preceding.  MTth  the  valley  of 
the  Des  Plaines  it  pursues  on  very  favorable  ground,  a south- 
erly course  from  Mount  Joliet  to  the  river  Du  Page  which 
it  crosses  some  distance  above  its  mouth,  receiving  a feeder 
from  it  on  the  north  side.  Beyond  this  point,  the  bluffs,  just 
al)ove  the  confluence  of  the  Kankakee  and  Des  Plaines  rivers 
oppose  serious  obstacles  to  the  construction  of  an  economical 
and  permanent  work.  On  this  section  of  the  division  the  level 
is  unavoidably  too  low  to  admit  of  the  passage  of  many  of  the 
small  streams  under  the  canal  by  which  means  and  the  drain- 
age from  the  hills,  it  will  be  subject  to  the  same  inconveniences 
and  danger  in  wet  seasons  to  which  the  division  above  is  ex- 
])osed.  The  soil  also  from  being  mixed  with  sand  adheres  to- 
gether very  slightly  and  when  saturated  with  water  lias  a 
great  tendency  to  slip  over  where  the  inclination  of  the  hill 
is  moderate.  Considerable  embarrassment  to  the  navigation 


1863 


of  the  canal  may  l)e  expected  from  this  cause  l)esides  the 
expense  of  repairs.’^  (Can.  Com.  Rep.,  1900,  p.  90.) 


Deep  Cut  Plan 
Rock  Excavation 
Use  of  Des  Plaines. 

6385  ‘‘In  making  a feeder  of  Lake  Michigan,  by  cutting  through 
the  dividing  ridge  between  the  lake  and  the  head  waters  of 
the  Illinois  river  the  location  of  the  canal  is  the  same  through- 
out as  the  foregoing,  it  being  important  in  both  plans  to 
choose  the  lowest  ground  for  the  Summit  Level,  the  arrange- 
ment of  the  lower  levels  being  governed  by  the  same  indi- 
cations in  each.  In  the  survey  of  1830  of  the  upper  part 
of  the  route,  assuming  the  bottom  of  the  canal  at  the  head 
of  the  Chicago  river,  to  be  four  and  one-half  feet  below  the 
level  of  the  lake,  no  rock  excavation  is  encountered  until  the 
• line  strikes  the  river  Des  Plaines,  where  it  was  ascertained 
by  the  boring  to  average  about  ten  feet  and  the  earth  ex- 
cavation about  six  feet  in  depth  throughout  the  remaining  dis- 
tance of  nine  miles.  By  the  late  survey,  beyond  the  Auso- 
ganashkee  Swamp,  the  rock  excavation  was  found  to  increase 
in  depth  for  several  miles,  on  account  of  the  greater  eleva- 
tions of  the  rock  which  I have  before  had  occasion  to  advert 
to  in  describing  the  location  of  the  second  division.  The 
divisions  of  the  route  upon  this  plan,  are  the  same  as  in  the 
former,  of  which  first  and  second  division  it  will  be  observed 
by  referring  to  the  estimates,  are  liable  to  any  increase  in 
the  cost  of  construction,  arising  from  the  difference  of  plan, 
yet  this  increase  amounts  to  upwards  of  two  millions  and  a 
half,  a fact  that  may  be  thought  sufficient  of  itself  to  put 
the  execution  of  the  work  on  this  plan  entirely  out  of  the 
cpuestion.  Still  it  may  not  be  superfluous  to  remark  that  al- 
though in  the  estimate  of  the  probable  cost  of  the  work,  a 
liberal  price  is  allowed  for  the  rock  excavation,  the  most 
important  item;  besides  a sum  amply  sufficient  to  cover  the 
ordinary  contingent  expenses,  yet  it  is  hardly  possible  to  an- 
ticipate the  limits  of  the  expenditure  when  we  consider  that 
the  bulk  of  the  rock  excavation  lies  below  the  rocky  bed  of 
the  river  Des  Plaines  and  the  interruption  that  the  work  wdll 
consequently  be  liable  to  from  the  water  of  the  river  finding  its 
way  through  the  numerous  fissures  of  the  rock  into  the  canal.” 
(Can.  Com.  Rep.,  1900,  p.  91.) 


1864 


Extract, — Canal  Com.  Rep.  1900. — Continued. 


Des  Plaines  Kivek — Why  Not  Used  eok  Canal — Eailroad 

Pkefekeed. 

''It  lias  been  also  proposed  to  effect  a water  communica- 
tion between  the  Lake  and  the  Illinois  river  by  means  of  dams 
and  locks  in  the  river  Des  Plaines,  forming  a still  water  nav- 
igation, knowing  the  minimum  discharge  of  this  river,  the  im- 
practicability of  the  scheme  is  so  evident  that  the  subject 
6385a  is  here  noticed  more  as  a matter  of  form,  than  with  any  ex- 
pectation of  rendering  it  clearer.  It  will  be  recollected 
that  the  quantity  of  water  provided  for  the  passage  of  96 
boats  over  the  Summit  Level  every  24  hours  in  the  eanal,  is 
86,400  cubic  feet  per  hour,  that  is  one  lock  chamber  full  of 
water  every  15  minutes,  ascending  and  descending.’’  (Can. 
Com.  Rep.,  1900,  p.  92.) 

"The  minimum  discharge  of  the  river  Des  Plaines,  is  only 
60,000  cubic  feet  per  hour.  Of  course,  it  is  not  competent  to 
supply  even  the  lockage  (which  on  this  plan  cannot  be  less 
than  that  required  for  the  canal)  without  taking  into  con- 
sideration the  loss  by  evaporation  and  leakage,  which  would 
alone  consume  at  least  seven  times  the  quantity  of  water 
discharged  by  the  river  Des  Plaines  at  its  lowest  stage.” 
(Can.  Com.  Rep.,  1900,  p.  92.) 


Any  Water  Communication  Whatever  Thought  Impractic- 
able. 

"In  the  rocky  and  cavernous  district  of  country  to  which 
the  location  of  the  great  part  of  the  route  of  the  canal  is 
confined,  there  are  too  many  difficulties  to  be  reasonably  ap- 
prehended in  carrying  it  into  successful  operation,  to  justify 
the  establishment  of  a water  communication  on  any  route  or 
plan  whatever,  while  however,  so  many  obstacles  are  opposed 
to  the  construction  of  a canal,  the  examination  of  the  route 
for  a railway  was  very  successful  in  developing  its  great  ad- 
vantages for  the  adoption  of  that  species  of  improvement.  The 
The  line  of  the  canal  commencing  at  the  Chicago  river  and 
occupying  the  south  bank  of  the  river  Des  Plaines,  being  of 
very  exceptional  character  for  a railway,  and  the  inclination 
of  the  grades  of  the  later  admitting  of  greater  latitude  in 
its  location,  the  route  for  a railroad  was  commenced  at  the 
junction  of  the  north  and  south  forks  of  the  Chicago  river 
in  the  town  of  Chicago  on  Lake  Michigan,  and  from  thence 
run  in  a sight  line  through  a level  open  prairie,  north  of  the 
Portage  Lake  to  the  upper  ford  of  the  river  Des  Plaines, 
commonly  called  Laughton’s  ford,  a distance  of  ten  miles  from 
Chicago;  it  crosses  the  river  at  this  point  which  is  advan- 


1865 


tageously  situated  for  that  purpose,  and  pursues  the  north- 
west valley  of  the  river  Des  Plaines  until  it  forms  a junction 
with  the  line  run  for  a canal,  a short  distance  below  a re- 
markable natural  mound  called  Mount  Joliet,  38.258  miles 
from  Chicago.  This  distance  includes  the  1st  and  2nd  di- 
visions of  the  line  of  the  railway,  the  remaining  part  of  the 
route  (57.742  miles)  corresponds  in  the  limits  of  its  division 
with  those  of  the  canal,  although  the  location  is  not  entirely 
the  same,  the  inclinations  of  the  railway  frequently  allowing  a 
better  selection  of  ground  than  that  to  which  the  levels 
of  the  canal  are  confined.’^  (Can.  Com.  Rep.,  1900,  p.  92.) 

^^The  graduation  of  the  first  ten  miles  through  the  Chicago 
prairie,  generally  conforms  to  the  surface  of  the  ground 
which  varies  in  its  inclination  from  2 to  13  feet  to  the  mile. 
The  want  of  stone  and  timber  which  exists  on  this  part  of  the 
line  can  in  a great  measure  be  obviated  by  commencing  the 
construction  of  the  railway  at  the  river  Des  Plaines,  where 
these  materials  can  be  obtained  in  abundance,  stone  of  a very 
good  quality.  The  estimates  of  the  probable  cost  of  this  sec- 
tion of  the  1st  division  are  founded  upon  the  adoption  of 
this  expedient  for  lessening  the  cost  of  the  transportation 
of  materials.  Beyond  the  river  Des  Plaines,  the  1st  division 
extends  to  Flag  Creek  which  empties  into  it  9.618  miles  below 
the  upper  ford.  The  ground  upon  which  this  part  of  the  line 
is  located,  is  generally  very  level,  the  graduation  which  does 
not  require  much  excavation  or  embankment,  not  exceeding 
13  feet  to  the  mile.  Curves  are,  however,  frequent,  but  not 
very  abrupt,  the  minimum  radius  of  curvature  being  955  feet. 
Materials  are  found  in  sufficient  quantity  in  the  vicinity  of 
the  line.’^  (Can.  Com.  Rep.,  p.  92.) 

‘^Crossing  the  above  mentioned  creek  obliquely  about  a mile 
and  a half  above  its  mouth,  the  line  of  the  railway  descends 
the  valley  of  the  creek  to  that  of  the  river  Des  Plaines, 
where  it  continues  its  course  until  it  strikes  a succession  of 
swamps,  occup3fing  the  whole  breadth  of  the  valley  of  the 
river  and  running  nearly  to  the  top  of  the  bluff.  They  are 
about  two  miles  in  extent,  but  from  the  favorable  circum- 
stance of  their  being  generally  shallow  with  a rock  foundation, 
no  great  difficulty  of  expense  is  anticipated  in  passing  them 
by  an  embankment.  The  line  as  first  run,  in  order  to  avoid 
them  as  much  as  possible  and  to  obtain  firm  ground,  ascends 
the  side  of  the  bluff  which  involves  the  necessiD^  of  a gradua- 
tion of  24  and  31  feet  to  the  mile,  but  as  the  survey  of  the 
entire  line  has  developed  the  fact  that  20  feet  to  the  mile 
may  be  considered  the  maximum  rate  of  graduation  on  eveiw 
other  part  of  the  route  it  becomes  necessary  even  at  a 
great  increase  of  cost  to  equalize  the  graduation  at  this 
point.  For  whatever  propelling  power  is  used  on  the  road  it 


1866  Extract, — Canal  Com.  Rep.  1900. — Continued. 

will,  of  course,  be  calculated  to  overcome  the  greatest  resist- 
ance to  be  met  with  on  any  part  of  the  road,  consequently  it 
is  of  great  importance  to  avoid  the  necessity  of  providing 
a propelling  power  to  overcome  an  ascent  of  31  feet  to  the 
mile  at  one  point  only,  while  on  no  other  part  of  the  route 
a greater  power  is  required  than  that  necessary  for  an  ascent 
of  20  feet  to  the  mile.’^  (Can.  Com.  Eep.,  p.  93.) 

6387  “In  reviewing  the  capabilities  of  the  country  between  Chi- 
cago and  the  foot  of  the  rapids  of  the  Illinois  river  for  the 
construction  of  a canal  or  railroad,  it  would  seem  (laying  aside 
the  great  difference  of  expense)  that  the  obstacles  opposed 
by  nature  to  the  formation  of  a good  canal  on  any  route 
or  plan  whatever,  are  such  that  nothing  could  justify  the  un- 
dertaking, but  the  fact  of  its  being  the  only  means  of  attaining 
the  accomplishment  of  so  important  an  object  as  the  improve 
ment  of  the  communication  between  the  above  mentioned 
points.  For  this  reason  the  unparalleled  advantages  present- 
ed on  the  route  of  the  railway  for  the  construction  of  a very 
perfect  and  prominent  work,  are  invested  with  additional  value 
in  inviting  the  adoption  of  an  alternative,  the  ultimate  success 
of  which  is  warranted  by  experience  in  the  successful  opera- 
tion of  many  similar  works  both  in  Europe  and  the  United 
States,  none  of  which  can  compete  with  it  in  economy  of  con- 
struction or  perfection  when  finished.”  (Can.  Com.  Eep., 
1900,  p.  95.) 


Effects  of  the  Eaiekoad  Scheme 

Caxal  Commissioners  Abolished 
Memorial  to  Congress  by  State  Legislature 

6391a  An  Act  to  Abolish  the  Office  of  Canal  Commissioners. 

Approved  March  1,  1833. 

“The  General  Assembly  of  the  State  of  Illinois  in  session 
December  20th,  1832,  adopted  the  following  memorial: 

“To  the  Honorable,  the  Senate  and  House  of  Eepresentatives 
of  the  United  States  in  Congress  Assembled: 

“The  memorial  of  the  General  Assembly  of  the  State  of 
Illinois,  respectfully  represents,  that  by  “An  act  entitled  an 
act  to  grant  a quantity  of  land  to  the  State  of  Illinois  for 
the  purpose  of  aiding  in  opening  a canal  to  connect  the  waters 
of  the  Illinois  river  with  those  of  Lake  Michigan,  approved 
March  2d,  1827,”  Congress  has  granted  to  this  State  a quan- 
tity of  land,  on  the  line  of  the  proposed  canal,  to  assist  in  th(‘ 
accomplishment  of  the  work.  Since  the  ])assage  of  this  law. 
the  State  has  caused  the  route  to  be  surveyed,  and  the  cost 
of  the  work  to  be  estimated,  from  which  it  appears  that  the 


1867 


expense  will  greatly  exceed  the  amount  originally  contemplat- 
ed ; that  a railroad  or  turn-pike  will  he,  upon  the  whole,  more 
useful  and  less  expensive,  and  can  be  accomplished  in  much 
less  time.  Nevertheless,  the  act  of  Congress  limits  the  dona- 
tion to  the  purpose  of  making  a canal  so  as  to  restrict  the 
Legislature  from  making  any  other  application  of  it.  Your 
memorialists  therefore  pray  your  honorable  body  to  pass  an 
act  enabling  this  State  to  apply  this  donation  to  a turnpike, 
railroad  or  canal,  as  either  of  them  shall  be  found  to  be  most 
advantageous  or  convenient.”  (Can.  Com.  Rep.,  1900,  p. 
104.) 


From  Act  of  Congress  Approved  March  2,  1833. 

‘‘Provided,  That  if  a railroad  is  made  in  place  of  a canal, 
6392  the  State  of  Illinois  shall  be  subject  to  the  same  duties  and 
obligations,  and  the  government  of  the  LTnited  States  shall  be 
entitled  to,  and  have  the  same  privileges  on  said  railroad, 
which  they  would  have  had  through  the  canal,  if  it  had  been 
opened.”  (Can.  Com.  Rep.,  1900,  p.  105.) 

“Approved  March  2,  1833.” 

“In  January,  1835,  the  General  Assembly  of  Illinois  passed 
an  act  entitled  “An  act  for  the  construction  of  the  Illinois  and 
Michigan  Canal.”  Under  this  act  Governor  Joseph  Duncan 
nominated  Edward  Coles,  president;  Gurdon  S.  Aubhard,  Joel 
Manning,  William  Linn,  and  William  B.  Archer,  commission- 
ers, who  were  duly  confirmed  as  the  Board  of  Canal  Commis- 
sioners. This  act,  however,  proved  defective  in  so  many  par- 
ticulars that  nothing  was  accomplished  l)y  this  commission.” 
(Can.  Com.  Rep.,  1900,  p.  105.) 

“From  1831  to  1835  a strong  effort  was  made  to  secure  the 
construction  of  a railroad  instead  of  a canal.  This  effort, 
however,  while  it  was  advocated  by  many  of  the  leading  men 
of  the  State,  met  with  little  encouragement  from  the  people.” 
(Can.  Com.  Rep.,  1900,  p.  105.) 

“The  Congressional  acts  of  1827  and  1833  extended  the 
time  limit  for  commencing  the  canal  to  1837  and  for  its 
completion  to  1852,  it  being  apparent  at  this  time  that  prompt 
measures  must  be  taken  for  the  commencement  of  the  canal 
or  the  rights  under  the  act  of  1822  and  1827  be  lost  and  the 
land  grant  of  1827  thereby  revert  to  the  general  government ; 
that  the  Governor  of  Illinois  by  proclamation  convened  the 
General  Assembly  in  special  session  December  7,  1835. 


1868 


Extract, — Canal  Com.  Rep.  1900. — Continued. 


A Continuous  Canal  as  Against  Short  Canals  and  River 

Improvement. 

6394  ‘‘Cliicago,  June  23,  1836. 

To  the  Honorable,  The  Canal  Commissioners  of  the  State  of 
Illinois. 

Gentlemen : — 

At  a meeting  of  the  citizens  of  the  town  of  Ottawa  the  un- 
dersigned were  appointed  a committee  to  address  a note 
to  your  board  to  ascertain  whether  it  is  contemplated  by  you 
to  cause  a survey  of  the  Illinois  river  or  any  part  of  it  to  be 
made,  in  order  that  estimates  may  he  made  with  a view  to  its 
ultimate  improvement  for  slack  water  navigation.”  (Can. 
Com.  Rep.,  1900,  p.  109.) 


President  to  Citizens  of  Ottawa. 

Canal  Office,  Chicago,  July  11,  1836. 
Committee  of  the  Citizens  of  Ottawa. 

Gentlemen : — 

Your  communication  of  the  23d  ult.,  was  laid  before  the 
hoard  of  canal  commissioners  at  their  first  full  session,  after 
the  receipt  of  it,  and  I hasten  to  apprise  you  of  the  result. 
You  inquire  ^whether  it  is  contemplated  by  the  board  to 
cause  a survey  of  the  Illinois  river,  or  any  jiart  of  it,  to  be 
made  with  a view  of  its  ultimate  improvement  for  slack 
water  navigation,’  and  we  presume  that  you  allude  more  es- 
pecially to  that  part  of  the  river  lying  between  Ottawa  and 
the  western  boundary  of  the  canal  lands.” 

‘^By  reference  to  the  44th  section  of  the  act  for  the  con- 
struction of  the  Illinois  and  Michigan  canal  approved  the 
9th  of  January,  1836,  it  will  he  seen  that  the  Legislature  have 
ordered  the  canal  to  terminate  ‘‘at  or  near  the  mouth  of 
the  Little  Vermillion  river,  in  Lasalle  country,  and  on  lands 
owned  by  the  State.” 

“When  this  act  was  passed,  the  question  was  not  new, 
whether  a continuation  of  the  canal  or  an  improvement  of  the 
river  below  Ottawa  by  lock  and  dam  was  most  advantageous 
to  the  general  interest.  The  Legislature  had  accumulated  a 
large  fund  of  information  in  order  to  judge  of  the  compara- 
tive advantages  and  disadvantages  of  each  plan,  both  in 
relation  to  the  safety  and  stability  of  navigation,  and  to  the 
increased  revenue  derivable  from  State  property  by  termi- 
nating the  canal  as  low  down  the  river  as  was  contemplated  in 
the  grant  of  lands  from  the  Government  of  the  United  States. 
Nor  can  it  be  doubted  that  the  tenor  of  that  grant  had  some 
influence  on  the  decision.”  (Can.  Com.  Rep.,  1900,  p.  109.) 


1869 


6394a  ‘‘The  commissi  oners  shall  have  i)ower,  says  the  law, 
to  cause  an  engineer  to  examine  the  Illinois  Elver,  from 
the  mouth  of  Fox  river,  down  to  the  head  of  steamboat  navi- 
gation; and  if,  in  their  opinion  the  navigation  of  the  Illinois 
can  be  improved  by  locks  and  dams,  or  otherwise,  so  as  to 
secure  its  navigation  as  far  upward  as  the  mouth  of  Fox 
river,  with  as  little  expense  and  as  much  utility  as  cannal- 
ling  from  the  Fox  river  to  the  Little  Vermillion  or  the  foot 
of  the  rapids,  they  shall  have  power  to  terminate  said  canal 
at  mouth  of  Fox  river.”  In  1833,  the  same  engineer  re- 
ported that  a comparatively  good  route  could  be  obtained  for 
the  continuation  of  the  canal  from  the  mouth  of  Fox  river  to 
a place  now  known  as  Utica  and  that  great  difficulty  and  ex- 
pense would  attend  a further  progress.  In  examining  the 
rapids  of  the  Illinois  below  the  mouth  of  Fox  river  he  says, 
“It  was  ascertained  that  the  establishment  of  a still  water 
navigation  was  the  most  certain  and  effectual  method 
of  improving  them.”  But  in  his  zeal  to  demonstrate  Vm 
periority  of  a railroad  over  either  mode  of  Avater  communi- 
cation, he  admitted  a steamboat  canal  around  the  rapids, 
“to  be  of  too  precarious  a nature  to  be  recommended  with  any 
degree  of  confidence  in  its  ]Aermanency  and  usefulness.” 
He  estimated  an  independent  canal  behveen  Fox  rUer  and 
Utica  at  $580,000;  and  a still  water  navigation  of  the  same 
distance  at  $200,000;  and  it  is  worthy  of  remark  that  not- 
withstanding this  great  disparity  of  cost  necessarily  en- 
hanced by  the  difficult  country  between  Utica  and  the  mouth 
of  the  Little  Vermillion,  the  Legislature  liaA^e  thought  proper 
to  repeal  the  eight  section,  just  cited,  and  to  adhere  to  the 
first  plan.  In  fact,  they  have  presented  the  termini  in  lan- 
guage not  to  be  misunderstood,  Avhile  they  have  given  great 
latitude  and  almost  everything  else  connected  with  the  sub- 
ject, hence  the  commissioners  deem  themselves  unauthorized 
at  this  time  to  cause  a survey  of  the  rapids  of  the  Illinois 
river”  “with  a view  of  their  ultimate  improvement  for  slack 
water  navigation;”  nor  would  they  be  justified  to  any  premed- 
itated suspension  of  that  particular  line  for  the  sole  purpose 
of  bringing  the  matter  again  before  the  Legislature,  unless 
♦the  engineers  (who  have  recently  ascertained  that  a safe 
canal  and  suitable  termination  are  entirely  practicable) 
should  prove  by  their  estimates  that  the  cost  will  so  far  ex- 
ceed any  previous  calculations  as  to  render  it  prudent,  on 
the  part  of  the  commissioners,  to  report  that  fact  to  the  Goa^- 
ernor  and  pause  for  additional  legislation.”  (Can.  Com. 
Eep.,  1900,  p.  110.) 

6395  “Taking  this  view  of  the  subject,  the  commissioners  can 
make  no  pledge  “ ‘To  cause  any  part  of  the  river  to  be  sur- 
veyed, with  a view  of  slack  water  navigation,”  except  in 
the  contingency  before  mentioned  or,  in  the  further  one,  of 


1870 


Extract, — Canal  Com.  Rep.  1900. — Continued. 


the  Fox  river  feeder,  and  the  division  along  the  Eapids 
not  being  got  under  contract  during  the  present  season. 
Should  either  of  those  events  take  place,  an  accurate  survey 
from  Ottawa  down  will  be  made  this  fall  when  the  water  is 
low,  and  plans  and  estimates  submitted  to  the  Legislature.” 
(Can.  Com.  Eep.,  1900,  p.  111.) 

‘‘In  coming  to  this  conclusion,  the  board  of  commission- 
ers are  influenced,  in  the  first  case,  by  the  consideration  that 
if  a continuous  canal  should  be  shown  to  be  too  costly  for 
its  benefits,  a still  water  navigation  will  be  the  only  alterna- 
tive; and  in  the  second  case,  by  their  anxiety  to  do  every- 
thing  consistent  with  their  duty,  to  promote  the  interest  and 
gratify  the  wishes  of  the  enterprising  citizens  of  so  import- 
ant a town  as  Ottawa.  A point  in  which  the  State  is  deeply 
concerned  and  one  which,  in  no  event,  can  fail  to  arrive  at  im- 
mense consequence.”  (Can.  Com.  Rep.,  1900,  p.  111.) 

“With  great  respect,  gentlemen,  I remain. 

Your  obt.  servt. 

W.  F.  Thornton, 

President  Board  Comms.  I.  and  M.  Canal. 

^Messrs : 

Benj.  H.  Moore 
James  Day 
Loring  DeLano 
Benj.  Harris 
Bartley  Denison 
Win.  E.  Armstrong 
Geo.  H.  Norris 
David  Lith 
Henry  Green” 

(Can.  Com.  Rep.,  1900,  p.  111.) 

From  Annual  Report  for  1836. 

The  Enlarged  Plan. 

6396  “In  the  very  threshold  of  their  administration,  the  lioard 
were  met  by  appalling  difficulties,  involving  the  highest  of- 
ficial responsibility,  and  the  most  vital  interests  of  the  State. 
They  soon  became  convinced  that  the  magnitude  of  the  under- 
taking had  been  miscomprehended  both  by  the  Legislature 
and  the  people.  The  largest  estimate  that  had  been  previous- 
ly made  was  about  four  millions  of  dollars;  and  without  re- 
garding the  enlargement  of  the  ])lan  or  the  increased  value 
of  the  means  of  execution,  it  was  confidently  asserted  by 
many  members  of  the  Jjegislature  and  other  citizens,  whose 
opinions  were  entitled  to  weight,  that  even  that  estimate 
was  far  beyond  the  truth.” 

“The  commissioners  had  just  begun  their  iiKjuiries  when 
they  became  satisfied  that  the  four  millions  would  l)e  wholly 


1871 


inadequate;  and  before  they  had  determined  on  any  definite 
location,  they  saw  that  if  the  spirit  of  the  law  was  adhered 
to,  double  that  sum  would  be  required.  The  seventeenth  sec- 
tion of  the  act  says  that  ‘‘the  canal  shall  be  supplied  with 
water  from  Lake  Michigan,  and  such  other  sources  as  the 
commissioners  may  think  proper.’’  In  other  words.  Lake 
Michigan  must  be  a feeder;  and  consequently  the  water  of 
the  lake  must  be  carried  into  the  valley  of  the  Des  Plaines 
by  a through  cut,  chiefly  in  stone,  of  eighteen  feet  deep,  on 
an  average  and  nearly  thirty  miles  long.  It  was  upon  this 
plan  that  Mr.  Bucklin  made  his  four  million  estimate;  but 
his  canal  was  to  be  forty  feet  wide  at  the  surface,  twenty- 
eight  feet  base,  and  four  feet  deep;  while  the  present  law  re- 
quires’ “not  less  than  forty-five  feet  water  surface,  thirty 
feet  base,  and  a sufficient  depth  to  insure  a navigation  of 
four  feet.”  It  is  to  be  constructed,  too,  in  the  manner 
best  calculated  to  promote  the  permanent  interest  of  the  coun- 
try, and  a discretionary  reservation  is  authorized  on  each 
margin  with  a view  to  future  enlargement.”  (Can.  Com. 
Eep.,  1900,  p.  113.) 

“To  the  difficulty  which  this  view  of  the  subject  presented, 
another  was  added  which  exercised  a strong  influence  on  the 
movements  of  the  board.  It  was  at  first  believed  by  men  of 
experience,  and  countenanced  by  the  engineer,  that  steam 
power  would  have  been  freely  resorted  to  in  order  to  divest 
the  Summit  level  works  from  the  water  which  might  prob 
ably  flow  in  through  the  fissures  of  the  rocks;  and  that  the 
necessity  of  such  a resort  would  not  only  increase  the  expense 
of  excavation,  but  deter  contractors  from  making  acceptable 

proposals.  Under  the  circumstances,  the  board  came  to 
6396a  the  conclusion  that  if  it  were  practicable  to  obtain  ample 

feeders  from  other  sources  than  the  lake,  they  would  direct 
their  operations  for  the  present  year  to  some  other  division 
of  the  work  and  call  the  attention  of  the  Legislature  to  a 
change  of  plan.  The  Calumet  and  the  Des  Plaines  having 
been  ascertained  to  be  insufficient,  the  upper  region  of  the 
Fox  Eiver,  as  the  only  remaining  chance,  was  ordered  to  be 
examined;  but  after  a brief,  yet  convincing  investigation,  the 
project  was  abandoned.  A reference  to  the  engineer’s  report 
will  afford  all  the  particulars  of  the  exploration.  (Can.  Com. 
Eep.,  1900,  p.  II4.) 

“Nothing  now  remained  but  to  go  through  the  Summit 
level,  or  suspend  the  whole  work.  (Can.  Com.  Eep.,  1900,  p. 
II4.) 

“The  next  question  to  be  decided  was  the  size  of  the  canal. 
After  mature  deliberation  the  board  determined  to  adopt  the 
recommendation  of  the  chief  engineer,  and  construct  it  of  the 
following  dimensions,  to-wit:  Sixty  feet  wide  at  the  top 
water  line,  thirty-six  feet  wide  at  the  bottom  and  six  feet 


1872 


Extract, — Canal  Com.  Rep.  1900. — Continued. 


deep.  The  fluctuation,  or  irregular  tides,  in  the  lake,  occa- 
sioned by  the  action  of  high  winds  rendered  the  depth  agreed 
upon  indispensably  necessary  to  insure  a navigation  of  at 
least  four  feet,  and  the  commissioners  were  decidedly  and 
unanimously  of  the  opinion  that  the  adopted  width  was  that 
“best  calculated  to  promote  the  permanent  interest  of  the 
country.  ’ ’ 

***** 

“There  is  no  avoiding  the  stupendous  cost  through  the 
Summit  Level.  Water  must  be  drawn  from  Lake  Michigan 
and  that  water  will  be  of  great  value,  as  well  for  the  improve- 
ment of  the  river  navigation  as  for  hydraulic  purposes.  The 
greater  size  of  the  canal  will  facilitate  the  passage  of  canal 
boats,  overcome  their  burden  and  cheapen  freights.  It  must 
have,  too,  a beneficial  etfect  upon  the  prices  of  lands  and  town 
lots  owned  by  the  State;  such  an  effect,  in  fact,  was  clearly 
perceptible  at  the  recent  sales  in  Chicago,  and  will  doubtless 
be  felt  at  every  other  point.”  (Can.  Com.  Kep.,  1900,  p. 
114.) 


The  Macadam  and  Plank  Koad  Across  the  Swamp  from 
Joliet  to  Chicago. 

0398a  “But  the  heaviest  item  in  the  contingent  account  is  the 

Saganashkee  road,  amounting  to  $ At  the  very 

commencement  of  operations  it  became  evident  to  the  board, 
that,  owing  to  the  total  absence  of  a road  along  the  route  of 
the  canal,  which  passes,  for  several  miles,  through  marshy 
wet  prairie,  and  heavy  timber,  some  steps  must  be  taken  to 
secure  free  access  to  the  line,  at  all  seasons  of  the  year.  lYith- 
oiit  it,  hardships  would  at  times,  be  much  retarded,  and  con- 
tractors would  naturally  seek  to  indemnify  themselves  by  in- 
creased prices.  At  the  instance  of  the  acting  commissioner 
he  was  therefore  authorized  to  make  such  improvements  as, 
in  his  opinion,  were  indispensably  necessary.  It  was  be- 
lieved at  that  time,  that  five  or  six  thousand  dollars  would 
accomplish  the  object;  bi^t  the  plan  was  afterwards  extended 
to  its  present  condition  and  cost  upon  the  individual  respon- 
sibity  of  the  acting  commissioner.  He  was  confident  that  a 
])roper  discharge  of  his  duty,  as  the  immediate  superintend- 
ent of  the  canal,  warranted  the  expenditures;  and  the  other 
members  were  unwilling  to  withhold  the  means  which  the 
nineteenth  section  of  the  law  would  seem  to  sanction.  The 
board  is  unanimous,  however,  in  opinion,  that  the  State  will 
eventually  be  more  than  reimbursed  by  the  advantages  de- 
rivable from  so  useful  a highway.”  (Can.  Com.  Rep.,  1900,  p. 
118.) 


1873 


Feom  Hepoet  of  Chief  Engineer  Wm.  Gooding,  Dec.,  1836, 

Effect  of  Can  ah  on  the  Reservoirs  Eeeding  the  Des 

Plaines. 

6399  “Two  lines  of  levels  were  run  across  the  country  lying 
between  Chicago  and  the  Des  Plaines  river,  near  the  mouth 
of  Portage  or  Mud  Lake,  the  one  commencing  near  the  mouthy 
of  a broad  slough,  on  the  north  fork  of  the  south  branch  of 
Chicago  river,  at  the  point  where  the  former  canal  surveys 
were  commenced,  the  other  on  the  north  branch  of  said  river 
and  a half  a mile  above  the  point  or  the  junction  of  the  north 
and  south  branches.’’  (Can  Com.  Rep.,  1900,  p.  119.) 

“The  former  line  or  the  route  of  the  old  surveys  was 
found  to  be  far  the  most  favorable,  the  distance  for  which 
the  through  cut  would  have  to  be  made,  and  the  depth  of  cut- 
ting being  much  less.  This  line  passes  over  the  ground  but 
little  elevated  above  the  surface  of  Portage  lake  at  an  or- 
dinary stage  of  water,  and  which  is  mostly  inundated  during 
the  floods  of  the  Des  Plaines,  the  waters  of  which,  it  is  well 
known,  frequently  flows  across  this  low  country  into  the 
south  branch  of  Chicago  river.  A particular  examination  was 
also  made  of  Portage  lake  and  of  the  Des  Plaines  river  with 
. the  view  of  occupying  portions  of  each  with  the  canal  should 
the  result  prove  favorable.  But  it  was  found  that  no  saving 
could  be  effected  by  such  an  arrangement.  Portage  lake  is  a 
succession  of  ponds  on  the  same  level,  connected  with  each 
other  and  with  the  Des  Plaines  river,  and  extending  aliout 
six  miles  toward  Chicago  river,  nearly  in  the  direction  of 
the  canal  line.  The  surface  of  the  water  at  an  ordinary  stage 
is  lOf  feet  above  Lake  Michigan  and  the  mud  in  the  bottom  is 
generally  found  5 to  6 feet  above  Lake  Michigan  or  from  11 
to  12  feet  above  bottom  of  canal.  To  excavate  the  canal  to 
the  requisite  depth  through  these  ponds  and  the  marshes 
on  their  borders,  would  be  attended  witli  great  difficulty  and 
a cost  far  exceeding  that  of  making  the  through  cut  along 
the  borders  of  the  marshes  on  ground  more  favorable.” 

“The  examination  of  the  Des  Plaines  river  resulted  no  less 
unfavorable  than  that  of  Portage  lake.  The  bed  of  this  stream 
for  131  miles  below  the  point  wdiere  the  canal  line  enters  the 
valley,  except  in  a few  places  and  for  short  distances  only,  is 
from  8 to  12  feet  above  bottom  of  canal,  and  nothing  what- 
ever could  be  gained  by  occupying  any  portion  of  the  chan- 
nel, as  the  difficulty  of  disposing  of  or  keeping  out  the  waters 
of  the  river  to  make  the  necessary  excavation  would  more 
than  balance  the  diminution  of  the  quantity  to  be  excavated 
by  such  a location.”  (Can.  Com.  Rep.,  i900,  p.  119.) 

6399a  “From  the  examinations  made  it  soon  became  apparent 
that  the  Summit  division  was  likely  to  prove  far  more  ex- 


1874 


Extract, — Canal  Com.  Rep.  1900. — Continued. 


pensive  than  any  former  estimate  had  made  it,  and  it  was  be- 
lieved that  if  a permanent  and  adequate  supply  of  water 
could  be  provided  without  cutting  down  the  Summit  so  as  to 
introduce  the  waters  of  Lake  Michigan,  a change  in  the  ex- 
isting law  should  he  recommended  to  the  legislature  of  this 
State  at  its  next  session.”  (Can.  Com.  Rep.,  1900,  p.  120.) 


Summit  Division. 

6400  ^^This  division  extends  from  the  north  fork  of  the  south 
branch  of  Chicago  creek  to  the  first  lock  and  is  also  made  to 
include  the  creek  or  river  section  of  five  miles  and  44  58-100 
chains  in  length.  The  length  of  the  river  section  is  computed 
from  the  pier  at  the  mouth  of  the  river  to  the  commencement 
of  the  through  cut  at  “the  mouth  of  the  broad  slough”  on 
the  north  fork  of  the  south  branch  on  the  line  as  located  for 
the  June  letting.  Towing  path,  however,  is  only  estimated 
from  the  point  on  the  junction  of  the  north  and  south 
branches,  and  will  be  constructed  on  the  south  side  of  the 
south  branch  four  miles  and  sixty-four  chains,  where  it  will 
cross  by  a towing  path  bridge  at  the  mouth  of  the  north  fork, 
up  which  it  will  continue  to  the  mouth  of  the  slough  before 
mentioned.  Little  expense  will  be  required  except  for  the 
towing  path  until  the  south  branch  is  crossed,  when  it  will 
become  necessary  to  cut  otf  some  points,  and  in  some  places 
to  deepen  the  channel  between  the’  mouth  of  the  north  fork 
and  the  commencement  of  the  through  cut.”  (Can.  Com. 
Rep.,  1900,  p.  121.) 

“But  the  law  requires  that  the  canal  should  commence  on 
canal  land,  and  if  the  branch  thus  improved  be  not  consid- 
ered canal,  it  will  be  necessary  to  continue  the  through  cut 
to  the  south  branch,  increasing  the  length  of  independent 
canal  forty-eight  chains  or  otherwise  the  law  should  be  so 
changed  as  to  permit  the  most  judicious  location  practicable, 
which  is  believed  to  be  on  the  route  first  described.  A sur- 
vey has,  however,  been  made  in  pursuance  of  instructions  re- 
ceived, from  a point  on  the  south  branch  44  chains  above  the 
crossing  proposed  at  the  mouth  of  the  north  fork  to  a point 
near  the  Des  Plaines  river  where  the  line  first  run,  and  upon 
which  the  estimates  were  made  for  the  June  letting,  is  in- 
tersected. Both  these  lines  from  the  point  of  starting  to  the 
intersection,  are  straight  and  occupy  similar  ground.  Upon 
the  first  route  to  the  straight  line  is  74  miles  in  length,  and 
upon  the  other  route  eight  miles  and  eight  chains.”  (Can. 
Com.  Rep.,  1900,  p.  121.) 

“The  prairie  over  which  both  line  pass  is  very  level,  and 
extremely  wet  except  in  times  of  severe  drought.  The  cut- 


1875 


ting  is  generally  from  seventeen  to  nineteen  feet,  through 
a stiff  blue  clay.’’ 

“Below  the  intersection  of  the  tow  lines  the  canal  route  is 
down  the  valley  of  the  Lies  Plaines.  This  river  for  thirteen 
or  fourteen  miles  has  very  little  descent,  the  current  at  low 
water  being  scarcely  perceptible,  and  the  land  so  low  along 
its  borders  as  to  be  overflowed  by  every  rise  of  water.” 
“After  the  line  enters  the  valJey  the  direction  is  changed 
by  a gentle  curve  and  another  straight  line  obtained  of  three 
miles  and  fifty  chains  in  length.  Several  other  long  straight 
lines  are  obtained  on  this  division  and  the  curves  may  all 
be  gentle  and  uniform.” 

“The  depth  of  cutting  continues  about  the  same  down  the 
valley  to  Brewer’s  ford  as  across  the  wet  prairie  from  Chi- 
cago river  to  the  Des  Plaines,  but  the  canal  will  be  much 
more  expensive  as  tbe  excavation  is  principally  rock.  The 
depth  of  earth  on  the  rock  above  the  mouth  of  the  Saganaskee 
swamp  was  found  to  be  much  less  than  was  anticipated  and 
less  than  was  represented  in  Mr.  Bucklin’s  report  but  he 
may  have  found  a more  favorable  line  than  that  upon  which 
our  examinations  have  been  made.” 

“A  different  section  of  canal  is  ])resented  in  crossing  the 
mouth  of  the  Saganaskee  swanp)  where  there  is  earth  to  a 
depth  of  five  or  six  feet  the  most  of  which  is  a semi-fluid  rest- 
ing on  rock.  The  cutting  is  here  about  seventeen  feet.” 
(Can.  Com.  Pep.,  1900,  p.  121.) 

“Prom  this  point  to  the  first  lock  the  rock  is  generally 
near  the  surface  and  a definite  location  has  l)een  made  whicli 
it  is  believed  is  susceptible  of  little  improvement.  The  level 
runs  out  a short  distance  after  crossing  Big  Kun  which  is 
about  IL  miles  above  the  first  lock  and  in  the  bed  of  which 
the  cutting  is  two  feet.  This  must,  of  course,  be  taken  into 
the  canal.  (Can.  Com.  Pep.,  1900,  p.  121.) 

6400a  “No  estimate  has  been  made  for  cutting  down  the  tow- 
ing path  as  the  whole  drainage  of  a considerable  extent  of 
country  on  the  southeast  side  of  the  canal  must  be  received  into 
it,  and  it  was  believed  tliat  this  wmuld  sometime  be  nearly 
filled  so  that  a towing  path  below  the  surface  would  be  use- 
less.” (Can.  Com.  Pep.,  1900,  p.  122.) 


The  DuPage-Dresden  Section. 

Nature  of  the  Construction. 

Engineer  Gooding’s  Suggestion  that  the  Piver  Be  Used. 

6401a  “About  two  miles  below  the  crossing  of  the  Du  Page 
a very  difficult  and  expensive  portion  of  the  line  commences 
and  extends  nearly  to  Dresden,  below  the  mouth  of  the  Kan- 


1876  Extract, — Canal  Com.  Rep.  1900. — Continued. 

kakee  river.  The  bluffs  whicli  are  from  100  to  150  feet  in 
height  approach  the  river  so  as  to  be  washed  by  it  at  their 
base,  and  the  towing  path  bank  which  will  be  partly  or  wholly 
built  in  the  river  at  the  base  of  the  bluffs  will  require  slope 
wall  to  protect  it  against  abrasion  from  the  flood  waters  of 
the  river,  for  an  aggregate  distance  of  2 miles  and  50  chains.” 
(Can.  Com.  Eep.,  1900,  p.  124.) 

“The  most  expensive  portion  of  this  difficult  section  com- 
mences a short  distance  above  the  mouth  of  the  Kankakee 
river,  and  continues  to  the  termination  of  the  bluffs.  The  base 
of  the  towing  path  will  be  wholly  in  the  river,  and  the  em- 
bankment must  be  formed  l)y  earth  taken  either  from  the 
top  of  the  bluff  or  from  the  opposite  side  of  the  bluff,  for  the 
excavation  of  any  portion  of  the  prison  of  canal  in  the  bluff 
would  increase  its  tendency  to  slip  and  consequently  endanger 
the  canal.”  (Can.  Com.  Eep.,  1900,  p.  124.) 

“Heavy  protection  wall  will  here  be  required  to  resist  the 
force  of  the  ice  floods  of  the  Kankakee,  but  it  is  believed  that 
the  estimate  of  cost  presented  is  sufficient  to  construct  a canal 
as  permanent  as  it  can  well  be  made  along  clay  bluffs  which 
seem  so  much  inclined  to  slip.  ’ ’ 

“Another  mode  of  passing  the  bluffs  may  be  worthy  of 
examination  before  a final  location  is  made  of  this  part  of 
the  line  between  Dresden  and  Marseilles.” 

“A  dam  may  be  built  at  the  foot  of  the  bluffs  and  a tow- 
ing path  constructed  along  their  base  so  as  to  pass  this  dif- 
ficult portion  of  the  line  by  slack  water  at  much  less  ex- 
pense than  the  present  estimate  of  an  independent  canal,  and 
would,  undoubtedly,  be  quite  as  secure  an  improvement.  By 
raising  the  water  15  feet  (and  a dam  of  this  height  can  be  ren- 
dered perfectly  secure  for  there  is  a good  rock  foundation) 
the  line  would  be  thrown  104  feet  lower  than  the  survey  made  , 
to  lock  Xo.  8,  of  8 feet  lift  between  the  Aux  Sable  river  and 
Xettle  creek,  and  21  feet  lower  than  the  line  surveyed  from 
this  lock  to  locks  Xos.  9 and  10,  short  distance  above  Mar- 
seilles. This  would  involve  the  necessity  of  a change  in  the 
plan  of  crossing  the  Aux  Sable,  an  aqueduct  having  been  es- 
timated and  a dam  being  required,  if  the  plan  suggested  here- 
after be  adopted,  and  the  river  would  be  crossed  considerably 
further  down.  The  line  below  Dresden  would  probably  be 
rendered  more  expensive  than  it  is  shown  by  the  present  es- 
timate, and  some  damage  would  be  sustained  by  the  overflow- 
ing of  land  about  the  mouth  of  the  Du  Page,  but  how  exten- 
sive this  damage  would  be,  how  much  expense  would  be  saved 
at  the  bluffs,  and  how  much  additional  cost  encountered  be- 
low, are  all  matters  of  future  investigation.”  (Can.  Com. 
Eep.,  1900,  p.  124.) 


1877 


()402a  Location  of  Western  Terminal. 

‘‘The  termination  of  the  canal  is  made  on  the  corner  of 
section  21  in  township  38,  N.  R.  1 east  of  the  8d  principal 
meridian.  (Con.  Com.  Rep.,  1900,  p.  126.) 

How  Engineer  Gooding ^s  Suggestion  Wlvs  Acted  On. 

6406  Shallow  Cut  High  Level  with  Riv^er  Feeders. 

“This  communication  and  the  reports  of  the  canal  Com- 
missioners and  their  engineer  were  referred  to  the  commit- 
tee on  canal  and  canal  lands,  who  on  the  15th  day  of  Feb- 
ruary, 1837,  submitted  the  following  report:” 

“The  committee  on  canal  and  canal  lands,  to  which  was 
referred  the  message  of  the  Governor  transmitting  the  annual 
report  of  the  canal  Commissioners;  also  a report  of  the  com- 
mittee on  roads  and  canals  of  the  House  of  Representatives, 
have  had  the  various  matters  submitted  to  them  under  con- 
sideration, and  submit  the  following  as  the  result  of  their 
deliberations.” 

“From  the  examinations  of  those  documents  it  will  be 
seen,  that  the  (jiiestions  presented  for  consideration  naturally 
bring  before  the  committee  inijuiries  touching  the  whole 
course  of  many  years’  legislation  upon  the  subject  of  the 
canal.  Questions  which  ought  long  since  to  have  been  inves- 
tigated and  definitely  settled,  and  which  it  must  be  presumed 
have  been  fully  considered  and  decided  upon  by  previous  leg- 
islative bodies,  ore  again  presented  with  the  view  of  an  al- 
most entire  change  and  total  reversion  of  ail  ])i*evious  legis- 
lative action.  The  committee  have  not  thought  proper  to  as- 
sume the  correctness  of  the  policy  and  measures  heretofore 
adopted  without  investigating  the  facts  and  reasons  urged  in 
favor  of  the  change.  In  proceeding  to  the  investigation  of 
this  subject,  the  committee  will  endeavor  to  divest  them- 
selves of  all  prejudice  in  favor  of  preconceived  opinions,  grow- 
ing out  of  previous  action  in  their  legislative  capacity  upon 
the  same  subject.  It  is  deemed,  proper,  however,  to  state 
that  in  the  opinion  of  the  committee  it  is  incumbent  upon  those 
urging  and  projiosing  changes  of  action  upon  a subject  of 
such  vast  importance  to  show  that  such  changes  are  practi- 
cable, and  are  consistent  with  the  public  faith,  and  the  char- 
acter and  dignity  of  the  State.  The  first  change  proposed 
by  the  conumittee  of  the  House  is  upon  the  Summit  division 
of  the  canal  line,  thirtv-two  miles  in  extent.”  (Can.  Com. 
Rep.,  1900,  p.  133.) 

(1)  Shallow  Cut  High  Level  With  River  Feeders. 

“The  y:>roposition  is  1o  adopt  the  high  level,  as  run  by  Mr. 
Bucklin,  ten  feet  above  the  surface  of  Lake  Michigan  using 
the  Calamic  and  I)es  Plaines  rivers  for  feeders.” 


1878 


Extract, — Canal  Com.  Rep.  1900. — Continued. 


(2)  Improvement  oe  Illinois  Eiver  to  Head  of  Lake  Joliet. 

‘‘The  second  is,  to  substitute  the  improvement  of  the  Illi- 
nois river,  from  the  foot  of  the  rapids  to  the  head  of  Lake 
Juliet,  for  steam  navigation  by  emans  of  locks  and  dams.^’ 
(Can.  Com.  Eep.,  1900,  p.  133.) 

Discussion  of  High  Level  Feeder  Proposition. 

“The  reasons  urged  by  the  committee  of  the  House  in  favor 
of  the  first  changes  proposed  are:  First,  the  large  sum 

which  the  canal  will  cost  upon  the  present  plan;  secondly,  the 
length  of  time  required  for  its  completion;  third,  the  diffi- 
culties of  construction;  and  fourth,  that  a better  plan  can  be 
adopted.^’ 

“All  of  these  reasons  except  the  last  strike  at  the  root  of 
the  project,  and  have  been  often  urged  against  the  policy  of 
engaging  in  a work  of  such  magnitude,  and  it  is  to  be  re- 
gretted that  the  committee  did  not  turn  its  attention  more 
particularly  to  the  last  reason,  because,  unless  it  can  be  made 
to  appear  that  the  changed  proposed  by  the  committee  is 
practicable,  the  arguments  with  reference  to  cost,  to  time 
and  to  difficulties  of  construction,  must  have  their  full  weight 
against  proceeding  further  with  the  canal.”  (Can.  Com.  Eep., 
1900,  p.  133.) 

“If  the  fact  can  be  established,  that  a canal  much  less  ex- 
pensive, equally  ample,  and  securing  all  the  advantages  and 
accommodations  which  could  be  obtained  from  the  deep  cut- 
ting, can  be  constructed  upon  the  plan  proposed  by  the 
6406a  committee  of  the  House,  there  will  be  no  ground  or  point 

left  for  disjmtation.  No  citizen  of  Illinois  would  be  found 
contending  against  the  adojition  of  such  a plan.  If,  on  the 
contrary,  the  plan  proposed  is  impracticable,  no  one  desiring 
the  completion  of  the  canal  would  be  willing  to  abandon  the 
present  plan  for  such  reasons  as  are  urged  against  it.”  (Can. 
Com.  Eep.,  1900,  p.  134.) 

Effect  of  Local  Interests. 

“It  is  a source  of  deep,  regret  that  local  and  sectional  in- 
terests of  recent  origin,  should  be  made  to  operate  upon  a 
([uestion  of  such  vital  importance  to  the  character,  dignity 
and  faith  of  the  State.  A spirit  of  rivalry  is  perhaps  insepara- 
ble from  the  existence  of  towns  and  villages,  whose  inhabit- 
ants imagine  that  the  prosperity  of  one  would  be  the  down- 
fall of  the  others.  Yet  whenever  such  a spirit  shall  attempt 
to  exert  an  influence  upon  legislative  action,  upon  measures 
involving  both  State  and  National  policy,  it  ought  to  be  met 
by  the  re})resentatives  of  the  people  with  the  requisite  firm- 
ness to  destroy  its  influence,  and  put  to  shame  those  who 
have  attempted  to  use  it.”  (Can.  Com.  Eep.,  1900,  p.  134.) 


1879 


Senate  Committee's  Summary  of  Former  History^  (in  1837). 

‘‘In  the  examination  of  the  questions  now  uncfer  consid- 
eration, the  committee  will  first  review  the  legislative  action 
bearing  upon  this  point.  In  1823  an  act  was  passed  organ- 
izing a board  of  commissioners  to  consider,  devise  and  adopt 
the  measures  requisite  to  effect  the  communication  by  canal 
and  locks  between  the  navigable  waters  of  the  Illinois  river 
and  Lake  Michigan.  Five  distinguished  citizens  of  the  State 
were  constituted  the  board.  An  examination  and  survey 
were  executed  under  their  direction  by  Messrs.  Paul  and  Post, 
both  of  whom  stood  high  as  men  of  science,  talents  and  integ- 
rity.’^ (Can.  Com.  Kep.,  1900,  p.  134.) 

“In  January  1829,  an  act  was  passed  liy  which  a board  of 
canal  commissioners  was  organized,  who  were  required  to  lo- 
cate the  canal  to  effect  a navigable  communication  between 
Lake  Michigan  and  the  Illinois  river.  The  canal  to  he  at 
least  40  feet  in  width  at  the  summit  of  the  water  line,  28 
feet  wide  at  tlie  bottom,  and  of  sufficient  depth  to  contain  at 
least  4 feet  of  water;  and  to  he  furnished  with  such  locks, 
aqueducts  and  dams,  as  might  be  reipiired  to  secure  a safe 
and  convenient  navigation  for  boats  at  least  75  feet  long, 
134  feet  wide  and  drawing  3 feet  of  water.  Xo  point  is 
fixed  in  either  of  those  acts  for  the  termination  or  commence- 
ment of  the  canal;  nor  v/as  a<ny  direction  given  as  to  the 
waters  to  he  used  for  feeders.  (Can.  Com.  Pep.,  1900,  p.  134.) 

“In  1831  the  last  act  referred  to  was  amended,  and  an  ex- 
amination was  required  to  be  made  of  the  Illinois  river,  from 
the  mouth  of  Fox  river  down  to  the  head  of  steamboat  navi- 
gation, with  the  view  of  ascertaining  whether  the  Illinois 
river  could  lie  improved  by  dams  and  locks,  or  otherwise,  so 
as  to  secure  its  navigation  as  far  upwards  as  the  mouth  of 
Fox  river.  An  examination  was  also  required  of  the  Calamic 
river  to  ascertain  its  probable  sufficiency  as  a feeder  for 
that  part  of  a canal  between  the  Chicago  and  Des  Plaines 
rivers.  In  1832-3,  after  an  ineffectual  attempt  to  change  the 
character  of  the  improvement,  from  a canal  to  that  of  a rail- 
way, the  hoard  of  canal  commissioners  was  abolished,  and 
all  further  progress  of  the  work  suspended.  In  1834-5,  an- 
other act  was  passed  which  provided  that  the  canal  shall  not 
be  less  than  45  feet  wide  at  the  surface,  30  feet  at  the  base  and 
of  sufficient  depth  to  insure  a navigation  of  at  least  4 feet,  to  he 
suited  for  ordinary  canal  boat  navigation,  to  lie  supplied 
with  water  from  Lake  Michigan  and  such  other  sources  as 
the  canal  commissioners  may  think  proper.  Xo  point  of 
termination  was  fixed  l)y  this  act.  The  act  of  9th  January, 
1836,  under  which  the  late  canal  commissioners  acted,  pro- 
vides that  the  canal  shall  commence  at  or  near  the  town  of 
Chicago,  on  canal  lands,  and  shall  terminate  near  the  mouth 


1880 


Extract,— Canal  Com.  Bep.  1900 — Continued. 


of  the  Little  Vermilion  river,  in  La  Salle  county,  and  on  land 
owned  by  the  State.  These  acts  of  the  Legislature  are  re- 
ferred to,  in  order  to  present  before  the  Senate,  in  one  view, 
the  real  points  in  controversy,  and  to  show  the  reasons  upon 
which  the  opinion  is  expressed,  that  those  who  propose 
changes  in  the  action  of  the  Legislature,  are  hound  to  show 
that  such  changes  are  practicable,  and  consistent  with  proper 
regard  to  the  interest  of  the  State.  It  may  here  he  remarked, 
that  an  examination  of  the  various  laws  will  show  that  the  pro- 
visions upon  the  point  under  consideration  tvere  not  adopted 
by  accident  and  icithout  design.  The  committee  of  the  House 
in  order  to  prove  the  practicability  of  the  change  proposed, 
have  made  calculations  as  to  the  quantity  of  water  required 
to  supply  such  a canal  as  is  proposed  to  he  constructed, 
6107  and  at  page  19  of  their  report  say:  ‘Your  committee  feel 

assured  that  not  only  a sufficient  quantity  of  water  for  all 
the  purposes  of  the  canal  can  be  procured  from  these  two 
sources  (the  Calamic  and  Des  Plaines)  but  that  a large  sur- 
plus will  still  remain.”  (Can.  Com.  Rep.,  1900,  p.  134-5.) 


The  Senate  Committee  Leave  It  to  Mr.  Bucklin. 

“Xo  member  of  your  committee  having  sufficient  knowl- 
edge of  the  science  of  engineering  to  risk  his  own  judgment 
upon  this  question  in  opposition  to  the  published  opinions 
of  gentlemen  of  acknovdedged  scientific  information,  they  are 
compelled  to  rely  upon  the  opinions  of  others,  in  whose  judg- 
ment they  have  confidence.  Mr.  Bucklin,  well  known  to  the 
])ublic,  having  recently  arrived  at  this  place,  the  chairman 
of  the  committee  addressed  a note  to  him  which  together 
with  the  reply  is  as  follows”:  (Can.  Com.  Rep.,  1900,  p.  135.) 

‘‘Vandalia,  Feb.  8,  1837. 

Mr.  J.  M.  Bucklin, 

Sir: — ‘‘I  am  engaged  as  chairman  of  a committee  of  the 
Senate,  investigating  the  questions  which  have  recently  arisen 
in  regard  to  the  change  in  the  plans  in  constructing  the  Illi- 
nois and  Michigan  canal,  and  particularly  the  question  in 
relation  to  the  abandonment  of  the  ]iroject  of  supplying  the 
canal  with  water  from  the  lake,  and  resorting  to  the  Calamic. 
Xot  being  an  engineer,  nor  familiar  with  the  calculations  in 
relation  to  the  ([uantity  of  water  recpiired  to  supply  a canal 
of  the  size  contemplated,  I take  the  liberty  of  asking  your 
assistance,  and  recpiest  the  favor  of  you  to  review  the  calcula- 
tions heretofore  made  by  yourself  and  others  in  reference  to 
the  quantity  of  water  in  the  Calamic,  and  to  state  the  quantity 
recjuired  for  the  canal,  as  at  ])resent  proposed  to  be  con- 
structed. You  will  also  state  if  there  is  anything  peculiar  in 
the  character  of  the  country,  to  justify  the  erecting  of  a canal 


1881 


without  providing  the  usual  quantity  of  water  for  evax>ora- 
tion  and  leakage.  All  the  documents,  except  the  report  made 
by  you  in  1830,  will  be  furnished  if  desired. 

Very  respectfully,  your  obedient  servant, 

Wm.  Thomas, 

Chairman  of  the  Committee  on  Canals,  etc/’ 
Can.  Com.  Rep.  1900,  p.  135. 

The  following  is  Mr.  Bucklin’s  replv: 

“Sir: 

It  will  give  me  great  x:>leasure  to  afford  you  any  informa- 
tion that  I may  possess  in  relation  to  the  interesting  subject 
which  you  have  before  you.  I can,  however,  do  little  more 
than  recapitulate  the  information  that  has  been  derived  from 
various  sources  resj^ecting  it.” 

“The  river  Des  Plaines  was  gauged  at  Laughton’s  ford, 
by  Messrs.  Post  and  Paul,  in  the  first  survey  that  was  ever 
made  of  the  route  of  the  Illinois  and  Michigan  canal,  and  the 
discharge  found  to  be  72,000  cubic  feet  i^er  hour.  They 
also  gauged  it  at  the  Cache  island,  eighteen  miles  below, 
when  they  ascertained  the  discharge  to  be  117,000  cubic  feet 
per  hour.  In  October,  1829,  it  was  gauged  by  Dr.  Howard, 
U.  S.  civil  engineer,  who  i:)laces  the  discharge  at  96,480  cubic 
feet  per  hour.  At  the  same  x^lace  (Laughton’s  ford)  it  was 
again  gauged  by  Messrs.  Harrison  k Guion,  on  the  8th  of 

August,  1830,  and  found  to  discharge  60,000  cubic  feet  per 

hour.  The  Calamic  river  was  gauged  by  me  in  the  month 
of  Sei3tember,  1830,  and  found  to  discharge  estimated  at  320,- 
000  cubic  feet  per  hour.  It  was  also  gauged  by  M.  Guion, 

assistant  civil  engineer,  in  the  service  of  the  United  States, 

about  the  same  time,  and  the  discharge  placed  by  him  at 
1,033,000  cubic  feet  per  hour.  It  may  be  proper  to  remark 
here  that  the  fall  of  1830  was  a season  of  extraordinary 
drought.”  (Can.  Com.  Rep.,  1900,  p.  135.) 

6407a  “The  allowance  of  100  cubic  feet  per  mile  per  minute  for 
eva])oration  and  filteration  wuis  assumed  by  me  as  the  basis 
of  all  calculations  in  deliberating  the  minimum  quantity  of 
water  to  be  provided  for  the  Illinois  and  Michigan  canal.” 
“The  surface  of  the  canal  as  at  present  proposed  to  be 
constructed,  is  sixty  feet,  and  bears  the  jDrox^ortion  of  one 
and  one-half  to  one  to  the  surface  of  the  canal  as  at  first 
]3roposed.  The  dej3th  of  water  is  now  six  feet  whereas  it 
was  formerly  four  feet,  consequently,  the  pressure  of  water 
being  as  the  squares  of  the  heights,  and  the  leakage  nearly 
as  the  square  roots  of  the  heights,  the  }3ressure  will  be  more 
than  doubled  and  the  leakage  (taking  into  calculation  the 
great  surface)  increased  in  x3roposition  to  one  and  a half 
to  one. 

“The  quantity  of  water  then  that  will  be  required  to  siq3ply 


1882  Extract, — Canal  Com.  Rep.  1900. — Continued. 

the  evaporation  and  leakage  in  a canal  of  the  dimensions  pro- 
posed, will  be  150  cubic  feet  per  minute  per  mile;  and  with 
reference  to  the  peculiar  character  of  the  country  through 
which  the  canal  passes,  I know  of  nothing  which  would  jus- 
tify a departure  from  the  established  rule,  in  regulating  the 
supply  of  water.  It  is  true  the  upper  level  is  situated  in  a 
very  wet  country,  hut  the  levels  below  dependent  upon  the 
summit  for  water,  are  located  on  ground  very  badly  calcu- 
lated to  retain  it,  and  it  is  possible  that  more  than  the  ordi- 
nary supply  may  be  required.” 

“If  the  i^roject  of  supplying  the  canal  from  Lake  Michigan 
he  abandoned,  and  the  high  level  resorted  to,  the  length  of 
canal  including  feeders,  to  be  supplied  with  water  on  the  up- 
per level  is  fifty-six  miles,  which  will  require  8,407  cubic  feet 
per  minute  to  supply  the  evaporation  and  leakage,  and  a fur- 
ther supply  of  2,112  for  lockage,  making  in  all  a minimum 
supply  of  10,512  cubic  feet  per  minute.” 

Very  respectfully,  your  obedient  servant, 

J.  M.  Bug  KLIN.” 

(Can.  Com.  Eep.,  1900,  p.  136.) 


Rights  of  Indiana  in  the  Calumet. 

“Aside  from  the  fact  that,  according  to  the  most  authentic 
information,  the  Calamic  and  Des  Plaines  do  not  afford  suf- 
ficient water  for  the  use  of  the  canal,  it  is  an  admitted  fact 
that  the  Calamic  takes  its  rise  in  Indiana.  From  the  latest 
maps  it  appears  to  bend  through  the  corner  of  Illinois  and 
pass  into  the  lake  near  the  State  line.  It  is  contended  by 
some  that  it  formerly  passed  into  the  lake  in  Indiana;  it  is, 
however,  certain  that  the  State  of  Indiana  may  use  the  water 
of  the  river  to  the  exclusion  of  Illinois.  The  committee  are 
not  advised  of  any  improvement  projected  by  the  State  of 
Indiana  requiring  the  use  of  this  river.  But  the  testimony 
of  Lieutenant  Burnett  herewith  submitted,  although  not  con- 
clusive, tends  strongly  to  prove  that  a company  incorporated 
by  the  State  of  Indiana  have  projected  a canal,  which  will  re- 
([uire  the  use  of  at  least  half  the  water  of  that  stream.” 
(Can.  Com.  Rep.,  1900,  p.  136.) 

“Upon  the  point  now  under  consideration  the  committee 
have  arrived  at  the  following  conclusions:” 

“First — That  the  Calamic  and  Desplaines  do  not  afford 
sufficient  water  for  the  use  of  the  canal.” 

“Second — That  if  they  did  it  would  not  be  prudent  or  safe 
to  rely  upon  the  Calamic.” 

“In  arriving  at  these  conclusions  the  committee  have  re- 
lied upon  the  evidence  referred  to,  consisting  of  extracts 
from  reports,  and  other  authentic  documents.  It  must  be 


1883 


evident  to  all  those  who  have  given  the  subject  an  examina- 
tion that  the  point  on  the  Calamic  where  it  is  proposed  to 
take  the  water,  is  below  the  summit  of  the  canal  line,  and  only 
2 feet  81-100  above  the  level  of  the  lake.  The  erection  of  a 
dam  across  the  Calamic  would,  therefore,  be  absolutely  neces- 
sary, the  effects  and  consequences  of  which  cannot  with  any 
certainty  be  calculated  or  ascertained.  One  effect  would 
doubtless  be  the  overflowing  of  an  immense  tract  of  country 
and  a subsequent  loss  of  water  by  evaporation,  absorption, 
etc.”  (Can.  Com.  Kep.,  1900,  p.  136.) 

‘‘Your  committee  will  now  proceed  to  the  examination  of 
the  second  and  third  reasons  assigned  why  a change  should 
be  made  in  the  Summit  division  of  the  canal,  viz:  the  length 
of  time  required  and  the  difficulties  and  cost  of  construc- 
tion. There  are  reasons  which  have  often  been  urged 
6408  and  acted  upon  by  those  who  have  been  opposed  to  the  pol- 
icy of  the  State’s  undertaking  so  stupendous  a work;  but  the 
judgment  of  the  people  has  long  since  been  pronounced  against 
their  sufficiency.  Your  committee  will  not  pretend  but  that 
there  are  many  difficulties  to  be  encountered  in  the  prosecu- 
tion of  the  work  and  that  from  five  to  eight  years  may  be  re- 
quired for  its  completion.  Having  arrived  at  the  same  con- 
clusion with  all  others  who  have  examined  the  subject  (ex- 
cept the  committee  of  the  House)  that  in  order  to  construct 
such  a canal  as  the  nation  has  a right  to  expect,  the  waters 
of  the  lake  must  be  used.  The  question  naturally  recurs, 
shall  the  State  persevere  in  the  work,  or  shall  the  project  be 
abandoned?  These  are  the  real  questions  to  be  considered, 
in  answering  the  reasons  assigned  for  the  proposed  change: 
and  as  these  questions  are  general  and  applicable  to  the 
whole  line  of  the  work,  their  consideration  will  be  deferred 

UNTIL  THE  SECOND  PROPOSITION  FOR  A CHANGE  IS  CONSIDERED 
AND  DISPOSED  OF.” 


Substance  of  Eeply.  The  Nation  Has  Paid  With  a Land 
Grant  for  a Canal  : Therefore,  We  Will  Not  Improve  the 
River. 

“The  second  reason  urged,  viz:  that  the  cost  of  the  im- 
provement will  be  greatly  diminished  will  not  be  contro- 
verted, but  the  value  of  that  improvement  compared  with  the 
value  of  improvement,  compared  with  the  value  of  the  canal 
and  the  comparative  advantages  of  the  two  descriptions  of 
improvements,  have  not  been  discussed  in  the  report.”  (Can. 
Com.  Rep.,  1900,  p.  137.) 

“It  is  a work  national  in  its  character,  and  the  people  of 
Illinois  should  rejoice  at  the  opportunity  offered  of  being 
instrumental  in  executing  a work  of  such  vast  magnitude  and 


.1884 


Extract, — Canal  Com.  Rep.  1900. — Continued. 


importance.  The  eyes  of  the  civilized  world  are  resting  upon 
ns  with  intense  interest,  for  our  success  in  a work  which 
promises  such  extensive  and  incalculable  advantages  to  these 
United  States.  The  people  of  the  United  States  are  looking 
to  the  completion  of  this  work,  as  forming  the  last  link  in  an 
endless  chain  which  shall  forever  hold  these  United  States 
in  the  bonds  and  pledges  of  union,  and  your  committee  ask  in 
the  name  of  the  civilized  world,  in  the  name  of  the  people  of 
the  United  States,  and  in  the  name  of  Illinois,  that  no  local, 
sectional  or  private  interest  be  consulted  in  the  decision  about 
to  be  made.’’  (Can.  Com.  Rep.,  1900,  p.  137.) 


“The  Magnitude  of  the  Wokk,  and  the  Difficulties  At- 
tending ITS  Execution  Have  Been  Long  Known  and  Con- 
sidered. 

“The  representatives  of  the  people  did  not  engage  in  the 
work  without  a due  consideration  of  those  difficulties.  The  in- 
terest which  the  nation  has  taken  in  the  project  is  evinced 
by  the  act  of  Congress  changing  the  northern  boundary  line 
of  the  State  by  the  purchase  from  the  Indians  of  a strip  of 
territory  extending  from  the  Illinois  to  the  lake,  with  an  eye 
single  to  this  project,  by  the  act  of  Congress  granting  right  of 
way  to  the  State,  and  by  the  subsequent  act  granting  lands 
of  value  sufficient  to  defray  the  whole  cost  of  the  work.” 
(Can.  Com.  Rep.,  1900,  p.  137.) 

“It  has  always  been  regarded  as  a national  work,  and  the 
nation  having  furnished  the  means  for  its  execution,  have  a 
right  to  expect  the  work  shall  be  projected  and  executed 
in  a manner  suited  to  the  character  and  views  of  an  united 
and  enlightened  people.  The  fund  for  this  purpose  is  admit- 
ted on  all  hands  to  be  ample  and  no  citizen  of  Illinois  ought 
to  be  willing  to  see  the  faith  of  the  State  violated,  public  ex- 
pectation disappointed,  and  the  beneficence  of  the  national 
government  abused  by  authorizing  any  other  description  of 
work.”  (Can.  Com.  Rep.,  1900,  p.  137.) 

“The  question  may  be  confidently  asked — why  should  any 
one  desire  to  disappoint  the  hopes  and  expectations  of  the 
nation  in  regard  to  the  character  of  this  work!  Can  it  be 
supposed  that  the  nation  would  have  extended  assistance  by 
so  large  and  extensive  a grant  of  lands  towards  the  execu- 
tion of  a project  ])urely  local,  a project  which  at  best  would 
not  accommodate  the  trade  of  Illinois  alone  five  years  hence.” 
(Can.  Com.  Rep.,  1900,  p.  137.) 

“To  engage  in  such  a project  would  be  sporting  with  the 
bounty  of  the  nation  and  degrading  to  the  character  of  the 
State.  AYho  among  us  would  be  willing  to  stand  forth  before 
an  enlightened,  liberal  and  magnanimous  nation  and  pro- 


1885 


claim  the  sentiment;  the  nation  has  furnished  us  with  means 
to  execute  a great  national  work,  and  although  hy  accepting 
those  means  we  stand  pledged  to  use  them  for  the  purpose  in- 
tended, yet  as  a work  of  a totally  different  and  greatly  in- 
ferior character,  can  be  executed  for  onehalf  the  amount  fur- 
nished, we  will  make  such  a work,  and  vest  the  other  half 
6408a  of  those  means  in  hank  stock  or  in  improvements  of  a 
character  purely  local.  If  there  be  among  us  any  who 
would  be  willing  to  assume  such  an  attitude,  and  in  the  face 
of  the  world  proclaim  such  a sentiment,  it  is  to  be  hoped  for 
the  honor  of  the  people  and  dignity  of  the  State,  none  such 
yan  be  found  in  the  walls  of  the  Legislature.  Such  a senti- 
ment strikes  at  the  very  foundation  of  the  public  faith,  and 
if  acted  upon  would  lead  to  a total  subversion  and  overthrow 
of  our  free  institutions.  The  proposition  is  too  monstrous 
and  involves  consequences  too  disastrous  to  be  entertained 
for  a moment,  and  your  committee  will  not  act  upon  the  pre- 
sumption, nor  indulge  the  idea  that  any  citizen  of  Illinois  will 
ever  be  found  giving  countenance  to  such  a sentiment.  Your 
committee  are  satisfied  that  the  canal  lands  will  defray  all 
expenditures  required  in  fhe  construction  of  the  canal,  upon 
the  enlarged  plan  proposed  by  the  canal  commissioners,  and 
they  hope  to  see  the  time  when  its  navigation  will  be  made 
free  to  all  the  people  of  these  United  States.”  (Can.  Com. 
Rep.,  1900,  p.  138.) 

There  should  be  no  question  asked  in  regard  to  a supply 
of  water  from  any  other  source  than  the  lake,  so  long  as  it  is 
known  that  the  means  furnished  by  the  nation  are  amply 
sufficient  to  execute  the  work.  In  the  completion  of  such  a 
project,  computations  of  time  should  be  made  with  reference 
to  the  existence  of  the  Union  and  not  with  reference  to  the 
growth  of  a village.  If,  contraiy  to  all  calculations  eight  or  fif- 
teen years  shall  be  required  for  its  completion,  this  would  not 
justify  the  State  or  the  people  in  a violation  of  their  plighted 
faith.  The  time  is  not  distant  when  Illinois  must  stand  at 
the  head  and  in  front  of  all  of  the  western  states,  and  when 
that  time  shall  arrive,  nothing  could  be  a source  of  greater 
mortification  to  her  citizens  or  her  sisters  than  a knowledge 
that  in  her  infancy  she  had  been  guilty  of  a violation  of  pub- 
lic faith.”  (Can.  Com.  Rep.,  1900,  p.  138.) 


Interrogatories  from  the  Committee  on  Roads  and  Canals 
TO  THE  Commissioners  and  Engineers  of  the  III.  & M.  Canal 
With  Their  Answers. 

^Question  1st: — What  is  the  fall  from  Lake  Juliet  to  the 
])resent  termination  of  the  canal,  and  what  will  be  the  cost 


1886 


Extract, — Canal  Corn'.  Rep.  1900. — Continued. 


of  constructing  the  canal  from  said  lake  to  its  termination 
on  the  present  plan!” 

‘‘Ans.  The  fall  from  the  head  of  Lake  Juliet  to  the  present 
termination  of  the  canal  is  about  75  feet.  Cost  of  construct- 
ing the  canal  from  the  head  of  the  Lake  to  the  termination — 
$2,213,557.42.”  (Can.  Com.  Eep.,  1900,  p.  138.) 

6409  ‘‘Question  20. — What  would  be  the  cost  of  construction  of 
slack  water  navigation  from  the  foot  of  the  rapids  on  the 
Illinois,  to  the  head  of  Lake  Juliett,  taking  Mr.  Hurd’s  esti- 
mate as  a basis!” 

“Ans.  To  estimate  the  cost  of  making  slack  water  naviga- 
tion of  the  Illinois  Eiver  with  any  accuracy  without  a survey 
is  impracticable;  and  to  assume  Mr.  Hurd’s  estimate  as  a 
basis  would  show  a fair  comparison  of  costs  between  slack 
water  and  the  Illinois  and  Michigan  Canal,  as  now  estimated; 
he  having  estimated  lockage  (it  is  believed  at  $1,500.00  per 
foot  lift  and  the  estimate  of  lockage  on  the  western  division 
of  the  canal  being  $3,000  per  foot  lift.  Other  items  will  also 
show  a great  difference.” 

“Q.  29.  AVhat  quantity  of  water  will  the  Calamic  discharge 
per  hour,  allowing  the  river  to  be  ninety  yards  wide,  aver- 
age depth  eighteen  inches,  average  current  two  miles  per 
hour!” 

‘‘Ans.  10560  x 270  x 1.5 — 4,276,800  C.  feet.  (2  miles=10,560 
feet — 90  yards=270  feet,  18  inches=1.5  feet.)  Multiplying  the 
three  together,  depth,  breadth  and  velocity  gives  the  cubic  feet 
per  time  unit.”  (Can.  Com.  Eep.,  1900,  p.  139.) 

“Q.  30.  What  quantity  of  water  do  you  suppose  passes 
out  of  the  Saganash  Swamp  and  Hrassy  Lake,  also  that  por- 
tion that  passes  down  the  Valley  of  the  Stoney  Creek  as  well 
as  that  portion  of  water  which  empties  into  the  Desplaines 
Eiver!” 

“Ans.  In  seasons  of  severe  drought,  not  a drop.”  (Can. 
Com.  Eep.,  1900,  p.  139.) 

6410  “During  the  year  1836  the  Canal  Commissioners  con- 
structed by  grading  and  bridging  what  was  then  known  as 
the  Saganaskee  road,  now  known  as  Archer  avenue  and  Archer 
road,  extending  from  State  street,  Chicago,  to  Joliet.”  (Can. 
Com.  Eep.,  1900,  p.  141.) 


From  Annual  Eepoet  Dec.  13,  1838. 

Progress  in  Construction  Cutting  Off  the  Swamp  on  the 

Southeast. 

6412  “The  line  is  now  under  contract  from  the  Chicago  Eiver 
to  the  termination  of  LaSalle,  with  the  exception  of  about 
22  miles  of  shallow  cutting  between  Dresden  and  Marseilles 


1887 


and  some  other  detached  parts,  amounting  by  estimate  to 
$1,251,108.15,  and  a mile  and  a fraction  of  excavation  in  the 
Saganaskee  Swamp,  which  from  the  peculiar  character  of 
the  work,  as  described  in  the  report  of  the  chief  engineer, 
must  either  be  executed  in  part  by  agents  of  the  State  or 
wholly  deferred  until  it  can  be  drained  through  a series  of 
sections  below  it.  To  avert  the  delay  incident  to  the  latter 
course,  the  first  has  been  adopted,  with  orders  for  the  imme- 
diate preparation  of  appropriate  machinery.  Efforts  will  be 
made  to  have  everything  ready  for  a commencement  by  the 
breaking  up  of  winter.  It  was  once  thought  that  no  subdivi- 
sion of  equal  length  would  cost  as  much  or  present  as  many 
difficulties  as  the  one  which  stretches  through  this  famous 
swamp.  The  semi-final  alluvion  and  vegetable  matter  of  which 
the  swmmp  is  mostly  constituted,  are  not  more  forbidding 
in  their  aspect  than  they  are  treacherous  in  their  texture. 
Hence,  for  nearly  two  years  it  was  impracticable  at  any  sea- 
son by  any  mode  to  penetrate  it  so  thoroughly  as  to  ascertain 
with  certainty  its  true  depth  and  charcater.  The  hard  freeze 
of  last  winter  and  the  low  stage  of  the  river  and  bordering 
morasses  enabled  the  resident  engineer,  with  a strong  party, 
to  traverse  and  sound  every  part  of  them.”  (Can.  Com. 
Kep.,  1900,  p.  145.) 

‘Ht  was  found  that  the  Desplaines  could  be  safely  turned 
into  its  ancient  channel  below^  a low  island  about  a mile  in 
length,  redeeming  by  the  process  some  three  or  four  hundred 
acres  of  canal  land,  and  securing  to  the  State  an  important 
town  site,  which  by  any  other  arrangement,  would  have  fallen 
on  individual  property.  Convinced  of  the  practicability  of 
turning  and  dyking  the  river  and  that  the  flood  waters  of  the 
Saganaskee  Valley  could  be  diverted  into  the  Calamic,  there 
was  no  further  hesitation  in  cancelling  the  contracts  on  the 
original  circuitous  route  and  locating  a direct  line  costing 
upwards  of  a hundred  and  twenty  thousand  dollars  less,  and 
possessing  other  obvious  advantages  independent  of  the  town 
site  which  at  no  remote  period  must  be  w'orth  a large  sum  of 
money.  For  details,  see  reports  of  the  principal  and  resident 
engineers.”  (Can.  Com.  Rep.,  1900,  p.  145.) 


Refusal  to  Measure  the  Hesplaixes  ix  a Good  Year. 

0418  ^Mudge  M^right  arrived  at  Chicago  in  the  early  part  of 
October,  and  on  the  20th  of  the  same  month,  Mr.  Burnett  made 
a detailed  report,  with  a topographical  map  and  estimates, 
of  the  quanties  of  excavation  and  other  work  necessary  to 
effect  the  object  on  the  most  favorable  route  of  the  country 
was  susceptible.  At  that  time  and  through  the  ivhole  summer 
the  Desplaines  River  was  generally  admitted  to  he  miusually 


1888 


Extract, — Canal  Com.  Rep.  1900. — Continued. 


flush,  as  was  also  the  Calamic.  No  gauges  were  therefore 
ordered,  and  consequently  those  of  the  Desplaines  made  by 
the  United  States  engineers  in  1830,  and  of  the  Calamic  by. 
Mr.  Bucklin,  were  adopted  as  the  basis  of  the  investigation.” 
^ ^ (Can.  Com.  Eep.,  1900,  p.  147.) 


‘^Gauging  It  in  the  Dry  Season.” 

^‘The  past  dry  season  rendered  the  measuring  of  the  Des- 
plaines almost  unnecessary,  since  for  nearly  four  months  the 
tightest  dam  that  could  be  erected  would  not,  at  the  point 
for  taking  out  a feeder,  have  saved  water  enough  to  proper 
a single  pair  of  ordinary  mill-stones.  Eepeated  gaugings 
from  the  20th  of  July  to  the  22d  of  August  and  it  was  after- 
wards still  lower,  gave  an  average  of  less  than  the  measure- 
ment of  1830.”  (Can.  Com.  Eep.,  1900,  p.  147.) 


Swamps  and  Bluffs. 

6413a  ‘‘The  fifteen  sections  extending  from  the  Chicago  Eiver  to 
the  ‘Point  of  Oaks,’  eight  miles  and  lying  through  the  low 
wet  prairie  periodically  flooded  by  the  Desplaines  Eiver 
through  Mud  Lake,  have  been  completely  defended  against 
any  possible  danger  from  surface  water;  and  are  now,  by 
means  of  those  defenses,  accessible  and  tenable  at  any  season 
of  the  year.  The  same  plan  of  drainage  and  defense  is  grad- 
ualh^  progressing  from  the  ‘Point  of  Oaks’  to  the  Sanagaskee 
Swamp,  and  enough  has  been  done  to  inspire  the  fullest  con- 
fidence in  the  practicability  and  moderate  cost  of  the  work.” 
(Can.  Com.  Eep.,  1900,  p.  *148.) 

“The  costly  and  exposed  sections  around  the  base  of  the 
Kankakee  bluffs  are  in  the  hands  of  experienced  contractors, 
who  are  known  to  have  executed  extensive  and  more  difficult 
jobs  on  the  St.  Lawrence  Canal.  The  safety  of  the  plan  of 
construction  is  now  generally  conceded,  and  the  price  at  which 
the  work  was  taken  was  fair.  From  this  point  to  Marseilles 
nothing  has  been  let:  thence  to  Ottawa  the  work  is  advancing 
steadilv  and  will  be  finished  in  good  time.”  (Can.  Com.  Eep., 
1900,  p.  148.) 


Cost  of  Construction — Value  of  Lands  Equal  to  Cost. 

6415  “It  appears  from  the  estimates  of  the  chief  engineer  as 
will  be  seen  by  an  examination  of  his  report  that  according  to 
the  contracts  made,  adding  a full  allowance  for  the.  light 
sections  not  under  contract,  the  sum  of  $7,621,442.57  will 


1889 


cover,  with  very  little  variation,  every  expense  for  a con- 
venient, substantial  and  elegant  canal,  such  as  it  ought  to  be 
for  commercial  economy,  durability  and  State  character.  The 
original  estimate  of  the  same  engineer,  exclusive  of  the  addi- 
tions at  Ottawa  and  the  enlargement  of  the  basin  in  Chicago, 
was  $8,654,337.51,  being  $1,032,894.94  more  than  will  be  re- 
quired to  complete  the  work.’’  (Can.  Com.  Eep.,  1900,  p. 
151.) 


From  Chief  Engineer  Gooding Effort  Dec.  10,  1838.  Pro- 
tection FROM  Overflow  of  Desplaines. 

^Gn  conclusion,  the  Commissioners  reiterate  the  opinion,  ex- 
pressed in  the  first  annual  report  to  the  Governor,  that  Gf 
these  lands  and  town  lots  be  very  gradually  and  cautiuously 
brought  into  market,  reserving  the  chief  part  until  the  canal 
shall  have  been  coHipleted,  and  all  its  advantages  clearly  un- 
derstood, there  is  more  than  eough  to  build  it  on  the  present 
capacious  and  permanent  plan.  But,  on  the  contrary,  if  sales 
be  forced  and  all  the  lands  be  disposed  of  before  their  true 
value  be  known,  there  cannot  fail  to  be  a deficit  of  several 
millions  of  dollars.  Many  tracts  of  land  that  would  not  bring 
more  than  five  or  six  dollars  per  acre  if  sold  immediately, 
may  be  worth  a few  years  hence,  from  twenty  to  one  hundred 
dollars.  Innumerable  instances  of  the  kind  might  be  adduced, 
some  of  them  in  the  vicinity  of  the  canal.” 

‘G\ll  of  which  is  respectfully  submitted. 

W.  F.  Thornton, 

Late  President. 

Jacob  Fry, 

Acting  Commissioner. 

(Can.  Com.  Eep.,  1900,  p.  152.) 

6415a  ^^The  part  of  the  line  from  the  south  branch  of  the  Chicago 
Eiver  to  summit  or  the  Point  of  Oaks  is  irow  placed  in  such 
a situation  as  to  insure  its  safety  from  the  high  water  caused 
by  the  overflowing  of  the  Desplaines  Eiver.  ’ ’ 

^^This  has  hitherto  been  the  cause  of  much  trouble  and  de- 
lay, and  occasioned  for  a considerable  length  of  time,  an  entire 
suspension  of  the  work.  A small  part  of  the  deep  earth  cuf- 
ing  in  the  valley  of  the.  Desplaines,  between  Summit  and  the 
Saganaskee,  has  also  been  protected,  so  that  the  work  may 
be  successfully  prosecuted  during  the  seasons  of  high  water.” 
(Can.  Com.  Eep.,  1900,  p.  152.) 


1890  Extract, — Canal  Com.  Rep.  1900. — Continued. 

Use  of  River  Channel. 

‘‘The  location  of  the  canal  at  the  Saganaskee  Swamp  and 
the  plan  of  constructing  it  have  materially  changed  since  my 
first  estimate  was  made,  and  a very  decided  advantage  gained 
in  the  expense,  in  the  symmetry  of  the  line,  and  in  the  in- 
creased value  of  State  property.  The  canal  as  now  located 
occupies  as  much  of  the  channel  of  the  river  as  can  be  made 
available  upon  a straight  line.  A new  channel  for  the  river 
will  be  opened  on  the  west  side  of  a low  island  or  peninsula 
which  extends  the  whole  length  of  Sections  42,  43  and  44,  and 
will  occupy  nearly  the  same  place  where  the  main  channel  of 
the  river  appears  once  to  have  been.  An  embankment  will 
be  made  connected  with  the  spoil  bank  on  the  west  side  of 
the  canal  at  the  lower  end  of  Section  No.  41  (which  is  just 
above  the  Sag  and  near  the  present  channel  of  the  ilver) 
crossing  the  river  from  that  point  to  the  island,  and  running 
thence  across  the  island  to  a bayou,  which  will  form  a part 
of  the  new  channel;  thence  parallel  with  the  canal  and  about 
twenty-two  chains  from  it,  upon  the  west  side  of  said  island 
to  a point  near  the  lower  end  of  it;  and  thence  across  the 
canal  upon  Section  No.  45,  where  it  will  be  connected  with 
the  protection  so  as  to  exclude  the  waters  of  the  river.  Parallel 
with  and  near  the  embankment  upon  the  west  side  of  the 
island,  the  artificial  channel  will  be  made  so  as  to  unite  the 
bayou  above  mentioned  wdth  one  that  extends  up  from  the 
jower  end  of  the  island.”  (Can.  Com.  Rep.,  1900,  p.  152.) 

‘‘This  channel  will  be  opened  200  feet  and  all  the  earth  ex- 
cavation from  it  deposited  upon  the  island  side.  It  is  believed 
6416  that  the  depth  of  excavation  sufficient  only  to  remove  the 
roots  will  be  all  that  will  be  necessary;  for  the  whole  river 
being  forced  into  the  channel  by  the  embankment  above  de- 
scribed, will  cause  a current  sufficiently  strong  in  time  of 
floods  to  deepen  and  enlarge  it  to  the  requisite  dimensions. 
There  is  a large,  deep  basin,  or  expansion  of  the  river  below 
the  channel  of  sufficient  capacity  to  hold  all  the  deposit  that 
can  be  washed  into  it.”  (Can.  Com.  Rep.,  1900,  p.  153.) 


A Season  of  Severe  Drought. 

6416a  ‘‘The  value  of  the  water  power  created  here  and  at  other 
jioints  u])on  the  canal,  by  drawing  a supply  of  water  directly 
from  Lake  Michigan,  can  be  fully  appreciated  after  a season 
of  such  severe  drought  as  the  past.  The  Desplaines  River 
and  many  other  considerable  streams  of  the  country  have  been 
nearly  dried  ii]),  and  probably  three-fourths  of  the  water-mills 
throiighont  a large  portion  of  the  United  States  nave  been 


1891 


standing  still  for  the  last  three  months.”  (Can.  Com.  Eep., 
1900,  p.  154.) 


Location  of  Basin  and  Dams  Nos.  1 and  2. 

6417  “Lock  number  4 brings  the  canal  to  the  level  formed  by 
the  pool  of  dam  number  1.  A short  distance  below  said  lock, 
the  line  runs  into  the  channel  of  the  Desplaines  Eiver,  which 
will  here  be  turned  to  the  right  and  the  whole  of  the  water 
forced  into  the  channel  upon  the  west  side  of  Norman’s 
Island.”  (Can.  Com.  Kep.,  1900,  p.  155.) 

“The  rock  excavation  in  the  bed  of  the  river,  from  the 
point  where  the  canal  enters  it  to  the  upper  end  of  said 
island,  averages  about  two  and  a half  feet  in  depth;  but  when 
the  river  is  turned  the  excavation  will  lie  attended  with  no 
particular  difficulty.  The  excavation  continues  across  the 
island  running  out  at  the  lower  end  of  it,  where  the  towing 
path  crosses  the  river,  and  is  thence  continued  down  the  right 
, bank  to  the  guard  lock  at  dam  number  2,  where  the  inde- 
pendent canal  again  commences.  From  this  point  to  the  ter- 
mination of  the  canal,  the  towing  path  is  upon  the  left  or 
south  side.”  (Can.  Com  Eep.,  1900,  p.  155.) 

“From  Norman’s  Island  to  dam  number  1,  which  is  located 
upon  canal  land,  just  above  the  town  of  Juliet,  two  strong 
walls  with  embankments  between  them,  will  be  constructed 
upon  the  east  side  to  confine  the  water  in  the  pool  of  the  dam. 
It  is  proposed  to  raise  these  walls  and  embankments  7 feet 
above  the  comb  of  the  dam,  to  be  perfectly  secure  from  the 
highest  floods.  From  dam  number  1,  to  dam  number  2,  a 
similar  defense  will  be  required,  but  of  a much  less  height.” 
(Can  Com.  Eep.,  1900,  p.  155.) 


DuPage  Feeder. 

“A  feeder  will  be  taken  into  the  canal  from  the  Du  Page, 
about  three  miles  above  the  crossing.  The  last  season  has 
shown  this  stream  to  be  one  of  the  most  permanent  in  the 
State,  and  it  can  be  introduced  as  a feeder  at  a very  moderate 
expense.”  (Can.  Com.  Eep.,  1900,  p.  155.) 


Slope  Wall  at  Dresden. 


“From  the  Du  Page  to  Dresden  the  line  has  lieen  but 
6417a  slightly  changed  since  the  first  survev,  but  the  quantity 
of  slope  wall  to  protect  the  canal  at  the  Kankakee  bluffs  has 


1892 


Extracty — Canal  Com.  Rep.  1900. — Continued. 


been  considerably  increased  to  render  the  canal  doubly  se- 
cure at  this  exposed  point.”  (Can.  Com.  Eep.,  1900,  p.  156.) 


From  Chief  Engineer  Gooding  Supplemental  Report  of 

Deecmber,  1838. 

6419a  Progress  of  A¥ork. 

^^The  number  of  laborers  engaged  upon  the  canal  on  the 
first  of  December  last  was  not  far  from  350,  and  the  force  was 
not  much  augmented  till  the  opening  of  spring  navigation. 
There  are  now  actually  employed  upon  the  canal,  and  in  the 
various  operations  immediately  connected  with  canal  con- 
struction, about  1,700  men.”  (Can.  Com.  Rep.,  1900,  pp. 
160-161.) 


‘‘High  Water  in  Desplaines — the  State  Side  Ditch. 

6420  “The  streams  for  a great  part  of  the  year  have  been  very 
high,  particidarly  the  Desplaines  River;  but  less  interrup- 
tion to  the  execution  of  the  work  has  resulted  from  this  cause 
than  might  have  been  anticipated  from  the  unprotected  state 
of  most  of  the  sections;  and  it  has  been  clearly  shown  that  a 
defense  can  be  made  at  a moderate  expense,  that  will  ren- 
der the  whole  work  perfectly  secure  during  the  highest 
floods.  The  high  water  in  the  Illinois  River  has  been  the 
cause  of  serious  delay  in  the  excavation  of  the  steamboat 
basin  and  channel  at  the  termination,  and  a large  force  will 
be  requisite  upon  the  work  as  soon  as  a favorable  season  for 
operations  shall  be  presented.”  (Can.  Com.  Rep.,  1900,  p. 
161.) 

“Considerable  progress  has  been  made  in  the  deep  earth 
excavation  between  the  Chicago  River  and  the  Point  of  Oaks, 
but  there  has  been  so  much  water  upon  the  surface  since  the 
work  was  let  that  the  side  ditch,  which  is  to  be  formed  on  the 
south  side  of  the  canal  without  the  spoil-bank,  has  not  yet 
been  finished,  nor  but  a small  part  on  the  bank  on  the  north 
side,  which  is  to  guard  against  the  water  that  flows  from 
the  Desplaines  River  in  time  of  floods,  and  which  is  to  be 
formed  of  earth  excavated  from  a ditch  within  the  prism  of 
canal.”  (Can.  Com.  Rex).,  1900,  p.  161.) 

6421  “During  the  past  year  ditches  have  been  laid  out,  placed 
under  contract  and  partly  executed  from  the  Point  of  Oaks 
to  Chicago  River,  and  from  the  mouth  of  Saganaskee  swamp 
to  Big  run;  the  object  of  which  is  to  receive  and  carry  off 
the  water  which  must  otherwise  drain  into  the  canal,  or  ac- 
cumulate behind  the  spoil-banks.  By  the  aid  of  these  ditches, 
the  water  (except  what  falls  behind  the  sx)oil-banks)  may  be 


1893 


effectualJy  prevented  from  conveying  deposit  into  the  canal, 
and  also  from  interrupting  the  progress  of  the  work  during 
the  construction.^’  (Can.  Com.  Rep.,  1900,  p.  163.) 


From  Resident  Engineer  Talcott’s  Report  oe  Dec.  10,  1838. 

Canal  Overflowed  by  River — Ditch  to  Cut  Off  the 

Drainage. 

6422  ^‘Upon  resuming  charge  of  the  line  in  March,  1837, 1 found 
nearly  every  section,  one  to  fifteen,  inclusive,  was  the  sec- 
ond time  offered  for  contract  in  May,  1837.  The  unfavor- 
able appearance  of  the  work  (nearly  one-half  of  which  was 
overflowed  hy  the  river)  prevented  much  competition,  and 
the  proposals  received  were  considered  much  above  the  real 
value  of  the  work.  Sections  one,  two  and  three  only  were 
awarded.  The  commissioners  then  determined  to  defend 
the  work  by  a continuous  embankment  on  the  north  side, 
formed  by  excavation  from  the  prism  of  the  canal,  and  on 
the  south  by  a ditch  without  the  spoil-bank  to  receive  the 
drainage  of  the  country  which  is  discharged  into  the  south- 
ernmost branch  of  Chicago  River.”  (Can.  Com.  Rep.,  1900, 
p.  165.) 

‘^The  season  was  far  advanced  before  much  progress  had 
been  made,  and  the  imperfect  protection  proved  no  defense 
against  the  unusual  high  water  in  December,  1837.  Nearly 
every  section  that  had  been  commenced  was  overflowed  and 
the  work  generally  suspended  during  the  winter.”  (Can. 
Com.  Rep.,  1900,  p.  166.) 


Use  of  River  Bed. 

6422a  ‘‘That  part  of  the  line  opposite  to  the  Saganaskee  valley 
was  examined  with  reference  to  adopting  the  present  chan- 
nel and  changing  the  river  to  what  appears  to  have  been  its 
former  channel  on  the  west  side  of  a peninsula  island.  These 
examinations  were  made  at  a high  stage  of  water,  which  ren- 
dered it  difficult  to  make  them  with  the  desirable  precision. 
The  data  presented,  however,  were  considered  sufficient  to 
determine  the  location  by  avoiding  the  river,  yet  approaching 
it  somewhat  nearer  than  the  original  line,  and  improving 
its  general  direction.”  (Can.  Com.  Rep.,  1900,  p.  166.) 


Drainage  Reservoirs. 


6423  “Between  the  Point  of  Oaks  and  the  Saganaskee  valley, 
there  will  be  required  four  receiving  reservoirs  for  the  drain- 


1894 


Extracf, — Canal  Com.  Rep.  1900. — Continued. 


age  of  the  country.  These  will  consist  of  a pit  formed  in  the 
rear  of  the  spoil  bank,  about  thirty  feet  square  excavated  to 
two  feet  below  top-water  line  of  canal,  with  the  sides  and 
bottom  paved,  and  communicating  with  the  canal  by  a nar- 
row passage.  It  is  believed  that  these  will  receive  the  de- 
posit usually  carried  into  a canal  by  the  drainage  water — 
forming  bars  expensive  to  remove,  and  frequently  proving 
a serious  embarrassment  in  the  navigation.”  (Can.  Com. 
Rep.,  1900,  p.  167.) 


Progress  of  Work — Overflow  by  River. 

6423a  “When  the  amount  of  work  performed  during  the  two 
past  years  is  contrasted  with  the  expectations  then  formed 
by  many  of  its  friends,  some  may  feel  disapi^ointed,  yet, 
when  it  is  considered  that  the  season  of  1837  was  unusually 
wet ; that  nearly  every  section  that  had  been  commenced  was 
overflowed  by  the  river  and  the  work  necessarily  suspended 
until  the  ensuing  spring;  the  sickness  that  has  prevailed 
through  the  past  season;  that  the  work  is  now  generally  se- 
cure against  the  surface  water;  and  that  cranes  and  rail- 
roads are  now  successfully  employed  for  removing  the  rock 
on  nearly  every  section — it  must  he  admitted  that  much  has 
been  done  under  the  circumstances,  and  that  the  work  pre- 
sents a truly  flattering  prospect  for  its  rapid  progress  in 
future.”  (Can.  Com.  Rep.,  1900,  p.  168.) 


Pivot  Bridges. 

6424  “Believing  that  it  would  be  found  advantageous  to  the 
commerce  of  the  country  for  the  lake  vessels  to  navigate  the 
canal  a^  far  as  Lockport  turning  or  pivot  bridges  have  been 
estimated.”  (Can.  Com.  Rep.,  1900,  p.  168.) 


From  Resident  Engineer  Wm.  Jerome  ^s  Report,  1838.  Joliet 
Basin — Mouth  of  River — Location  of  Canal  River 
AYalls. 

“For  three-fourths  of  a mile  above  and  nearly  through 
Juliet,  the  canal  occupies  the  bed  of  the  Desplaines  River 
and  is  of  increased  width.  The  hanks  for  this  distance  are 
to  he  raised  some  feet  above  the  ordinary  height,  and  to  he 
])rotected  from  the  wash  of  the  floods  by  substantial  walls  on 
the  inner  sides.” 

“The  river  is  to  he  raised  to  the  requisite  height  by  two. 
stone  dams  at  Juliet.  AVith  the  upper  dam  is  connected  lock 


1895 


number  5,  of  ten  feet  lift,  with  a guard  of  four  feet,  mak- 
ing a valuable  water  ])ower  on  canal  land.  With  the  lower 
dam  is  connected  a guard  lock;  at  which  point  the  canal 
leaves  the  river.” 

‘‘Owing  to  the  height  of  the  spring  floods,  it  became  ap- 
parent that  the  line  from  Juliet  to  and  over  the  Du  Page 
Elver  would  be  benefited  by  being  located  on  a higher  level 
than  the  former,  of  some  live  or  six  feet.  This  location 
varies  the  line  considerably  from  the  original,  although,  tak- 
ing the  whole  distance,  the  cost  of  construction  is  not  ma- 
terially changed;  and  it  is  believed  that  a better  location  has 
been  obtained.  By  this  means  the  Du  Page  Eiver  is  passed 
by  an  aqueduct  sufficiently  elevated  above  the  highest  floods 
to  secure  its  permanency.” 

“About  three  miles  above  the  a(|ueduct,  the  Du  Page  is 
to  be  received  into  the  canal  by  a side  cut  of  twenty  chains 
in  length,  connected  with  a dam  across  said  riv^er. 

“There  is  to  be  a guard  bank  extending  from  the  dam  up 
the  enst  side  of  the  river  twenty-six  chains.  This  bank  is 
deemed  necessary  to  prevent  serious  injury  which  would 
otherwise  accrue  to  the  canal  at  this  point,  from  the  high 
floods.  Immediately  below  the  aqueduct,  are  located  locks 
number  6 and  7,  with  an  aggregate  lift  of  fifteen  and  a half 
feet.  From  thence  to  Dresden,  a distance  of  five  miles,  the  line 
occupies  nearly  the  ground  of  the  original  location.  The 
greater  portion  of  this  distance,  the  canal  passes  at  the  foot 
of  the  Kankakee  bluffs ; some  part  of  the  way  in  the  edge  of 
6424a  the  Desplaines  and  Illinois  Rivers — the  towing  path  bank 
to  be  protected  from  the  great  floods  and  extensive  ice  jams 
formed  by  the  uniting  of  The  waters  of  the  Desplaines  and 
Kankakee  Eivers,  htf  a strong  irall  on  the  river  sided ^ (Can. 
Com.  Eep.,  1900,  pp.  169-70.) 


From  Consulting  Engineer  Wright'^s  Keport,  Oct.  23,  1837. 

Deep  Cut  or  Shallow  Cut. 

6426a  “From  an  examination  of  the  various  canal  documents  of 
the  last  session  of  the  Legislature,  it  seems  that  the  ques- 
tion stands  as  follows: 

‘Shall  the  feeding  water  be  taken  from  Lake  Michi- 
gan by  a deep  cut!  or,  shall  the  summit  be  raised  ten 
feet  above  the  lake,  and  fed  from  streams  to  be  brought 
into  it!  It  has  been  supposed,  and  no  doubt  correctly, 
that  only  three  streams  of  water  can  be  brought  on  the 
Summit  level:  First,  the  Desplaines  River,  second,  the 

Calumet  Eiver;  third,  the  Fox  Eiver.’ 

‘The  Desplaines  was  not  in  a proper  situation  to 
gauge,  as  there  had.  been  copious  rains;  I therefore  take 


1896 


Extract, — Canal  Com.  Rep.  1900. — Continued. 


the  former  measurements  of  the  United  States  engin- 
eers, as  stated  in  the  reports  of  the  canal  committee,  at 
54,800  cubic  feet  per  hour.’ 

‘By  calculation  it  is  found  that,  if  twelve  boats  pass 
per  hour,  the  lockage  water  to  lock  up  and  down  ten 
feet  will  he  475,200  feet  per  hour.  If  we  then  add  for 
leakage  at  the  locks  (a  small  item)  and  for  evaporation, 
we  ought  not  to  say  less  than  500,000  cubic  feet  of  water 
per  hour  will  be  required,  when  boats  are  passing  as 
fast  as  they  can  be  let  through  (or  twelve  per  hour).  It 
is  true  that,  if  boats  jDassing  each  way  were  to  meet  so 
as  to  pass  a boat  up  with  the  same  water  which  passed 
one  down,  then  only  half  the  amount  of  lockage  water 
should  be  estimated  for  the  twelve  boats  per  hour,  al- 
though, I believe  twelve  boats  per  hour  may  be  passed 
each  way,  if  the  locks  are  well  attended,  and  are  in  per- 
fect order  for  tilling  and  discharging  the  water  rapidly.’ 
‘These  premises  being  admitted,  we  have  to  look  for 
445,200  cubic  feet  of  water  per  hour  more  than  the  Des- 
plaines  gives  us  at  low  water.’  (Can.  Com.  Eep.,  1900, 
p.  174.) 

“Taking  a view  of  the  whole  ground,  and  looking  at  the 
probable  cost  of  the  deep  cutting,  of  the  low  level,  nnd  the 
6427  length  of  time  it  will  take  to  accomplish  it,  and  the  time 
the  country  will  lose  the  benefit;  looking  also  at  the  great 
good  to  the  country,  and  the  pecuniary  advantage  to  the 
6427a  State  and  the  canal,  by  the  creation  of  water  power  at 
Lodq)ort,  and  Juliet,  I have  no  doubt  upon  my  mind  that  the 
present  plan  of  cutting  down  the  Summit,  so  as  to  draw 
feeding  water  from  Lake  Michigan,  ought  to  be  continued, 
in  preference  to  any  other  which  I can  suggest.”  (Can. 
Com.  Eep.,  1900,  pp.  175,  176.) 


Use  of  Desplaixes  as  Summit  Feeder  Side  Ditch  to  Cut  Off 

Draixage. 

6429a  “I  would  not  fill  the  summit  level  with  the  water  from  the 
Chicago  but  let  it  fill  slowly  from  other  streams  before  I 
broke  this  bar  of  earth;  this  can  be  removed  by  a dredger.” 
“4th.  Is  the  present  plan  of  drainage  a judicious  one, 
and  what  difficulty  may  be  anticipated  from  water  in  excavat- 
ing the  Summit!” 

“The  greatest  difficulty  in  working  this  division  is  the 
Avater,  beginning  at  Chicago  Eh^er,  and  from  thence  to  the 
end  of  Section  15.  If  I have  understood  the  plan  of  the  chief 
engineer,  it  is  his  intention  to  haA-e  a large  ditch  outside  of 
the  spoil-bank,  on  the  upper  or  southeast  side,  and  this  to 


1897 


be  extended  as  now  partly  done,  to  the  south  branch  of  the 
Chicago/’ 

‘^It  may  perhaps  be  found  that  some  of  the  sections  near 
the  Point  of  Oaks  do  not  drain  freely  by  this  ditch;  if  so, 
then  they  must  be  drained  across  the  canal.  A guard  bank 
of  earth  must  be  raised  along  the  north  side  to  keep  out  the 
water  from  the  Desplaines  River  and  from  the  prairie.  These 
precautions  will  keep  out  surface  water,  which  is  nearly  all 
they  have  to  contend  with  on  this  part.  Prom  the  Point  of 
Oaks,  on  Section  15  to  45,  is  the  most  difficult  part  to  drain.” 
(Can.  Com.  Rep.,  1900,  p.  180.) 

6430  ‘‘But  in  order  to  drain  this  part,  from  15  to  45  effectually, 
a very  large  drain  nearly  or  quite  the  size  of  a forty-foot 
canal,  should  be  cut  from  Section  42  or  43,  and  extend  east- 
ward through  the  whole  Saganaskee  swamp  to  Stony  Creek. 
This  must  be  cut  three  feet  at  the  canal  and  84  feet  at  the 
summit  of  the  swamp,  5 miles  east  of  the  canal,  and  then  con- 
tinue 7 or  8 miles  further  before  it  will  find  a free  discharge  ;* 
the  water  having  so  far  to  run  must  have  a large  bed,  as 
there  will  be  a great  collection  of  water  in  heavy  rain.” 
(Can.  Com.  Rep.,  1900,  p.  181.) 


6433  Damage  ekom  a Suspension  of  the  Canal  Dec.,  1839. 

(Consequent  upon  the  Financial  Depression  of  1837-8.) 

Considered  pp.  185-189. 

Cost  of  the  Woek  and  Value  of  Lands. 

From  Commissioners’  Report  of  Dec.  21,  1840.  (Can.  Com- 
Rep.,  1900,  p.  187.) 

6433a  “The  lands,  towns,  water  power,  coal  mines  and  stone 
quarries  must  bring  their  improved  worth  or  they  will  not 
be  sufficient  to  pay  the  current  interest  and  discharge  any 
considerable  portion  of  the  debts.  On  this  subject  the  board 
remain  firm  in  the  opinion  expressed  in  their  first  annual 
report  and  repeated  in  several  others,  that,  ‘if  these  lands 
and  town  lots  be  gradually  and  cautiously  brought  into  mar- 
ket, reserving  the  chief  part  until  the  canal  shall  have  been 
completed  and  all  its  advantages  clearly  understood,  there 
is  enough  to  build  it  on  its  present  capacious  and  permanent 
plan.  But  on  the  contrary,  if  sales  be  forced  before  their 
true  value  be  known,  there  cannot  fail  to  be  a deficit  of  sev- 
eral millions.’  ” (Can.  Com.  Rep.,  1900,  p.  188.) 

6434a  (Can.  Com.  Rep.,  1900,  p.  190.) 


1898 


Extract, — Canal  Com.  Rep.  1900. — Continued. 


Legislative  Committee's  Eepokt.  (1840-1.)  Summaey  of 
Histoey — Kecommends  Completion. 

“By  an  Act  of  Congress  of  March  30,  1832,  the  State  was 
authorized  to  construct  the  canal  over  the  i^ublic  lands  and 
ninety  feet  of  land  was  given  on  each  side  of  the  canal  to 
the  State.  The  canal  was  to  be  begun  in  three  and  com- 
pleted in  twelve  years.  The  act  gave  the  State  the  right 
to  use  any  materials  upon  Government  lands,  necessary  to 
complete  the  work.  Another  act  was  passed  March  2,  i827, 
which  granted  to  the  State  a quantity  of  land  equal  to  one- 
half  of  five  sections,  on  each  side  of  the  canal,  and  reserv- 
ing each  alternate  section  to  the  United  States.  Another  act 
of  Congress  was  passed  March  2,  1833,  granting  to  the  State 
the  right  to  construct  a railroad  in  the  place  of  a canal,  and 
extending  the  time  to  complete  either  to  five  years.  In  con- 
sequence of  this  first  grant  the  Legislature  of  Illinois  ap- 
pointed, at  the  session  of  1822  and  ’23,  a board  of  Canal 
Commissioners  who  made  an  examination  and  an  estimate  of 
the  probable  cost  of  the  work.  This  estimate  cost,  which 
was  only  made  from  a surface  survey,  without  ascertaining 
the  amount  of  rock  excavation,  fell  a little  short  of  $800,000. 
This  survey  cost  the  State  over  $10,000.  At  the  same  ses- 
sion, a company,  with  a capital  not  exceeding  one  million, 
was  chartered,  to  complete  the  canal,  which  was  to  be  con- 
structed and  owned  by  the  company  for  fifty  years — after 
which  the  State  had  a right  to  purchase  it,  by  paying  the 
cost  of  construction  and  six  per  cent,  per  annum;  but  in 
1826,  this  act  was  repealed.” 

“In  1829,  a new  board  was  organized,  with  power  to  make 
further  surveys  and  begin  the  work.  And  by  a further  act 
of  1831,  the  commissioners  were  authorized  to  lay  out  towns, 
and  did  proceed  to  lay  oft  and  sell  lots  in  Chicago  and  Ottawa, 
and  sell  lands  along  the  route.  They  also  reported  separate 
statements  of  the  cost  of  constructing  a canal  and  a rail- 
road between  Lake  Michigan  and  the  Illinois  Eiver.  By  esti- 
mates of  the  first  work  they  reported  it  cost  at  $4,043,086.50 
and  that  of  a railroad  $1,052,488.19.  At  the  next  session 
the  Legislature  abolished  the  office  of  canal  commissioner,/ 
after  these  efforts  had  cost  the  State  $16,972.83.  Again  at 
the  session  of  1834  and  ’35,  Mr.  Forqner,  the  chairman  of 
the  Committee  on  Internal  Improvements,  considering  the 
importance  of  this  subject  (which  had  been  referred  to  in 
the  Governor’s  message),  and  witli  the  feeling  of  a patriot 
and  the  views  of  an  enlightened  statesman,  again  brought 
this  question,  by  his  report,  to  the  consideration  of  the  Sen- 
ate, and  to  every  citizen  who  felt  the  great  importance  of 
this  enterprise  to  the  present  and  future  prosperitv  of  our 
State.” 


1899 


“The  people  of  Illinois  had,  in  this  inanner,  and  by  the 
sale  of  the  canal  lands  and  the  beginning  of  the  work,  so 
far  accepted  the  grant  of  the  General  Government,  and  had 
duly  considered  and  determined  whether  they  would  yield 
this  grant  of  land  to  any  company,  or  undertake  the  canal 
on  the  faith  and  credit  of  the  State.” 

“The  lucid  report  of  Mr.  Forquer,  of  1835,  induced  an- 
other enactment  of  the  Legislature  which  seemed  conclusively 
to  fix  the  settled  policy  which  the  State  had  determined  to 
pursue,  on  the  acceptance  of  this  grant  from  the  United  Statec, 
and  the  manner  in  which  the  work  was  to  be  commenced 
and  completed — that  is,  on  the  sole  responsibility  of  the 
State.  But  owing  to  the  im])erfection  of  the  act  of  1835, 
the  Governor  was  not  entitled  to  borrow  the  money  neces- 
sary to  begin  the  work.” 

“Again  in  1836  the  people,  impressed  with  the  magnitude 
and  value  of  this  work  to  the  growth  of  our  infant  hut  fast 
settling  State,  asked  the  Legislature  to  pass  another  law, 
empowering  the  Governor  to  negotiate  a loan  on  the  sole 
faith  of  the  State.  This  last  act  created  another  board  of 
6435  canal  commissioners,  who  commenced  new  surve^^s  and  esti- 
mates preparatory  to  renewed  exertion  to  its  completion. 
Contracts  were  let,  and  labor  performed  to  the  amount  of 
$35,744.83.  In  this  year  the  commissioners  laid  off  town  lots, 
at  Chicago  and  sold  them  to  the  amount  of  over  $1,000,000 
with  a common  understanding  that  the  canal  was  to  be  com- 
pleted. The  action  of  the  Legislature  thus  far,  and  in  1836 
especially,  had  furnished  to  citizens  of  sister  states  and  to 
foreigners,  sure  reasons  for  emigration  here,  and  the  induc- 
ing and  powerful  motives  for  the  investment  of  their  cap- 
ital.” ^ ^ 

“Again  in  1837,  the  Legislature,  coming  afresh  from  their, 
constituents,  after  the  work  was  begun,  and  impressed  with 
its  importance,  passed  an  amendatory  act  of  1836,  to  aid 
in  its  completion.  This  year  there  was  expended  on  the 
canal  $356,899.43.  The  commissioners  also  sold  additional 
town  lots  and  lands,  to  assist  in  paying  off  the  canal  debt. 
These  lots  and  lands,  also  were  sold,  as  the  others  had  been, 
with  the  common  understanding  that  this  enterprise  was  not 
to  languish  or  fail,  by  our  neglect  to  put  in  requisition  the 
available  means,  so  ample,  and  which  had  been  looked  to 
ultimately,  for  the  final  completion  of  this  work.  The  close 
relation  then,  which  exists  between  this  long  contemplated 
improvement  and  the  lasting  interests  of  our  citizens,  and 
so  universally  acknowledged  and  bv  few  questioned,  induces 
the  committee,  with  the  more  confidence,  to  ask  its  final  com^ 
pletion.” 


1900  Extract,— Canal  Com.  Rep.  1900. — Continued. 

Canal,  vs.  Eaileoads. 

‘‘The  committee  will  not  dwell  longer  on  this  branch  of 
the  subject,  but  will  hasten  to  answer  a question  which  has 
been  recently  made  by  some  gentlemen  of  standing,  in  and 
out  of  the  Legislature,  ‘whether  it  would  not  be  the  part 
of  wisdom  now  to  abandon  this  canal  and  construct  a rail- 
road along  the  route The  committee  are  not  insensible  to 
the  benefits  arising  to  the  country  from  the  completion  of 
well  planned  railroads.  But  they  have  no  difficulty  in  com- 
ing to  a conclusion  to  prefer  canals  over  railroads.”  (Can. 
Com.  Eep.,  1900,  p.  191.) 


Gov.  Ford’s  Message  Dec.  8,  1842. 

Eecommends  Completion. 

Eecommends  Change,  to  High  Level — Shallow  Cut. 

6437a  “The  canal  lands  and  lots  and  other  property  belonging 
to  it,  stand  upon  a different  footing.  This  property  was 
first  given  to  the  State  in  trust  to  make  the  canal.  It  was 
afterwards  appropriated  by  the  General  Assembly  to  that 
specific  object,  and  solemnly  pledged  to  creditors  for  the 
liayment  of  money  heretofore  borrowed,  and  which  money 
has  been  used  in  the  construction  of  the  canal  so  far  as  it 
has  proceeded.  Those  creditors,  therefore,  have  such  a sep- 
arate and  exclusive  right  to  its  avails  as  would  not  without 
their  consent  justify  throwing  it  into  an  aggregate  fund  for 
a general  payment  of  debt.  If  they  should  require  it  we 
would  be  bound  in  duty  and  honor  to  surrender  it  to  them. 
It  is,  however,  believed  that  no  such  requisition  will  be  made. 
They  understand  their  true  interest  too  well ; they  know  as 
well  as  ourselves  the  importance  and  profitable  character  of 
this  great  work,  and  would  prefer  looking  to  its  probable 
completion  rather  than  an  immediate  sacrifice  of  the  means 
of  carrying  it  on,  for  ultimate  payment.  They  must,  and 
do  understand,  that  if  this  property  should  be  sacrificed,  the 
State  will  have  no  means  or  payment  for  a long  time  to 
come;  whereas,  if  the  canal  progresses,  to  completion,  the 
lands  and  lots  and  water  power  will  be  quadrupled  in  value, 
and  the  tolls  alone  would  in  a short  time  pay  interest  on  all 
the  debt  contracted  for  its  construction.”  (Can.  Com.  Eep., 
1900,  p.  196.) 

6438  “The  sum  of  four  million  eight  hundred  thousand  dollars, 
or  thereabouts,  has  already  been  expended  on  this  work  in 
its  construction,  and  in  the  pa5unent  of  interest;  seven  hun- 
dred and  fifty  thousand,  five  hundred  and  thirty  dollars  and 
forty-two  cents,  of  which  has  been  raised  by  a sale  of  lands. 


1901 


lots,  timber  and  stone;  10,580  acres  of  land  were  sold  in  1830 
for  $14,204.87 ; also  at  the  same  time  126  lots  in  Chicago  and  9 
lots  in  Ottawa  were  sold  for  $4,594.  Since  1836,  40,295  acres 
have  been  sold  for  $302,248.40 ; and  about  189  lots  in  La  Salle, 
Ottawa  and  Lockport  for  $77,793;  stone  and  timber  to  the 
amount  of  $9,659.00  and  sales  were  made  in  Chicago  and  Ot- 
tawa in  1836  for  which  cash  has  been  received  to  the  amount 
of  $544,074.97 ; and  there  is  now  due  the  canal  fund  on  account 
of  sales,  the  sum  of  $207,682.53.’^ 

^On  addition  to  this  balance,  the  property  belonging  to  the 
canal  fund  is  as  follows : Two  hundred  and  thirty  thousand, 

four  hundred  and  sixty-seven  acres  of  land,  370  lots  in  Chi- 
cago, 679  in  Lockport,  914  in  Ottawa,  1,528  in  La  Salle,  other 
town  property  to  be  laid  out  at  Juliet,  Du  Page  and  other 
places ; and  the  water  power  on  the  entire  line  of  the  canal ; 
the  whole,  valued  by  the  Acting  Canal  Commissioner,  from 
whom  these  statistics  were  derived,  at  the  sum  of  $5,050,000.00. 
It  is,  however,  due  to  the  subject  to  state,  that  this  valuation 
is  predicated  upon  the  hypothesis  that  the  canal  is  to  be  com- 
pleted, or  insure  prospect  thereof.” 

‘‘I  therefore,  respectfully  recommend  to  the  General  As- 
sembly, that  the  further  measures  to  be  adopted  for  the  prose- 
cution of  the  work,  should  be  upon  the  plan  of  a moderate 
sized  high  level  canal.  I am  fully  sensilhe  of  the  great  re- 
sponsibility assumed  by  me,  in  making  this  recommendation, 
nothing  but  a full  conviction  of  our  inability  to  proceed  with 
the  enlarged  work  would  justify  a change  of  plan  after  it  has 
progressed  so  far  as  it  has.  But,  in  view  of  our  present  and 
prospective  want  of  credit  and  resources,  it  does  seem  that 
the  enlarged  work  is  not  to  be  achieved  by  any  means  now  in 
our  power;  and,  indeed,  it  does  seem  that  we  are  to  choose 
between  reduction  and  no  canal  of  any  description.”  (Can. 
Com.  Eep.,  1900,  p.  197.) 


Legislative  Report — 1842;  the  Mortgage  to  Caxal  Trustees 

Proposed. 

6438a  After  careful  investigation  and  close  examination  of  the 
various  plans  and  suggestions  for  carrying  on  the  canal  the 
committee  have  come  to  the  conclusion  that  there  is  but  one 
plan  which,  at  the  present  time,  appears  practical  and  worthy 
of  consideration;  they  have  come  to  this  conclusion  from  an 
examination  of  different  letters  and  plans  from  the  most  dis- 
tinguished citizens  and  capitalists  in  the  City  of  New  York  and 
also  from  London.  The  views  given  in  the  letters  and  plans 
referred  to  are  judicious,  sound  and  practical,  and  if  carried 
into  effect  would  undoubtedly  secure  the  completion  of  the 


1902 


Extract, — Canal  Co  nr  llep.  1900. — Continued. 

canal  and  the  ultimate  payment  of  the  whole  debt  of  the 
State.”  ^ ^ 

”If  we  attempted  to  rear  a structure  of  too  gigantic  pro- 
portions, one  which  fell  of  its  own  cumbrous  weight,  it  does 
not  become  us  to  spend  our  time  in  vain  regrets  and  grieve 
in  idleness  over  our  disappointments,  but  let  us  gather  what 
yet  remains  uninjured  from  the  ruins  and  erect  a fabric  more 
pro])ortionate  to  our  means.  The  proposition  for  carrying 
on  the  canal  made  by  many  of  the  creditors  of  the  State,  is 
as  follows:” 

”First,  the  State  to  convey  all  the  canal  lands,  town  lots, 
water  power,  coal  beds,  stone  quarries,  and  all  the  canal  prop- 
erty, together  with  all  the  tolls  that  may  be  derived  from 
transportation  upon  the  canal  to  trustees,  who  shall  hold  the 
aforesaid  property  in  trust  for  the  canal  bondholders.  The 
aforesaid  trustees  to  be  appointed  as  follows:  Two  on  the 

part  of  the  creditors  and  one  on  the  part  of  the  State.  The 
canal  bondholders  are  to  subscribe  a sum  sufficient  to  com- 
plete the  canal  to  be  disbursed  by  the  trustees  in  the  con- 
struction of  the  canal.  The  trustees  to  have  all  the  power 
given  to  the  Canal  Commissioners.  After  the  canal  shall  be 
completed  the  trustees  are  to  proceed  to  sell  the  canal  prop- 
erty from  time  to  time  as  the  demand  may  require.  All  re- 
ceipts of  moneys  are  to  be  paid,  first,  to  reimburse  the  sub- 
scribers for  the  new  advance,  and  second  to  pay  the  bonds 
they  now  hold  against  the  State.  Those  bondholders  sub- 
scribing to  have  a preference  over  all  others,  and  those  re- 
fusing to  subscribe  to  be  paid  last.  After  the  creditors,  who 
may  advance  the  re(]uired  means,  are  paid  the  amount  of 
subscription  and  the  bonds  they  now  hold,  the  duties  of  the 
Board  of  Trustees  shall  cease,  and  the  State  again  to  have  the 
entire  control  of  the  canal  and  its  property.”  ^ ^ * (Can. 

CV/in.  Bep.,  1900,  p.  198.) 


From  Senate  Eeport  Dec.  14,  1842.  Proposes  Asking  Xa- 

TTONAi.  Aid. 

6439a  ”That  in  consecpience  of  the  present  embarrassed  condition 
of  the  canal  the  total  suspension  of  the  work  and  the  utter 
inability  of  the  State  to  afford  any  aid,  they  deem  it  right 
and  ])roper  to  ask  Congress  further  aid  in  carrying  on  and 
completing  this  great  and  noble  improvement.  Your  com- 
mittee would  respectfully  suggest  the  propriety  of  so  fram- 
ing the  memorial  as  to  place  the  requisition  upon  the  ground 
of  this  canal  being  a national  work,  and  that  it  was  in  con- 
se((uence  of  the  donation  from  the  General  Government  that 
the  State  was  induced  to  commence  this  gigantic  undertaking,, 
under  the  belief  that  the  appro])i*iation  of  land  was  sufficient 


1903 


to  complete  it.  That  the  donation  was  based  upon  the  esti- 
mates of  the  United  States  engineers,  and  that  time  and  fur- 
ther developments  have  shown  that  their  estimates  covered 
but  a small  part  of  the  real  cost  of  this  canal.  That  they 
believe  it  was  the  intention  of  Congress  to  have  the  donation 
cover  the  cost  of  the  work,  and  that  now,  the  State  having  be- 
come involved  and  unable  to  progress  with  it.  Congress  are 
in  honor  bound  to  render  further  aid.”  (Can.  Com.  Eep.,  1900, 

p.  200.) 


From  Engineer  Gooding^s  Keport  Dec.,  1842. 

‘‘The  cost  of  the  canal  may  now  be  represented  as  fol- 
0440  lows,  to-wit: 

The  amount  of  work  which  has  been  completed 


and  that  which  is  now  under  contract $6,751,006.21 

The  amount  of  work  not  under  contract 906,665.11 

For  superintendence  and  contingencies 350,000.00 


Total  cost  of  the  canal $8,007,661.32 

(Can.  Com.  Rep.,  1900,  p.  201.) 

6440a  (Can.  Com.  Rep.,  1900,  p.  202.) 

‘ ‘ The  total  amount  of  work  done  is $4,699,492.03 

Cost  of  superintendence  and  contingencies  prop- 
erly chargeable  to  construction,  account  to 
this  time  about 210,000.00 


Total  expense  incurred $4,909,492.03 

Total  amount  remaining  to  be  done 3,098,169.29 


Of  the  amount  to  be  done  $2,958,169.29  is  for  unfinished 
work,  and  the  balance  f$140,000)  for  superintendence  and  con- 
tingencies.” 

“From  the  time  the  Illinois  and  Michigan  Canal  was  first 
' projected  there  seems  to  have  been  a difference  of  opinion 
amongst  its  friends  in  relation  to  the  proper  size  of  the  work 
and  plan  of  its  construction.  As  this  difference  of  opinion 
still  prevails,  in  order,  in  some  measure  to  account  for  it,  it 
may  not  be  improper  to  allude  to  the  different  surveys  which 
have  been  made,  and  the  different  opinions  entertained  and 
expressed  by  those  who  made  or  directed  them,  in  relation  to 
this  great  work.” 

“The  first  survey  was  made  in  the  autumn  of  1824,  by  Col- 
onels Post  and  Paul,  under  the  direction  of  Messrs.  Sloo, 
Brown,  A¥est  and  Smith,  Canal  Commissioners.  An  examina- 
tion of  the  reports  of  these  gentlemen  will  show  that  notwith- 
standing their  ability,  their  survey  and  estimates  did  not  give 


1904 


Extract, — Canal  Com.  Rep.  1900. — Continued. 


a correct  idea  of  the  obstacles  to  be  overcome  in  the  construc- 
tion of  the  canal.  In  fact,  the  little  that  was  known  of  the 
country  previous  to  the  commencement  of  the  examinations, 
and  the  very  imperfect  knowledge  which  the  best  informed 
in  this  country  at  that  time  had  in  relation  to  public  works  of 
this  character,  rendered  it  almost  impossible  that  they  should 
have  formed  very  correct  opinions  of  the  magnitude  of  the 
undertaking.  But  low  as  were  their  estimates,  it  is  obvious 
they  were  higher  than  the  public  expected;  for  the  Commis- 
sioners, after  giving  the  estimates  of  the  engineers,  remark, 
that  ‘these  estimates,  it  is  true,  exceed  considerably  the  gen- 
eral expectation,  and  the  Commissioners  are  too  well  aware 
of  the  financial  embarrassments  of  the  State,  at  present,  to  in- 
dulge a well  founded  hope  that  immediate  measures  can  be 
adopted  for  executing  a work  of  so  much  importance.^’ 

“The  estimates  of  the  five  different  routes  marked  out,  were 


as  follows,  to-wit: 

“First  route  is  estimated  at $716,110.71 

Second  route  is  estimated  at 639,542.78 

Third  route  is  estimated  at 668,289.68 

Fourth  route  is  estimated  at 682,610.20 

Fifth  route  is  estimated  at 689,746.96 


“On  the  fourth  route  the  supply  of  water  was  to  be  drawn 
in  part  from  Lake  Michigan  and  on  the  fifth,  entirely  from 
this  source ; though  upon  both  plans  or  routes  the  deep  cut  of 
our  present  plan  must  have  been  encountered.” 

“The  canal,  as  estimated  above,  would  have  been  two  feet 
in  depth,  and  twenty  in  width,  less  than  our  present  canal.” 
“The  gauges  of  the  different  streams  from  which  a supply  of 
water  would  have  been  drawn,  are  given  as  follows,  to-wit:” 
“Desplaines  River  at  Cache  Island.  . . .117,000  feet  per  hour. 
DuPage  “ “ “ ....114,000  “ “ 

Aux  Sable  “ “ “ ....  60,000  “ 

Fox  “ “ “ ....450,000 

“The  engineers  remark  in  relation  to  these  gauges  that  the 
‘results  are  predicated  upon  the  present  stage  of  water,’  and 
that  the  quantities  may  sometimes  be  lower.” 

“From  the  foregoing  extracts  it  is  plain  that  no  difficulty 
was  anticipated  in  relation  to  a cheap  supply  of  water  for 
the  canal.  If  the  streams  on  the  route  would  not  afford  suffi- 
cient water,  it  would  cost  no  more  to  procure  a never-failing 
supply  from  Lake  Michigan  than  from  these  sources.” 

“The  surveys  of  the  canal  route  by  the  United  States  engi- 
neers in  1830  and  in  1831,  seem  to  have  been  made  more  to 
ascertain  the  practicability  of  the  work  and  the  general  char^ 
acter  of  the  route,  than  with  a view  to  obtain  data  for  a par- 
ticular estimate  of  cost.  In  fact.  I believe  that  no  estimate 


1905 


r 


6441  of  the  cost  of  the  work  was  submitted  until  the  summer  of 
1834,  at  least  I have  never  seen  one  of  an  earlier  date.  Gen. 
Gratiot  submitted  his  estimate  in  June,  1834,  of  the  cost  of 
constructing  a steamboat  canal  from  Chicago  to  the  mouth  of 
the  Little  Vermilion  River.  The  dimensions  were  as  follows, 
to-wit : ’ ’ 

‘‘For  the  first  twenty-seven  miles  from  the  lake,  or  to  the 
running  out  of  the  lake  level,  the  canal,  except  two^  miles,  is 
one  hundred  feet  ivide  and  ten  feet  deep.  The  remaining  two 
miles  to  be  distributed  in  short  sections  at  convenient  dis- 
tances, ‘to  be  two  hundred  feet  wide;  to  accommodate  boats 
while  detained  in  changing  cargoes  without  interruption  to 
the  navigation.’  The  remaining  distance  of  sixh^-five  miles  ‘to 
be  not  less  than  one  hundred  feet  at  the  surface  and  six  feet 
deep.  The  total  cost  of  this  canal  was  estimated  at  $4,299,- 
439.81.” 

“The  contest  in  the  winter  of  1836-7  closed  by  the  passage 
of  a law  authorizing  the  Canal  Commissioners  to  prosecute 
the  work  upon  the  present  plan,  but  requiring  them  to  pro- 
cure a skillful  engineer  from  abroad  to  examine  and  report 
whether  ‘a  supply  of  water  from  sources  within  the  legitimate 
authority  of  the  State  of  Illinois,’  could  be  procured  with- 
out resorting  to  the  lake,  or  in  other  ivords,  ivhether  a shallow 
cut,  or  high  level  canal  could  'he  supplied  u'ith  water,  and.  if 
so,  whether  enough  could  be  gained  to  make  it  for  the  inter- 
est of  the  State  to  change  the  plan  which  had  already  been 
adopted  by  law,  after  a considerable  portion  of  the  work  had 
been  placed  under  contract.” 

“Judge  Wright  was  the  eminent  engineer  whose  services 
were  secured  by  the  Commissioners,  and  the  substance  of  his 
report  upon  this  subject  is  well  known  to  the  public.  From  the 
time  his  report  was  published  until  the  work  was  nearly  sus- 
pended on  account  of  the  financial  embarrassments  of  the 
State,  little  was  said  about  a change  of  plan.  It  was  sup- 
posed that  there  was  nearly  or  quite  canal  property  enough  to 
complete  it  upon  the  deep  cut  plan,  and  so  long  as  the  State 
could  procure  the  money  to  carry  on  the  work,  little  solicitude 
was  felt  as  to  the  plan,  though  it  was  still  believed  by  many 
that  it  should  have  been  changed,  or  that  the  high  level  should 
have  been  adopted  at  the  outset.” 

“It  never  having  been  made  a part  of  my  duty  to  investi- 
gate this* subject  I have  hitherto  deemed  it  improper  to  allude 
to  it  in  my  reports,  but  at  this  important  crisis  in  the  affairs 
of  the  canal,  when  the  work  is  nearly  suspended,  the  State 
credit  gone,  our  citizens  discouraged,  and  no  hopes  entertained 
of  brighter  prospects  until  the  completion  of  this  important 
improvement  is  rendered  certain,  I shall  present  a few  facts 


1906 


Extract, — Canal  Com.  Rep.  1900. — Continued. 


and  conclusions  which  I believe  may  be  of  some  public  utility, 
and  which  certainly  can  do  no  injury  to  the  best  interests  of 
the  canal. 

‘ ‘ The  length  of  the  canal  from  Chicago  Eiver,  or  the  waters 
of  Lake  Michigan  to  Marseilles  is  seventy-four  miles.  The  de- 
mand for  water, upon  this  line,  assuming  the  usual  data  (as  far 
as  adapted  to  the  present  work),  adopted  by  experienced  en- 
gineers in  other  states,  and  obtained  by  actual  experiments  on 
several  ditferent  canals,  may  be  calculated  as  follows:  to-wiC’ 
“From  Section  No.  1 to  Section  64  inclusive, 
for  evaporation  and  leakage  at  lock  gates, 

there  being  no  loss  by  filtration 400  cubic  per  min. 

From  Sec.  64  to  Marseilles,  47  miles,  at  150 

cubic  feet  mile 7,050  “ “ “ 

Lockage  water  for  locks  at  each  end  of 

of  the  line,  on  plan  of  the  high  level.  .2,174  “ “ “ 

Total  demand  9,924  cubic  per  min. 

(Can.  Com.  Rep.,  1900,  p.  203.) 

6441a  “I  have  calculated  no  loss  by  filtration  from  Chicago  River 
to  Section  64,  because  I have  supposed  that  the  canal  upon  the 
high  level  will  be  sunk  so  low  that  the  surface  of  the  water, 
in  all  cases,  will  be  below  the  natural  surface  of  the  ground 
and  on  a level,  for  most  of  the  distance,  as  low  as  the  surface 
• of  the  Desplaines  River.  The  soil,  too,  and  the  rock  through 
which  the  excavations  are  made,  are  of  such  a character  that 
no  danger  need  be  apprehended  that  any  water  will  leak  out 
or  be  absorbed  on  this  portion  of  the  work.  The  evaporation 
is  in  reality,  almost  too  small  an  item  to  be  taken  into  the 
account  at  all,  but  it  is  mentioned  because  it  is  usually  esti- 
mated in  computing  the  demand  for  water  upon  canals.’^ 

“But  the  evaporation  upon  the  whole  of  our  canal,  calculat- 
ing the  length  at  ninety-six  miles,  and  the  width  at  sixty  feet 
would  be  but  264  cubic  feet  per  minute,  estimating  the  evapora- 
tion during  a season  of  navigation  of  240  days  to  be  three  feet 
(which  is  about  the  average  annual  evaporation  in  this  coun- 
try), or  it  would  be  less  than  three  cubic  feet  per  minute  per 
mile.” 

“The  leakage  at  the  lock  gates  will  be  but  a small  tiem,  if  the 
work  be  properly  executed  and  the  allowance  made  is  un- 
doubtedly sufficient.  ’ ^ 

“In  calculating  the  amount  of  lockage  water  necessary,  I 
have  estimated  water  sufficient  to  fill  the  locks  (one  of  eight 
and  one  of  ten  feet  lift)  one  hundred  times  in  every  twenty- 
four  hours.  But  it  is  not  probable  that  this  amount  of  water 
will  be  necessary  for  the  passage  of  100  boats.  As  nearly  an 
equal  number  of  boats  must  pass  each  way  during  the  season 
of  navigation,  it  is  obvious  that  the  chances  are  nearly  equal 


1907 


that  a single  lock  full  of  water  would  pass  one  boat  up  and 
another  down.  Or,  in  other  words,  it  is  as  likely  that  two  boats 
will  meet  passing  in  opposite  directions,  as  that  one  will 
closely  follow  another  going  in  the  same  direction.  It  is,  there- 
fore, possible  that  the  quantity  of  water  estimated  for  100  lock- 
ages across  the  summit,  would  be  sufficient  to  pass  150  boats.” 

‘^Gauges  of  Calumet  River  by  U.  S.  Engineers — 17,  281 
per  min.  by  Bucklin,  5,333  per  min. 

‘‘S.  Desplaines  River  Post  & Paul,  1950  by  Bucklin  1,000 
per  min. 

‘‘S.  DuPage  River  U.  S.  Engineers,  1065  by  Bucklin 
6916  per  min. 

‘‘The  aggregate  minimum  discharge  of  the  three  rivers 
would  then  be  shown  thus:” 

“Calumet,  5,333;  Desplaines,  1,000;  DuPage,  1,665=7,998 
cubic  feet  per  minute.” 

“This  quantity  of  water  was  to  supply  the  filtration  and 
evaporation  of  seventy-four  miles  of  canal,  the  necessary  lock- 
age water,  and  the  loss  at  the  dams  and  upon  the  Calumet 
feeder.  It  is,  therefore,  obvious  that  there  would  have  l)een 
barely  a supply  for  a canal  of  ordinary  dimensions,  admitting 
that  the  water  could  be  introduced  (as  it  might  have  been)  at 
the  points  desired.” 

“The  Calumet  was  gauged  on  the  17th  of  May  and  was 
found  to  discharge  8,296  cul)ic  feet  per  minute,  and  again  on 
the  24th  of  September,  when  the  quantity  was  6,137  cubic  feet 
per  minute,  and  still  again  on  the  17th  of  October,  when  the 
discharge  was  reduced  to  5,634  cubic  feet  per  minute.” 

“A  very  satisfactory  measurement  of  the  DuPage  was  ob- 
tained on  the  21st  of  September  and  the  discharge  of  water 
was  then  found  to  be  2,928  cubic  feet  per  minute.”  (Can.  Com. 
Rep.,  1900,  p.  204.) 

6442  “The  construction  of  the  perfectly  water  tight  dam  at  Juliet 
has  enabled  us  to  ascertain  with  precision  the  quantity  of 
water  flowing  in  the  Desplaines.  This  river  has  been  nearly 
dried  up;  the  measurement  on  the  20th  of  September  showing 
338  cubic  feet  and  on  the  21st  of  the  same  month  373  cubic  feet 
per  minute.  ’ ’ 

“The  quantity  of  water  in  all  these  streams  continue  to  dim- 
inish till  the  first  of  November,  when  the  probable  quantities 
would  have  been  about  as  follows,  to-wit:” 

“In  the  Calumet  River 5,300  cubic  feet  per  min. 

In  the  Desplaines  River 200  “ 

In  the  DuPage  River 1,888  “ “ 

Total 7,300  “ 

‘‘The  necessary  quantity  of  water  to  supply  the  canal  from 
Chicago  to  Marseilles,  is  9,924  cubic  feet  per  minute.  This 


1908 


Extract, — Canal  Co)n.  Bep.  1900. — Continued. 


would  show  a deficiency  of  2,624  cubic  feet  per  minute,  ad- 
mitting that  all  the  water  could  be  turned  into  the  canal.  There 
will  be  some  loss  at  the  dam  at  the  Calumet  and  upon  three 
or  four  miles  of  the  feeder,  and  also  at  the  DuPage  dam.  It 
would,  however,  be  safe  to  calculate  that  there  could  be  in- 
troduced into  the  canal  from  these  rivers  the  following  quan- 
tities, to-wit:’^ 

‘‘From  the  Calumet  Piver 4,500  cubic  feet  per  min. 


From  the  Desplaines 

200 

From  the  DuPage 

1,600 

Total  supply 

6,300 

Total  supply 

9,924 

Total  deficiency 

3,624 

“There  would  not,  it  is  true,  be  so  large  a deficiency  except 
in  extraordinary  dry  seasons,  and  in  most  seasons  probably 
none  at  all.^’ 

“Were  the  deep  cut  plan  to  be  carried  out  at  an  average 
stage  of  Lake  Michigan  there  would  be  an  abundant  supply  of 
water  drawn  from  the  lake,  not  only  for  navigation,  but  for 
water  power.  There  would  be  no  locks  to  obstruct  the  pass- 
age of  boats  or  lake  vessels  of  good  size  between 
Chicago  and  Lockport.  The  water  power  at  Lockport  and 
Juliet  would  be  greater  and  more  permanent  (at  the  usual 
stage  of  the  lake),  than  it  would  be  upon  the  shallow  cut 
plan.  The  navigation  of  the  canal  would  not  be  liable  to  in- 
terrupt from  breaches  in  dams  or  embankments,  and  the  plan 
is  much  more  magnificent.  Besides,  if  the  waters  of  Lake 
Michigan  do  not  get  through  this  channel  to  the  Mississippi, 
there  is  no  other  through  which  they  can  be  conducted,  and  a 
great  deal  will  have  been  said  for  nothing  about  mingling  the 
waters  of  the  lakes  and  with  those  of  the  Gulf  of  Mexico.” 

“In  constructing  the  Illinois  and  Michigan  Canal  of  the 
dimensions  noiv  adopted,  reference  has  generally  been  had  to 
a future  enlargement.  Through  all  the  towns  and  proposed 
town  sites,  as  Lockport,  Juliet,  DuPage,  Ottawa,  etc.,  the  canal 
is  nearly  double,  and  in  some  instances  more  than  double,  the 
ordinary  width.  In  the  deep  cutting,  the  spoil-banks  were  re- 
moved a sufficient  distance  to  leave  room  for  the  widening  of 
the  canal,  and  in  a few  instances,  if  any,  would  there  be  any 
additional  damages  to  be  paid  for  property.  However  re- 
mote the  period  may  be  when  an  enlargement  of  this  work 
will  take  place,  it  is  certainly  the  part  of  wisdom  to  provide  for 
it  now.  That  it  will  be  enlarged,  sooner  or  later,  there  can  be 
no  doubt,  and  also  that  the  Illinois  River  tuill  be  so  improved 
{an  indispensable  improvement)  as  to  meet  the  enlarged  ca- 
pacity of  the  canal.  (Can.  Com.  Eep.,  1900,  p.  205.) 


1909 


6443a  Feb.  21 — 1843 — Enactment  of  ''An  Act  to  provide  for  tlie 
completion  of  the  I.  & M.  Canal  and  for  the  payment  of  the 
canal  debt. 

March  1 — 1845 — Supplemental  Act  providing  for  execution 
by  Governor  of  "a  deed  of  trust  to  the  said  trustees  of  all 
the  property  and  etfects  mentioned  in  the  tenth  section  of 
said  act;  which  said  conveyance  shall  include  the  lands  and 
lots  remaining  unsold,  donated  by  the  United  States  to  the 
State  of  Illinois  to  aid  in  the  completion  of  the  said  canal;  to 
be  held  in  trust  as  in  said  act  stipulated.’’ 

"The  provision  of  the  above  act  having  been  fully  com- 
plied with,  a meeting  was  held  at  the  American  Exchange 
Bank  of  New  York  on  the  27th  day  of  May,  1845,  and  William 
H.  Swift  and  David  Leavitt  were  elected  trustees  by  the  sub- 
scribers to  the  loans;  William  H.  Swift  being  by  ballot  desig- 
nated as  president  of  the  board.  ("William  H.  Swift  was  con- 
tinued as  president  of  this  board  until  the  termination  of  the 
trust  in  1871.)  On  the  10th  day  of  June  following,  his  Excel- 
lency, Governor  Ford,  appointed  Jacob  Fry  trustee  on  behalf 
of  the  State  of  Illinois.”  (Can.  Com.  Bep.,  1900,  p.  208.) 

From  Beport  of  Board  of  Trustees,  Nov.  30,  1848. 

(Can.  Com.  Bep.,  1900,  p.  209.) 

6444  'G)n  the  24th  of  April,  the  board  while  in  session  at  Chi- 
cago, received  a report  from  the  chief  engineer,  stating  that 
the  canal  was  so  far  completed  as  to  be  in  navigable  order, 
that  the  first  boat  (the  General  Fry)  had  passed  over  the  Sum- 
mit level  from  Lockport  to  Chicago  on  the  10th  of  April,  and 
that  the  first  boat  which  had  passed  through  the  entire  length 
of  the  canal  from  La  Salle  to  Chicago  (the  General  Thornton 
owned  by  Isaac  Hardy)  had  arrived  at  Chicago  on  the  23rd 
of  April.” 

"As  a matter  of  some  interest  connected  with  the  arrival 
of  this  boat,  it  may  be  stated  that  sugar,  etc.,  from  New 
Orleans,  brought  by  the  General  Thornton  to  Chicago  was 
received  at  Buffalo  (via  Mackinaw)  on  the  30th  of  April,  some 
two  weeks  before  the  first  boat  had  reached  Buffalo  by  the 
Erie  Canal.” 

"The  chief  engineer  states  that  all  the  work  upon  the  main 
line  of  the  canal  is  fully  completed  according  to  the  original 
intention  of  the  board,  except  three  inconsiderable  items,  to- 
wit : First,  some  timbers  for  coping  the  towpath  wall  on  the 
Summit;  second,  the  painting  of  several  bridges  and  aque- 
ducts; third,  the  excavation  of  some  2,500  cubic  yards  of  earth, 
and  the  building  of  300  cubic  yards  of  work  on  Sections  195 
and  197.  The  whole  cost  of  these  is  stated  at  $3,900.  The 
two  first  will  be  finished  in  the  course  of  the  winter,  but  the 


1910 


Extract, — Canal  Com.  Rep.  1^00.  — Continued. 


last  cannot  be  economically  done  until  the  water  in  the  Illi- 
nois River  is  low.’’ 

‘'All  the  feeders  are  completed  with  the  exception  of  the 
Calumet,  which  is  the  main  feeder  for  the  Summit  level.  Very 
unusual  difficulties  have  been  encountered  in  the  excavation 
of  this  line,  being  for  a great  portion  of  the  distance  through 
a swamp,  the  material  has  been  dredged  out  by  means  of 
steam  excavations,  as  it  was  too  soft  to  remove  it  by  digging 
in  the  ordinary  method,  and  hence  the  delay  in  its  completion. 
It  will  be  done  in  February  and  with  the  opening  of  naviga- 
tion in  the  spring  the  waters  of  the  Calumet  River  will  be 
6444a  discharged  upon  the  Summit  level.  The  following  table  ex- 
hibits the  cost  of  completing  the  canal  and  the  feeders  ac- 
cording to  the  report  of  the  chief  engineer:” 

“Canal  proper,  including  pumping 


engines,  etc $1,159,652.44 

Calumet  feeder,  work  done $68,397.22 

Calumet  feeder  to  be  done,  estimate..  23,102.78 

91.500.00 

Kankakee  feeder  84,573.29 

Superintendence  and  contingencies . . . 66,527.06 


Total  cost  of  completion $1,401,192.79 


“From  Woodruff’s  history  of  Will  County:  ‘The  project 

of  a ship  canal  to  connect  the  waters  of  Lake  Michigan  with 
the  navigable  waters  of  the  Illinois  River  was  first  suggested 
during  the  war  of  1812,  by  some  writer  in  the  Xiles  Register 
in  1816.  The  title  to  a strip  20  miles  wide  was  obtained  of  the 
Indians  with  a view  to  such  work.’  ” 

“From  the  Xorthwest  and  Chicago,  by  Rufus  Blanchard:” 
“Previous  to  1816  the  united  tribes  of  Indians  known  as 
Ottawa s,  Chippewas  and  Pottawattomies,  claimed  all  the  land 
between  Chicago  and  the  mouth  of  the  Fox  River.  In  order 
to  secure  undisputed  ])ossession  of  the  river  between  these 
two  points,  a treaty  was  arranged  between  these  tribes  and 
Xinian  Edwards,  William  Clark  and  August  Chouteau,  Com- 
missioners Plenipotentiary  of  the  United  States;  this  treaty 
was  consummated  the  24th  day  of  August,  1816,  and  was 
signed  by  the  above  named  Commissioners  and  F.  Assikinock, 
otherwise  known  as  Black  Partridge,  chief  of  the  united 
tribes.  The  object  in  securing  this  strip  was  to  construct  a 
military  road  to  fascilitate  the  building  of  the  proposed  ship 
canal.” 

“From  the  history  of  Chicago,  by  Bross,  Book  B,  1370, 
Chicago  Public  Library:” 

“At  the  first  session  of  the  Legislature  in  1818,  Governor 
Bond  brought  up  the  subject  of  a canal  from  Lake  Michigan 
to  the  Illinois  River.  By  an  act  passed  July  14,  1823,  a Board 


1911 


of  Canal  Commissioners  was  appointed,  and  in  the  autumn  of 
that  year  a portion  of  the  board,  with  Col.  J.  Post  of  Missouri, 
as  chief  engineer,  made  a tour  of  reconnoissance.  and  in  the 
autumn  of  1824,  Col.  E.  Paul,  an  able  engineer  residing  in  St. 
Louis,  was  also  employed.  Five  different  routes  were  sur- 
veyed and  estimates  made  of  the  cost  of  the  canal.  The  high- 
est estimate  was  $716,110.00.  In  the  autumn  of  1829  the  Com- 
missioners came  to  Chicago,  have  employed  James  Thompson 
to  survey  and  lay  off  the  town.  His  first  map  bears  date  of 
August  4,  1830.’’ 

^‘The  beginning  of  the  canal  was  celebrated  July  4,  1836, 
by  nearly  the  whole  City  of  Chicago  going  up  to  Bridgeport 
on  the  small  steamer  George  W.  Dole,  towing  two  schooners^ 
Dr.  Mhn.  B.  Egan  delivered  the  address  and  the  Hon.  The- 
ophilus  W.  Smith  began  the  ditch  by  throwing  out  the  first 
shovelful  of  earth.” 

‘^Lockport,  III.,  ]\farch  22,  1871.” 
Messrs.  Hoyne,  Horton  Iloijne, 

Chicago,  111.’’ 

‘ ‘ Gents  : — 

‘Amours  of  the  20th  inst.  asking  for  a ‘certified  copy  of 
survey  or  location  of  the  canal  in  1836  and  also  in  1846  in^ 
Sections  29  and  30,  T.  39  North,  Eange  14  E.’  I send  you 
herewith  a diagram  showing  the  location  as  you  desire,  cer- 
tified by  A.  J.  Matthewson,  the  engineer  who  made  the  sur- 
vey. The  change  in  the  location  from  the  survey  of  1836  to 
that  upon  which  the  canal  was  finally  constructed  was  made 
in  1845  (not  in  1846)  when  oi)erations  were  commenced  under 
the  trust  and  was  authorized  by  Section  13  of  ‘the  act  to 
provide  for  the  completion  of  the  Illinois  and  Michigan  Canal, 
and  the  pavment  of  the  canal  debt,’  approved  Februarv  21, 
1843.” 

Truly  yours, 

AVilliam  Gooding.  ’ ’ 

(Can.  C’om.  Kep.,  1900,  p.  210.) 


6448a  Kankakee  Feeder. 

(Can.  Com.  Kep.,  1900,  p.  218.) 

“A  navigable  feeder  from  the  Kankakee  Kiver  was  sur- 
veyed in  1845  and  ordered  constructed  in  1846.  The  width 
to  be  40  feet  at  top  water  line,  26  feet  at  bottom,  4 feet  deep 
except  at  lower  end  where  the  depth  was  to  be  5 feet.  The 
slope  to  be  2 to  1 raised  3 feet  above  top  water  line — delivery  2 
inches  to  the  mile.  This  feeder  was  completed  in  1848.  The 
termination  of  the  feeder  was  at  a point  on  the  canal  1,820 
feet  S.  E.  of  the  N.  AV.  corner  of  Section  31,  Tp.  34  N.,  E.  9 


1912 


Extract, — Canal  Com.  Rep.  1900. — Continiied. 


passes  in  a southwest  course  across  the  Du  Page  River  where 
it  enters  Section  36,  Tp.  34  N.,  R.  8;  thence  S.  W.  1,056  feet 
to  the  center  section  line  538  feet  west  of  the  east  line  of  the 
section;  thence  south  to  a point  792  feet  north  of  the  south  line 
of  Section  36;  thence  southeast  entering  Section  3-34-9  again 
at  a point  264  feet  north  of  its  southwest  corner;  crossing' 
this  corner  it  then  passes  through  Sections  6,  4 and  5 to  a 
6449  point  near  .the  center  of  the  southeast  quarter  of  Section  9; 
all  in  Tp.  33  N.,  R.  9,  whence  a dam  was  constructed  across 
the  Kankakee  River  and  from  which  it  received  its  supply  of 
water.” 

‘^The  90  foot  reserve  was  surveyed  in  1848  by  Artemus  J. 
Mathewson,  a plat  was  made  of  the  feeder  and  reserve  and 
appear  in  the  plat  hook  number  2,  Canal  Records.” 

^^The  total  cost  approximated  very  nearlv  to  $50,000.” 
(Can.  Com.  Rep.,  1900,  p.  219.) 

From  a Letter  by  A.  J.  Gtaleoway,  Dated  April  20,  1846: 

‘‘Canal  Office,  Lockport, 
April  20,  1846. 

“To  the  Board  of  Trustees  of  the  Illinois  and  Michigan 

Canal. 

“Gentlemen: — The  Secretary  of  our  board  has  submitted 
to  me  the  following  order  to  which  I have  the  honor  to  reply : 
‘Ordered,  That  the  Chief  Engineer  be  requested  to  re- 
liort  to  the  board  the  results  of  the  surveys  of  the  sev- 
eral feeders  which  have  been  made  since  the  adjournment 
of  the  board  on  the  24th  July  last,  together  with  the  esti- 
mated cost  of  constructing  each  feeder ; also  that  he  com^ 
municate  his  opinion  in  reference  to  the  most  advantage- 
ous disposition  to  be  made  of  the  several  feeders,  and  the 
best  mode  of  supplying  the  different  levels  with  a suffi- 
ciency of  water  for  the  purpose  of  navigation.’ 

“The  surveys  of  the  feeders  were  commenced  on  the  14tk 
of  July  last,  and  finished  on  the  6th  day  of  November  under 
the  immediate  direction  of  the  principal  assistant,  who  was 
aided  by  Messrs.  Benjamin,  Mathewson  and  Elder,  Assistant 
Engineers,  Mr.  Elder,  however,  was  not  called  into  the  service, 
until  the  surveys  of  the  Calumet  had  been  completed. 

“Two  feeders  from  the  Kankakee  River  were  surveyed;  one 
commencing  at  the  dam  near  Wilmington  and  terminating 
near  lock  No.  6 on  the  main  line  of  canal,  and  the  other  at 
Goose  Island,  terminating  at  the  main  line  nearly  opposite 
the  upper  part  of  the  town  of  Kankakee.  The  feeder  from 
AVilmington  would  be  received  into  the  canal  on  the  Joliet 
level,  and  the  other  iqion  the  Dresden  level ; the  former  being 
10.43  and  the  latter  4.44  miles  in  length. 


1913 


‘^Tlie  feeder  from  Wilmington  is  rendered  expensive  by  the 
necessity  of  constructing  more  than  a mile  of  it  where  the 
base  of  the  tow  path  will  be  in  the  river  and  the  outer  slope 
will  require  protection,  and  also  by  the  difficulty  of  procuring 
suitable  earth  for  embankment  for  about  three  miles  of  the 
distance,  and  the  expensive  nature  of  the  embankment  across 
the  valley  of  the  Desplaines. 

‘‘The  aqueduct  across  the  Desplaines  on  this  line  will  also 
be  an  expensive  structure.  The  estimated  cost  of  this  feeder 
is  $159,401.52. 

“The  lower  Kankakee  feeder  commences  at  a point  very 
favorable  to  the  construction  of  a permanent  dam,  and  the 
route  passes  over  ground  well  adapted  to  the  cheap  and  per- 
manent construction  of  the  work,  until  it  reaches  the  Des- 
plaines River,  which  must  be  crossed  by  an  aqueduct  that 
will  form  much  the  most  expensive  part  of  the  work.  Every 
part  of  this  feeder,  however,  can  be  made  permanent  at  a 
very  moderate  cost,  the  whole  estimate  amounting  to  but  $48,- 
363.68. 

“The  feeders  are  all  intended  to  be  navigable  and  will  be 
40  feet  wide  upon  the  surface  of  the  water,  26  feet  wide  upon 
the  bottom,  and  4 feet  deep,  except  lower  Kankakee  feeder,  in 
which  the  water  is  intended  to  be  5 feet  dee]).  The  slopes  of 
the  banks  will  be  two  to  one,  and  they  will  be  raised  7 feet 
above  bottom  or  3 feet  above  the  top  water  line.  A declivity 
of  2 inches  per  mile  is  given  on  each  of  the  feeders.”  (Canal 
Com.  Rep.,  1900,  p.  219.) 

From  E.  W.  Willard  ^s  History,  in  Report  of  1900: 

“The  Kankakee  feeder  has  not  been  used  for  several  years. 
The  aqueduct  that  carried  the  water  over  the  Desplaines  and 
DuPage  Rivers  has  long  since  gone  to  decay.  There  are,  how- 
ever, over  125  acres  of  good  land  used  for  this  feeder  that 
now  belongs  to  the  State  of  Illinois.”  (Canal  Com.  Rep., 
1900,  p.  220.) 

6454  “In  the  years  1847  and  1848  Artemus  J.  Mathewson,  a sur- 
veyor and  engineer,  under  the  authority  and  direction  of  the 
Canal  Trustees,  surveyed  and  marked  the  lines  of  the  90-foot 
strip  on  each  side  of  the  canal  from  one  end  thereof  to  the 
other  and  prepared  and  tiled  in  the  office  of  the  Board  of 
Trustees,  maps  and  profiles  of  said  survev.”  (Can.  Com. 
Rep.,  1900,  p.  229.) 

6457  “The  Mathewson  survey  of  1847  and  1848  gave  the  width 
of  the  canal  and  the  lines  of  the  reserve  the  entire  length  of 
the  canal.  See  plat  books  1,  2 and  3 canal  records.  Prom 
La  Salle  to  Joliet  the  towing  path  is  located  on  the  south  side 
of  the  canal,  and  from  Joliet  to  Bridgeport  it  is  on  the  north 
side.  From  Bridgeport  to  the  center  of  Section  21,  Tp.  14 


1914 


Extract, — Canal  Com.  Rep.  1900. — Continued. 


X.,  E.  14  East,  there  was  reserved  from  sale  16  feet  in  width 
on  the  south  side  of  the  Chicago  Eiver  for  towing  purposes, 
and  for  a long  time  this  reserve  was  used  for  that  purpose. 
The  State  of  Illinois  secured  title  to  the  canal,  its  feeders 
and  reserved  land  through  Section  16,  known  as  school  sec- 
tions, Ottawa  Center,  Marseilles,  Joliet,  Lemont  and  Canal- 
])ort  section  (30-39-14),  by  the  congressional  acts  of  1822, 
1827  and  1831,  and  the  legislative  enactments  of  1823,  1829^ 
1831,  1836,  1837  and  1839.  See  also  La  Salle  County,  Will 
Countv  and  Canal  Eecords  1836  to  1845.”  (Can.  Com.  Eep., 
1900,  p.  235.) 


Atlas. 

The  bulky  maps  and  plat  exhibits  are  grouped  together  in  the 
Atlas.  The  form  and  size  of  these  exhibits  made  it  impracticable 
to  have  them  inserted  in  the  Certificate  of  Evidence  at  the  pages 
where  they  were  respectively  introduced. 

It  was  ascertained  from  estimates  submitted  by  engravers  that 
the  cost  of  reproducing  the  atlas  of  maps  in  printed  form  so  that 
each  map  would  appear  in  this  abstract,  would  be  (as  nearly  as  can 
be  anticipated)  in  excess  of  $5,000,  which  has  been  deemed  pro- 
hibitive. We  are,  therefore,  compelled  to  submit  in  lieu  of  a fuller 
abstract  of  the  atlas  the  following  description  of  the  different 
maps,  plats  and  charts  with  references  to  the  places  in  the  tran- 
script where  the  same  were  introduced  in  evidence  and  to  the 
pages  where  they  will  be  found. 

As  to  a few  of  these  no  map  whatever  was  available  for  the 
certificate  of  evidence  and  it  became  necessary  to  reproduce  them 
in  facsimile  in  order  to  preserve  them  in  the  certificate  of  evidence. 
The  few  so  reproduced  are  given  in  the  abstract.  The  few  so  re- 
produced were  not  more  important  than  the  others.  The  necessity 
for  reproducing  them  once  in  the  certificate  of  evidence  made  it 
possible  to  reproduce  them  in  the  abstract  also  which  is  accord- 
ingly done. 

Said  exhibits  are: 

‘‘McCullough  Exhibit  1.” 

6480  (Atlas,  p.  3913,  referred  to  and  offered  in  evidence  pp.  7 
and  716  of  the  Certificate  of  Evidence;  Trans.,  pp.  1785,  2505; 
Abst.,  pp.  633,  841),  is  a map  of  the  four  townships  in  Eanges  8, 
9 and  10,  through  which  the  lower  part  of  the  Desplaines  runs.  It 
is  certified  by  the  Auditor  of  Public  Accounts  to  be  a true  copy  of 
the  plats  of  the  United  States  Survey,  transferred  from  the  U.  S. 
Surveyor  General’s  office  to  this  State,  ])iirsuant  to  act  of  Con- 
gress. It  shows  all  of  tile  surveyor’s  writings  and  marks  placed 
upon  the  original  plats. 

“McCullough  1 A.” 

6482  (Atlas  p.  3914,  referred  to  and  offered  in  evidence  on  pp. 
446  and  716  of  Certificate  of  Evidence,  Trans.,  })p.  2224, 


1915 


2505;  Abst.,  pp.  765,  841),  is  a duplicate  of  so  much  of  the  fore- 
going as  exhibits  the  river,  with  certain  added  matters  indicated 
thereon.  Among  these  are  the  following: 

1.  Odd  numbered  sections  are  given  coloring  matter,  so  as 
to  indicate  visually  which  sections  are  Canal  Sections  and  which 
are  not. 

2.  Sites  of  the  localities  of  a number  of  towns  and  town  plats 

are  indicated  along  the  banks  of  the  river  by  other  coloring  mat- 
ter and  boundary  lines.  The  towns  thus  indicated  are:  begin- 

ning at  the  confluence  of  the  Kankakee  and  the  Desplaines,  the 
original  town  of  Kankakee,  also  known  as  Beardstown. 

Going  up  stream,  just  above  Treat’s  Island,  appear  the  town 
plats  of  ‘^Buffalo”  and  ^‘Vienna.”  These  towns  were  never 
built  up. 

Further  up  appears  the  plats  of  ‘‘Juliet,”  “West  Juliet,” 
“School  Section  Addition  to  Juliet”;  and  further  up  in  Town- 
ship 36,  “Lockport”  and  the  town  of  “West  Lockport.” 

3.  The  locations  of  a number  of  islands,  dams,  bridges  and 
gauges  are  shown  by  suitable  labels. 

“McCullough  Exhibit  2.” 

6484  (Atlas  p.  3915,  referred  to  and  offered  in  evidence  C.  E. 

pp.  491  and  716;  Trans,  pp.  2269-2505;  Abst.,  pp.  777-841.) 
Begins  where  “McCullough  Exhibit  1”  leaves  off,  and  proceeding 
up  stream,  shows  the  course  of  the  Desplaines  River, — by  a similar 
certified  copy  of  the  original  Government  Survey, — through  Town- 
ships 36  and  37,  Range  10;  37  and  38,  Range  11;  townships  38  and 
39,  Range  12;  Township  39,  Ranges  13  and  14.  This  map  also 
represents  Mud  Lake.  It  also  sketches  in  the  line  labeled  “Port- 
age Road.” 

“McCullough  Exhibit  2 A.” 

6486  (Atlas  p.  3916,  referred  to  C.  E.  pp.  477  and  716;  Trans. 

pp.  2255-2505;  Abst.,  pp.  774-841)  is  a duplicate  exhibit  of 
“McCullough’s  Exhibit  2”  with  certain  other  added  matters,  in- 
cluding the  following : 

The  Canal  Sections  are  colored,  also  the  sites  of  a number  of 
towns,  laid  out  on  the  banks  of  the  stream.  The  towns  here 
platted  upon  the  banks  of  the  Desplaines  prior  to  March  1,  1839, 
are  Emmetsburg,  Keepotaw,  which  afterwards  became  Lemont, 
Desplaines  (Archer  and  Pearson’s  Addition)  (in  Section  14, 
Township  37),  and  Summit,  in  Section  12,  Township  38. 

Just  on  the  border  of  a widening  of  the  river  appears  Romeo. 


1916 


‘‘Outline  Map  of  AVill  County/' 

6488  From  a j^ublislied  atlas  known  as  “AVill  County  Plat 
Book”  (Atlas  p.  3917,  referred  to  C.  E.  p.  1098;  Trans,  p. 
2887 ; Abst.,  p.  928).  This  is  page  15  of  a popular  atlas  in  general 
use  in  Joliet  and  Will  Counties,  giving  several  townships  of  the 
county,  the  location  of  the  principal  cities,  the  villages,  lines  of 
railroad,  wagon  roads  and  the  course  of  the  Desplaines  Eiver  and 
Kankakee  and  Du  Page  Rivers  and  the  Illinois  and  Michigan 
Canal  through  the  county. 

Upon  the  bank  thereof  is  page  16,  which  gives  a similar,  and 
enlarged  representation  of  Du  Page  Township  in  AVill  County. 

“Outline  Map  of  Channahon  Township,  AAill  Countyl” 

6490  (P.  25  of  “AA'ill  County  Plat  Book,”  Atlas  p.  3918,  re- 

ferred to  C.  E.  p.  1098;  Trans,  p.  2887 ; iAbst.,  p.  928.) 

On  the  back  thereof,  page  26,  is  Jackson  Township  in  AVill 
County. 

“Alvokd  Exhibit  I.” 

6492  Joliet’s  map  of  1674  (Reproduced  in  facsimile  from  “Be- 
vue  de  Geographies ’ for  February  1880).  (Atlas  p.  3919, 
referred  to  C.  E.  p.  184;  Trans,  p.  1962;  Abst.,  p.  1688.) 

This  map  is  republished  in  the  “Jesuit  Relations  and  Allied 
Documents”  by  Reuben  Gold  Thwaites,  Secretary  of  the  State  His- 
torical Society  of  AVisconsm,  Vol.  59,  Lower  Canada,  Illinois, 
Ottawas,  1673-1677,  at  page  86. 

This  map  shows  the  line  of  the  Desplaines  and  of  the  Chicago 
River,  as  meeting  at  Mount  Joliet,  and  it  labels  the  passage  at 
the  junction  of  the  river,  “Portage.” 

Exhibit  I,  Andreas,  Chicago. 

()494  (Atlas  ]).  3920,  referred  to  C.  E.  ]).  209;  Trans,  p.  1988; 

Abst.,  p.  702.)  This  is  a section  of  Charlevoix’s  map  of  one 
hundred  years  later,  1774.  It  exhibits  the  Desplaines  River  lal)el, 
“R  des  Illinois.”  In  the  narrow  passage  between  this  “R  des 
Illinois”  and  “Checegau”  is  the  insci‘i])tion,  “Portage  les 
Chenes.” 


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1917 


Exhibit  of  Long's  Report  and  Map. 

6496  (Atlas  p.  3921;  referred  to  0.  E.  p.  246;  Trans,  p.  2024; 

Abst.,  p.  712.)  This  is  the  facsimile  reprint  of:  1.  Major 

Stephen  H.  Long,  1819;  2.  Report  of  Graham  k Phillips,  1819; 

3.  The  map  from  Major  Long’s  ‘Mlxpedition” ; 4.  ‘‘Relation  of 
Father  Dahlon,  1674.”  (For  said  map  see  opposite  page.) 

Thevinot's  Map,  1681. 

6509  (Alvord’s  Exhibit  1,  Atlas  }).  3922;  referred  to  C.  E.  p.  252; 
Trans,  p.  2030;  Abst.,  p.  713.) 

This  map  also  exhibits  the  llesplaines  River,  the  Chicago 
River,  the  little  lake  between  the  two,  connecting  them,  and  the 
label  thereon,  “Portage.” 

6510  This  Thevinot  map  was  published  in  1681  by  Thevinot, 
together  with  an  imperfect  form  of  Marquette’s  Journal, 

with  the  title — 

Carte  de  la  decouverte 
foite  Pan  1673  dans 
I’Amerique 
Septentrionale. 

It  is  published  in  1859  Jesuit  Relations  p.  3 54,  and  also  in 
Bancroft’s. History  of  the  United  States. 

Orr  Exhibit  1. 

6511  (Atlas  page  3923,  referred  to  C.  E.  page  1098;  Trans,  p.  • 
2887;  Abst.,  p.  929.) 

This  is  one  of  the  maps  of  the  Illinois  & ^Michigan  Canal 
lands,  surveyed  by  A.  J.  Mathewson  in  1846-1847.  This  is  the 
location  of  the  canal  crossing  the  Desplaines  River  in  Joliet  and 
extending  for  about  one  mile  along  and  in  the  river,  and  shows 
among  other  things  both  the  Kankakee  Cut-otf  and  the  Kankakee 
Feeder.  .It  is  known  as  the  general  index  plat  of  the  Canal  Rec- 
ords, Plat  Book  2. 


1918 


Ork  Exhibit  2. 

6513  (Atlas  page  3922-a,  referred  to  C.  E.  page  1098;  Trans,  p. 

2887;  Abst.,  p.  929.) 

This  is  the  corresponding  index  page  or  index  plat  of 
Plat  Book  2 of  the  canal  records.  The  two  together  exhibit 
the  course  of  the  canal  from  the  point  where  it  taps  the  south 
branch,  just  at  the  Bridgeport  junction  of  the  west  and  south 
forks,  down  to  the  month  of  the  river  and  below. 

It  shows  the  old  town  of  Bridgeport  at  the  head  of  the  canal, 
also  the  town  of  Summit,  where  the  canal  strikes  the  Desplaines, 
the  towns  of  Desplaines  and  Harmonville  on  each  side  of  the 
old  Sanganash  swamp,  through  which  the  Calumet  feeder  is  led 
from  Stony  Creek  into  the  canal.  Then  below  that,  Athens  and 
Keepotau,  adjoining  the  Desplaines  River  in  Section  20. 

It  shows  the  extent  of  Mud  Lake  and  of  the  Sanganash  swamp, 
which  is  several  times  as  large  as  Mud  Lake,  and  both  of  which 
empty  into  the  Desplaines  River. 

Orr  Exhibit  3. 

6515  (Atlas  page  3924,  referred  to  C.  E.  page  1098;  Trans,  p. 

2887;  Abst.,  p.  929.) 

This  is  one  of  the  more  detailed  plats  of  which  the  previous  was 
an  index.  This  is  a blue  print  of  the  Mathewson  surv^ey,  showing 
the  junction  of  the  Desplaines  with  the  south  arm  of  Mud  Lake  in 
Section  12,  Township  38,  Range  12  East. 

This  plat  show's  the  location  of  Archer  Road,  the  canal  with 
a 90-foot  strip  on  each  side  of  it,  extending  directly  through  La 
Crosse,  both  arms  of  Mud  Lake,  the  outlet  of  Mud  Lake  into  the 
Desplaines  on  one  side,  and  the  outlet  into  the  Chicago  River  on 
the  other.  The  latter  outlet  is  ^^let  out.”  This  depression  ex- 
tends from  the  south  arm  of  Mud  Lake  to  the  east  fork  of  the 
south  branch  of  the  Chicago  River. 

Upon  this  Orr  Exhibit  3,  the  enclosed  area  marked  ‘‘Riv.  Des 
Plaines”  is  contained  within  a continuous  white  line  on  each  side, 
and  next  to  that  a little  farther  away  from  the  center  of  the 
river  on  each  side,  extends  a continuous  row  of  dotted  lines.  This 


1919 


represents  the  meander  line  of  tlie  Desplaines  River,  as  surveyed 
by  Mr.  Mathwson. 

Orr  Exhibit  4. 

6517  (Atlas  page  8925,  referred  to  C.  E.  ]>age  1098;  Trans.  ]>. 
2887;  Abst.,  p.  929.) 

Extends  eastward  from  where  Orr  Exhibit  8 left  oft'  and  shows 
the  line  of  the  canal,  with  the  90-foot  strip  on  each  side,  the  Archer 
Road  and  Mud  or  Portage  Lake. 

This  map  has  divers  surveyor’s  notes  placed  thereon  signed 
June  5,  1847,  indicating  the  time  of  the  making  of  the  plat. 

Orr  Exhibit  5. 

6519  (Atlas  page  8925,  refei*red  to  0.  E.  i)age  1098;  Trans,  p. 
2887;  Abst.,  p.  929.) 

This  is  a copy  of  ])age  7 of  Plat  Book  :^1  of  Canal  Records, 
and  the  survey  of  Section  15,  Townshi])  87  North,  Range 
11  East.  This  shows  the  old  state  ditch  extending  across 
it,  labeled  ‘^Artificial  Channel  200  ft.  wide.”  Also  “Old  bed  of 
Desplaines  Riv.” 

Orr  Exhibit  6. 

6521  (/Vtlas  ])age  8926,  referred  to  C.  E.  i)age  1098;  Trans,  p. 
2887;  Abst.,  p.  929.) 

This  gives  a detailed  survey  of  Sections  8,  4 and  5 of 
Township  88,  North  Range  18  East.  It  gives  both  arms  of 
Mud  Lake  with  the  canal  and  90-foot  strip  extending  southwise 
between  them,  and  across  the  extension  of  the  south  arm  of  Mud 
I.ake  in  one  place  appears  the  label 

“This  depression  extends  from  the  south  arm  of  Mud 
Lake  to  the  east  fork  of  the  S.  branch  of  Chicago  River,” 
and  again  further  on  to  the  east — 

“This  depression  leAids  from  the  S.  arm  of  Mud  Lake  to 
the  E.  fork  of  the  S.  branch  of  Chicago  River.” 


3920 


Orr  Exhibit  7. 

6523  (Atlas  page  3927,  referred  to  C.  E.  page  350;  Trans,  p. 
2128;  Abst.,  p.  749.) 

This  is  a tracing  plat  of  the  Mathewson  canal  survey  of 
Section  25,  Township  34,  showing  the  junction  of  the  Des- 
plaines  and  Kankakee  and  the  Illinois;  thence  forward  with  the 
dotted  meander  lines  on  both  sides  of  the  Desplaines,  as  sur- 
veyed and  delineated  by  State  Canal  Surveyor  Mathewson  in 
1846-1847.  This  is  at  the  site  of  the  dam  in  question. 

Complainant  ^s  Exhibit  A-1. 

6527  (Atlas  page  3929,  referred  to  C.  E.  page  2585;  Trans,  p. 
4422;  Abst.,  p.  1278.) 

is  a certified  copy  of  the  plat  of  the  abandoned  town  of  Beards- 
town  or  Kankakee,  at  the  confluence  of  the  two  rivers,  platted  in 
1835. 


Complainant  Exhibit  A-2. 

6529  (Atlas  page  3930,  referred  to  C.  E.  page  2585;  Trans,  p. 
4422;  Abst.,  p.  1278.) 

is  a certified  copy  of  the  jflate  of  the  abandoned  town  of  Buffalo, 
platted  in  1836. 


Complainant  ^s  Exhibit  A-3. 

6531  (Atlas  page  3933,  referred  to  C.  E.  page  2585;  Trans,  p. 
4422;  Abst.,  ]).  1278.) 

is  a certified  copy  of  the  map  of  the  school  section  addition  to 
Juliet,  platted  in  1834. 


Compi.ainant's  Exhibit  A-4. 

6533  (Atlas  page  393)2.  referred  to  C.  E.  page  2585;  Trans,  p. 
4422;  Abst.,  p.  3 278.; 

is  a certified  copy  of  the  original  plat  of  the  Town  of  Juliet,  platted 
:May  33,  1834. 


1921 


Complainant Exhibit  A-5. 

(Atlas  page  3933,  referred  to  C.  E.  page  2585;  Trans,  p.  4422; 
Abst.,  p.  1278.) 

6535  is  a certified  copy  of  tlie  plat  of  the  Town  of  West  Juliet 
laid  out  January  27,  1835. 

Complainant  ^s  Exhibit  A-6. 

(Atlas  page  3934,  referred  to  C.  E.  page  2585;  Trans,  p.  4422; 
Abst,  p.  1278.) 

6537  is  a certified  copy  of  the  plat  of  the  Town  of  Vienna  laid 
out  September  1,  1835. 


Complainant  ^s  Exhibit  A-7. 

(Atlas  page  3935,  referred  to  C.  E.  page  2585;  Trans,  p.  4422; 
Abst.,  p.  1278.) 

6539  is  a certified  copy  of  the  plat  bordering  the  Desplaines  Eiver 
of  the  Town  of  Lockport,  platted  November  17,  1837. 

6541  Complainant’s  Exhibit  A-8. 

(Atlas  page  3936,  referred  to  C.  E.  page  2585;  Trans,  p.  4422; 
Abst.,  p.  1278.) 

is  a certified  copy  of  the  plat  of  the  Town  of  Lockport,  laid  out 
September  17,  1836. 

6543  Complainant’s  Exhibit  A-9. 

(Atlas  page  3937,  referred  to  C.  E.  page  2585;  Trans,  p.  4422; 
Abst.,  p.  1278.) 

is  a certified  copy  of  the  plat  of  the  Town  of  Summit,  laid  out 
August  17,  1837. 

6545  Complainant’s  Exhibit  A-10. 

(Atlas  page  3938,  referred  to  C.  E.  page  2585;  Trans,  p.  4422; 
Abst,  p.  1278.) 

is  a certified  copy  of  the  plat  of  the  iVrcher  addition  to  the  Town 
of  Desplaines,  platted  May  22,  1837. 


1922 


651:7  C^OMPLAIXANT^S  ExHIBlT  A-11. 

(Atlas  page  3939,  referred  to  C.  E.  page  2585;  Trans,  p.  4422; 
Abst.,  p.  1278.) 

is  a certified  copy  of  the  plat  of  the  Town  of  Keepotaw,  laid  ont 
July  22,  1836. 

6549  Complainant  ^s  Exhibit  A-12. 

(Atlas  page  3940,  referred  to  C.  E.  page  2585;  Trans,  p.  4422; 
Abst.,  p.  1278.) 

is  a certified  copy  of  the  plat  of  the  Town  of  Emmet sbnrg,  laid 
ont  January  5,  1837. 

6551  Eudolph  Exhibit  I. 

(Atlas  page  3941,  referred  to  C.  E.  page  466;  Trans,  p.  2244; 
Abst.,  p.  771.) 

This  is  a plat  of  the  survey  of  the  site  of  the  dam  at  the  con- 
fluence of  the  Kankakee  and  the  Desplaines  by  Emil  Rudolph  and 
H.  H.  Bremer.  This  plat  delineates  the  meander  line  of  the  Des- 
plaines River  along  the  right  bank  and  shows  the  cotfer-dam  and 

the  progress  of  the  work  as  it  existed  April  13;  and  shows  the 

location  of  the  power  house  in  the  cotfer-dam  area  outside  of  the 
meander  line.  The  plat  gives  other  data  of  the  location  and  is 
explained  in  the  testimony  of  surveyors  Rudolph  and  Bremer. 

6553  Blue  Peint  Plat  of  Township  39,  N.  R.  12  E. 

(Atlas  page  3942,  referred  to  C.  E.  pages  482  and  485;  Trans,  pp. 
2260-2263;  Abst.,  p.  775.) 

This  is  a plat  of  the  Township,  showing  the  course  of  the  Des- 
plaines for  the  six  miles  north  of  the  point  marked  ‘‘Head  of 
Navigation,”  by  the  Government  survey  of  1821. 

6555  Hillebband  Exhibit  3. 

(Atlas  page  3943,  referred  to  C.  E.  pages  847  and  1098;  Trans, 
pp.  2636-2887;  Abst.,  jip.  875-928.) 

This  is  a large  blue  print  prepared  by  Mr.  Hillebrand,  chief 
draftsman  of  the  Sanitary  District  of  Chicago  from  field  snr- 


1923 


veys  made  by  the  Sanitary  District,  showing  the  topography  of 
the  Desplaines  River,  with  the  Illinois  and  Kankakee  for  a dis- 
tance of  about  five  miles,  as  the  river  runs.  It  is  the  largest  of 
all  the  plats  and  one  of  the  most  convenient  for  exhibiting  the 
general  situation  at  the  mouth  of  the  river.  It  shows: 

The  Illinois  and  Michigan  Canal,  parallel  to  the  river; 

The  90-foot  strip  on  the  south  side  of  the  canal  between  it  and 
the  river: 

The  Riparian  Tract,  which  is  the  subject  of  leases  by  the  Canal 
Commissioners ; 

The  Kankakee  Feeder,  and 
The  Kankakee  Cut-off; 

The  county  and  section  lines; 

And  numerous  topographical  data. 

(In  order  to  utilize  this  map  to  the  best  advantage,  it  will  be 
helpful  to  mount  it  upon  the  wall,  as  was  done  by  the  trial  court.) 

6557  Cooley  Exhibit  2. 

(Atlas  page  3944,  referred  to  C.  E.  pages  603  and  607;  Trans,  pp. 
2392-2396;  Abst.,  pp.  811-813.) 

This  is  a map  of  the  Desplaines  River  from  Joliet  to  the  mouth, 
with  a profile  attached,  showing: 

The  bed  of  the  river  in  the  low  wmter  of  1823, 

The  low  wmter  of  1901. 

The  high  water  of  1904, 

The  location  and  height  of  the  dam, 

The  height  of  the  pool  formed  thereby. 

And  various  geographical  data. 

6559  Cooley  Exhibit  3. 

(Atlas  page  3945,  referred  to  C.  E.  pages  605  and  607;  Trans,  pp. 
2394-2396;  Abst.,  pp.  812-813.) 

This  is  the  consolidated  profile  showing  the  data  heretofore 
described  in  Cooley  Exhibit  2 ; and  also  the  high  water  line  of 
1892 ; the  successive  lines  indicating  the  height  and  depth  of  water 
produced  by  2,000  cubic  feet,  per  second,  by  4,000,  6,000,  8,000, 
10,000  and  13,000  cubic  feet  per  second. 

The  blue  band  crossing  the  consolidated  profile  between  the 


1924 


height  at  4,000  second  feet  and  6,000  second  feet,  indicates  the 
characteristic  normal  depth  of  the  river  when  receiving  in  the 
summer  time,  4,000  second  feet,  and  in  the  winter,  6,000  second 
feet,  from  the  waters  of  the  Sanitary  District. 

6561  Blue  Print  of  Boat. 

Exhibit  in  deposition  of  tT.  M.  Sweaney. 

(Atlas  page  3946,  referred  to  C.  E.  page  1098;  Trans,  p.  2887; 
Abst.,  929.) 

This  exhibit  shows  the  typical  lines  of  construction  of  the  mod- 
ern screw-propeller  boat,  with  its  greatest  depth  at  the  prow, 
and  so  balanced  in  the  water  as  to  carry  its  prow  well  down  in 
the  water,  and  the  stern  rising  out  of  the  water  to  such  a height 
as  to  afford  play  room  for  the  screw  propeller  and  rudder  in  the 
depth  of  water  between  the  load  line  and  the  bottom  of  the  prow. 

6563  Fox  Exhibit  1. 

(Atlas  page  3947,  referred  to  C.  E.  page  1098;  Trans,  p.  2887; 
Abst.,  p.  929.) 

This  is  the  photograph  of  the  interior  of  a tunnel-built  boat, 
and  shows  the  tunnel  in  the  boat  arch  up  from  the  bottom  length- 
wise of  the  boat ; the  water  column  above  the  tunnel  and  the  pump 
engine  in  the  line  of  the  tunnel.  This  is  the  boat  more  fully  de- 
scribed in  the  Coen  patent,  and  in  the  testimony  of  the  witness 
Fox. 

6565  Fox  Exhibit  2. 

(Atlas  page  3948,  referred  to  C.  E.  page  1098;  Trans,  p.  2887; 
Abst.,  p.  929.) 

This  is  a general  external  photograph  of  the  same  boat  as 
shown  in  Fox  Exhibit  1,  showing  the  lines  of  an  ordinary  tunnel 
boat. 

6567  Defendant's  Zarley  Exhibit  1. 

(Atlas  page  3949,  referred  to  C.  E.  page  837;  Trans,  p.  2625; 
Abst.,  p.  874.) 

This  is  Sheet  13  from  the  Survey  of  1889,  reported  by  Captain 


1925 


W.  Marshall  of  the  U.  S.  Engineers  in  1890,  as  an  Appendix  to 
Executive  Document  No.  264. 

It  is  a duplicate  of  the  exhibit  elsewhere  set  forth  as  ‘‘Cooley 
Exhibit  25’’  (viz.  Atlas  p.  3969;  Trans,  p.  6608;  Abst.,  1931). 

The  map  is  drawn  on  a horizontal  scale  of  750  feet  to  the  inch. 

6569  Hillebeand  Exhibit  1. 

(Atlas  page  3950,  referred  to  C.  E.  page  847;  Trans,  p.  2636; 
Abst.,  p.  875.) 

This  is  a large  general  map  in  profile  made  by  Mr.  Hillebrand, 
Chief  Draftsman  of  the  Sanitary  District  of  Chicago,  exhibiting 
a map  and  profiles  of  the  Sanitary  and  Ship  Canal  from  Chicago 
to  Joliet.  It  is  quite  fully  described  in  the  testimony  of  Mr. 
Hillebrand.  The  map  at  the  top,  among  other  things,  shows  the 
original  location  of  the  river,  with  contour  lines,  showing  the 
elevations  of  the  land  on  each  side: 

The  Sanitary  District  Channel, 

The  new  channel  of  the  river  into  which  the  river  was  picked 
up  and  shoved  over  to  get  it  out  of  the  way  of  the  Sanitary  Dis- 
trict channel,  and  which  is  labeled  river  diversion”; 

The  Illinois  and  Michigan  Canal, 

The  Calumet  Feeder, 

The  old  Summit  Feeder,  which  fed  water  from  the  Desplaines 
Eiver  into  the  canal  near  Summit,  whence  the  water  ran  both 
ways,  viz.:  downward,  northeast  toward  the  Chicago  Eiver;  and 
downward  southwest  toward  Joliet; 

The  Ogden  Ditch,  by  which  the  Desplaines  Eiver  was  drained 
out  of  its  southwesterly  course  into  the  Chicago  Eiver; 

The  Ogden  Dam,  wMch  partly  corrected  this  depletion; 

The  Old  Calumet  Feeder,  feeding  into  the  canal  at  the  Sag; 

The  controlling  works  of  the  Sanitary  District  at  Lockport; 

The  confluence  of  the  Desplaines  Eiver,  the  Sanitary  District 
Channel,  and  the  Illinois  and  Michigan  Canal  in  Joliet; 

And  the  separation  of  the  river  and  the  Canal  below. 

Strip  No.  2,  below  the  general  map  is  a profile  showing  the 
natural  elevations  of  the  land  and  slopes  of  the  river;  and  Strip 
No.  3 gives  the  location  of  the  river  diversion  and  water  eleva- 


1926 


tions  and  elevations  of  the  embankment  and  retaining  wall  built 
by  the  Sanitary  District. 

There  are  tables  of  statistics  also  shown  upon  this  exhibit. 
Hillebraxd  Exhibit  2. 

6971  (x\tlas  page  3951,  referred  to  C.  E.  page  847;  Trans,  p. 
2636;  Abst.,  p.  875.) 

This  is  a ^‘Map  of  Joliet  and  Vicinity,’’  made  by  the  Sanitary 
District  of  Chicago,  corrected  to  show  improvements  made  by 
the  Sanitary  District  up  to  the  end  of  1906,  and  platted  March 
1907.  It  shows  the  new  channel  of  the  Desplaines  Eicer  through 
upper  Joliet  into  the  Basin; 

The  main  channel  of  the  Sanitary  District; 

The  channel  of  the  Illinois  and  Michigan  Canal; 

The  contour  lines  of  the  land; 

And  a multitude  of  soundings  of  the  Desplaines  Eiver  down 
into  Lake  Joliet. 

6574  Eaxd,  McXally  Map  of  Chicago. 

(Atlas  page  3952,  referred  to  C.  E.  page  1098;  Trans,  p.  2887; 
Abst.,  p.  929.) 

This  map  is  copyrighted,  1905,  and  shows  among  other  things 
the  location  of  the  Chicago  Eiver ; 

The  South  Branch; 

The  IVest  Branch  of  the  South  Branch; 

The  South  Branch  of  the  South  Branch; 

And  in  Section  29,  the  hairline  for  Healy’s  Slough. 

It  shows  the  course  of  the  Illinois  and  Michigan  Canal  from 
its  junction  with  the  Chicago  Eiver  near  the  junction  of  the  forks, 
westward  for  about  fourteen  miles. 

'It  shows  the  Desplaines  Eiver  for  a length  of  22  miles,  north 
and  south,  by  section  lines: 

The  contribution  of  the  Little  Desplaines,  the  Salt  Creek  in 
Eiverside,  the  large  double  ox-bow  loop  at  Eiverside; 

The  Ogden  and  Plainfield  road  and  the  Xaperville  southwest 
plank  road,  which  cross  the  river  by  a bridge  at  the  site  of  the 
Hoffman  dam; 


1927 


The  old  river  bed  of  the  Desplaines  ; 

The  Ogden  Ditch,  the  Ogden  Dam,  and  the  Sanitary  District 
Canal. 

It  also  shows  the  Calumet  Feeder  and  the  location  of  the  prin- 
cipal railroad  tracks  in  the  vicinity  of  the  river. 

Also  the  location  of  the  Archer  road,  and  up  the  northeastern- 
most  quarter  of  it,  which  was  built  by  the  Canal  Commissioners, 
across  the  Mud  Lake  region  in  1836. 

6576  Cooley  Exhibit  15,  the  Seddon  Profile. 

(Atlas  page  3953,  referred  to  C.  E.  ])ages  854-856;  Trans,  pp. 
2643-2645;  Abst.,  p.  876.) 

This  is  also  marked  ‘^Cooley  Exhibit  31.”  It  gives  a profile 
of  the  Desplaines  Eiver  from  Joliet  to  its  mouth,  and  then  to  the 
Illinois  River  to  LaSalle.  It  exhibits  a datum  line  of  low  water 
discharge,  showing  a depth  of  1.4  feet  and  flow  lines  for  each  1,000 
cubic  feet  per  second  above  that  depth  up  to  25,000  cubic  feet 
per  second,  which  line  was  surpassed  by  the  high  water  of  1892, 
before  the  Sanitary  District  contribution  of  from  4,000  to  14,000 
cubic  feet  of  water  per  second  was  received. 

It  shows  the  location  of  numerous  gauges,  and  has  drawn  on  it  a 
self-explanatory  scale,  by  James  A.  Seddon,  from  the  Sanitary 
District  of  Chicago,  in  1901-2,  Proceedings  1328. 

6578  Cooley  Exhibit  16. 

(Atlas  page  3954,  referred  to  C.  E.  page  1067;  Trans,  p.  2856; 
Abst.,  p.  920.) 

This  is  a map  of  the  watersheds  of ‘the  Desplaines  River,  the 
Calumet  River,  the  Chicago  River,  and  the  adjacent  shores  in 
Illinois,  Wisconsin,  and  Indiana. 

It  shows  an  area  in  the  Desplaines  basin  down  to  the  Sag  junc- 
tion of  687  square  miles,  and  in  the  Desplaines  from  Sag  Junction 
to  Lockport  of  80  square  miles  more;  and  in  the  Chicago  basin  of 
307  square  miles  more. 

The  map  stops  at  Joliet  and  does  not  give  the  watershed  areas 
below  that  point. 

It  reproduces  for  convenient  reference  a summary  of  the  ‘Won- 


1928 


tinental  Divide  Map  of  1821,”  which  appears  on  McCullough 
Exhibit  2,”  showing  the  water  lines  crossing  that  territory  as  it 
stood  in  1898.  It  is  the  original  map  of  the  outlines  of  the  pro- 
posed Sanitary  District  of  Chicago,  compiled  a year  before  the 
district  was  organized. 

6580  Defendant's  Blue  Print  Exhibit. 

(Atlas  page  3955,  referred  to  C.  E.  page  1097;  Trans,  p.  2886; 
Ahst.,  p.  928.) 

This  is  the  blue  print  which  is  referred  to  and  made  by  refer- 
ence a part  of  the  perpetual  flowage  contract  between  the  Canal 
Commissioners  and  Harold  T.  Griswold. 

6582  Sheet  1 of  Plan  of  Dam. 

(Atlas  page  3956,  referred  to  C.  E.  page  1208;  Trans,  p.  2998; 
Ahst.,  p.  955.) 

This  exhibits  the  general  arrangement  of  the  proposed  dam  of 
the  Company  at  the  mouth  of  the  Desplaines  Eiver. 

It  shows  the  Illinois  and  Michigan  Canal  and  the  junction  of 
the  Kankakee  and  Desplaines. 

6584  Sheet  2 of  the  Plan  of  Dam. 

(Atlas  page  3957,  referred  to  C.  E.  page  1208;  Trans,  p.  2998; 
Abst.,  p.  955.) 

This  is  another  view  of  the  same  works,  and  gives  the  figures 
for  a large  number  of  the  defendant’s  soundings  in  the  bed  of  the 
Desplaines. 

6586  WoERMANN  Exhibit  1. 

(Atlas  page  3958,  referred  to  C.  E.  joage  1451;  Trans,  p.  3241; 
Abst.,  997.) 

This  is  a drawing  by  Millar  for  AYoermann,  a cross-section 
above  Adam’s  Dam,  and  above  the  proposed  dam;  made  during 
the  trial.  May,  1908. 


1929 


6588  WoERMANN  Exhibit  2. 

(Atlas  page  3959,  referred  to  C.  E.  page  1456;  Trans,  p.  3246; 
Abst.,  p.  998.) 

Another  copy  of  the  Kiefer,  Wilson  profile. 

6590  WoERMANN  Exhibit  3. 

(Atlas  page  3960,  referred  to  C.  E.  page  1497;  Trans,  p.  3287; 
Abst.,  p.  1007.) 

Sheet  6 of  the  Illinois  and  Desplaines  Kiver  Survey”  by 
United  States  Engineers,  1900,  showing  the  confluence  of  the  rivers. 

6592  Schoolcraft  Map. 

(Atlas  page  3961,  referred  to  C.  E.  page  1756;  Trans,  p.  3546; 
Abst.,  p.  1055.) 

This  map  is  reproduced  by  photographic  fac-simile.  It  traces 

by  a dotted  line  the  courses  of  Mr.  Schoolcraft  and  his  party  from 
Detroit,  down  the  St.  Clair  River,  and  around  the  end  of  Lake 
Erie,  up  the  Maumee  River,  thence  by  portage  into  Little  River, 
thence  into  the  Wabash  and  down  the  Wabash  into  the  Ohio,  then 
leaving  the  Ohio  at  Shawneetown,  going  across  the  Illinois  country 
by  land  to  St.  Louis,  thence  up  the  Mississippi  River  to  the  mouth 
of  the  Illinois,  thence  up  the  Illinois  to  the  mouth  of  the  Little 
Vermillion  below  Starved  Rock,  where  he  left  the  river  and  went 
across  country  by  land  to  the  ford  of  the  Desplaines,  and  thence 
to  Chicago. 

6594  Blue  Print  of  Proposed  Earth  Embankment  to  Form  Part 

OF  Proposed  Dam. 

(Part  of  the  defendanUs  plans  of  the  proposed  work.) 

(Atlas  page  3962,  referred  to  C.  E.  page  2061;  Trans,  p.  3842; 
Abst.,  p.  1140.) 

The  blue  print  shows  a plan  for  an  earth  embankment,  112  feet 
wide  at  the  base,  16  feet  wide  at  the  top,  and  16  feet  high;  and  the 
slope  above  that  riprap  4 to  1 on  one  side  and  24  to  1 on  the  other. 

This  is  the  proposed  private  embankment  of  the  defendant  as 
part  of  its  own  dam. 


1930 


6596  Cooley  Exhibit  21. 

(Atlas  page  3963,  referred  to  C.  E.  page  2264;  Trans,  p.  4100; 
Abst.,  p.  1183.) 

This  is  the  “Profile  of  1904”  made  by  the  Ernst  Board  of  the 
United  States  Engineers,  and  delineated  by  J.  W.  Woermann,  as- 
sistant, who  was  afterwards  employed  by  the  defendant. 

It  gives  the  high  and  low  water  marks  of  1893^  the  low  water  of 
1901,  and  the  high  water  mark  for  the  years  respectively  1892 
and  1904.  At  the  extreme  shallow  point  just  above  the  mouth  of 
the  Kankakee,  the  water  is  shown  to  be  4 feet  deep  by  the  low 
water  mark  of  1901 ; and  at  the  extreme  shallow  point  at  the  head 
of  Treat’s  Island,  the  water  is  shown  to  be  2 feet  deep  by  the 
low  water  mark  of  1901. 

6598  Cooley  Exhibit  22. 

(Atlas  page  3964,  referred  to  C.  E.  page  2264;  Trans,  p.  4100; 
Abst.,  p.  1183.) 

This  is  a blue  print  of  Sheet  No.  55,  of  the  “Survey  of  1904, 
by  the  United  States  Engineers,”  which  is  a map  of  the  Illinois  and 
Desplaines  Eiver,  from  Lockport,  111.,  to  the  mouth  of  the  Illinois, 
in  58  sheets.  Sheet  No.  55  shows  the  Desplaines  Kiver  and  Illinois 
and  Michigan  Canal  from  a point  in  Section  20,  some  two  miles 
up  stream  from  the  mouth,  to  the  mouth;  and  the  Illinois  for 
about  six  miles  below  the  mouth  of  the  Desplaines,  together  with 
about  one  mile  in  length  of  the  Kankakee  and  the  Kankakee  Feeder 
and  Cut-off.  The  soundings  and  the  contour  lines  are  platted  on 
the  sheet. 

6600  Cooley  Exhibit  23. 

(Atlas  page  3965,  referred  to  C.  E.  page  2264;  Trans,  p.  4100; 
Abst.,  p.  1183.) 

This  is  sheet  No.  56  of  the  same  survey,  and  exhibits  the  Des- 
])hdnes  Diver  for  a stretch  of  about  7 miles  more,  extending  from 
a point  in  Lake  Joliet  down  past  Treat’s  Island  to  a mile  or  more 
below  the  mouth  of  the  Du  Page  Diver;  with  similar  inscription 
mid  soundings  and  contour  lines. 


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1931 


()602  Cooley  Exhibit  24. 

(Atlas  page  3966,  referred  to  C.  E.  })age  2264;  Trans,  p.  4100; 
Abst.,  1183.) 

Sheet  No.  57  of  the  same  survey,  exhibiting  from  the  upper 
basin  in  Joliet  to  the  point  taken  up  by  the  preceding  sheets.  The 
three  sheets,  55,  56  and  57,  exhibit  the  river  according  to  the 
United  States  Survey  of  1904,’’  and  the  report  of  1905,  from  the 
upper  basin  in  Joliet  to  its  mouth. 

6604  Cooley  Exhibit  22A. 

(Atlas  page  3967,  referred  to  C.  E.  ])age  2264;  Trans.  ]>.  4100; 
Abst.,  p.  1183.) 

Is  No.  11  of  the  same  Survey.  It  is  a general  geographical  map 
on  a small  scale  of  the  country  from  the  mouth  of  the  Du  Page 
Eiver  on  the  Desplaines  through  the  mouth  of  the  Desplaines  into 
the  Illinois  and  down  the  Illinois  to  Seneca.  The  map  is  a general 
geographical  map,  is  not  made  from  a direct  survey.  The  section 
lines  do  not  join,  and  are  not  parallel,  and  are  not  accurately  de- 
lineated. 

. 6606  Cooley  Exhibit  23 A. 

(Atlas  page  3968,  referred  to  C.  E.  page  2264;  Trans,  p.  4100; 
Abst.,  p.  1183.) 

Is  sheet  No.  12  of  the  same  survey,  and  exhibits  the  Desplaines 
River  from  above  Lockport  to  the  mouth  of  the  Du  Page  River. 
It  is  introductory  to  the  detailed  surveys. 

6608  Cooley^  Exhibit  25. 

(Atlas  page  3969,  referred  to  C.  E.  page  2264;  Trans,  p.  4100; 
Abst.,  1183.) 

This  is  sheet  13  of  the  Marshall  Report  of  1890,  exhibiting  the 
re-survey  of  the  Desplaines  River  at  Treat’s  Island,  to  accompany 
the  })rofile  of  1883,  published  by  Captain  Marshall. 


1932 


6610  Cooley  Exhibit  26. 

(Atlas  page  3970,  referred  to  C.  E.  page  2264;  Trans,  p.  4100; 
Abst.,  p.  1183.) 

Profile  and  map  of  1883,  published  by  Marshall  in  1890,  exhib- 
iting the  Desplaines  Elver  from  Joliet  to  the  mouth  of  the  Du- 
Page  Eiver. 

6612  Cooley  Exhibit  27. 

(Atlas  page  3971,  referred  to  C.  E.  page  2264;  Trans,  p.  4100; 
Abst.,  p.  1183.) 

This  is  sheet  16  of  the  profile  of  1883,  published  by  Marshall 
in  1890,  extending  from  the  mouth  of  the  DuPage  Eiver  down  the 
Du  Page  and  Illinois  Eivers  to  Morris,  and  exhibiting  the  site  of 
the  proposed  dam. 

These  three  maps  and  profiles  give  the  river  with  the  soundings 
of  1883,  and  the  re-survey  af  Treat  ^s  Island  by  Marshall  in  1888, 
for  the  entire  reach  of  the  river  from  Dam  No.  1 to  the  mouth. 
These  constitute  the  profile  of  1883,  showing  the  standard  of  low 
water  from  that  time  forward. 

6614  Cooley  Exhibit  29. 

(Atlas  page  3972,  referred  to  C.  E.  page  2264;  Trans,  p.  4100; 
Abst.,  1183.) 

Profile  of  the  Illinois  Eiver  from  the  head  of  Lake  Joliet  to 
Henry,  Illinois,  prepared  by  the  Sanitary  District  of  Chicago,  in 
1894,  administration  of  Engineer  Lyman  E.  Cooley.  This  map  ex- 
hibits the  river  itself,  and  the  adjacent  country,  with  contour  lines 
from  Joliet  to  Henry,  and  has  a colored  profile  drawn  at  the  foot 
of  the  map;  and  it  has  sketched  in  the  low  water  line  of  1883,  the 
high  water  of  1892,  and  other  data.  It  shows  that  at  Treat  ^s 
Island  the  underlying  bed  is  made  up  of  sand  and  gravel,  and  the 
water  is  2+  feet  deep  at  the  shallow  point. 

6616  Cooley  Exhibit  30. 

(Atlas  page  3973,  referred  to  C.  E.  page  2264;  Trans,  p.  4100; 
Abst.,  p.  1183.) 


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1933 


This  is  a profile  made  by  the  Sanitary  District  of  Chicago,  as  a 
part  of  the  map  of  the  deep  waterway  project  surveyed  by  it  under 
the  administration  of  Engineer  Cooley.  It  shows  the  water  in  the 
Chicago,  Desplaines  and  Illinois  Eivers. 

6618  Cooley  Exhibit  35. 

(Atlas  page  3974,  referred  to  C.  E.  page  2265;  Trans,  p.  4101  ; 
Abst.,  p.  1185.) 

Is  another  copy  of  the  Kiefer,  Wilson  profile  of  1867,  heretofore 
described. 

6620  Cooley  Exhibit  36. 

(Atlas  page  3975,  referred  to  C.  E.  page  2265;  Trans,  p.  4101; 
Abst.,  p.  1185.) 

Is  the  Macomb  profile  of  1874,  heretofore  described. 

6622  Pkofile  Sheet  7 of  House  Document  192,  Eepobt  of  the 
Internationai.  Deep  Waterway  Commission. 

(Atlas  page  3975a,  referred  to  C.  E.  page  2265;  Trans,  p.  4101; 
Abst.,  1185.) 

Is  a profile  of  Lake  Ontario  and  the  St.  Lawrence  Liver  from 
the  Cornwall  Eapids,  through  Ogdensburg,  to  St.  Leges.  This  was 
prepared  by  assistant  Edgar  Williams  under  the  direction  of 
Lyman  E.  Cooley  of  the  International  Deep  Waterway  Commis- 
sion, in  1896. 

6624  Profile  Sheet  8 of  House  Document  192,  Eeport  of  the 
International  Deep  AVaterway  Commission. 

(Atlas  page  3976,  referred  to  C.  E.  page  2265;  Trans,  p.  4101; 
Abst.,  p.  1185.) 

Continues  the  profile  of  the  St.  Lawrence  from  Lake  St.  Frances 
through  the  Soulange  and  Cedar  Eapids,  through  the  Split  Lock 
Cascades,  through  Lake  Ontario  and  the  La  Chine  Eapids  to  Mon- 
treal. This  was  made  by  the  United  States  Deep  AVaterway  Com- 
mission, drawn  by  Air.  AVilliams  under  the  direction  of  Mr.  Cooley 
in  1896. 


1934 


6626  Cooley  Exhibit  37. 

(Atlas  page  3976a,  referred  to  C.  E.  page  2286;  Trairs.  p.  4122; 
Abst.,  p.  1188.) 

Is  the  Continental  Waterway  profile  from  the  Gulf  of  St.  Law- 
rence to  the  Gulf  of  Mexico,  heretofore  described. 

The  list  of  exhibits  marked  'AMoley  Exhibit  15’’  to  ^‘Cooley  Ex- 
hibit 37”  were  all  used  by  Engineer  Cooley  in  the  construction 
of  his  consolidated  profile. 

6628  Wheeler  Exhibit  1. 

(Atlas  page  3877,  referred  to  C.  E.  page  2458;  Trans,  p.  4294; 
Abst.,  p.  1241.) 

Is  a cross-section  of  the  Hennepin  Canal,  where  it  was  con- 
structed in  the  bed  of  Rock  River. 

6630  M^oermann  Exhibit  June  8. 

(Atlas  page  3978,  referred  to  C.  E.  page  2483;  Trans,  p.  4319; 
Abst.,  p.  1247.) 

This  is  another  cross-section  prepared  by  Mr.  Woermann  of  the 
site  above  Adam’s  Dam,  and  above  the  proposed  dam. 

6632  Snyder  Exhibit  A. 

(Atlas  page  3979,  referred  to  C.  E.  pages  2634-2639;  Trans,  pp. 
4471-4476;  Abst.,  p.  1291.) 

This  is  a photographic  representation  of  the  Canal  Record  copy 
of  the  Government  Survey,  which  is  more  fully  shown  on  ‘AIcCul- 
lough  Exhibit  1,”  of  the  township  embracing  the  site  of  the  dam. 

6634  Woermann  Exhibit  4. 

(Atlas  page  3980,  referred  to  C.  E.  ])age  3072;  Trans.  ]).  4906; 
Abst.,  p.  1452.) 

This  is  a map  of  the  Desplaines  River  from  Lockport  to  its 
mouth,  prepared  by  Mr.  Millar,  under  the  directions  of  Mr.  Mmer- 
mann  during  the  progress  of  the  trial,  upon  which  the  defendant 
has  sketched  in  suggestions  of  dams  and  bridges  upon  the  river. 


1935 


6636  WoERMANN  Exhibit  A,  June  13,  1908. 

(Atlas  page  3981,  referred  to  C.  E.  page  3096;  Trans,  p.  4930; 
Abst.,  p.  1458.) 

Tills  is  a map  of  the  Kankakee  Elver  Valley,  prepared  during 
the  progress  of  the  trial  by  Mr.  Woermann  from  the  atlases  of 
Grundj^  and  Will  Counties,  with  contour  lines,  sketched  in  from 
the  survey  of  1905. 

It  shows  the  Kankakee  and  the  Desplaines  Elvers  from  their 
confluence  sufficiently  up  stream  to  show  the  whole  length  of  both 
the  Kankakee  Feeder,  running  from  the  Kankakee  Eailway  into 
the  canal ; and  the  Kankakee  Cut-off  running  from  the  Desplaines 
Elver  into  the  Kankakee  Eiver. 

6638  Woermann  Exhibit  B,  June  13,  1908. 

(Atlas  page  3982,  referred  to  C.  E.  page  3133;  Trans,  p.  4967; 
Abst.,  p.  1471.) 

Is  a map  of  the  Illinois  Eiver  from  Chicago  to  Peoria,  and  of 
the  Illinois  and  Michigan  Canal,  reduced  from  the  Wilson  Survey 
of  1867,  by  United  States  Engineers  Lydacker  and  Liljencrantz  in 
February,  1878. 

6640  Woermann  Exhibit  C,  June  13,  1908. 

(Atlas  page  3983,  referred  to  C.  E.  page  3134;  Trans,  p.  4968; 
Abst.,  p.  1471.) 

This  is  a portion  of  the  Wilson  Profile,  resketched  by  Mr.  Woer- 
mann during  the  trial. 

6642  Woermann  Exhibit  D,  June  13,  1908. 

(Atlas  page  3984,  referred  to  C.  E.  page  3137 ; Trans,  p.  4971 ; 
Abst.,  p.  1472.) 

Is  the  Woerman  profile  on  millimeter  paper. 

6644  Woermann  Exhibit  1,  June  15, 1908. 

(Atlas .page  3985,  referred  to  C.  E.  page  3205;  Trans,  p.  5039; 
Abst.,  p.  1498.) 


1936 


This  is  a colored  map  purporting  to  represent  the  area  of  land 
owned  or  controlled  by  the  defendant,  including  the  whole  of  the 
area  of  the  bed  of  the  Desplaines  Eiver  from  its  mouth  to  the 
northern  boundary  of  Section  21,  some  four  miles  up  stream,  and 
the  whole  of  the  riparian  tract  and  90-foot  strip  of  the  canal. 

6646  WoEKMANN  Exhibit  2,  June  15,  1908. 

(Atlas  page  3986  referred  to  C.  E.  page  3205;  Trans,  p.  5039; 
Abst.,  p.  1498.) 

This  is  a continuation  of  the  exhibit  of  lands  owned  or  controlled 
by  the  defendant,  exhibiting  the  whole  of  the  bed  of  the  river  and 
the  90-foot  strip,  where  the  canal  adjoins  the  river  to  the  north  line 
of  Section  11,  one-half  mile  above  the  head  of  Treat  ^s  Island. 

6648  Exhibit  1,  June  16. 

(Atlas  page  3987,  referred  to  C.  E.  page  3346;  Trans,  p.  5180; 
Abst.,  p.  1550.) 

This  is  the  Eand,  McNally  Map  of  Oregon. 

6650  Exhibit  2,  June  16. 

(Atlas  page  3988,  referred  to  C.  E.  page  3346;  Trans,  p.  5180; 
Abst.,  p.  1550.) 

The  Eand,  McNally  map  of  Washington. 

These  two  maj)s  were  used  in  connection  with  the  testimony  of 
Witness  Gray,  descriptive  of  navigation  upon  the  Columbia  and 
Snake  Eivers. 

6652  Defendax't^s  Exhibit  of  Tax  Eecoeds. 

(Atlas  page  3989,  referred  to  C.  E.  page  3394;  Trans,  p.  5228; 
Abst.,  p.  1565.) 

This  is  a true  copy  exhibiting  the  list  of  taxable  real  estate  in 
Grundy  County,  embracing  51  pages,  certified  to  be  a ^Grue,  perfect 
and  complete  cop}"  of  the  collector’s  books  of  the  general  taxes  of 
the  years  from  1857  to  1907,  so  far  as  the  collector’s  books  relate  to 
the  premises  described.” 


1937 


6707  Defendant's  Canal  Trustees^  Sub-Plat. 

(Atlas  page  3990,  referred  to  C.  E.  page  3469;  Trans,  p.  5303; 
Abst.,  p.  1606.) 

A tracing  map  of  the  North  Branch  of  the  Chicago  Kiver  in  the 
Canal  Trustees’  Subdivision  of  adjacent  property. 

6712  Defendant's  Canal  Trustees^  Sub-Plat  3. 

(Atlas  page  3991,  referred  to  C.  E.  page  3470;  Trans,  p.  5304; 
Abst.,  p.  1607.) 

A tracing  map  of  the  South  Branch  of  the  Chicago  Eiver,  with 
the  Canal  Trustees’  Subdivision  of  the  adjacent  lands. 

6718  Defendant’s  Canal  Trustees’  Sub-Plat  2. 

(Atlas  page  3992,  referred  to  C.  E.  page  3484;  Trans,  p.  5318; 
Abst.,  p.  1611.) 

A tracing  map  of  the  South  Branch  of  the  Chicago  Eiver,  with 
the  Canal  Trustees’  Subdivision  of  adjacent  land. 

These  three  exhibits  last  mentioned  are  accompanied  by  certifi- 
cates of  surveyors. 

In  the  case  of  No.  1 and  3,  the  latter  being  by  A.  J.  Mathewson, 
May  18,  1852. 

6721  Map  of  Eock  Island  Eapids. 

(Atlas  page  3993,  referred  to  C.  E.  page  3494;  Trans,  p.  5328; 
Abst.,  1615.) 

This  is  a facsimile  of  the  map  of  the  Eock  Island  Eapids  of  the 
Mississippi  Eiver,  surveyed  by  Lieut.  Eobert  E.  Lee  of  the  Corps 
of  Engineers,  September  and  October,  1837,  published  by  the 
United  States  Government  in  the  Eeport  of  Chief  of  Engineers, 
1886. 


1938 


6723  Second  Map  of  Eock  Island  Eapids, 

(Atlas  page  3993A,  referred  to  C.  E.  page  3503;  Trans,  p.  5337; 
Abst.,  p.  1619.) 

Accompanying  the  United  States  Engineer’s  Eeport  of  1880,  part 
II,  page  1537. 

On  opposite  page  is  shown  said  map. 


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3942 


6725  Marquette's  Map. 

(Atlas  page  3994,  referred  to  C.  E.  page  3515;  Trans,  p.  5349; 
Abst.,  p.  1624.) 

Taken  from  tlie  United  States  Engineer’s  Eeport  of  1886.  This 
is  a facsimile  of  the  autograph  map  of  the  Mississippi, — the  Con- 
ception Eiver,  drawn  by  Father  Marquette  at  the  time  of  his  voy- 
age through  the  region,  and  preserved  in  St.  Mary’s  College,  Mon- 
treal. 

Copy  of  said  map  is  shown  on  opposite  page. 


1943 


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1946 


6727  Map  of  the  Fox  River. 

(Atlas  page  3995,  referred  to  C.  E.  page  3519;  Trans,  p.  5353; 
Abst.,  p.  1625.) 

From  United  States  Engineers^  Report  of  1876.  This  gives 
the  map  of  the  route  pursued  by  Father  Marquette,  by  the  French 
voyageurs,  by  the  batteaux  and  Durham  boat  navigation,  prior 
to  the  improvement  of  the  Fox.  It  gives  the  profile  of  the  Fox 
River,  drawn  by  John  Warren,  exhibiting  a fall  of  169  feet  from 
Neenah  at  the  head  of  Winnebag  Rapids  - down  to  Green  Bay, 
in  a distance  of  30  miles. 

Copy  of  said  map  is  shown  on  opposite  page. 


Mcrfe  A 


1950 


6729  Map  and  Peofile  of  Allegheny  Kiver. 

(Atlas  page  3996,  referred  to  C.  E.  page  3531;  Trans,  p.  5365; 
Abst.,  p.  1630.) 

taken  from  the  Eeport  of  United  States  Engineers’  of  1895.  It 
exhibits  a fall  of  50  feet  in  30  miles,  concentrated  in  six  principal 
points  in  a state  of  nature  and  distributed  by  locks  and  dams  into 
six  pools. 

Copy  of  said  map  is  shown  on  opposite  page. 


Eng  54  1 


1953 


6731  Certificate  of  Judge. 

6732  Certificate  of  Clerk. 


Assignment  of  Errors. 


In  the  Supreme  Court  of  Illinois. 


To  the  October  Term,  A.  D.  1908. 


The  People  of  the  State  of  Illinois  on  the 
relation  of  Hon.  Charles  S.  I)eneen, 
Governor,  and  Hon.  Wm.  II.  Stead,  At- 
ney  General, 

Appellant, 

vs. 


Appeal  from  the 
y Circuit  Court 
in  and  for 
Grundy  County. 


The  Economy  Light  and  Power  Company, 

Appellee.  ^ 


Now  comes  the  People  of  the  State  of  Illinois  on  the  relation 
of  Charles  S.  Heneen,  Governor  and  William  II.  Stead,  Attorney 
General,  appellant  herein  and  complainant  in  the  court  below, 
by  William  H.  Stead,  Attorney  General,  and  Walter  Peeves  and 
Merritt  Starr,  counsel  for  the  people,  and  shows  that  in  the  rec- 
ord and  proceedings  in  the  above  entitled  cause  in  the  court  be- 
low and  in  the  decree  made  by  the  tourt  below  herein  June  27, 
1908,  manifest  error  has  occurred  to  the  prejudice  of  the  com- 
plainant appellant  in  this  to-wit: 

1.  The  court  erred  in  admitting  improper  evidence  in  behalf 
of  the  defendant,  against  the  objection  of  this  complainant. 

2.  The  court  erred  in  rejecting  proper  evidence  offered  by 
this  complainant. 


3.  The  court  erred  in  dissolving  the  temporary  injunction. 

4.  The  court  erred  in  not  making  the  temparory  injunction 
permanent. 

5.  The  court  erred  in  not  holding  each,  every,  and  all  of  the 
contracts  and  leases  made  between  the  Canal  Commissioners  of 
the  Illinois  and  Michigan  Canal  and  Harold  T.  Griswold,  and 
which  contracts  and  leases  were  assigned  by  said  Griswold  to 
the  defendant,  respectively,  void. 


1954 


6.  The  court  erred  in  dismissing  the  complainant’s  informa- 
tion or  bill  of  complaint. 

7.  The  court  below  erred  in  not  finding  and  decreeing  the 
equities  in  said  cause  to  he  with  the  complainant. 

8.  The  court  erred  in  not  finding  and  decreeing  that  by  the 
instrument  set  forth  as  Exhibit  A of  said  information  or  hill  of 
complaint  (for  convenience  called  ^'the  Perpetual  Flowage  Con- 
tract”) the  Canal  Commissioners  assumed  to  grant  a perpetual 
right  of  flowage  in  and  over  the  ninety-fcot  strip  of  land  adjacent 
to  the  Illinois  and  Michigan  Canal. 

9.  The  court  erred  in  not  finding  and  decreeing  that  by  the 
instrument  set  forth  as  Exhibit  A to  said  information  or  bill  of 
complaint  the  Canal  Commissioners  of  Illinois  assumed  to  grant 
a perpetual  right  of  flowage  in  and  over  the  certain  other  real 
estate  described  in  said  instrument. 

10.  The  court  below  erred  in  not  finding  and  decreeing  that 
said  instrument  set  forth  as  Exhibit  A to  said  information  or 
bill  of  complaint  was  void. 

11.  The  court  erred  in  not  finding  and  decreeing  that  by  said 
instrument  set  up  as  Exhibit  A to  said  information  or  bill  of 
complaint  said  Canal  Commissioners  of  Illinois  without  right, 
without  power  and  without  warrant  of  law  assumed  to  authorize 
the  party  of  the  second  part  thereto  and  his  assigns,  to  do  the 
following  acts  among  others,  and  each  of  them,  respectively,  to- 
wit : 

(1)  To  build  and  maintain  in  perpetuity  a water  power 
dam  and  other  works  in,  upon  and  across  the  Desplaines 
Piver  at  and  near  its  mouth  and  upon  the  real  estate  de- 
scribed in  said  instrument. 

(2)  To  attach  and  maintain  in  perpetuity  the  water-power 
dam  to  the  towpath  and  canal  emljankment  of  the  Illinois 
and  Michigan  Canal,  the  pro])erty  of  the  State  of  Illinois, 
at  the  site  of  such  y)roposed  dam,  and  divert  said  canal  em- 
bankment from  its  necessary  and  lawful  use  in  retaining  the 
canal  waters  in  place. 

(3)  To  flood  in  perpetuity  the  canal  eml)anknient  at  the 
site  of  such  dam  and  above  the  same  and  use  tlie  canal  em- 
bankment in  perpetuity  as  a retaining  wall  for  the  water 
power  pool. 

(4)  To  flood  in  perpetuity  the  reserve  ninety-foot  strip 


\ 


1955 


of  land  bordering  the  Illinois  and  Michigan  Canal  at  the  site 
of  such  proposed  dam  and  for  several  miles  up  stream  above 
said  proposed  dam. 

(5)  To  flood  in  perpetuity  the  canal  riparian  lands  be- 
tween the  Desplaines  liiver  and  the  canal. 

(6)  To  raise  the  towpatli  of  said  canal  and  attach  and 
enclose  a levee  thereto  and  use  the  gravel  and  other  ma- 
terial, building  stone  and  piers  of  the  canal  and  its  a(iue- 
duct  in  constructing  such  works  and  perpetually  maintain 
the  same. 

(7)  To  enter  upon  and  fill  in  portions  of  the  Illinois  and 
Michigan  Canal  in  perpetuity. 

(8)  To  divert  and  turn  back  from  the  Desplaines  liiver 
the  tributary  stream  known  as  the  ‘Dvankakee  Cut-off”  and 
deplete  the  river  thereby  and  make  the  Kankakee  cut-off  run 
backward  into  the  Kankakee  Diver  as  an  outlet  for  s])illway 
for  the  waters  of  the  water  power  pool  to  be  created  ))y  said 
proposed  dam. 

(9)  To  convert  the  feeder  of  the  Illinois  and  Michigan 
Canal,  commonly  called  the  Kankakee  Feeder,  into  a feeder 
of  the  water  power  pool,  and  in  so  doing  to  excavate  and  re- 
move and  destroy  large  j)ortions  of  the  canal  feeder  ac- 
quired and  constructed  l)y  tlie  State  as  part  of  the  canal. 

And  the  court  erred  in  not  finding  and  decreeing  as  to  each  of 
said  proposed  acts  and  works  resi)ectively  that  the  same  was 
inherently  dangerous  to  the  Illinois  and  Michigan  Canal  and  l)e- 
yond  the  power  of  the  Canal  Commissioners  to  authorize,  grant 
or  permit: — and  in  not  finding  and  decreeing  that  said  proposed 
acts  and  works  collectively  were  inherently  dangerous  to  the  said 
Canal. 

12.  The  court  erred  in  not  finding  and  decreeing  that  said 
flowage  contract.  Exhibit  A,  was  ineffectual  and  without  right  in 
so  far  as  it  assumed  to  grant  a riglit  to  do  the  acts  and  maintain 
the  works  therein  mentioned  in  perpetuity. 

13.  The  court  below  erred  in  not  finding  and  decreeing  that 
by  the  instrument  in  writing  Exhilht  B of  said  information  or 
bill  of  complaint  (for  convenience  called  ^Dhe  Forty  Year  Lease”) 
the  Canal  Commissioners  of  Illinois  assumed  to  let  and  lease  the 
canal  property  of  the  State,  to-wit,  the  ninety-foot  strip  adja- 
cent thereto,  described  in  said  Exhibit  B,  for  the  term  of  twenty 
years  with  the  first  right  of  renewal  for  twenty  years  more. 

14.  The  court  below  erred  in  not  finding  and  decreeing  that 
by  the  instrument  in  writing.  Exhibit  B of  si 


1956 


bill  of  complaint  the  Canal  Commissioners  of  Illinois  assumed 
to  let  and  lease  the  canal  property  of  the  State  to-wit : That  part 
of  the  north  half  of  Section  31,  lying  south  of  the  ninety-foot 
reserve  strip  along  the  towpath  side  of  said  canal,  described  in 
said  Exhibit  B for  the  term  of  twenty  years  with  the  first  right 
of  renewal  for  twenty  years  more. 

15.  The  court  erred  in  not  finding  and  decreeing  that  said  forty 
year  lease.  Exhibit  B,  was  ineffectual  and  void  in  so  far  as  it 
purported  to  grant,  let  and  confer  to  and  upon  the  defendant 
any  rights  in  excess  of  the  original  term  of  twenty  years. 

16.  The  court  erred  in  not  finding  and  decreeing  that  said  forty 
year  lease.  Exhibit  B to  said  information  or  bill  of  complaint, 
conferred  no  right  to  overflow  or  flood  or  maintain  a standing 
IDool  of  water  upon,  any  of  the  lands  described  in  said  instrument. 

17.  The  court  erred  in  not  finding  and  decreeing  that  in  and 
by  the  instrument  set  up  in  said  information  or  bill  of  complaint 
as  Exhibit  C (and  for  convenience  called  ‘‘the  Kankakee  Feeder 
Lease  and  River  Contract”)  the  Canal  Commissioners  of  Illi- 
nois without  right  and  without  warrant  or  authority  of  law  as- 
sumed to  grant  to  the  party  of  the  second  part  therein  the  right 
to  use  said  Kankakee  Feeder  as  a tributary  to  the  proposed 
water  power  plant  for  a term  of  twenty  years  with  provision  for 
the  first  right  of  renewal  for  twenty  years  more  (subject,  how- 
ever, to  the  right  of  cancellation),  and  to  appropriate  the  waters 
of  the  Kankakee  River  and  empty  them  into  the  defendant’s 
water  power  i^ool  above  its  dam  in  the  Desplaines  River  instead 
of  letting  them  flow  naturally  into  the  Illinois  River  below. 

18.  The  court  erred  in  not  finding  and  decreeing  that  in  and 
by  the  instrument  set  up  as  Exhibit  K to  said  information  or  bill 
of  complaint  (for  convenience  called  “the  Pole  Line  Contract”) 
the  Canal  Commissioners  of  Illinois  without  warrant  of  law  and 
without  right  assumed  to  let  and  grant  to  the  party  of  the  second 
part  thereto,  the  right  and  authority  and  estate  of  maintaining 
a line  of  poles  and  wires  for  the  transmission  of  power,  twenty- 
five  miles  long  upon  the  towpath  of  the  Illinois  and  Michigan 
Canal. 

19.  The  court  erred  in  not  finding  and  decreeing  that  the  Ca- 


1957 


nal  Commissioners  of  Illinois  liacl  witlioiit  warrant  of  law  and 
without  right  wrongfully  assumed  to  sell  by  the  act  of  an  em- 
ployee, and  by  the  instrument  set  up  as  Exhibit  J.  to  said  in- 
formation or  bill  of  comi)laint  wrongfully  assum-jd  to  convey  the 
real  estate  canal  lands  therein  described. 

20.  The  court  erred  in  not  finding  and  decreeing  that  the  title 
to  the  bed  of  the  Desplaines  Kiver  in  Section  25,  Township  31, 
Kange  8 East  of  the  Third  Principal  Meridian  in  Grundy  County, 
Illinois,  where  the  defendant  appellee  proposes  to  construct  said 
water  power  dam,  is  in  the  people  of  the  State  of  Illinois,  and 
in  not  holding  that  the  people  of  the  State  of  Illinois  owned  the 
bed  of  the  river  at  this  place  and  that  the  ]>roposed  dam  will  be 
a trespass  and  a purpresture  upon  its  property  and  sovereign 
rights. 

21.  The  court  erred  in  not  finding  and  decreeing  that  the  Des- 
plaines liiver  at  the  place  in  question  in  Section  25,  Township 
34,  Range  8 East  of  the  Third  Princi])al  Meridian  in  Grundy. 
County,  Illinois,  and  from  its  connection  with  the  Drainage  Ca- 
nal of  the  Sanitary  District  of  Chicago  to  its  confluence  with  the 
Kankakee  Kiver,  is  a navigable  stream  and  that  the  erection 
of  the  proposed  dam  will  prevent  the  use  of  the  river  and  con- 
stitute a peraianent  nuisance. 

22.  The  court  erred  in  not  finding  and  decreeing  that  the  Illi- 
nois Kiver  from  the  confluence  of  the  Desplaines  and  Kankakee 
Rivers  downwards  is  a navigable  stream. 

23.  The  court  erred  in  not  decreeing  a perpetual  injunction 
against  the  erection  of  the  proposed  dam. 

24.  The  court  erred  in  not  requiring  of  the  defendant  the 
abatement  of  the  constructions  already  placed  in  the  Desplaines 
Kiver  by  the  defendant. 

25.  The  finding  and  decree  of  the  court  is  against  the  evi- 
dence. 

26.  The  finding  and  decree  of  the  court  is  against  the  law. 

By  reason  whereof,  the  complainant  prays  that  said  decree 
may  be  reversed,  and  said  cause  remanded  with  instructions  to 


1958 


enter  a decree  for  a permanent  injunction  in  accordance  with  the 
prayer  of  the  complainant’s  information  or  bill  of  complaint, 
etc. 

By  W.  H.  Stead, 

Attorney  General, 
and  Walter  Reeves, 

Merritt  Starr, 

Special  Counsel  for  the  Complainant. 


